Newman v. James M. Vardaman & Co., Inc.

• Decision Date: 08 July 1982
• Docket Number: 63827,Nos. 63826,s. 63826
• Citation: 162 Ga.App. 878,293 S.E.2d 462
• Court: Georgia Court of Appeals
• Parties: NEWMAN v. JAMES M. VARDAMAN & CO., INC. JAMES M. VARDAMAN & CO., INC. v. NEWMAN.

Page 462

293 S.E.2d 462

162 Ga.App. 878

NEWMAN v. JAMES M. VARDAMAN & CO., INC.

JAMES M. VARDAMAN & CO., INC. v. NEWMAN.

Nos. 63826, 63827.

Court of Appeals of Georgia.

July 8, 1982.

Ben B. Mills, Jr., Fitzgerald, for Newman.

Wilson R. Smith, Lyons, for James M. Vardaman & Co., Inc.

POPE, Judge.

Appellee James M. Vardaman & Co. brought suit against appellant W. A. Newman, seeking to recover a real estate commission allegedly earned as a result of the sale of some three hundred acres of timberland owned by appellant in Wilcox County. Appellant filed a counterclaim for damages allegedly resulting from appellee's breach of contract. The case proceeded to trial and the jury returned a verdict for appellee on both the claim and the counterclaim.

Appellant asserts eighteen enumerations of error, seventeen of which relate to the jury instructions and one relating to the trial court's alleged refusal to allow certain evidence in the case. Appellee filed a cross-appeal as a precautionary measure in the event of a decision for reversal and remand for new trial on the main appeal.

The facts were in dispute and we have endeavored herein to glean from the conflicting evidence, in light of the jury verdict, what transpired. Appellant, defendant below, was the owner of approximately 304 acres of land in Wilcox County. Appellee, plaintiff below, is a real estate broker.

In December 1978 appellant responded to a newsletter published by appellee, requesting information regarding the services offered by appellee. As a result, appellant was contacted by Edwin Orr, a real estate salesman employed by appellee. Orr met with appellant, surveyed the property to be sold and submitted an offer of services. Appellant declined at that time.

In June 1979 appellant contacted appellee again regarding the same piece of property. Orr again visited appellant. On June 27 Orr submitted an offer to appellant in the form of a letter. The letter was signed by appellee's registered broker and it set forth the terms of the proposed agreement. Appellant was requested to indicate his acceptance by signing the letter, which he did. The agreement provided in part: "We [appellee] will measure and mark all of the sawtimber and cruise the pulpwood. We will then prepare and send out sale announcements to prospective timberland buyers, advertise in local newspapers, receive bids for opening by you and close the sale. These sales are sealed-bid, lump-sum, cash-in-advance transactions. Our fee for the entire operation is 10% of the high bid, payable when we close the sale."

Appellee marked, measured and cruised the timber, prepared and sent out sale announcements and advertised in the local newspaper. In addition, appellee's salesman, Orr, contacted several local prospective buyers. One of these was Gilman Paper Company.

Two bids were submitted by the bid closing date of September 27, 1979. One was a sealed bid in the amount of $146,550. The other was a bid by W. K. Ward, president of W. K. Ward Enterprises, Inc., in the amount of $192,405. The latter bid was communicated to Orr via telephone, which Orr reduced to writing and submitted to appellant in a sealed envelope along with the other bid.

The Ward bid, as submitted, was acceptable to appellant. Appellee, through Orr, discussed terms with appellant and then Orr telephoned Ward, stating the proposed terms. The proposed payment terms basically spread the purchase price over three tax years. Ward was unwilling to agree to the payment terms over the telephone and by himself, but indicated his willingness to buy the land during the conversation. He told Orr that he was purchasing the property as part of a land swap deal with Gilman Paper Company. Following the telephone conversation, Ward mailed Orr a written confirmation of his bid and Orr sent Ward the proposed terms in writing.

The attorney initially handling the transaction for Ward was Tom J. Crosby, counsel also for Gilman Paper Company. On October 16, 1979 Crosby wrote a letter to appellant, with a copy to Orr, proposing to close the transaction on October 26, 1979. Enclosed with the letter was a closing statement and warranty deed. The closing statement indicated the buyer to be Zippy Mart, Inc. and it listed as part of the charges to seller the ten percent brokerage fee to appellee. (The deed enclosed was not produced at trial and it is unclear who was named grantee therein.)

Because Ward could not raise the down payment by the October 26 closing date, the deal was not closed then. On November 9 Crosby sent Orr a proposed six month option contract. On November 27 appellant and Ward signed a sales contract for the property. Closing date was set for May 27, 1980. The purchase price was $192,405, the same as the September 27 bid price. The contract provided for appellee's ten percent commission to be paid by appellant. (Appellee was not present during this transaction.) After signing the sales contract with appellant, and on the same day, Ward executed an assignment of his interests under the contract to Zippy Mart.

