Wilharbla Realty Co. v. Carrington

• Decision Date: 03 May 1939
• Docket Number: 27406.
• Citation: 3 S.E.2d 785,60 Ga.App. 353
• Parties: WILHARBLA REALTY CO. v. CARRINGTON.
• Court: Georgia Court of Appeals

3 S.E.2d 785

60 Ga.App. 353

WILHARBLA REALTY CO. v. CARRINGTON.

No. 27406.

Court of Appeals of Georgia, Division No. 2.

May 3, 1939

Rehearing Denied July 15, 1939.

Syllabus by the Court.

Rudolph Carrington, doing business as the Carrington Realty Co., sued out an attachment against Wilharbla Realty Co., the declaration in attachment alleging substantially that Wilharbla Realty Co. was a non-resident of the State of Georgia; that it was the owner of certain improved real property in Atlanta, Georgia; that plaintiff in attachment is in the general real estate business and is and was duly licensed by the state to carry on said business; that defendant listed the above property with petitioner for the purpose of securing a lessee for said property; that on or about March 19, 1937, petitioner, having previously been authorized by the defendant, the authorization having been given orally by the Atlanta agent of the defendant having charge of the business and property of the defendant in Atlanta, entered into negotiations with Hubert and Earline Gilbert, doing business as The Gilbert Hotels, for the purpose of inducing them to lease said property; that on or about May 25, 1937, the Gilbert Hotels submitted to petitioner an offer to lease the said property, the offer being substantially as follows: "25% of the gross receipts with a minimum guarantee of $650 per month for the first three years; $700 for the next three years; $750 for the next four years; owners to take care of the exterior of the building and finance the installation of an elevator and pay one-third of the cost of the elevator;" that after this offer had been transmitted to the defendant by plaintiff, William H. Black, president of said defendant corporation came to Atlanta and the offer was handed to him in person while he was acting as agent of defendant, and the offer was left in the possession of the defendant; that at the time of the meeting of petitioner and Black, Black acting as agent for and as president of the defendant corporation, stated to petitioner that he would not lease the property for less than $900 per month and that the lessee would have to put up $5,000 to guarantee the lease; that on or about September 24, while negotiations were still pending between The Gilbert Hotels and petitioner and with knowledge of defendant that said negotiations were still pending, defendant entered into a contract of lease with the Gilbert Hotels through the Adair Realty and Loan Co., the terms of the lease being substantially as follows: "$650 per month for the first year; $650 per month and 30% of the gross receipts in excess of $26,000 for the second year; $700 per month and 30% of the gross receipts in excess of $28,000 for the next eight years lessor to pay one-half of the actual cost of an elevator provided that the one-half of the cost shall not exceed $3750;" that although the petitioner was the procuring cause of the contract of lease, defendant negotiated the lease through Adair Realty and Loan Co. for the purpose of fraudulently and maliciously depriving petitioner of its lawful fees and commissions for its services in procuring said lessee; that the commissions to which petitioner is entitled is the first month's rent and five per centum of the monthly collection for the remaining months of the lease as set out in the rates, rules and customs of the Atlanta Real Estate Board of Atlanta, Georgia.

To the declaration as amended defendant filed general and special demurrers substantially as follows: that the petition fails to state a cause of action against the defendant; that there is nothing in the petition which shows that the agent of the defendant in Atlanta had any authority to make any contract of lease of the property of the defendant; that the offer alleged to have been submitted to defendant does not appear to be an unconditional offer; that it does not appear that any unconditional contract in writing was ever tendered defendant; that the terms of the contract stated by Black do not constitute any part of the contract attempted to be sued upon in this case; that it is not shown in the amended declaration that defendant did not have a perfect legal right to enter into any leasehold agreement, because it is not shown that the agreement violates any contract existing between defendant and petitioner, and because the lease set out shows on its face that the terms are different from those mentioned in the offer which plaintiff claims The Gilbert Hotels made through him; that paragraph ten of the declaration does not set forth any contract between plaintiff and defendant agreeing to pay any commission, nor is there any law in Georgia fixing any sum as lawful commission and because the rules of the Atlanta Real...