Cole v. Cates, s. 40954

• Decision Date: 10 November 1964
• Docket Number: No. 2,40955,Nos. 40954,s. 40954,2
• Citation: 140 S.E.2d 36,110 Ga.App. 820
• Parties: James W. COLE v. Charlie CATES et al. Charlie CATES et al. v. James W. COLE
• Court: Georgia Court of Appeals

Page 36

140 S.E.2d 36

110 Ga.App. 820

James W. COLE v. Charlie CATES et al.

Charlie CATES et al. v. James W. COLE.

Nos. 40954, 40955.

Court of Appeals of Georgia, Division No. 2.

Nov. 10, 1964.

Rehearing Denied Dec. 15, 1964.

Syllabus by the Court

1. (a) The first count of the petition sets out a cause of action for real estate commissions based on a signed contract of sale.

(b) The contract is not so vague and indefinite as to be incapable of enforcement, and the fact that the contemplated security instrument mentioned therein is described as a mortgage, a lien, and a deed to secure debt does not as a matter of law render the contract void.

2. Count 2 sets out a cause of action on an oral agreement of employment of real estate brokers.

The plaintiff brokers brought a two-count action for real estate commissions against James Cole, the owner of certain property listed for sale with them. Count 1, based on an attached sales contract signed by Cole as seller, McFarland as purchaser, and plaintiffs as brokers, alleges that McFarland has made a demand on Cole to consummate the sale but Cole has refused to do so, and has also refused to pay the plaintiffs their earned commissions. The contract recites that if the seller refuses to consummate the transaction he shall pay the broker his full commission; that the broker is a party to the contract to enable him to enforce his commission rights thereunder, and that the contract 'constitutes the sole and entire agreement between the parties hereto and no modification of this contract shall be binding unless attached hereto and signed by all parties.' Count 2 alleges that the defendant orally employed the plaintiffs to sell the described real estate, that pursuant thereto plaintiffs secured a bona fide offer from McFarland which was reduced to writing in the form of the attached sales contract and signed by all parties; that at the time of their employment the defendant agreed to pay plaintiffs a commission in accordance with the schedule of the Atlanta Real Estate Board (the same fee schedule adopted in the contract of sale); that the proposed purchaser is ready, willing and able to purchase on the terms stipulated by the defendant, these being set out in the sale contract, and that although the defendant executed the sale contract he now refuses to sell or to pay plaintiffs their commissions on the ground that the contract is void. The general demurrer to count 2 of the petition was overruled and error is assigned thereon in the main bill of exceptions. The general demurrer to count 1 was sustained, and this ruling is assigned as error in the cross bill.

Kemp & Watson, John L. Watson, Jr., Jonesboro, for plaintiff in error.

Huie, Etheridge & Harland, Harry L. Cashin, Jr., Atlanta, for defendant in error.

RUSSELL, Judge.

1. Except for necessary changes in names, amounts, and contract stipulations, the allegations of this petition are identical with the considered in Hunter v. Benamy, 101 Ga.App. 907, 115 S.E.2d 424. There, as here, the trial court struck down the first count and upheld the second, but there no cross bill of exceptions was filed. Since the cross bill assigns error on striking count 1, it is not the law of this case, as it was in Hunter, that the sale contract is void but this is one of the issues to be decided. The cross bill of exceptions will be first considered, for, as stated in Hunter, the only ground on which it could be held that count 1 fails to state a cause of action is that the written contract is void and unenforceable.

(a) The offer to purchase set out in the contract of sale was made and accepted on the same day. It is therefore immaterial that the part of the written contract indicating a maximum time for acceptance was not completed or that the petition does not allege that the broker notified the seller of the acceptance. Robinson v. Tate, 217 Ga. 93, 121 S.E.2d 21 is not authority for a contrary conclusion; it holds that a suit for specific performance will not lie where the offer is accepted after the time for acceptance has expired and the petition does not show that time of acceptance was waived. Here the defendant Cole was himself the acceptor of McFarland's offer to purchase and necessarily had knowledge of his own act. Similarly, the main point at issue in Harris v. Porter's Social Club, Inc., 215 Ga. 687, 113 S.E.2d 134 was that the contract did not show on its face that the persons executing the sale contract were acting for the defendant, and the maximum time for acceptance was not shown, from which it followed that nothing in the contract bound the defendant.

(b) The second...