Batchelor v. Tucker
| Decision Date | 04 November 1987 |
| Docket Number | Nos. 74610,74611,s. 74610 |
| Citation | 362 S.E.2d 493,184 Ga.App. 761 |
| Parties | BATCHELOR v. TUCKER. TUCKER v. BATCHELOR. |
| Court | Georgia Court of Appeals |
Edward S. Sell III, Lori L. Chapman, Macon, for appellant.
G. McGregor Jordan, Jr., Macon, for appellee.
Quinton S. King, Atlanta, amicus curiae.
Batchelor, a real estate broker, and Tucker, the owner of certain commercial real estate, entered into a real estate listing contract. When Tucker refused to sell the property for the price he had requested in the listing contract to a purchaser procured by Batchelor, Batchelor filed suit to recover the broker's commission that would have been due him had the sale been consummated. Tucker filed a counterclaim, asserting that Batchelor was guilty of inceptive fraud, bad faith, and stubborn litigiousness. The trial court directed a verdict for Batchelor on Tucker's counterclaim, and a jury found in favor of Tucker on Batchelor's claim. In Case No. 74610, Batchelor appeals from the denial of his motion for directed verdict on his claim; in Case No. 74611, Tucker seeks reversal of the directed verdict granted Batchelor on the counterclaim.
1. By means of the exclusive listing agreement entered into by Batchelor and Tucker, the property's listing price and purchase price was set at $305,000, with a 10 percent commission to Batchelor if, during the three-month term of the listing agreement, the property was sold or a firm contract for the sale of the property was entered into by Tucker and a purchaser. No other terms or conditions of sale were mentioned in the listing agreement. The eight-page real property purchase agreement signed by the prospective purchaser set forth a purchase price of $305,000 and several conditions precedent to its performance, among them approval of the site from the franchisor, the purchaser's approval of a soil test report to be provided by Tucker, and the securing of the appropriate governmental permits and approvals. If any of the conditions precedent were not fulfilled on or before closing, the purchaser had the option to terminate the agreement and recoup the earnest money previously paid, or to obtain a 30-day extension upon payment of an extension fee, to be applied to the purchase price. If the purchaser defaulted, the proposed contract limited the seller's liquidated damages to the earnest money.
Batchelor asserts he was entitled to a directed verdict on his claim because he presented evidence that he had secured a buyer ready, willing, and able to meet the purchase price set in the listing agreement by the seller. The seller testified that, while the purchase price was acceptable to him, the conditions precedent set forth in the purchaser's offer were unacceptable. Batchelor countered this argument with the contention that the conditions to which Tucker objected should not deprive Batchelor of his commission since they are "standard in the industry and necessary to protect a purchaser in being able to use the property as contemplated by the offer of sale...." In essence, it is Batchelor's argument that the additional conditions proposed by the prospective buyer and rejected by Tucker were minor and immaterial variations of the listing agreement.
"The broker's commissions are earned when, during the agency, he finds a purchaser who is ready, able, and willing to buy and who actually offers to buy on the terms stipulated by the owner." OCGA § 10-6-32. Clover Realty Co. v. Gouyd, 153 Ga.App. 64(1), 264 S.E.2d 547 (1980). See also Bentley Group v. Paces Ferry & c. Assoc., 180 Ga.App. 818, 350 S.E.2d 826 (1986). This court has recently concluded that the closing date and the amount of liquidated damages are negotiable terms, not to be set by one party when not mentioned in the listing agreement. Bentley Group, supra. Furthermore, the provision permitting the...
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... ... was made.” Nash v. Roberts Ridge Funding, LLC , ... 699 S.E.2d 100, 102 (Ga.App. Ct. 2010); see also ... Batchelor v. Tucker , 362 S.E.2d 493, 495 (Ga.App. Ct ... 1987) ... (“When failure to perform a promised act is coupled ... with evidence ... ...
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...[main action, the trial court's failure to direct] a verdict in favor of [appellant] was [erroneous]. [Cits.]" Batchelor v. Tucker, 184 Ga.App. 761, 763(2), 362 S.E.2d 493 (1987). Judgment DEEN and McMURRAY, P.JJ., and BIRDSONG, SOGNIER, POPE and COOPER, JJ., concur. BANKE, P.J., and BEASLE......
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