Hunter v. Benamy, s. 38301
| Decision Date | 13 June 1960 |
| Docket Number | No. 1,Nos. 38301,38302,s. 38301,1 |
| Parties | E. W. HUNTER v. Franklin BENAMY. Mildred B. HUNTER et al. v. Franklin BENAMY |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The petitions state causes of action on oral agreements of employment of a real estate broker and are not subject to demurrers.
This is an appeal from the judgment of the Civil Court of Fulton County overruling the demurrers of the defendants to Count 2 of the plaintiff's petitions.
The plaintiff, Franklin Benamy, d/b/a Benamy Realty Corporation, a real estate broker, brought separate actions on substantially the same allegations. One cause of action was brought against E. W. Hunter, and the other against Mildred B. Hunter, individually and as trustee for James Wallace Hunter. Both petitions allege in substance as follows: The defendants orally employed the plaintiff to obtain a purchaser for certain real estate owned by the defendants on terms satisfactory to the defendants. In the oral agreement of employment, the defendants agreed to pay the plaintiff a commission in accordance with the schedule of the Atlanta Real Estate Board and a copy of this was set forth in the petition. Pursuant to this employment contract the plaintiff endeavored to obtain a purchaser for the property and did secure a bona fide offer which was accepted by the defendants. Pursuant to the terms of such offer and acceptance, a contract was prepared which was executed by the defendant, as seller, Seven Fifty, Inc., as purchaser, and by the plaintiff, as broker.
The purchaser obtained by the plaintiff was ready, willing and able to purchase the property on the terms agreed to by the defendants. 'Although defendant executed the sales contract as aforesaid, he now contends he rejected any offer by Seven Fifty, Inc., as is shown by a letter from his attorney, copy of which, * * * is hereto attached and made a part hereof.' The defendants have refused to pay the plaintiff a commission, and these actions are brought under the oral contract to recover judgment for the commissions owed to the plaintiff.
Huie, Etheridge & Harland, Smith, Field, Ringel, Martin & Carr, H. A. Stephens, Jr., Atlanta, for plaintiffs in error.
Robert W. Spears, Wm. G. Grant, Atlanta, for defendant in error.
Although the demurrers to the petitions attempt to set out several grounds both general and special, in substance all demurrers raise only the question as to whether the petitions state a cause of action, and the briefs of the parties show that this is the only issue brought before this court and requested for determination. It is evident that the allegations in court 2 of the petitions do clearly and concisely set out a cause of action on an oral agreement employing the plaintiff to obtain a purchaser for certain real estate owned by the defendants, and the plaintiff's broker's commissions were earned by procuring a purchaser ready, able and willing to buy pursuant to an actual offer to buy on terms stipulated by the owner. See Code § 4-213. This agreement, although oral, may be the basis for this action. Lingo v. Blair, 32 Ga.App. 111, 122 S.E. 802.
These actions were originally brought in two counts. Count one in each petition was founded on the agreement to pay commissions embodied in a contract to sell executed by the broker, purchaser and seller. Count two in each was based on the parol agreement above discussed. The...
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Clyde Chester Realty Co. v. Stansell
...a contract of agency signed by both parties is not essential to the creation of the principal-agent relationship. Cf. Hunter v. Benamy, 101 Ga.App. 907, 115 S.E.2d 424, affd. 216 Ga. 511, 117 S.E.2d 627. See, e. g., Davidson v. Ramsby, 133 Ga.App. 128(2), 210 S.E.2d 245; Greenbaum v. Brooks......
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Steinemann v. Vaughn & Co., Ltd.
...An oral contract for brokerage commissions is enforceable. Thomas v. Memory, 154 Ga.App. 756, 270 S.E.2d 24 (1980); Hunter v. Benamy, 101 Ga.App. 907, 115 S.E.2d 424 (1960). The terms of the contract as alleged by Steinemann consisted of his obligation to procure a joint venturer and financ......
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Cole v. Cates, s. 40954
...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......
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Hunter v. Benamy
...a careful consideration of the records and briefs of counsel in these cases, we are of the opinion that the Court of Appeals, 101 Ga.App. 907, 115 S.E.2d 424, properly affirmed the judgments of the court Judgments affirmed. All the Justices concur. ...