Galloway v. McKinley , 73 Ga. App. 381 ( 1945 )

1. The provision for writs of error to the Court of Appeals from the municipal court of Atlanta (now the civil court of Fulton County), as authorized by the constitutional amendment of 1927 (Ga. L. 1927, p. 117), and the enabling act of 1933 (Ga. L. 1933, p. 294), was not altered or changed by the adoption of the amendment revising the constitution of this State, on August 7, 1945, Therefore the motion to dismiss the bill of exceptions for want of jurisdiction of this court to entertain the same is denied.

2. It is fundamental that some arrangement or agency would have to exist between the parties before a real-estate broker could collect a commission from a property owner for the sale of his property; and, where, as here, there was no agreement or relationship between them with respect to the sale of the property or the procuring of a purchaser therefor, there can be no recovery by the broker.

3. The petition failed to set forth a cause of action, and the court did not err in sustaining the demurrers and in dismissing the petition.

DECIDED DECEMBER 5, 1945. REHEARING DENIED DECEMBER 19, 1945. C. J. Galloway, doing business as Galloway Realty Company, sued L. A. McKinley, Fritz Witt, and Mrs. Fritz Witt, in the civil court of Fulton County and alleged: "2. Defendants are indebted to petitioner in the sum of six hundred ($600) dollars for a real-estate commission, in that the plaintiff procured for them a customer, C. J. Rich, who offered to purchase and did purchase a piece of property described in exhibit A hereto annexed. (a) That he offered said customer who desired to purchase said property at [a] price of $12,000 through plaintiff as said agent, said customer being then willing, ready, and able to purchase said property at said price. (b) Thereafter defendants sold said property to said customer at said price. (c) Plaintiff by reason of said act brought to the attention of defendants a written offer by said customer to purchase said property and exhibited the said property to said customer, all within the knowledge of the defendants, said customer through plaintiff tendering said offer to the defendants to purchase said property at said price for several days from said date. (d) Thereafter defendants, on September 26, 1944, sold said property to the customer of plaintiff aforesaid at the price of $12,000. (e) Plaintiff has demanded payment of defendants of his earned commission upon said sale, he being at all times a licensed real-estate agent and broker and known to be such to defendants herein. (f) By reason of the acts of plaintiff and defendants, said defendants are indebted to plaintiff in said sum together with lawful interest at 7 percent from said date of said sale."

The defendants filed separate demurrers, both general and special, to the petition. L. A. McKinley demurred to the petition on the ground that it set forth no cause of action against him; and demurred to paragraphs 2 (a) and 2 (b) on the ground that the petition did not allege whether said offer was in writing, and, if so, does not attach a copy of the same thereto.

Mr. and Mrs. Fritz Witt demurred to the petition on the ground that it did not set forth a cause of action against them; and demurred specially to paragraphs 2(a), (b), (c), (d), (e), and (f) on the ground that the same do not show whether the plaintiff had a written or oral contract with the defendants, or either of them, to sell the property referred to, or any other facts to show any legal obligation upon the part of these defendants to the plaintiff.

The court sustained the general and special demurrers, with 10-days' leave to the plaintiff in which to amend the petition to meet the demurrers, and in default of the amendment the case was to stand dismissed. The plaintiff filed exceptions pendente lite to the rulings on the demurrers. He then filed the following amendment: "(1) That at all times plaintiff was a licensed real-estate broker under the Georgia law regulating such business, which fact was known to defendants, and he procured and offered said named customer for said property owned by defendants at said price, and defendants knew said purchaser was his customer; plaintiff brought attention of this property to said buyer and the name of the buyer to the attention of defendants; defendants also knew he was doing this in his capacity as such broker for lawful compensation and reward. (2) Plaintiff further amends his original complaint by substituting the word `broker' wherever the word `agent' appears in the complaint, especially in subparagraphs 2 (a) and 2 (e) and elsewhere in the complaint. (3) Plaintiff further amends paragraph 2(a) by adding the following sentence at the end thereof, to wit: Said customer's offer was made to defendant on July 19, 1944, and continuously thereafter for many days."

The demurrers were renewed, and the court ruled that the amendment was not sufficient to meet the objections raised in the original demurrers, sustained the renewed demurrers, and dismissed the action. The plaintiff excepted. 1. There is a motion to dismiss the bill of exceptions on the ground that article 6, section 2, paragraph 8 of the constitution of Georgia, as amended, defines the jurisdiction of the Court of Appeals; and that, since the adoption of the amendment to the constitution of Georgia, on August 7, 1945, there is no provision under the constitution, as amended, or under the laws of this State for any appeal from the civil court of Fulton County to the Court of Appeals, and this court has no jurisdiction to entertain said appeal.

Under the rulings of this court in Macon Busses Inc. v.Dashiell, 73 Ga. App. 108 (35 S.E.2d 666), and Collins v. Sam R. Greenberg Co., 73 Ga. App. 377 (36 S.E.2d 484), the motion to dismiss is without merit and is denied.

2. The petition does not allege that the plaintiff had a contract with the defendants or either of them to sell the property referred to, or that he was employed by them as a real-estate broker to sell the property, or that the defendants in any manner whatever authorized the plaintiff to sell the property or to procure a purchaser for them for the property, or in any way to act for them in the matter.

The Code, § 4-213, provides: "The fact that property is placed in the hands of a broker to sell shall not prevent the owner from selling, unless otherwise agreed. The broker's commissions are earned when, during the agency, he finds a purchaser ready, able, and willing to buy, and who actually offers to buy on the terms stipulated by the owner." The plaintiff in error cites this section and a number of decisions of this court and of the Supreme Court to the same effect. But the statute and the decisions in this respect presuppose the existence of an agency between the real-estate broker and the property owner before the broker can collect a commission. It is to be observed that the Code section says: "The broker's commissions are earned when, during the agency, he finds a purchaser ready, able, and willing to buy, and who actually offers to buy on the terms stipulated by the owner." And all of the decisions are to the same effect. Of course, it is fundamental that some arrangement or agency would have to exist between the parties before a real-estate broker could collect a commission from a property owner for the sale of his property; and, even where there has been such agency or contract between the parties, the sale must be made during the existence of the agency in order to authorize the broker to collect a commission. The utmost good faith must be exercised between the principal and the broker; but, where, as here, there was no agreement or relationship between them with respect to the sale of the property or the procuring of a purchaser therefor, there can be no recovery by the broker. See Thompson v. Weeks, 60 Ga. App. 560 (4 S.E.2d 415); Landrum v. Lipscomb Ellis Co.,62 Ga. App. 649 (9 S.E.2d 205); Doonan v. Ives, 73 Ga. 295.

So far as the petition shows, the plaintiff was a volunteer, without any authority whatever, to act as agent or broker for the defendants. Applying the general rule that the allegations of the petition are to be construed most strictly against the pleader, the petition failed to set forth a cause of action, and the court did not err in sustaining the demurrers and in dismissing the petition.

Judgment affirmed. Felton and Parker, JJ., concur.