Woodall v. McEachern

• Decision Date: 28 January 1966
• Docket Number: 2,3,No. 41454,Nos. 1,41454,s. 1
• Citation: 113 Ga.App. 213,147 S.E.2d 659
• Parties: C. B. WOODALL, Jr. v. John N. McEACHERN, Jr., et al
• Court: Georgia Court of Appeals

Page 659

147 S.E.2d 659

113 Ga.App. 213

C. B. WOODALL, Jr. v. John N. McEACHERN, Jr., et al.

No. 41454.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Jan. 28, 1966.

Rehearing Denied Feb. 15, 1966.

Syllabus by the Court

1. (a) In order to state a cause of action based on a conspiracy to deprive plaintiff of commissions allegedly earned on a sale of real estate, it is essential that the petition allege that the plaintiff was the procuring or efficient cause of the sale.

(b) To withstand a general demurrer it is essential for a petition either (1) to allege the ultimate fact or (2) to allege facts from which the inference of the ultimate fact is demanded. It is not enough that facts are pleaded from which inferences may be drawn of the ultimate fact, rather it is essential that the pleaded facts must demand that inference.

C. B. Woodall, Jr., d/b/a Woodall Realty Co., sued John N. McEachern, Jr., The First National Bank of Atlanta, John R. Maddox and Dickey-Mangham Co., Inc. to recover real estate commissions allegedly earned by plaintiff and in addition sought punitive damages and attorney's fees.

Appeal is brought to the judgment of the trial court sustaining the general demurrers of the several defendants and dismissing the petition.

The petition alleged as follows:

'7. That in April 1964, Mrs. Joanne Fulwiler, a duly licensed real estate agent operating through petitioner, learned that defendant John N. McEachern, Jr., was interested in purchasing some farm property in Fulton County. Whereupon said Mrs. Fulwiler and Robert M. Bush, also a licensed real estate agent operating through petitioner, contracted Mr. McEachern and took him and his wife on an expensive tour of farm property located in North Fulton County.

'8. One of the farm properties shown to Mr. and Mrs. McEachern was a farm known as the Cravey Farm which was owned or controlled by Zack D. Cravey, Jr., and Zack D. Cravey, Sr. Subsequent to seeing the Cravey Farm, the McEacherns were also shown a farm known as the Ponder Farm.

'9. After seeing the Ponder Farm, Mr. and Mrs. McEachern requested said Robert M. Bush and Mrs. Fulwiler to investigate said property further and to negotiate with the owners in order for the McEacherns to purchase same.

'10. That within a few days thereafter, petitioner, said Robert M. Bush and Mrs. Fulwiler went to the Ponder property and talked with Mr. Ponder, the husband of Mrs. Mary E. Ponder the owner, and arranged for the McEacherns to inspect the property, including the main residence house located thereon.

'11. That at all times both defendant McEachern and his wife instructed and cautioned petitioner and his agents not to divulge to any prospective sellers of farm property Mr. McEachern's name as both Mr. and Mrs. McEachern stated they feared the knowledge of the identity of the prospective purchasers would cause the purchase price to be raised.

'12. Petitioner at all times complied with defendant McEachern and his wife's said request and did not divulge Mr. McEachern's name to any prospective seller until the McEacherns were actually taken on the Ponder property and introduced to Mr. Ponder.

'13. That at the commencement of these negotiations defendant McMachern and his wife advised petitioner and his agents that defendant The First National Bank of Atlanta, acted as trustee and agent for Mr. McEachern; that the McEacherns relied on the advice of said Trust Department of The First National Bank of Atlanta, and particularly the advice of Trust Officer C. Trippe Slade; and that defendant McEachern wanted said Trust Officer and The First National Bank of Atlanta to approve any purchase made.

'14. That following a detailed inspection of the Ponder property by Mr. and Mrs. McEachern in the company of petitioner and his said agents Robert M. Bush and Mrs. Joanne Fulwiler, defendant McEachern and his wife requested that the property be inspected by said C. Trippe Slade, Trust Officer of the First National Bank of Atlanta.

'15. That during the week of April 20, 1964, petitioner, his said agents Robert M. Bush and Mrs. Joanne Fulwiler, defendant McEachern and his said wife, and C. Trippe Slade, Trust Officer of Defendant The First National Bank of Atlanta, went to the Ponder property and made an extensive tour thereof, including the residence house, at which time said Trust Officer expressed approval of the proposed purchase of said property.

