Tidwell & Yarbrough Realty Co. v. Foster

• Decision Date: 05 January 1971
• Docket Number: No. 2,No. 45687,45687,2
• Citation: 180 S.E.2d 259,123 Ga.App. 192
• Parties: TIDWELL & YARBROUGH REALTY COMPANY et al. v. William J. FOSTER et al
• Court: Georgia Court of Appeals

Page 259

180 S.E.2d 259

123 Ga.App. 192

TIDWELL & YARBROUGH REALTY COMPANY et al. v. William J. FOSTER et al.

No. 45687.

Court of Appeals of Georgia, Division No. 2.

Jan. 5, 1971.

Rehearing Denied Jan. 21, 1971.

Certiorari Denied April 22, 1971.

Johnston & McCarter, Hapeville, Ralph E. Carlisle, Atlanta, for appellants.

Hurt, Hill & Richardson, Robert L. Todd, Robert M. McCartney, Atlanta, for appellees.

Syllabus Opinion by the Court

JORDAN, Presiding Judge.

Tidwell & Yarbrought Realty Company and one of its salesmen, Brown, sought damages from Foster and Short based on the loss of a commission on the sale of realty. Short and another purchased the property by dealing directly with Foster.

In Count I the plaintiffs claim that they were the procuring cause of the sale. In Count II they allege additionally a conspiracy between Foster and Short to deprive them of a commission.

The plaintiffs appeal from a judgment n.o.v. in favor of the defendants. Held:

1. 'In order for a broker to earn a commission on account of the sale of property, he must either have sold it or (have) been the procuring cause of the sale. The owner may sell the property, and if he does not use the broker's labor to help in the sale, he owes the broker nothing, but if a purchaser procured by the broker buys from the owner, even at a less price than that given the broker the owner would be liable for the broker's commission if the broker's effort was the procuring cause of the sale. See Doonan v. Ives & Krouse, 73 Ga. 295; Case Threshing Machine Co. v. Binns, 23 Ga.App. 46(3), 97 S.E. 443, and cases cited.' Edwards v. Andrews Brothers, 24 Ga.App. 645(1), 101 S.E. 775. Also, see Code § 4-213.

It need not appear that the broker's effort was the sole procuring cause, but it is enough if it appears that it was an efficient cause. Wilcox v. Wilcox, 31 Ga.App. 486(3), 119 S.E. 445.

2. A broker with whom property is listed for sale does not make out a case of procuring cause, however, by merely showing that he first located the ultimate purchaser, if it further appears that without interference by the owner he was unsuccessful in bringing about an offer which could be consummated, and that the sale was made after he had abandoned his effort. Jordan v. Dolvin Realty Company, 54 Ga.App. 472, 477, 188 S.E. 304; Landrum v. Lipscomb-Ellis Company, 62 Ga.App. 649, 9 S.E.2d 205; Crutchfield v. Western Electric Company, 66 Ga.App. 161, 17 S.E.2d 246.

3. Whether the claim is in the nature of a breach of a contract between the seller and broker, or a claim in tort based on a conspiracy to deprive the broker of a commission, it must appear that the broker's effort was a procuring or efficient cause of the sale. Woodall v. McEachern, 113 Ga.App. 213, 221, 147 S.E.2d 659.

4. Applying the foregoing principles to the present case the evidence does not support a determination that the plaintiffs were the procuring or efficient cause of the sale by Foster to Short and another.

In the latter part of December, 1967, the owner Foster told Brown he could sell the property, to net him $100,000, keeping anything over this as a commission. Brown obtained an offer from Short and Reeves to buy the property for $110,000, subject to certain contingencies, and Foster accepted the offer on January 10, 1968. The written agreement provided for closing within 90 days after acceptance, and a real estate commission of...