National City Bank of Rome v. Graham

• Decision Date: 09 March 1962
• Docket Number: 3,No. 39004,Nos. 1,2,39004,s. 1
• Citation: 125 S.E.2d 223,105 Ga.App. 498
• Parties: NATIONAL CITY BANK OF ROME et al. v. Meredith GRAHAM
• Court: Georgia Court of Appeals

Page 223

125 S.E.2d 223

105 Ga.App. 498

NATIONAL CITY BANK OF ROME et al. v. Meredith GRAHAM.

No. 39004.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

March 9, 1962.

Syllabus by the Court

1. (a) Where a petition is amended so as to change the cause of action from one based on contract to one founded in tort, the amendment should be stricken when attacked by a proper demurrer.

(b) Where an agent acts for a disclosed principal within the scope of his authority, the actions are those of the principal, who is alone liable in contract unless the agent has also assumed personal liability.

2. There is no civil liability merely for conspiracy alone, since the gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff to his damage. The tort, the damage, and the conspiracy must all be alleged to set forth a cause of action.

(a) The rights and liabilities of the seller and purchaser of property are to be determined at the time of the contract of sale rather than the time of the closing of the sales transaction. Notice by the plaintiff to the seller, given after the finality of the sales contract, that plaintiff was the procuring cause of the sale is insufficient to impose liability upon the seller for commissions due on the sale.

(b) One to whom a real estate broker offers assistance in consummating a sale of property is not compelled to accept the services offered. If he later purchases the property, he is not bound to pay commissions on the sale unless he contracted to do so.

(c) (1) Where the petition shows that no commissions are due a broker upon a sale of property, a claimed conspiracy to defraud the broker of the commission based on the sale does not state a cause of action.

(2) Where there is a conflict in a petition between a general and a specific allegation, the specific charge will control where the inference to be drawn from the specific accusation is against the pleader.

Plaintiff brought this action to recover a real estate commission allegedly due him as agent, earned on the sale of property of the defendant Brittain Bros. Company. Joined as additional defendants were The National City Bank of Rome, which, allegedly acting as agent for Brittain Bros., offered the real estate for sale, and The Citizens and Southern National Bank, to which the plaintiff offered his services in consummating the buying of the property.

The petition as amended alleges that The National City Bank of Rome, through its trust officers and trust department, acting as agent for the Brittain Bros. Company, offered for sale certain real estate and other assets which were owned by Brittain Bros. Company; that the plaintiff's agent and employee was invited to the Rome bank and told by W. T. Maddox, its executive vice president and the president of Brittain Bros. Company, that these properties would be offered for sale through real estate brokers and salesmen; that he furnished plaintiff's agent with a prospectus in which the properties were described and the terms of the sales and conditions under which sales would be made, and the commissions to be paid to the brokers instrumental in effecting any sale or sales; that thereupon the plaintiff wrote to the president of The Citizens and Southern National Bank, in Atlanta, informing him that the properties were for sale, and 'offered your petitioner's services in consummating the buying of the said properties'; that the assistant vice president of the bank answered this letter and 'stated that if anything developed concerning the Brittain Bros. Company's properties, your petitioner would be informed prior to 2:30 o'clock P.M. on June 17, 1959'; that the plaintiff heard nothing concerning the sale of the properties until June 29, 1959, when the plaintiff's agent learned that The Citizens and Southern National Bank had bid on certain of the property and submitted its bid 'in compliance with the demands of The National City Bank of Rome and Brittain Bros. Company, as set forth in petitioner's Exhibit 'A"; that plaintiff's agent learned at the same time (June 29, 1929) that The Citizens and Southern National Bank had made a bid on the property known as the 'Firestone Building' in the amount of $140,000, and the bid had been accepted but the sale transaction had not been closed; that the employee and agent of the plaintiff immediately informed W. T. Maddox, President of Brittain Bros. Company and Executive Vice President of The National City Bank of Rome, the agent of Brittain Bros. Company, 'on the 29th day of June, 1959,' that The Citizens and Southern National Bank was a prospect and client of petitioner and that petitioner would expect a commission when and if the sale of the property was made to The Citizens and Southern National Bank by The National City Bank of Rome, as agent, and by Brittain Bros. Company, as seller; that this position in regard to payment of the commission was confirmed in writing by the plaintiff; that the defendant seller and The National City Bank of Rome on July 23, 1959, transferred and conveyed the property to the trustees of the Employees' Pension Plan of The Citizens and Southern National Bank, for $140,000; that the defendants refused to pay the plaintiff the commission; that plaintiff was the procuring cause of the sale of the property and that the seller and its agent in selling the property did so with full knowledge that the purchaser had been procured by the acts of the plaintiff; that the letter of the plaintiff, Exhibit 'B', was the 'efficient cause' of the sale of the property, as neither Brittain Bros. Company nor The National City Bank of Rome contacted The Citizens and Southern National Bank in any manner respecting the sale of the property, and that the property was transferred from the buyer to the seller with full knowledge of the facts in the case.

