Roberts v. Prater & Forrester

• Decision Date: 23 November 1922
• Docket Number: 13249.
• Citation: 114 S.E. 645,29 Ga.App. 245
• Parties: ROBERTS v. PRATER & FORRESTER.
• Court: Georgia Court of Appeals

114 S.E. 645

29 Ga.App. 245

ROBERTS v. PRATER & FORRESTER.

No. 13249.

Court of Appeals of Georgia, Second Division

November 23, 1922

Syllabus by the Court.

The mere fact that in a contract between an owner and a broker listing property for sale, use is made of the words "to sell," does not change the status of the agent thus employed from that of a broker to a sales agent, so as to render inoperative the provision of Civ. Code 1910, § 3587 that "the 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." It is furthermore true "that where the purchaser presented by the broker is accepted by the vendor, and they enter into a binding, valid and enforceable contract of sale, the broker is entitled to his commissions; and this right is not destroyed though the purchaser may fail or be unable to make deferred payments, or the contract may not be carried into full effect." Payne v. Ponder, 139 Ga. 283, 287, 77 S.E. 32, 34; Odell v. Dozier, 104 Ga. 203, 30 S.E. 813. It is possible, however, for the owner, by the contract of employment (as was done here), to appoint, not a broker, but an exclusive sales agent, so that the latter will be entitled to commissions only upon consummated sales, and not upon mere executory contracts as contemplated by the provisions of the Code section quoted from. Hyams v. Miller, 71 Ga. 608; Humphries v. Smith, 5 Ga.App. 340, 63 S.E. 248. Even in such a case the agent would not, however, be deprived of his commissions, if it be made to appear that the whole service or duty devolving upon the agent has been performed, and that only the refusal or interference of the owner has prevented the consummation of the sale according to the terms authorized in the contract of listment. Hyams v. Miller, supra; Fenn v. Ware, 100 Ga. 563 (1), 28 S.E. 238; Girardeau v. Gibson, 122 Ga. 313, 314, 50 S.E. 91; Hogan v. Gilbert, 27 Ga.App. 444 (2), 108 S.E. 625.

To entitle a sales agent to commissions in a case where the sale has not been consummated, it must therefore be made to appear that he has performed the whole duty or service required of him under his contract, except in so far as he has been prevented by the conduct of the owner. Thus, where the contract between the owner and the agent expressly provides for the consummation of the sale, and provides that the purchaser shall thereupon, as a part of the terms of purchase, pay over a stated portion of the purchase price as an initial payment, no compliance with the agent's obligations has been made, unless the proposed...