On May 27, 1980 appellant consummated the sale to Zippy Mart. Despite efforts to be included at the closing, appellee was excluded. (The related exchange of property between Gilman Paper Company and Zippy Mart took place on June 10, 1980.) Appellant refused to pay appellee the ten percent real estate commission. On July 11, 1980 appellee filed suit. Appellant now appeals the jury verdict for appellee.

1. Appellant's first enumeration of error is that the trial court erred in charging the jury that appellee was a licensed real estate broker. Appellant's second enumeration contends that the court erred in failing to charge that appellee was required to allege and prove it was a duly licensed real estate broker at the time the cause of action arose. Because appellant failed to object to these charges, our standard of review is the substantial error test. Code Ann. § 70-207(a) and (c); Sturdivant v. Polk, 140 Ga.App. 152(5), 230 S.E.2d 115 (1976), and cases cited. See also Collins v. Martin, 157 Ga.App. 45(4), 276 S.E.2d 102 (1981); Yale & Towne, Inc. v. Sharpe, 118 Ga.App. 480(2), 164 S.E.2d 318 (1968).

Code Ann. § 84-1404(a) provides: "No person shall bring or maintain any action in the courts of this State for the collection of compensation for the performance of any of the acts mentioned in this Chapter without alleging and proving that he was a duly licensed real estate broker or salesman at the time the alleged cause of action arose."

Appellee alleged in its complaint that it was duly licensed and submitted documentary evidence at trial, in the form of a certification from the Georgia Real Estate Commission, as proof thereof. The certification was admitted without objection and it was not disputed or controverted by appellant. At the close of the trial, in its charge to the jury, the court did charge that appellee was a licensed real estate broker. This was improper. Under § 84-1404(a) the burden was upon appellee to prove this fact to the jury and the court should have so charged. However, we do not find this to be substantial error. Although it was a question of fact for the jury, it was supported by strong, undisputed evidence. A rational trier of fact could not have concluded otherwise. See Sturdivant v. Polk, supra.

Appellant argues that appellee failed to comply with Code Ann. § 84-1417 and therefore the conditions of § 84-1404(a) were not met. Appellant raises this argument for the first time on appeal. Section 84-1417 provides in relevant part: "If a real estate broker maintains more than one place of business within the State, a branch office license shall be issued to such broker for each branch office.... The manager of a branch office must be a broker or associate broker. No broker or associate broker shall be the manager of more than one real estate office or branch office."

Appellant adduced testimony at trial that appellee maintained a branch office in Macon; that Edwin Orr was the branch manager; and that he was licensed as a real estate salesman, not a broker. Appellant's argument is that because appellee failed to show it had complied with the provisions of § 84-1417 regarding branch offices, it could not have satisfied the conditions of § 84-1404(a). We disagree. To our knowledge there is no authority holding that these two sections are related. Section 84-1404(a) relates to matters between realtor-plaintiffs and the courts. Section 84-1417 relates to matters between realtors and the Georgia Real Estate Commission. Whether or not appellee was in compliance with § 84-1417 has no bearing on the issues in this case. Appellee submitted conclusive evidence that it was duly licensed at the time the alleged cause of action arose and we hold that sufficient to satisfy § 84-1404(a). See Merrill Lynch, Pierce, Fenner & Smith v. Zimmerman, 248 Ga. 580, 285 S.E.2d 181 (1981); Management Search, Inc. v. Kinard, 231 Ga. 26(3), 199 S.E.2d 899 (1973); A. R. Hudson Realty v. Hood, 151 Ga.App. 778(4), 262 S.E.2d 189 (1979) (as modified by Merrill Lynch, etc. v. Zimmerman, supra); Brown v. Jackson, 142 Ga.App. 780, 237 S.E.2d 13 (1977); Reddix v. Chatham County Hosp. Auth., 134 Ga.App. 860(3), 216 S.E.2d 680 (1975) (as modified by Merrill Lynch, etc. v. Zimmerman, supra).

Furthermore, even if appellee's evidence had been deficient, we would hold that appellant waived the requirement for proof by his actions. In other words, appellant is estopped from asserting the error on appeal. Appellant evinced that he knew appellee was a licensed broker when he was developing the basis for his Code Ann. § 84-1417 argument during the deposition of Edwin Orr and at all times before and during trial. The sales contract between appellant and Ward provided appellant would pay appellee's commission. The contract between appellant and appellee was signed by appellee's registered broker. At all times relevant to this case, appell...