Shippey v. Carpenter

Jenkins, P. J. Carpenter instituted a suit, -which after his death was maintained by his executrix, on the following contract: “This agreement entered into between J. K. Shippey, State of Ga., County of Fulton, party of the first part, and J. L. Carpenter, State of Georgia, County of Fulton, party of the second part, witnesseth: that J. L. Shippey, party of the first part, and his heirs agrees to pay to J. L. Carpenter, party of the second part, his heirs and assigns, one half of commission at the rate of five per cent, when the following described property, which he now owns, is sold, whether by himself (meaning party of the first part) or his agents, whether sold by the party of the second part or his agents, or whether sold by any one, party of the second part is to receive one half of commission: Land lot No. 30 in the 17th district of Fulton County, Ga., containing two hundred and two and one half acres, more or less, known as Mrs. Margarette E. Stroup property. “In witness whereof, party of the first part has hereunto set his hand and affixed his seal this 3rd day of January in the year of our Lord nineteen hundred and twelve. “J. K. Shippey (L. S.) “Signed, sealed, and delivered in the presence of: “W. Paul Carpenter, Notary public, Fulton County, Ga.” The petition set forth that the consideration of the contract sued on was that the land described in the petition had been previously sold to Shippey by the previous owner, acting through the plaintiff as a real-estate broker, and that the plaintiff had [63] agreed to pay and did pay to Shippey as purchaser one half of the commissions accruing to Carpenter as broker on the previous sale, in consideration of his signing the agreement sued on, under the terms of which Carpenter, whenever the property should be resold, was to receive two and one half per cent, of the purchase-price on the resale. The plaintiff executrix, the wife of the original plaintiff, who was the sole beneficiary under his will, introduced as a witness on the trial the decedent’s son, who testified to the allegations of the petition, the witness asserting that he was present at the time the contract of sale was effectuated and when the terms of the agreement sued on were formulated and agreed upon. On the trial Shippey. testified that this witness was not present when he purchased the land or when he first went out to look at it, and that he never did tell the witness, or any one else in the presence of the witness, that in consideration of the rebate of one half of the commissions he would pay to Carpenter one half of the commissions on any subsequent resale. It was admitted that Carpenter had gone out of business as a real-estate agent before the subsequent sale was effected, and rendered no service in effectuating it. The contention of the defendant is, that, the contract sued on being a mere broker’s agreement for the sale of land, under the state of facts just set forth there could be no recovery by the plaintiff thereunder. He offered to testify, but was not permitted to do so, that the first sale was effectuated only by reason of the payment to him by the plaintiff of one half of his commissions, and that the sole consideration of such rebate in commissions consisted in the defendant’s original purchase of the property. His testimony to the effect that he did not receive the $250 rebate on the contract sued on was allowed to remain in evidence, but he was not permitted to testify that no consideration had ever been paid in consideration of the contract sued on. The court directed a verdict in favor of the plaintiff, and overruled the defendant’s motion for a new trial. Judgment reversed. Stephens and Bell, JJ., concur.