Brittain v. Russell

• Decision Date: 11 February 1949
• Docket Number: No. 32295.,32295.
• Parties: BRITTAIN . v. RUSSELL.
• Court: Georgia Court of Appeals

52 S.E.2d 38

BRITTAIN .

v.RUSSELL.

No. 32295.

Court of Appeals of Georgia, Division No. 1

Feb. 11, 1949.

.

Rehearing Denied March 4, 1949.

Syllabus by the Court.

The plaintiff's petition was not subject to the defendant's general demurrer, and the trial judge erred in sustaining the general demurrer and in dismissing the plaintiff's action.

Error from Superior Court, Muscogee County; T. Hicks Fort, Judge.

Action by W. B. Brittain against Jack Russell to recover real estate broker's commission. To review a judgment dismissing the action, the plaintiff brings error.

Judgment reversed.

W. B. Brittain sued Jack Russell to recover a real estate commission in the sum of $675. The plaintiff alleged that he was a licensed real estate broker, and that Aasta K. Buchanan, as owner, listed with him, on June 1, 1948, a described house and lot in Columbus, Georgia, for sale at $15,750, cash; that the plaintiff showed the property to the defendant, Jack Russell, who, on June 5, 1948, executed a contract with the plaintiff as agent for said owner, offering $13,500, cash, for said property, and delivered to the plaintiff his check for $1,000 as a binder; that, on June 7, 1948, Aasta K. Buchanan accepted Russell's offer and also executed said contract and delivered her old chain of title deeds and thekeys to said property to the plaintiff, who in turn delivered them and a copy of the signed contract to said Russell, on June 7, 1948, and immediately thereafter the defendant took possession of said real estate and began cleaning it up; that, on June 12, 1948, the plaintiff presented the binder check of $1,000 for payment at the bank on which it was drawn and discovered that the defendant had stopped payment on this check, and he contacted the defendant, on this same date, who told the plaintiff that he was not going to consummate the sale, but the defendant refused to return the old deed and keys to the property until June 22, 1948. It was alleged that the owner of the property was, at all times mentioned, able, ready, and willing to perform her part of said contract; that in said contract the defendant agreed to pay to the plaintiff a commission of 5% of $13,500, namely, $675, in case the sale was not consummated due to default on his part, and that said defendant did default in consummating the sale, on June 12, 1948. A copy of the contract and a copy of the check were attached to the petition. The contract provided, in part: "The undersigned seller agrees to sell, and the undersigned purchaser agrees to buy, through W. B. Brittain as agent, [the described property]. The purchase price of said property shall be * * * $13,500 to be paid as follows: Cash to owner. Upon compliance by the purchaser with the terms of this contract, said property shall be conveyed to the purchaser by deed with general warranty * * * The sale is to be consummated within 15 days from the date of the acceptance of this offer by seller or purchaser who last executes this contract * * * Purchaser has paid to seller's agent W. B. Brittain * * * $1000, as earnest money, to be applied as part payment on the purchase price of said property. If the sale is not consummated due to purchaser's default, the earnest money shall be applied to agent's commission hereunder and agent shall pay the balance, if any, to seller to be applied toward seller's damages caused by purchaser's default. In the event the sale is not consummated for reasons other than default of purchaser the earnest money is to be refunded to the purchaser. The agent in negotiating this contract has rendered a valuable service and seller agrees to pay agent's commission in accordance with the schedule printed on the reverse side hereof. If sale is not consummated due to default of purchaser, seller shall not be obligated to pay any commission, but purchaser hereby agrees to pay said commission to agent * * * This instrument shall be regarded as an offer by the party who first executes the same, to the other, and is open for acceptance by the other until noon, on the 7th day of June, 1948, by which time it must have been accepted and executed by both seller and purchaser in triplicate and have been actually received by the agent.

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