Landrum v. Lipscomb-ellis Co. Inc
| Decision Date | 22 April 1940 |
| Docket Number | No. 28196.,28196. |
| Citation | 9 S.E.2d 205 |
| Parties | LANDRUM. v. LIPSCOMB-ELLIS CO., Inc. |
| Court | Georgia Court of Appeals |
Rehearing Denied June 10, 1940.
Error from Civil Court of Fulton County, Appellate Division.
Suit by the Lipscomb-Ellis Company, Inc., against Emmett S. Landrum to recover commission alleged to be due plaintiff on the sale of certain property of defendant. To review a judgment for plaintiff, the defendant brings error.
Reversed.
Statement of facts by Sutton, Judge:
Lipscomb-Ellis Co., Inc., brought suit against Emmett S. Landrum to recover $190 as commission alleged to be due it on the sale of certain property of the defendant, the petition as amended alleging that it was a duly licensed real estate broker, and that on or about October 1, 1938, the defendant listed with it for sale certain of his property located at 1357 Ormewood Avenue, S. E., in DeKalb County, Georgia; that acting by and through its employee and agent, Mrs. W. S. Kell, a duly authorized and licensed real estate saleswoman, plaintiff procured a prospect for said property, one Earl D. Busha, and to him showed the property for the first time on or about October 5, 1938, and that at that time she introduced the said Busha to defendant as her prospect for the sale of the defendant's property; that subsequently Mrs. Kell, Busha and the defendant had other conversations with respect to the sale of the property wherein Busha stated that he desired to buy the property if he could obtain it at the right price; that the defendant authorized plaintiff to sell the property for him at a price of $3,900, which said price plaintiff quoted to Busha; that thereafter negotiations lagged and plaintiff subsequently discovered that on or about December 10, 1938, defendant had concluded a sale of the property to Busha, negotiating directly with him, and without notifying plaintiff or its agent, and the defendant thus concluded the sale to Busha solely for the purpose of defrauding plaintiff, in an attempt to deprive it of its commission to which it is entitled; that the amount for which the said house was sold was $3,800 and plaintiff is entitled to a commission of five per cent. on that amount, or $190, for which judgment is prayed; that plaintiff, acting through its said agent, was the procuring cause of the sale and that it produced a purchaser, ready, able and willing to buy the property on terms agreeable to the seller and is, therefore, legally entitled to a commission oh said sale; that upon listing the property with plaintiff the defendant agreed to pay a five per cent. real estate commission on the sale price in the event a sale was made through the efforts of plaintiff; that defendant is hereby notified to have and produce upon the trial of this case the sales contract executed between him and the said Busha, dated between November 1st and December 31st, 1938.
The defendant demurred to the petition as amended on the ground that it set forthno cause of action; that the farts alleged do not show that the defendant owes any sum to the plaintiff; that sufficient facts are not alleged to show that the defendant defrauded the plaintiff; and that sufficient facts are not alleged to show that the alleged sale was concluded by the efforts of the plaintiff. The court overruled the demurrer and the defendant filed its exceptions pendente lite.
The defendant answered and denied the substantial allegations of the petition, and further set up that it did not owe the plaintiff any sum whatever.
Upon the trial of the case before the judge without the aid of a jury the evidence was substantially as follows:
Mrs. W. S. Kell, a licensed real estate saleswoman in the employ of the plaintiff, inquired of the defendant as to whether she might sell for him a certain house and lot owned by the defendant at 1357 Orme-wood Avenue, S.E., in DeKalb County, Georgia, being in the City of Atlanta. The defendant informed her that she might sell the house for him for $3,900 cash. Shortly thereafter Mrs. Kell found a prospect, E. D. Busha, who offered a price considerably less than $3,900, and this was refused by the defendant. Later Busha, through Mrs. Kell, offered to trade in a certain house and lot which was located at 116 Sycamore Drive in Decatur, Georgia, and in which he held an equity. Busha was willing to purchase the property on a basis of $3,900, provided that the defendant would accept as part payment his equity in the Sycamore Drive property at an agreed allowance of $1,112 and let him put an F. H. A. loan on the Ormewood Avenue property and from the proceeds pay the defendant the balance of the purchase price of $3,900. The defendant did not accept this offer, being unwilling to allow Busha as much as $1,112 for his equity in the Sycamore Drive property. The plaintiff, through its agent, Mrs. Kell, was never able to bring about a sale between the defendant and Busha, and Busha subsequently purchased directly from the defendant the Ormewood Avenue property, after making him an offer of $3,800 which was accepted by the defendant with the agreement that Busha was to transfer to him his equity in the Sycamore Drive property at an agreed credit of $600 and pay the balance of $3,200 from the proceeds of a loan to be made with the United States Government on the Ormewood Avenue property. These facts are undisputed.
Mrs. Kell testified that the defendant had agreed to pay her employer, the plaintiff, five per cent. commission in the event she brought about a sale of the property for $3,900, but he would not allow Busha $1,112 for his equity in the Sycamore Drive property, and "although I endeavored to do so, I could not get Mr. Landrum and Mr. Busha together;" that about a week later she learned that the parties had traded between themselves and the defendant refused to pay a commission for "selling the house." On cross-examination she testified that ...
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