Humphries & Jackson v. Smith

• Citation: 63 S.E. 248,5 Ga.App. 340
• Decision Date: 22 December 1908
• Docket Number: 1,344.
• Parties: HUMPHRIES & JACKSON v. SMITH.
• Court: United States Court of Appeals (Georgia)

63 S.E. 248

5 Ga.App. 340

HUMPHRIES & JACKSON v. SMITH.

No. 1,344.

Court of Appeals of Georgia

December 22, 1908

Syllabus by the Court.

Usually the word "sale" denotes a completed mutually binding contract; but under contracts creating the ordinary relationship of principal and real estate broker, and providing commissions for the latter, the broker has made a sale whenever through his influence a person ready, able, and willing to buy on the terms proposed is brought to the principal, though through the fault or disinclination of the principal no actual sale is ever consummated. Usually however, the broker is not entitled to commissions on sales made by the principal and uninfluenced by anything done by the broker.

[Ed Note.-For other cases, see Brokers, Cent. Dig. §§ 47, 81 94-96; Dec. Dig. §§ 46, 63. ^[*]

For other definitions, see Words and Phrases, vol. 7, pp 6291-6306; vol. 8, p. 7793.]

Where the principal appoints, not a broker, but an exclusive sales agent, and agrees to pay a commission upon "sales," the agent is not entitled to commissions upon mere executory contracts, but only upon consummated sales.

[Ed. Note.-For other cases, see Brokers, Cent. Dig. § 91; Dec. Dig. § 60. ^[*] ]

Where a landowner placed his property in the exclusive control of a real estate agent for a limited period, agreeing to pay him a designated commission on all sales, even though the language of the contract should be construed to be broad enough to render the principal liable for commissions upon sales made by himself, the real estate agent cannot recover commissions on a sale made after the expiry of the contract, although during the life of the contract the landowner gave a third person, then neither ready nor willing to buy, an option to purchase the property under which the property was afterwards sold to him; it appearing that this transaction came about in no wise through the influence of the real estate agent, and was not an attempt on the part of the owner to avoid the effect of this contract, and that the purchaser never became ready or willing to buy before the expiry of the agent's contract.

[Ed. Note.-For other cases, see Brokers, Cent. Dig. § 68; Dec. Dig. § 50. ^[*] ]

Error from City Court of Atlanta; A. E. Calhoun, Judge.

Action by Humphries & Jackson against P. F. Smith for commissions on a sale of real estate. Judgment for defendant, and plaintiff brings error. Affirmed.

Owens Johnson and W. E. Talley, for plaintiff in error.

P. F. Smith and Walter McElreath, for defendant in error.

POWELL J.

We find it unnecessary to enter into a discussion of many of the nice questions of law which were argued before us. As presented by the pleadings and the proof thereunder, the case is simple in that it involves but one question. It is alleged by the plaintiffs and admitted by the defendant that the former were a firm of real estate brokers, and that the defendant owned in the suburbs of Atlanta a tract of 23 acres of land, divided into small lots, which he placed in the hands of the plaintiffs under the following contract: "I have this day placed in the exclusive control of Humphries & Jackson all my property on Lumpkin street, just outside of West End, consisting of twenty-three acres, more or less, for a period of three months from this date. No one shall have a right to sell any of the lots, except the said Humphries & Jackson, without the payment of their commissions. I agree to pay them ten per cent. on all sales. March 2, 1904. P. F. Smith." It is also alleged, and undisputed, that the plaintiffs advertised the property and made several sales of lots during the life of the contract, and that for these sales the brokers received the commissions named in the contract. The plaintiffs further alleged that on May 17, 1904, during the life of the contract, the defendant personally sold the bulk of the property to one McClatchey, who represented the Louisville Property Company, for the sum of $15,000, and that "under said contract, petitioners are entitled to 10 per cent. commission on the sale of said property for $15,000, which is $1,500, and petitioners sue for the same." The issue came upon the questions whether a sale was made during the life of the contract, and whether the terms of the contract were such as to render the defendant liable for a sale made by himself without the assistance of the broker. Our answer to the first question will preclude the necessity for deciding the second. On the trial it was mutually admitted that, before the date on which the contract of the broker expired, and defendant gave to McClatchey in consideration of $1 an option by the terms of which he might buy the property within 60 days at the price of $15,000, and that, after the expiry of the broker's contract, the Louisville Property Company to whom McClatchey assigned the option accepted the terms and bought the property at the price of $15,000. This sale was uninfluenced by anything said or done by the brokers. McClatchey took the option upon the property for the purpose of seeing if it could be made available for special purpose to which it was afterwards devoted. The initial question therefore narrows to this: Was the giving of the option under these circumstances such a sale of the property as to entitle the plaintiff to the commissions stipulated under the contract? The question whether the defendant breached the contract by putting himself in a position where it would be difficult or impossible for him to comply with it is not in the case. No damages are alleged on that account. The suit is directly and solely (save only as to a small item now not material) an action for...