Emery v. Atlanta Real-Estate Exchange

Decision Date07 December 1891
Citation14 S.E. 556,88 Ga. 321
PartiesEMERY v. ATLANTA REAL-ESTATE EXCHANGE.
CourtGeorgia Supreme Court

Syllabus by the Court.

1. A contract between the owner of real estate and a real-estate broker, in these terms: "I will offer the place at $11,250 net until 10 May, 1890. [Signed] H. F. EMERY." "We accept the above at $11,250 net, upon condition that sale is perfected. [Signed] J. H. MOUNTAIN Magr.,"--construed in the light of the parol evidence imports an undertaking by the broker to furnish a purchaser if he can do so, who will pay $11,250 cash for the property, or more than that sum; and, on the part of the owner, that he will accept such purchaser, and convey to him the property on receipt of the net price specified. The difference between that price and what the purchaser would pay would be the compensation of the broker for his services. The time for completing the transaction would not extend beyond the 10th day of the month without the consent of the owner, and, with his consent, not beyond the day named by him.

2. In an action upon such contract by the broker against the owner, evidence of custom of real-estate brokers as to the amount of commissions, or as to the way the broker's functions are performed, or when they are completed, is irrelevant.

3. Evidence that the owner refused to pay the broker, but offered as a compromise to pay a fixed amount and to give another specified amount to a church, is inadmissible, under the rule that propositions made with a view to a compromise are not proper evidence. Code, § 3789.

4. There was no error in refusing to give the requests in charge, and the whole charge was not error.

5. The supreme court will not review questions raised in the motion for a new trial, by way of exceptions to the charge; the grounds of the motion not reciting the language of the charge excepted to, but only referring to divisions of the charge numbered so and so. Cutting up a charge in this mode, merely by reference numbers to different divisions of it, so as to require the court to seek out the corresponding numbers in the charge, and thus arrive at the matters complained of, is not legitimate practice.

Error from superior court, De Kalb county; R. H. CLARK, Judge.

Action by the Atlanta Real-Estate Exchange against H. F. Emery, to recover commissions for the sale of defendant's land. Verdict and judgment for plaintiff. New trial denied. Defendant brings error. Reversed.

Dorsey, Brewster & Howell, for plaintiff in error.

Abbott & Smith, for defendant in error.

LUMPKIN J.

The defendant claimed to be the owner of a certain lot in the city of Atlanta, and the plaintiffs, who were real-estate brokers, doing business under the name of the Atlanta Real-Estate Exchange, undertook to find a purchaser for the lot. After some preliminary negotiation, a contract was drawn up in two parts, as follows: "I will offer the place at $11,250 net until 10 May, 1890," signed by the defendant. "We accept the above at $11,250 net, upon condition that sale is perfected," signed by one of the plaintiffs, as manager. It was understood that the plaintiffs should get, as compensation for their services, whatever excess above the stated price they might secure at the hands of the purchaser. Under this agreement the plaintiffs found a purchaser at $12,000 on May 8th. They agreed with this purchaser to sell the lot for part cash and part deferred payments, although they had no instructions from defendant outside of those expressed in the written agreement. The purchaser paid the plaintiffs $10 to bind the bargain. The defendant's title-papers were put in the plaintiffs' hands, and by them turned over to the purchaser, for an examination of the title. This examination was not concluded until May 13th, after the time limited in the contract had expired. But the defendant waived this, for he continued negotiations after May 10th, and on the afternoon of May 14th granted an extention of the time until 11 o'clock of the following morning; giving notice that he would then declare the trade off if the purchase money was not paid him. At that hour he called at the plaintiffs' office, and demanded the money, and, on failure to get it, declared that he would not sell, and requested his bond for title to be returned. The defendant did not have absolute title to the lot, but held a bond for title, having paid $2,300 cash and given notes for $8,000, which were still outstanding. It seems that the purchaser desired to substitute his notes for the defendant's, and thus get the benefit of the deferred payments. Some time was spent by the plaintiffs and the purchaser's attorney in endeavoring to make this arrangement. But the party holding the title required either the cash or the defendant's notes to stand. Some days after defendant had withdrawn his offer, by direct negotiation with the purchaser's attorney, he sold the lot for $12,000, to-wit, $4,000 cash, and the purchaser substituting his notes for $8,000 in place of defendant's, and $150 extra for the privilege of this substitution. The plaintiffs then brought this action to recover for their services $750, the excess of the price paid over that stated in the contract.

