Jordan v. Dolvin Realty Co.

• Decision Date: 06 November 1936
• Docket Number: 25710.
• Parties: JORDAN v. DOLVIN REALTY CO.
• Court: Georgia Court of Appeals

188 S.E. 304

54 Ga.App. 472

JORDAN v. DOLVIN REALTY CO.

No. 25710.

Court of Appeals of Georgia, First Division

November 6, 1936

Syllabus by the Court.

The undisputed evidence shows that the plaintiff, suing for commissions on the sale of real estate, was not the procuring cause of the sale; and, the verdict in its favor being unauthorized, the court erred in overruling the defendant's motion for new trial.

Error from Municipal Court of Atlanta; Ralph McClelland, Judge.

Suit by the Dolvin Realty Company against William R. Jordan. To review a judgment for plaintiff, defendant brings error.

Reversed.

Tidwell & Brown, of Atlanta, for plaintiff in error.

Clarke & Clarke, of Atlanta, for defendant in error.

BROYLES Chief Judge.

Dolvin Realty Company brought suit against William R. Jordan to recover a real estate agent's commission on the sale of certain property in Atlanta owned by Jordan. The court sitting without a jury, rendered judgment in favor of the plaintiff. The defendant's motion for new trial was overruled, and on this judgment he assigns error.

After a careful consideration of the entire record, we are convinced that the evidence presents a plain case of two agents having the property in question listed for sale; both attempted to sell it; one succeeded, and earned and was paid the commission; the other failed, and now asks that the owner be required to pay him a like commission, or, in other words that the owner be required to pay a dual commission. The Dolvin Realty Company was represented in the negotiations by its agent W. H. Cook. The purchaser, Mrs. Claude Dixon negotiating through her brother, Luther Guess, finally bought the property through another real estate agent, Ralph Martin to whom the owner paid the commission of $425. The evidence shows that Cook, the agent of the plaintiff company, was the first to find Mrs. Dixon as a prospective purchaser, and that Cook had advertised the property and made efforts to sell it, but that he was unable to procure a sale of the property. Finding the prospect and attempting to make the sale are not sufficient, in law, to justify payment of commissions to an agent. The sale of the property is what gets results for the owner and for the agent. To earn the commission, one must be the procuring cause. He must, during the agency, find a purchaser, ready, able, and willing to buy, and who actually offers to buy on the terms stipulated by the owner. Code 1933, § 4-213. The plaintiff company did not do this. They tried to procure the sale of the property, but were unsuccessful. Since the procuring cause is a finding of fact which could not be disturbed if based on conflicting evidence, we will discuss only the undisputed evidence which shows that the plaintiff was not the procuring cause of the sale. The undisputed evidence shows that the plaintiff, acting through its agent Cook, advertised for sale the property in question; that Mrs. Dixon, the purchaser, found Cook's card on another house, and phoned Cook; that in the conversation Cook referred her to the property in question on Johnson road and told her the price; that she went out to see the property on Johnson road but did not decide to buy it, and left Atlanta, going back to Charlotte, N. C., where she lived, and leaving the matter of finding and buying a place with her brother Luther Guess; that she had not concluded to purchase the place on Johnson road before the second agent, Martin, took the matter up with her brother and procured the sale; that her brother, acting for her and after communicating with her, finally bought the property through his friend Ralph Martin, with whom also the property was listed for sale; that Cook's exclusive agency to sell the property expired September 27, and the contract of sale procured by Martin was not made until October 2, and the sale was consummated on October 14; that Cook never took the purchaser or her brother to see the property, and never saw them until after the sale; that Cook never presented to the owner or procured from the purchaser any contract of sale or any offer from her to buy the property; that Cook admitted he could not "put the sale over." The evidence fails completely to sustain the plaintiff's contention that Jordan, the defendant, Guess, the brother of the purchaser, and Martin, the real estate agent, colluded together for the purpose of defeating the rights of the plaintiff. It appears that Jordan's only object was to sell the property at a certain price, and he had nothing to gain by selling through one agent rather than another; the exclusive agency of Cook having been terminated. Martin tried to sell the property as he had a right to do, bceause he wanted to earn the commission. Guess preferred to deal with Martin because he was his friend. This is legitimate and not at all unusual in real estate deals. Martin, because of the friendship of Guess, was able to procure, and did procure, the sale of the property to the sister of Guess. If Dolvin Realty Company, acting through its agent Cook, could not and did not procure the sale because Guess preferred to deal with Martin, Jordan was not responsible for such failure, and Dolvin Realty Company was not entitled to a commission.

Attention is directed to the following undisputed testimony of unimpeached witnesses: W. H. Cook, real estate agent, who negotiated for the plaintiff company, and who was its witness: "I had exclusive sale on it until September 27, and I released it on September 27 * * *. As to Jordan and I agreeing that since I had not been able to do anything with it, I had better let the thing rest and start over again-we had that conversation all right. * * * As to why I did not prepare a contract and get Jordan to sign it at that time, and submit it to these people, I never did see these women in person. * * * I did not put it over. * * * I never did see Luther Guess [the purchaser's brother]. * * * Mrs. Dixon never did say that she would take that property. * * * Mrs. Dixon never did say that she would buy it. * * * I said I did every thing I could and I could not put the deal through." (Italics ours.) This evidence of Cook, the plaintiff's agent, shows that he was not the procuring cause of the sale, but, on the contrary, that he was unable to procure the sale of the property.

W. R Jordan, the defendant and seller, testified: "This contract was closed on October 14, and the contract was signed by me and her on October 2. * * * I paid a...