Hogan v. Gilbert

• Decision Date: 07 October 1921
• Docket Number: 12164.
• Citation: 108 S.E. 625,27 Ga.App. 444
• Parties: HOGAN v. GILBERT.
• Court: Georgia Court of Appeals

108 S.E. 625

27 Ga.App. 444

HOGAN v. GILBERT.

No. 12164.

Court of Appeals of Georgia, Second Division

October 7, 1921

Syllabus by the Court.

Whether or not an exception to the overruling of a motion for nonsuit, based upon the ground that there was a fatal variance between the allegata and probata, in that the evidence showed that the contract sued upon was made with a partnership rather than with the individual plaintiff, is such an exception as can be considered after testimony for the defendant was introduced, a verdict rendered against the defendant, and a motion for new trial made which presented the complaint that the verdict was contrary to the evidence and without evidence to support it (as to which see cases cited in Gunn v. Wilson Co., 20 Ga.App. 14, 16, 17 92 S.E. 721, and see Citizens' Bank v. Shaw, 132 Ga. 771 (1), 773, 65 S.E. 81, Glausier v. Boston Naval Stores Co., 132 Ga. 549, 552, 64 S.E. 547, Findley v. Central of Ga. R. Co., 7 Ga.App. 180, 66 S.E. 485 and cases cited), it is nevertheless true that, where a moton for nonsuit is overruled, and the defendant thereafter introduces evidence by which the deficiency in the plaintiff's testimony is cured, the error, if any, in overruling the motion for nonsuit, is also cured. Ga. Ry. & Electric Co. v. Reeves, 123 Ga. 697 (7), 703, 51 S.E 610; Southern R. Co. v. Morrison, 8 Ga.App. 647 (2), 648, 70 S.E. 91; Ala. Construction Co. v. Continental Car Co., 131 Ga. 365, 369, 62 S.E. 160. In the instant case. whatever uncertainty might have existed under the plaintiff's evidence upon the question as to whether the contract with the defendant was made with the plaintiff alone, as alleged in the petition, or with himself and his brother, was clarified by the defendant's own testimony that the contract was made and remained solely with the plaintiff.

It is the general rule that a real estate broker earns his commissions when, "during the agency, he finds a purchaser, ready, able, and willing to buy, and who actually offers to buy on the terms stipulated by the owner." Civ. Code 1910, § 3587; Smith v. Tatum, 140 Ga. 719, 79 S.E. 775; McMath Plantation Co. v. Allison, 107 S.E. 420. Still the owner may, by the express terms of his agreement with the broker, limit his liability by specifically providing that the commissions shall become earned, due, and payable only as the purchase price shall be actually paid. Such a provision would not, however, affect the broker's rights to commissions in a case where, during the agency, he finds a purchaser, ready, able, and willing to buy, and who actually offers to buy, on the terms stipulated, but where the owner himself refuses to consummate the trade. Fenn v. Ware, 100 Ga. 563 (1), 28 S.E. 238; Girardeau v. Gibson, 122 Ga. 313, 314, 50 S.E. 91. In such a case, where the owner, without legal excuse, refuses to effectuate the sale, he becomes liable for the commissions; and after such a refusal it is generally not necessary that the proposed purchaser shall have made to the owner an actual tender of the purchase price. Smith v. Tatum, supra; Winer v. Flournoy Realty Co., 107 S.E. 398(1).

" 'The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him, when it is self-contradictory, vague, or equivocal.' And unless there be other evidence tending to establish his right to recover, he 'is not entitled to a finding in his favor, if that version of his testimony the most unfavorable to him shows that the verdict should be against him.' " Steele v. Central of Ga. R. Co., 123 Ga. 237 (1), 51 S.E. 438; Southern Ry. Co. v. Hobbs, 121 Ga. 428(1), 49 S.E. 294; City of Thomasville v. Crowell, 22 Ga.App. 383, 384 (1, b), 96 S.E. 335. While the first portion of the defendant's testimony might be taken as indicating that he had a right to refuse to consummate the contract of sale with the vendee, for the reason that the vendee failed to comply with the agreed terms by making the cash payment required by the agreement procured by the broker and accepted in writing by the owner, yet in another part of his testimony he clearly admits that such was not the case, but states that the vendee offered to make full compliance with such obligation within the time contemplated. Testing the defendant's evidence by the rule stated, he failed to sustain his defense in justification of his refusal to sell, and the court did not err in directing a verdict for the plaintiff.

Error from Superior Court, Laurens County; J. L. Kent, Judge.

Action by J. W. Gilbert against J. A. Hogan. Judgment for plaintiff, and defendant brings error. Affirmed.

J. S. Adams & R. Earl Camp, of Dublin, and Hines, Hardwick & Jordan, of Atlanta, for plaintiff in error.

W. C. Davis, of Dublin, for defendant in error.

JENKINS P.J.

The plaintiff, a real estate broker, sued the owner of certain land for commissions on account of having produced a purchaser ready, able, and willing to buy...