'16. That both before and after defendant McEachern decided to purchase the Ponder property, he continued to look at the Cravey property with petitioner and his said agents, and to discuss with them the possibility of his purchasing same and joining it to the Ponder property.

'17. Petitioner, through his agent Robert M. Bush had obtained a listing of the Cravey property from owner Zack D. Cravey, Sr., some weeks prior to the time it was show to the McEacherns, at which time said Zack D. Cravey, Sr. had authorized petitioner, through his said agent, to show said property and to offer same for sale at a purchase price of $1100.00 per acre.

'18. Said agent Robert M. Bush obtained a plat of the property known as the Cravey property from Zack D. Cravey, Jr., and made a tracing of said plat of the Cravey property, legal title to which was actually vested in Zack D. Cravey, Sr. and a Cravey family holding corporation known as F. & W. Corporation.

'19. That before showing the McEacherns the Cravey property, petitioner through his agent Mrs. Joanne Fulwiler obtained permission to show said Cravey property from Zack D. Cravey, Jr. without revealing the name of the propspective purchaser.

'20. That petitioner's said agent Robert M. Bush gave to the McEacherns a copy of his tracing of the plat of the Cravey property and diagrammed thereon a manner in which the Cravey property could be joined to and connected to the Ponder property if same were acquired by defendant McEachern.

'21. That both defendant McEachern and his said wife discussed at length the possibility of acquiring the Cravey property and at all times in such discussions cautioned petitioner and his said agents not to advise the prospective sellers of the Cravey property or any other adjoining properties that the McEacherns were interested in the property for fear the price would be raised.

'22. That at the time said C. Trippe Slade, Trust Officer of The First National Bank of Atlanta inspected the Ponder property with defendant McEachern and his said wife as alleged herein, petitioner and his said agents took said Trust Officer on an inspection of the Cravey property and discussed at length and in great detail the possibility of the purchase of the Cravey property by defendant McEachern and joining or connecting same to the Ponder property.

'23. That thereafter, on April 29, 1964, defendant The First National Bank of Atlanta through and by its said Trust Officer C. Trippe Slade, executed a contract to purchase the Ponder property for a purchase price of $225,000.00 through petitioner as agent, a copy of which contract is hereto attached marked Exhibit 'A' and made a part hereof.

'24. After the execution of said contract marked Exhibit 'A' and attached hereto, petitioner and his said agents continued in their efforts to sell the Cravey property to defendant McEachern.

'25. That defendant McEachern's wife came to the office of petitioner on at least two occasions, during which petitioner or his agents discussed with her the acquiring of said Cravey property in behalf of her husband.

'26. That at all times in the course of said discussions, petitioner and his said agents were instructed and cautioned not to reveal to anyone, particularly the prospective seller, that defendant McEachern was interested in acquiring said property, for fear that knowledge of his name by any prospective seller, and particularly by the Craveys, would cause the purchase price to be raised.

'27. That the actual sale of the Ponder property was closed on the 11th day of June, 1964, at which time legal title to the property was taken in John N. McEachern, Jr. though the sales contract indicated The First National Bank of Atlanta as purchaser.

'28. That following the closing of said sale, petitioner's said agent Robert M. Bush was contacted by said C. Trippe Slade, Trust Officer of defendant The First National Bank of Atlanta and requested to negotiate to obtain a satisfactory price for the purchase of certain property belonging to a Mr. Brasselton of San Francisco, California, which property was situated immediately in between and adjacent to both the property Mr. McEachern had already purchsed and the Cravey property.

'29. Petitioner's said agent contacted the owner of the Brasselton property, obtained a sale price and quoted same to said Trust Officer and was subsequently advised by said Trust Officer that the purchase price quoted was not acceptable.

'30. On June 24, 1964, the wife of defendant McEachern, came to petitioner's office and discussed the possibility of petitioner obtaining a six months' option in behalf of defendant McEachern for the purchase of the Cravey property, which option was to be obtained without disclosing the name of the purchaser.

'31. At said time a tracing of the plat of the Cravey property and a tracing or drawing of a plat of the Ponder property was delivered to said wife of defendant McEachern, which plat showed the proximity of each of said properties to the other, and she requested that petitioner contact her and her husband on the following week with regard to the purchase, or obtaining an option for the purchase of said Cravey property.

'32. That subsequently, on or about the first week in July 1964, petitioner was informed abruptly by the McEacherns that they were not at that time interested in purchasing the Cravey property.

'33. That immediately prior to or at about the same time that petitioner was showing said Cravey property and other farm properties as herein alleged, said Trust Officer advised De...