Exhibit 'A' attached to the petition listed certain properties owned by the defendant Brittain Bros.; stated that the owner was soliciting offers for these properties; that sealed offers would be received by them at The National City Bank of Rome on Wednesday, June 17, 1959, at 2:30 p. m.; the manner of submitting the bids or the offers was set forth, announcing that 'The stockholders of Brittain Bros. Co. have expressed a desire to sell the properties described herein and have every intention of selling said property if offers are received commensurate with the true values thereof. However, the stockholders have no intention of selling any of their properties at any unrealistic price. They therefore specifically reserve the right to accept or reject any and all offers for a period of thirty days from and after June 17, 1959, and only final acceptance of a contract in writing shall be binding upon Brittain Bros. Co., and no broker's commission shall accrue until such written acceptance is executed and delivered by Brittain Bros. Co. Certified checks accompanying offers which may be rejected will be returned with the notice of rejection'; and also, that on any offer which is accepted and a sale successfully consummated Brittain Bros. Company would pay the standard sales commission as established by the Atlanta Real Estate Board. It concluded by stating that all inquiries concerning this matter should be addressed to a designated individual who was vice president and trust officer of The National City Bank of Rome, Rome, Georgia.

Plaintiff's letter to the defendant The Citizens and Southern National Bank was dated June 1, 1959, and advised the bank that the defendant Brittain Bros. was soliciting offers for its properties in Atlanta, and that the plaintiff, among others, had been authorized to attempt to find a purchaser at a reasonable price, that no asking or selling price had been set but that all pertinent information would be furnished; the properties for sale were listed, and the letter then concluded, 'These are good properties soundly located, and the Brittain Bros. stockholders went to sell. Offers will be accepted by the National City at 2:30 on June 17th. If you or your associates are interested, please contact Mrs. Sara Wright at my office and she will bring all the information we have about the properties to you. I am also sure that Billy Maddox, Trust Officer and Lloyd Summer, Assistant Trust Officer of the bank, will accompany her to see you.' (Emphasis added.)

The petition further alleged that the three defendants, through their officers and agents, with full knowledge that the plaintiff was the efficient cause of the procuring of the purchaser of the property, did 'fraudulently and wrongfully conspire among themselves to defeat your petitioner's right to your petitioner's commission for the sale of said property, thereby enriching themselves'; and that the plaintiff, although no formal contract was entered into between him and The Citizens and Southern National Bank for him to act as agent, the bank did take advantage of plaintiff's labor and information furnished by the plaintiff in good faith, and using the information furnished the bank purchased the property, and wrongfully and fraudulently conspired with the other defendants to deprive the plaintiff of his commissions by attempting to conceal from the plaintiff the buying and selling of the property. Plaintiff further charged that The National City Bank of Rome, acting as agent for the seller of the property, was a part of the conspiracy to deprive the plaintiff of his commission, and is consequently, as part of the conspiracy, liable to the plaintiff for his commission.

Numerous demurrers were filed by the three defendants.

The trial judge, after a hearing, overruled all the demurrers of each of the defendants on each and every ground. To the overruling of these demurrers the defendants excepted.

Rogers, Magruder, Hoyt, Wright & Walther, Robert G. Walther, Fullbright & Duffey, Henry J. Fullbright, Jr., Rome, for plaintiff in error.

Parker, Clary & Kent, Horace...