Gresham v. Connally , 114 Ga. 906 ( 1902 )

Lewis, J.

This was a suit for commissions on a sale of land, brought by Gresham, a real estate agent, against Connally, his-principal. No demurrer was filed to the petition, and the case proceeded to trial. At the conclusion of the plaintiff’s evidence the court, on motion, granted a nonsuit, and the plaintiff excepted. It appeared that Connally had placed in Gresham’s hands for sale a piece of property owned by him near East Point, in Eulton county. Gresham found a party who was desirous of buying land in that locality upon which to erect a cotton factory; whereupon he immediately notified Connally. Upon ascertaining the purposes for which the prospective purchaser desired the land, Connally said to-Gresham: “I am interested in a number of other pieces down there, Gresham. If this piece of property don’t suit him, we will sell him anyhow. Take him down and locate him.” It was then. agreed that on the day following, Connally, Gresham, and the prospective purchaser should go together to look at the property. Before terminating the interview, Gresham, at Connally’s request, told him the name of the person to whom he expected to sell the property, and Connally replied that he would go over and see him personally in regard to the matter. On the following day, at the appointed time, Gresham communicated by telephone with this person, and learned that he had already been to see the property in company with Connally. The negotiations for the sale of the land were protracted for a considerable period, during which time Gresham made frequent visits to the prospective purchaser, and used every effort to induce him to buy the land in question. Finally, without consulting Gresham or notifying him of his intentions, Connally sold this customer a piece of land near East Point and in the neighborhood of the property which he had originally' placed in Gresham’s hands for sale. The land sold was not the property of Connally absolutely, but was owned by the East Point Land Company, a corporation in which he was a director. Upon learning that the sale had been consummated, Gresham demanded of Connally the payment of his commissions, which was refused, and he brought suit.

Assuming, as we must, the truth of the plaintiff’s evidence, the substance of which we have here set forth, there can be no doubt that a prima facie case for recovery was made out. The defendant in the first instance definitely* employed the plaintiff to procure for him a purchaser for a specific piece of property. Had he stopped there, and the plaintiff brought him, face to face with a party who purchased, not the property which was the subject of the employment, but a different piece, it is clear that there would have been no right of action for the agent’s commissions. But upon learning that the prospective purchaser was anxious to buy near East Point, and evidently fearing that he might not be pleased with the particular land which had been placed in the plaintiff’s hands for sale, the defendant in effect said to the plaintiff: “I now employ you to sell to this man any piece of property situated near East Point in which I have an interest.” It makes no difference that the land actually sold was not the absolute property of the defendant. He owned an interest therein, and his employment of the plaintiff was in his own name and not that of the corporation which held the legal title to the land. He expressly rendered himself liable upon his verbal contract with the plaintiff, whose services in procuring him a purchaser for the land inured to his benefit as a stockholder in the corporation which owned it. There can be no-question as to his power thus to render himself hable, although he did not own the fee to the property which he employed the agent to sell. See Mechem, Agency, §§957 — 959. It is well settled that where a broker employed to negotiate a sale procures a customer ready and able to purchase upon terms satisfactory to the principal, the principal can not defeat the broker’s right to commissions by taking the proceedings out of the hands of the broker and completing the sale himself. 4 Am. & Eng. Enc. L. (2d ed.) 979; Mechem, Agency, § 967. In the case of Davis v. Morgan, 96 Ga. 518, this court held that in a suit for commissions by a real estate agent, while it was incumbent on the plaintiff to show that he had procured a person-ready, willing, and able to purchase on the terms prescribed by the defendant, yet if the plaintiff in fact procured a person who was recognized, either expressly or tacitly by the defendant as answering all these requirements, and the failure to complete the sale was due solely to the defendant’s inability to make a good title to the land, the plaintiff would be entitled to his compensation as if the sale had actually taken place. See, also, Doonan v. Ives, 73 Ga. 302; Fenn v. Ware, 100 Ga. 5631 In the present case, the plaintiff showed that he was employed by the defendant to sell any one of a number of pieces of real estate; that he procured a purchaser ready and able to buy, and who actually did buy one of the pieces in question; that the negotiations for the sale of the land were set on foot through his efforts; that he performed every service required by his employment which it was possible for him to perform; and that the failure on his part to personally consummate the trade with the purchaser was due to the interference of the defendant. This evidence made out a prima facie case for recovery, and the court consequently erred in granting a nonsuit.

Judgment ■reversed.

All the Justices concurring, except Little, J., absent.