Pendley v. Jessee, 50135

• Citation: 213 S.E.2d 496,134 Ga.App. 138
• Decision Date: 12 February 1975
• Docket Number: No. 50135,No. 3,50135,3
• Parties: H. J. PENDLEY, Sr. v. George W. JESSEE, Jr., et al
• Court: Georgia Court of Appeals

Page 496

213 S.E.2d 496

134 Ga.App. 138

H. J. PENDLEY, Sr. v. George W. JESSEE, Jr., et al.

No. 50135.

Court of Appeals of Georgia, Division No. 3.

Feb. 12, 1975.

Rehearing Denied March 4, 1975.

Edward D. Wheeler, Decatur, for appellant.

Candler, Cox, Andrews & Hansen, W. Edward Andrews, Atlanta, for appellees.

Syllabus Opinion by the Court

STOLZ, Judge.

This is an action by two of nineteen individuals who jointly owned a certain tract of real estate, in their capacity as brokers of all of the said owners, to recover the stipulated brokerage commission from the defaulting purchaser under a written sale contract for the said realty. The plaintiffs signed the sale contract in three different capacities, i.e., as individual sellers, as attorneys in fact for some of the other individual sellers, and as brokers. The contract provided: 'In negotiating this contract, Broker has rendered a valuable service for which reason Broker is made a party to enable Broker to enforce his commission rights hereunder against the parties hereto on the following basis: Seller agrees to pay Broker the full commission when the sale is consummated and in the event the sale is not consummated because of Seller's inability, failure or refusal to perform any of the Seller's covenants herein, then the Seller shall pay the full commission to Broker and Broker, at the option of Purchaser, shall return the earnest money to Purchaser. Purchaser agrees that if Purchaser fails or refuses to perform any of Purchaser's covenants herein, Purchaser shall forthwith pay Broker the full commission; . . .' (Emphasis supplied.)

The defendant purchaser answered, defending on the ground, inter alia, that the plaintiffs were not entitled to recover as brokers (agents) since they were also sellers (principals), and counterclaimed for the earnest money, on the ground of failure of consideration.

The defendant appeals from the grant of the plaintiffs' motion for summary judgment, the denial of his motion for summary judgment, and the denial of his motion to dismiss the complaint.

1. The denial of the motion to dismiss the complaint was not error. We have found no reason or authority compelling a holding barring one or more of the individual owners of realty from being employed by the remaining individual co-owners of the realty as brokers for the sale of the realty.

'Ordinarily, and in the absence of a statute providing otherwise, a person dealing with his own property would not be deemed to be acting as a real-estate broker or agent, and some licensing statutes, or statutes defining the term 'real-estate broker,' may expressly except owners of the property. A joint adventurer selling property of the venture does so as an owner and not as a broker. Under some circumstances, however, one dealing with property in which he has an interest may be deemed to be acting as a real-estate broker in the transaction, regardless of the exception of owners of property.' (Emphases supplied.) 12 Am.Jur.2d 784, Brokers, § 14.

Ga.L.1973, p. 100 (Code Ann.Ch. 84-14, Real Estate Brokers and Salesmen) became effective on July 1, 1973, hence was in effect at the July 30, 1973 execution of the sale contract in question. The definition of 'broker' in Code Ann. § 84-1401(b) (Ga.L.1973, p. 100; 1974, p. 379) is certainly inclusive of the plaintiffs' activities in connection with the transaction in question.

Code Ann. § 84-1403 (Ga.L.1973, pp. 100, 103) provides in part: 'Except as otherwise provided in this Chapter, the provisions of this Chapter shall not apply to: (a) any person except a real estate broker or salesman licensed under this Chapter who, as owner, lessor or prospective purchaser or their regular employees, including resident managers, performs any act with reference to property owned, leased or to be acquired by him where such acts are performed in the regular course of, or as incident to, the management of such property and the investment therein; . . . (g) any person who as owner or through another person engaged by such owner on a full-time basis, buys, sells, leases, manages, auctions or otherwise deals with property owned by such person; (h) any person employed on a full-time basis by the owner of property for the purpose of selling, buying, leasing, managing, auctioning or otherwise dealing with such property.' (Emphasis supplied.) Since the allegation in the complaint, that the plaintiffs are licensed real estate brokers, is unchallenged, exclusion (a) above does not apply. The phrase 'as owner' in exclusions (a) and (g) above, is construed to mean in the capacity as owner. Since the plaintiffs are suing in their capacities as brokers, even though they are also incidentally co-owners, these exclusions do not apply. Although the plaintiffs might not be required to be licensed real estate brokers under exclusion (h) above, we do not construe this to mean that they, being such licensed brokers, are not entitled to act as brokers for their co-owners and to enforce their contractual right to broker's commissions. Such a result is not warranted by the mere absence in the statute of a specific provision for situations of joint ownership.

Regarding the statement in 12 Am.Jur.2d 784, Brokers, § 14, quoted hereinabove, that '(a) joint adventurer selling property of the venture does so as an owner and not as a broker,' this may be generally true in the absence of a contract to the contrary. Even if it might be assumed that the sellers were cotenants or tenants in common, moreover, this would not prevent their entering into binding contracts among themselves with regard to the land or services rendered by some tenants for all of them. See generally 20 Am.Jur.2d 123 and 190, Cotenancy and Joint Ownership, §§ 32 and 90; 11 Encyclopedia of Ga. Law 114, Estates, § 87. Pretermitting that issue for the time being, however, the complaint does not show that the sellers were joint adventurers, hence would not be subject to dismissal even accepting the validity of the above-quoted statement about joint adventurers.

'The relation of principal and agent arises whenever one person, expressly or by implication, authorizes another to act for him, or subsequently ratifies the acts of another in his behalf.' Code § 4-101. 'Any person who is of sound mind may be appointed an agent . . .' Code § 4-102. 'It is true that generally an agent can not maintain an action on a contract which he has made on behalf of his principal. Code § 4-404. There is, however, an exception to this rule when the agency is coupled with an interest in the agent, such as commissions. Field v. Price, 50 Ga. 135, 136, 139(1); Code § 4-404(5).' Sheriff v. Moore, 105 Ga.App. 833, 834, 125 S.E.2d 729, 730. That an agent is not prohibited from having an interest, is also evident from Code §§ 4-202 and 4-214(1).

Even if the plaintiffs be considered as having a possible interest adverse to that of their employers,...