Bryan v. Rusk, 34700

• Decision Date: 07 November 1953
• Docket Number: No. 1,No. 34700,34700,1
• Citation: 78 S.E.2d 853,89 Ga.App. 125
• Parties: BRYAN v. RUSK
• Court: Georgia Court of Appeals

Page 853

78 S.E.2d 853

89 Ga.App. 125

BRYAN v. RUSK.

No. 34700.

Court of Appeals of Georgia, Division No. 1.

Nov. 7, 1953.

Syllabus by the Court

A contract by which parties exchange real estate, in order to be enforceable, must identify the property to be exchanged or at least furnish a key to its identity; and an action by a real estate broker to recover commissions from the purchaser based on his breach of such a contract of purchase and sale of realty, which contract did not set forth a sufficient description of the property involved to identify it, or to furnish a key to its identity, was properly dismissed on general demurrer.

Lewis M. Bryan filed suit in the Superior Court of Muscogee County against E. A. Rusk to recover a certain real estate commission alleged to be due him by the defendant under the terms of an alleged contract for the sale of certain property of Mrs. Geneva E. Jones. The defendant filed general and special demurrers, the trial court sustained the general demurrer and dismissed the petition, and the exception here is to that ruling.

The amended petition alleged that the defendant was indebted in the sum of $1,960 to the plaintiff, a duly licensed real estate broker engaged in in the business of negotiating and effecting sales of real estate in Muscogee County, Georgia. Paragraph 7 of the petition was as follows: 'Plaintiff shows that prior to December 18, 1951, Mrs. Geneva E. Jones of said county placed in plaintiff's hands to sell for her a certain lot of land and improvements located on the Victory Highway in Muscogee County, Georgia, which said land and improvements are more particularly described in the contract which is hereto attached, made a part of this petition, and marked Exhibit 'A', said land being more particularly described as follows: * * *.' Then follows a full and complete description of the land of Mrs. Jones referred to, with reference in the description to a plat or diagram which is also incorporated in the petition as an exhibit, and which was apparently the same diagram or plat that was attached to the contract of sale. The plaintiff further alleged that he offered the property of Mrs. Jones to the defendant at a named price; that the defendant offered to purchase the said real estate on the basis of $25,000 in cash and to exchange therefor certain improved rural property of the defendant known as 'White Oaks,' lying partly in Harris County and partly in Muscogee County, Georgia; that the said 'White Oaks' was well known to the defendant and Mrs. Jones, she having at one time owned 'White Oaks,' and there follows in the petition a full and complete description of the said property known as 'White Oaks'; that, in making the offer referred to above, the defendant executed the contract which is attached to the petition marked Exhibit 'A,' on the date shown thereon and delivered to the plaintiff his check for $1,000 as earnest money, and constituted the plaintiff his agent to purchase the lands and improvements from Mrs. Geneva E. Jones on the terms and conditions described in the petition and in the contract; that the plaintiff induced Mrs. Jones to accept the defendant's offer; that the defendant ratified the making of the contract by accepting a copy of the same after Mrs. Jones had signed the same; that, under the terms of the contract, the plaintiff was to receive $1,960 for his services in negotiating the sale; and that Mrs. Jones was ready, able, and willing to complete the transaction according to the terms of the contract, but that the defendant failed and refused to pay the purchase money and stopped payment on the...