Kuniansky v. Williams

• Decision Date: 04 May 1960
• Docket Number: No. 38150,No. 1,38150,1
• Citation: 115 S.E.2d 204,101 Ga.App. 678
• Parties: Milton KUNIANSKY v. C. L. WILLIAMS
• Court: Georgia Court of Appeals

Page 204

115 S.E.2d 204

101 Ga.App. 678

Milton KUNIANSKY v. C. L. WILLIAMS.

No. 38150.

Court of Appeals of Georgia, Division No. 1.

May 4, 1960.

Rehearing Denied May 17, 1960.

Syllabus by the Court.

In an action by a real estate broker against an owner of property, to recover a real estate commission, where the evidence authorizes a finding that the terms of a nonexclusive listing were that there should be a net of $22,000 to the owner, and the evidence further authorizes the findings that no offer on the owner's terms was procured by the broker and that the owner was justified in believing that negotiations between the broker and prospective purchaser had ceased, the finding was authorized that a sale by the owner directly to the purchaser solicited by the broker for an amount less than $22,000 net to the owner was in good faith and did not entitle the broker to a commission.

Milton Kuniansky sued Charles L. Williams for $1,310 principal alleged to be due as a real estate commission. The action is in two counts, one on an express contract and one on quantum meruit. The petition alleged that the defendant listed for sale certain improved premises with the plaintiff on or about March 10, 1958; that the defendant employed the plaintiff to procure a purchaser for them; and that the defendant was obligated to pay the plaintiff a real estate commission of 5% of $23,500, the price desired by the owner, if plaintiff procured a purchaser; that on May 14, 1958, the defendant conveyed the premises to Marilyn G. Hurwitz by means of a deed which showed on its face that the price was $27,000; that the premises were sold to a purchaser procured by the plaintiff. The Judge of the Civil and Criminal Court of DeKalb County, trying the case without a jury, found for the defendant. The plaintiff excepts to the denial of his motion for a new trial.

Irving K. Kaler, Theodore G. Frankel, Atlanta, John Wesley Weekes, Decatur, for plaintiff in error.

Walter E. Baker, Jr., Decatur, for defendant in error.

FELTON, Chief Judge.

The court was authorized to find that the agreement under which the property was listed for sale with the broker provided that the sale was to net the defendant owner the sum of $22,000 and that all in excess thereof would be retained by the broker as fee or commission. The court was also authorized to find from the evidence that the sale price of the property was $23,500 and not $27,000 as alleged in the petition; that the recited consideration in the deed was inflated for the purpose of obtaining a larger loan; that the plaintiff at no time obtained from the purchaser a bid which would have netted the owner $22,000; that the purchase price of $23,500 was not for the property in the condition it was in at the time of listing but included extra improvements on the property paid for by the owner which cost in excess of $1,500 by reason of which the sale did not net the owner $22,000, but a sum slightly below that amount. The evidence also showed that the broker returned the earnest money to the prospective purchaser and advised him that he could not make a deal and so advised the owner and that the broker made no further efforts to sell the property to anyone; and that thereafter the owner resumed negotiations with the prospect and sold the property to him together with certain extras for the sum of $23,500.

'Generally a broker's commissions are earned 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.' Code § 4-213; Sikes v. Markham, 74 Ga.App. 874, 41 S.E.2d 828; Waring v. John J. Thompson & Co., 76 Ga.App. 494, 46 S.E.2d 364; Atlanta Realty Co., Inc. v. Compion, 94 Ga.App. 136...