Foshee v. Harris

• Decision Date: 06 March 1984
• Docket Number: No. 66799,66799
• Parties: FOSHEE et al. v. HARRIS et al.
• Court: Georgia Court of Appeals

Page 548

317 S.E.2d 548

170 Ga.App. 394

FOSHEE et al. v. HARRIS et al.

No. 66799.

Court of Appeals of Georgia.

March 6, 1984.

Rehearing Denied March 21, 1984.

Certiorari Denied April 18, 1984.

Thomas E. Pujadas, Ocilla, for appellants.

Lawrence W. Roberts, Cordelle, for appellees.

DEEN, Presiding Judge.

On November 12, 1981, appellee John Hill Harris (Harris), president and sole stockholder of appellee Harris Gin Co., Inc. (Harris Gin), entered into a contract captioned "Exclusive Right to Sell Agreement" with appellant Foshee, a real estate broker. The agreement authorized Foshee to sell certain properties owned by Harris Gin at a minimum net figure of $600,000, with a 10% commission payable upon consummation of such a sale. Foshee enlisted the aid of appellant Helton, also a licensed broker, in attempting to locate prospective purchasers.

Three special conditions were inserted in the printed form contract: a "limited to present prospect" clause was handwritten above the caption; a typewritten clause granting appellees the right to sell without commission, during the term of the contract, to two named firms was placed at the end of a printed section captioned "Terms and Conditions"; and a typewritten clause reading "10% of sales price (OWNER TO NET NO LESS THAN $600,000)" was inserted in the printed paragraph dealing with the broker's commission. The printed paragraph next following this "net to seller" clause reads in pertinent part as follows: "Should I [Harris] contract to sell, exchange, or lease with option to purchase the above described property within three months after the above expiration date [December 1, 1981] or any extension thereof, to a purchaser to whom the above described property was offered during the continuance of this agency by you [appellant], by me, or anyone else, I agree to pay you at the same rate of commission. In this regard, within one (1) day after this agreement terminates, you shall furnish me with a complete list of the names of all persons to whom the property was offered by you, and such list shall be conclusive as to any commission rights due for any offering made by you or persons authorized by you."

During the term of this contract appellants presented to appellees two offers from Alimenta Processing Corp. (Alimenta), one for $450,000 and another for $475,000. Appellees refused to consider an offer at either figure, and the contract expired according to its terms on December 1, 1981. Appellants provided no list of prospective purchasers either at that time or at any time thereafter prior to the occurrence of the events that precipitated the action below.

In January of 1982 Harris began direct negotiations with Alimenta. On February 11, 1982, the property was sold to Alimenta for $480,000, of which $120,000 represented consideration for an agreement not to compete. Appellants informed appellees that since Alimenta was the "present prospect" referred to in the handwritten insertion, a commission of 10% of the sales price was due. Appellees refused to pay the commission, and in July 1982 appellants filed a complaint in the Crisp County Superior Court against Harris and Harris Gin, seeking $48,000 and costs. Appellees moved for summary judgment and appellants for partial summary judgment, and the court denied appellants' motion and granted that of appellees. On appeal Foshee assigns as error the award of summary judgment to appellees. Appellants do not appeal the denial of their own motion for partial summary judgment. Held:

The construction of a contract is a matter of law for the court. OCGA § 13-2-1; Nodvin v. Krabe, 160 Ga.App. 310, 287 S.E.2d 236 (1981). Only when the terms of a contract are ambiguous does the interpretation become a question for the jury, Smiths' Properties v. RTM Enterprises, 160 Ga.App. 102, 286 S.E.2d 334 (1981); Salvatori Corp. v. Rubin, 159 Ga.App. 369, 283 S.E.2d 326 (1981); and the existence or non-existence of ambiguity in a contract is a question of law for the court. Id. Hence the construction and interpretation of a written contract, of which the terms are unambiguous, is peculiarly well suited for adjudication by summary judgment. Parramore Farms, Inc. v. John Deere Co., 159 Ga.App. 774, 285 S.E.2d 233 (1981); Troutt v. Nash AMC/Jeep, 157 Ga.App. 399, 278 S.E.2d 54 (1981). The cardinal rule of construction is to ascertain the parties' intent. McVay v. Anderson, 221 Ga. 381, 144 S.E.2d 741 (1965); Crawford v. Crawford, 158 Ga.App. 187, 279 S.E.2d 486 (1981). In the construction of a contract "[w]ords generally bear their usual and common signification ..." OCGA § 13-2-2(2); and when a contract is partly printed and partly written, the written portion will prevail when the two portions appear to be in conflict. OCGA § 13-2-2(7); Batson-Cook Co. v. Poteat, 147 Ga.App. 506, 249 S.E.2d 319 (1978). See also Atlanta Baggage etc. Co. v. Loftin, 88 Ga.App. 98, 76 S.E.2d 92 (1953); Hodsdon v. Whitworth, 153 Ga.App. 783, 266 S.E.2d 561 (1980); Aetna Life etc. Co. v. Charles S. Martin Distributing Co., 120 Ga.App. 133, 169 S.E.2d 695 (1969).

In the instant case the trial court applied these principles of construction and found that appellant, in accepting the terms of the contract, accepted the typewritten "net to seller clause," which this court has upheld in previous decisions. Kuniansky v. Williams, 101 Ga.App. 678, 115 S.E.2d 204 (1960). "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. (Emphasis supplied.) Finding the prospect and attempting to make the sale are not sufficient, in law, to entitle an agent to a commission; to earn the commission, he must be the procuring cause of the sale. Jordan v. Dolvin Realty Co., 54 Ga.App. 472, 188 S.E. 304 (1936). "A broker with whom property is listed for sale does not make out a case of procuring cause ... by merely showing that he first located the ultimate purchaser, if it further appears that without interference by the owner he was unsuccessful in bringing about an offer which could be consummated and that the sale was made after he had abandoned his effort." Tidwell & Yarbrough Realty Co. v. Foster, 123 Ga.App. 192, 193, 180 S.E.2d 259 (1971); Parrish v. Ragsdale Realty Co., 135 Ga.App. 491, 494, 218 S.E.2d 164 (1975). The court held in Kuniansky, supra 101 Ga.App. at 679, 680, 115 S.E.2d 204, that "the rule is that where the broker has failed to procure an offer to buy upon the terms stipulated and the owner has not relinquished his right to sell the property himself ...[,] it must appear that the owner negotiated the sale directly to the customer procured by the broker with a fraudulent intent to deprive the broker of his commission ... The court in this case was authorized to find that there was no fraudulent intent on the [owner's] part because no offer was procured on terms stipulated by the owner ..."

In the case at bar the evidence sustains the court's findings that appellant was not the procuring cause of the sale as consummated; that appellees were thus free to arrange a sale through their own negotiations conducted after expiration of the contract; and that under the terms of the contract (which, even if, arguendo, there were some ambiguity, must be construed most strongly against the draftsman, (OCGA...