1. The parties understand their contract differently. The plaintiffs claim that it was an agreement to bring buyer and seller together within the time specified, and that their part was performed as soon as this was done, although the final sale might be consummated after the expiration of that time. The transaction, on the part of the plaintiffs, was conducted by a Mr. Turner, who was connected with the Atlanta Real-Estate Exchange. Though not so designated in the evidence, he was virtually the plaintiffs' agent in the transaction in question. He testified that he procured the option from the defendant, and found the purchaser, from whom he took a payment of $10, to bind the trade. He told the defendant about the trade, got the defendant's papers, and turned them over to the purchaser; and adds: "I then thought I had done all I had to do, and considered my duty at an end. That is the custom in Atlanta with real-estate agents.

When they find a purchaser, and bring the seller and buyer together, the agent's duty is at an end, and they are entitled to their commissions." On the other hand, the defendant claims that the contract was an option, under which the plaintiffs must produce a cash purchaser, and conclude the sale within the specified time. The testimony is not all consistent with the plaintiffs' construction. The practiced interpretation put on the contract by the parties in their conduct is entitled to much weight. 1 Wary. Vend. pp. 118, 121, § 5; Williams v. McHatton, 16 La. Ann. 196; Frigerio v. Stillman, 17 La. Ann. 23; Parmelee v. Hambleton, 24 Ill. 605; Purinton v. Railroad Co., 46 Ill. 297; Leavers v. Cleary, 75 Ill. 349; Chicago v. Sheldon, 9 Wall. 50, 54; Topliff v. Topliff, 122 U.S. 121, 7 S.Ct. 1057. Now on May 8th the plaintiffs agent writes to the defendant in these words: "I have sold your lot on Pryor street on option given us, extending to May 10th proximo. Will see you to-morrow." Again, we find the plaintiffs' agent, as late as May 13th, or later, going once or twice with the purchaser's attorney to persuade the party holding title to accept the purchaser's notes in lieu of defendant's. Also he had repeated conferences with the purchaser and the attorney endeavoring to arrange the matter. Moreover, according to the defendant's undisputed testimony, it was at the urgent solicitation of the plaintiffs that he gave them an extension of time. Evidently the plaintiffs' action in the matter did not cease when they brought buyer and seller together. They were still actively engaged in promoting the sale, until on May 15th the defendant declared the trade off. Indeed, after that the defendant testified, and it was not denied, that "on May 17th, at 2:50 P. M., Mr. Turner called at my place of business, and said his men would meet me at his office at 3:20. I refused to go, saying that the trade was at an end, and had been so declared." Now the agent says that, according to the custom, their services were completed and they became entitled to their commission when they brought buyer and seller together. If so, why all this subsequent expenditure of time and toil? It may have been friendly and gratuitous service to the purchaser; but, in the absence of any such explanation, it may be taken as strong evidence that the plaintiffs had not finished their part of the contract. The defendant's construction, in view of all the testimony, is the correct one. In the contract is no allusion to credit or terms of any kind. The sale was to be for $11,250 net, and, in the absence of contrary specification, the universal presumption is that the sale is to be for cash. This holds good in the sale of goods. Bennett's Benj. Sales, § 706; Newmark, Sales, § 270; 2 Schoul. Pers. Prop. § 412. And see Claflin v. Continental Works, 85 Ga. 27, 43, 11 S.E. 721. It also applies to an offer to sell real estate. 1 Devl. Deeds, § 370; Cammeyer v. United Churches, 2 Sandf. Ch. 188, 243. Even if credit could be implied in a contract like this, there would be nothing to determine the character or extent of the credit. But credit will not be implied; it must be expressly stipulated for.

We think it is also plain that, in order to bind the seller, the transaction would have to be completed, or at least the money realized, within the limited time; otherwise the seller would lose the benefit of his limit. Suppose, for example, after the bargain became binding, the buyer should refuse to carry it out. Then the seller would have to await the slow outcome of a suit to enforce the sale. Such a contingency is provided against in this...

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2 cases
  • Winemiller v. Matthews
    • United States
    • Oklahoma Supreme Court
    • 14 d2 Dezembro d2 1926
    ... ... upon the issue which he thus tenders. Walker's Law of ... Real Estate Agency, par. 57, p. 402; 9 Cyc. pp. 748, 749; 19 ... Cyc. p. 275; Emery ... Atlanta Real Estate Exch., 88 ... Ga. 321, 14 S.E. 556; Miller v. Insurance Co., ... ...
  • Emkbt v. Atlanta Real-estate Exch.
    • United States
    • Georgia Supreme Court
    • 7 d1 Dezembro d1 1891
    ...14 S.E. 55688 Ga. 321Emkbt.v.Atlanta Real-Estate Exchange.Supreme Court of Georgia.Dec. 7, 1891.Real-Estate BrokersAction for Commissions Construction of ContractEvidenceCustomOffers of Compromise ... [Signed] H. P. Emery." "We accept the above at $11,250 net, upon condition that sale is perfected. [Signed] J. H. Mountain, Magr., "construed in the light of the parol ... ...

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