Gibbs v. Brown

Shulman, Judge.

Plaintiffs, Stan Gibbs (a realtor) and Gibbs Properties, Inc. (a realty company) (hereinafter jointly referred to as "Gibbs”), brought suit against Roger G. Brown, individually, for breach of a purported oral contract of agency; and against Brown, Standard Federal Savings & Loan Association, and First Federal Savings & Loan Association, jointly, for conspiracy to defraud Gibbs of a real estate commission. On the main appeal we reverse the grant of defendants’ motion for directed verdict on plaintiffs’ claim of conspiracy. On the cross appeal we affirm the verdict and judgment entered against defendant-Brown.

The facts are as follows. Gibbs entered into a written contract with T. R. Heard, Inc. (hereinafter "Heard”) granting Gibbs a four-month exclusive listing to sell certain apartments owned by Heard, which property was subject to a mortgage held by defendants First Federal Savings & Loan Association and Standard Federal Savings & Loan Association (hereinafter "S&Ls”). After the expiration of such listing, Gibbs showed the apartments to defendant Brown and Brown’s partner in business, Rickard; whereupon, Gibbs claims, the partnership agreed to pay Gibbs a commission if it purchased the property. Although the partnership subsequently dissolved (though both Brown and Rickard maintained interest in the property), Gibbs claims that, with Brown’s acquiescence, he continued to represent Brown’s interest in the purchase of the apartments. Before a purchase of the apartments was consummated, however, the S&Ls received a quitclaim deed from Heard for the property (in lieu of foreclosure), thereafter selling the property to defendant-Brown under a contract requiring the buyer (Brown) to pay any real estate brokerage commission fees resulting from the purchase of the property. This action followed Brown’s refusal to pay Gibbs a commission upon his purchase of the property.

1. Plaintiff Gibbs contends that in view of the evidence supporting his claim that the S&Ls, in conjunction with Brown, conspired to defraud plaintiff of his real estate commission, the court erred in granting defendants’ motion for directed verdict. We agree.

Although Gibbs concedes that he was not the agent of the S&Ls and not entitled to a commission from such associations, Gibbs contends, nevertheless, that defendants conspired to defraud him of his real estate commission.

In support of this contention, Gibbs presented evidence that he and Brown entered into an oral contract of agency (which provided for Gibbs to receive a commission for his services in procuring the property for Brown) and that the S&Ls were aware of such agreement. Gibbs presented evidence that his commission was discussed at various meetings with Brown and officers of the S&Ls (though no decision as to the mode of payment was reached prior to the transfer of ownership of the property by quitclaim deed to the S&Ls). The evidence also showed that Brown apparently did not have the cash to pay the commission at the time of the closing; and that he incurred substantial savings by not paying the commission. See Charles A. Mueller Realty Co. v. Tucker Real Estate Co., 131 Ga. App. 54 (2) (205 SE2d 61).

Further, the evidence showed that it was in the interest of the S&Ls to issue a new loan to Brown rather than to allow Brown to assume Heard’s delinquent mortgage (which resulted in the purchase of the property through the S&Ls, rather than from Heard). Moreover, by receiving a quitclaim deed from Heard instead of foreclosing on the property, the S&Ls were thus able to avoid a public sale of the apartments and to sell the property directly to Brown.

In support of appellants’ contentions of a conspiracy, there was evidence that while negotiations for the sale of the property originally included Gibbs, he was excluded from such negotiations less than a month prior to the issuance of a quitclaim deed to the S&Ls. See Charles A. Mueller Realty Co., supra.

In view of the evidence of the S&Ls’ awareness of Brown’s alleged agency agreement with Gibbs and in view of the evidence authorizing an inference that defendants shared the intent to defraud Gibbs of his real estate commission, we must conclude that enough circumstances appear in evidence to necessitate the submission of the issue of conspiracy to defraud to the jury. Id. Budd v. Saddler Realty, Inc., 150 Ga. App. 148 (1) (257 SE2d 1), does not compel a contrary result, since in Budd there was no legally sufficient evidence that the party who had not commissioned the broker as his agent was aware of any arrangement for a commission on the sale of the property. If there is no evidence that a party has knowledge that'a broker is involved in negotiations for the sale of property, that party could not have a shared intent to defraud such broker of his commission.

Since there was evidence in the case at bar that the S&Ls conspired in conjunction with defendant-Brown to wrongfully deprive Gibbs of his commission, the court erred in directing a verdict on behalf of defendants.

2. By way of cross appeal, cross appellant Brown contends that the judgment in favor of Gibbs for breach of contract was error in that the evidence did not show any agreement with Brown to act as his agent or broker. We disagree.

Although conflicting, the evidence was sufficient to support the jury’s determination that Gibbs had been engaged as Brown’s agent to procure, and had procured, the sale of the property to Brown. See generally First Nat. Bank &c. Co. v. McNatt, 141 Ga. App. 6 (2) (232 SE2d 356).

This being so, the evidence authorized the finding that defendant Brown was liable to Gibbs in the amount of the promised commission.

Contrary to cross appellant’s contentions, the fact that the alleged agreement was silent as to whether the commission was to be paid to Stan Gibbs or Gibbs Properties, Inc., does not render the parties’ oral agreement void for vagueness, since the evidence showed that Stan Gibbs and Gibbs Properties, Inc., were for all intents and purposes the same contracting party, and that any commission owed would be owed to them jointly.

Argued January 8, 1980

Decided May 14, 1980

Jane Kent Plaginos, for appellants (Case No. 59218).

Douglas Stewart, James M. McDaniel, Terrence Lee Croft, for appellees (Case No. 59218).

James M. McDaniel, for appellant (Case No. 59219).

Terrence Lee Croft, Douglas Stewart, Jane Kent Plaginos, for appellees (Case No. 59219).

Moreover, since the evidence did not demand the finding that Gibbs wrongfully acted as agent for adverse interests, Gibbs was not precluded from recovering his commission from Brown on that basis. See Ballew v. Ware & Harper, 16 Ga. App. 149 (1) (84 SE 597); Winer v. Flournoy Realty Co., 27 Ga. App. 87 (3) (107 SE 398).

Nor do we find reversible error in the fact that defendant was not specifically named in the verdict and judgment. Since defendant Brown was the only party defendant in the suit at the time of the verdict and judgment (the others having been granted a directed verdict), there can be no doubt that the verdict and judgment were applicable only to defendant Brown.

Judgment reversed in Case No. 59218; affirmed in Case No. 59219.

Deen, C. J., Quillian, P. J, McMurray, P. J., Smith, Banke, Birdsong and Sognier, JJ, concur. Carley, J., dissents.