When the defendant sent the plaintiff a written offer to purchase certain real estate for a stated consideration and the plaintiff accepted this offer and executed a written acceptance thereof and turned the same over to the broker who was handling the transaction, who notified the defendant of such acceptance, a valid contract arose between the parties for the sale of the property on the terms stated in the written offer, and the broker's commission was earned. When the defendant refused to comply with his contract to purchase the property and the plaintiff paid the broker his commissions, the plaintiff was then entitled to maintain an action against the defendant for damages for a breach of the contract in the amount of the commission so paid by him, this being the amount that he had been endamaged.
DECIDED APRIL 25, 1947. REHEARING DENIED MAY 15, 1947. A. S. Knight sued R. L. Smith to recover $425 alleged to be due by reason of the fact that the defendant entered into a binding contract with the plaintiff for the purchase and sale of certain real property, in which the defendant defaulted, the contract providing that the defendant would pay the real-estate commission in the event of his default. The judge trying the case without a jury found for the plaintiff. The defendant's motion for a new trial as amended was overruled and he excepted.
There was evidence from which the judge, trying the case without a jury, was authorized to find that Knight listed his property for sale with Berry Realty Company at a price of $9500. Harper, an agent of the realty company, contacted Smith and endeavored to sell him the property at the price listed, $9500. Smith declined to purchase it at this price, but made a counter offer, in writing, to purchase the property for $8500 and to prorate the 1945 taxes, and gave the agent his check for $100 as earnest money. *Page 179
When this counter offer was presented to Knight, by the agent, Knight told him to see if Smith would not pay the full year's taxes. When Harper telephoned Smith about the taxes, Smith told him "No, he would not go any more, that his contract was just as he gave it; if Mr. Knight wanted that, O. K. he would take the house, if he didn't, he would forget about it." That Harper told Knight of the conversation, and Knight accepted the written offer made by Smith and executed a written acceptance and gave it to the agent, who notified Smith of said acceptance in the manner and as requested by Smith.
Later. Smith stated that his wife had not seen the property and he wanted to know if he could wait until after his wife saw it to decide whether or not to accept it. Harper told Smith that Knight had already accepted his offer and that it was "up to" Knight. When the agent saw Knight, he stated that he had made other plans and that he wanted to go through with his contract with Smith. It was after that, that Smith stated that he had found another house and was going to buy it, and that Harper could discuss the matter with his lawyer.
When Smith sent Knight the written offer to purchase the property for $8500 and to prorate the taxes for 1945 and Knight accepted this offer and executed a written acceptance thereof and turned the same over to Harper, who notified Smith of such acceptance, a valid contract arose between the parties for the sale of the property on the terms stated in the written offer, and the broker's commission was earned. Code, § 4-213; Landrum v. Lipscomb-Ellis Co., 62 Ga. App. 649 (9 S.E.2d 205);Cox v. Dolvin Realty Company, 56 Ga. App. 649 (2) (193 S.E. 467); Payne v. Ponder, 139 Ga. 283 (77 S.E. 32). And when Smith refused to comply with his contract to purchase said property and Knight paid the broker his commission, he was then entitled to maintain an action against Smith for damages for a breach of the contract in the amount of the commission so paid by him, this being the amount which he had been endamaged. "Under our statute of frauds any contract for the sale of lands, to be binding upon the promisor, `must be in writing, signed by the party to be charged therewith, or by some person by him lawfully authorized.' [Code, § 20-401 (4)] Under this statute, if the contract of sale is otherwise sufficient, and is assented to by him to whom the proposition *Page 180 has been made, the contract is consummated by the meeting of the minds of the two parties, and the evidence necessary to render it valid and capable of enforcement is supplied by the signature of the party sought to be charged by the offer to sell or to buy."Fraser v. Jarrett, 153 Ga. 441, 448 (112 S.E. 487), and citations. "A contract for sale of real estate is valid and binding where it is in writing and contains the following essentials: (1) it must specify the parties, that is, the seller and the buyer; (2) it must sufficiently describe the subject-matter of the contract; and (3) it must name the consideration." Baker v. Lilienthal, 176 Ga. 802, 806 (169 S.E. 28).
There was some conflict in the evidence, but the trial judge was authorized to find from the evidence that a valid and enforceable contract in writing existed between the parties for the sale of the property on the terms stated in the offer made by Smith and accepted by Knight and he so found and rendered a judgment in favor of the plaintiff for the amount of the broker's commission expended by him on account of the contract. The defendant's motion for a new trial was overruled, and we think that the judgment should be affirmed.
Pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, p. 232), requiring that the full court consider any case in which one of the judges of a division may dissent, this case was considered and decided by the court as a whole.
Judgment affirmed. Sutton, C. J., Gardner and Parker, JJ.,concur. MacIntyre, P. J., and Townsend, J., concur specially.Felton, J., dissents.