Harvil v. Wilson Bros.

Hill, C. J. Where a broker, during the agency, finds a purchaser ready, able, and willing to buy, and who actually offers to buy, on the terms stipulated by the owner, his commission is earned. Civil, Code (1910), § 3587. Or if, during the agency, the broker enters into a contract in behalf of his principal which is mutually binding and enforceable, the broker has fully complied with his obligation and is entitled to his commission. In order, however, for .the broker to recover a commission on the latter theory, he must allege and prove either that the owner or the purchaser refused, to comply, without legal cause, and that when the purchaser refused to comply he was solvent, or that the question of his solvency had been waived by the owner. Applying these principles to the allegations of - the petition, the demurrer thereto should have been sustained. Judgment reversed. The defendant demurred to the petition generally, and the demurrer was overruled. The court, on demurrer, struck the defendant’s answer, and the plaintiffs took a verdict and judgment for the amount claimed. The defendant excepted. It is contended in the brief of counsel for the plaintiff in error that the general demurrer to the petition should have been sustained because “it is not alleged that any sale was consummated, nor that there was any refusal on the part of Harvil to carry out his agreement with the brokers, rendering performance impossible, nor that the person treated as a purchaser offered to purchase the property,, nor (if his 'consent’ can be Construed to be an offer) that he was able and ready to carry out his offer, nor that any binding and enforceable contract between the parties was effected.” Walter McElreath, for plaintiff in error, cited: Civil Code (1910), § 3587; Doonan v. Ives, 73 Ga. 295; Em&ry v. Atlanta Exchange, 88 Ga. 321; Davis v. Morgan, 96 Ga. 518; Odell v. Dozier, 104 Ga. 906; Gresham v. Connally, 114 Ga. 906; Phinizy v. Bush, 129 Ga. 479, 488; Simonson v. Kissick, 4 Daly (N. Y.), 143; Crombie v. Waldo, 42 N. Y. S. R. 225; Notes to Lunney v. Healey, 44 L. R. A. 601, 605 (notes 3 and 4); Cooper v. Portner Brewing Co., 112 Ga. 894 (3), 900. Dean E. Byman, contra, cited: Civil Code (1910), § 3587; Odell v. Dozier, supra; Davis v. Morgan, supra; Phinizy v. Bush, supra; Lunney v. Healey, 56 Neb. 313 (76 N. W. 558, 44 L. R. A. 593, and notes); Civil Code, §§ 6285, 6301, 5628, 5681-2; Ellison v. Ga. R. Co., 87 Ga. 691, 706 (6); Civil Code, § 3223 (2, 3); Watson v. Brightwell, 60 Ga. 212 (1); Civil Code, §§ 4266, 4268, 4568; Cheatham v. Yarbrough, 90 Tenn. 80; Brackenridge v. Claridge (Tex.), 42 S. W. 1005 (2).