Truitt v. Ansley

• Decision Date: 18 February 1913
• Docket Number: 4,231.
• Parties: TRUITT v. ANSLEY.
• Court: Georgia Court of Appeals

77 S.E. 200

12 Ga.App. 329

TRUITT v. ANSLEY.

No. 4,231.

Court of Appeals of Georgia

February 18, 1913

Syllabus by the Court.

An ostensible owner of land, who employs a real estate agent to sell it, may so contract with the agent as that the agent's right to commissions will depend upon the validity of the principal's title to the land; or the contract may be of such a nature that the right to commissions will depend upon the agent's procuring one who will purchase without regard to the vendor's title. One might be willing to pay even larger commissions to an agent to sell property when his title is questionable or doubtful; or, but for this state of the title, he might not be willing to pay commissions at all; and no rule of law or morals forbids a real estate agent from undertaking to sell property for an ostensible owner whose title is in dispute or doubtful, provided the agent does not fraudulently misrepresent the state of the title, or conceal from the proposed purchaser any material fact in relation to it which it is his duty to disclose.

In view of the conflict in the evidence as to the understanding of the parties with regard to the nature and terms of the contract, the court erred in directing a verdict.

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by William S. Ansley against Alfred Truitt. Judgment for plaintiff, and defendant brings error. Reversed.

Alex. W. Smith and W. O. Wilson, both of Atlanta, for plaintiff in error.

Moore & Pomeroy, of Atlanta, for defendant in error.

RUSSELL J.

The court erred in directing a verdict in this case. The direction of a verdict is error requiring a new trial, unless under the evidence submitted the case has resolved itself into a question of law. As was held in Davis v. Kirkland 1 Ga.App. 10, 58 S.E. 209, the court is allowed to direct a verdict only when there is no issue of fact, or when there is but one solution which will fuse the proven facts into homogeneity, and when, after throwing the light of the evidence in every direction, it presents but one view, and it is certain that no other verdict than that directed can be legally reached. It appears from the evidence that Truitt owned a farm in Barrow county, and employed Ansley, as a real estate agent, to sell this farm, or exchange it for real estate in the city of Atlanta. After something like a year's negotiation, Ansley found a purchaser in the heirs of E. P. Black, who were willing to sell their property located on the corner of Peachtree and Sixth streets, and to accept, at a valuation of $17,500, Truitt's farm in Bartow county as part payment of the purchase price. Truitt and the Blacks entered into a contract, which is set out in the record, by which Truitt agreed to convey to them two tracts of land therein described, aggregating about 1,200 acres. The contract stipulated that Truitt was to convey these tracts of land on or before the 1st day of November by proper warranty deed "free from any claim, right or contract on the part of W. D. Craig and J. M. Craig and J. Z Estes and B. F. Williams, or either of them, or their representatives or assigns, and free from all liens and adverse claims of whatsoever nature in favor of whomsoever." It was stipulated that the titles to the Atlanta property should be examined by Truitt, and titles to the Bartow county property should be examined by the Blacks and "if the title to either of said parcels of property is shown, upon examination, not to be good and merchantable" in the party proposing to sell it, the contract should be at an end. The testimony is undisputed that upon examination of the titles of the Bartow county land of Truitt the attorneys of the Blacks were of the opinion that the said titles were not good or merchantable, though it does not appear, as a fact, why they were not good, nor upon what principle of law they were deemed to be invalid. Some reference is made to the fact that one of the counsel, upon the examination of the will of one Hawkins, reached the conclusion that Truitt owned only a life interest, and not the fee, in the farm land which he proposed to sell; but the will of Hawkins does not appear to have been exhibited to the court. However, Truitt seems to have conceded that his title was not merchantable. The contract was treated by both parties as a nullity, and Black later sold the Peachtree street property. Ansley demanded of Truitt $875 as his commission on the sale at $17,500 at the rate of 5 per cent and the court directed a verdict in his favor for that amount, with interest.

If this were all that appeared in the record, a verdict in favor of the plaintiff might be sustained, as being supported by the facts. The judge, no doubt, based his judgment in directing a verdict upon the theory that these were the only material and substantial facts, because he ruled as follows: "Considering the two contracts together, and considering them as evidence in the case, the court is of the opinion, upon all the evidence, including the two contracts aforesaid, that the plaintiff is entitled to recover, and, there being no dispute in the evidence as to the amount of the recovery, the court directs a verdict in favor of the plaintiff for the amount sued for."

If the contract between the Blacks and Truitt, to which we have referred, were controlling in this case, the judgment of the learned trial judge might be right. But, as we view it, this contract merely affords circumstantial evidence, which at best can only shed light upon what was the real contract between Truitt and Ansley. The fact that the contract evidences that Truitt agreed upon certain terms to sell the Blacks his land in Bartow county, and that in doing this he agreed to sell it free from any lien or incumbrance whatever and to convey a title that would be good and merchantable, does not conclude Truitt from asserting that his contract with Ansley contained a different stipulation as to the title. This latter provision of the contract would be sufficient to dispute and destroy any assertion on the part of Truitt that the Blacks were obliged to take his land at the stipulated price without regard to the title. It would estop him from setting up any claim to that effect. It might successfully contradict any claim on the part of Truitt (if Ansley was the real estate agent who procured the Blacks as purchasers) to the effect that Ansley had agreed to sell the property at some price, although Truitt's title was doubtful. However, it would not necessarily have that effect, for, as Ansley had to prove, outside of the contract between Truitt and the Blacks, that he was the real estate agent employed by Truitt, who procured the Blacks as purchasers, so also, if Truitt denies that the terms of his contract were identical with those embodied in the contract into which he entered with the Blacks, he must necessarily prove that the terms were the same. Truitt did not deny that the terms were the same. He did not deny making the contract in this case with the Blacks, but he did deny that the terms of his contract with Ansley embraced the provision which was contained in his contract with the Blacks, with reference to warranting the title. He asserted, on the contrary, that he distinctly informed Ansley that his title to the lots in question was doubtful, and suggested that as a reason why he was willing to take property instead of money. Furthermore, Mr. Wilson, as a witness for Truitt, testified to the same effect. It is true that the plaintiff testified that this was not one of the conditions of his contract with Mr. Truitt, and that he did not know, until after the contract with the Blacks was signed, that there was any difficulty or doubt in regard to Truitt's title, and he is corroborated on this point by the fact that in...