The verdict for the plaintiff was unauthorized by the evidence, and the court erred in overruling the defendant's motion for a new trial.
DECIDED JULY 13, 1948. REHEARING DENIED JULY 29, 1948. Mrs. Harry Norman, and Harry Norman Jr., doing business as Mrs. Harry Norman Associates, filed suit in Fulton Civil Court against J. A. Lloyd for the recovery of $1295 as a commission allegedly earned in the negotiation of a contract for the sale of certain realty. By amendment to the petition, Mrs. Margaret Barner became the plaintiff, "suing for the use of Mrs. Harry Norman and Harry Norman Jr., doing business as Mrs. Harry Norman Associates."
A contract between the plaintiff, Mrs. Margaret A. Barner, and the defendant, J. A. Lloyd, is alleged, a copy thereof being attached to and made a part of the petition. By the terms of this *Page 599 contract, which is dated July 16, 1946, the buyer, J. A. Lloyd, agrees to buy, and the seller, Mrs. Margaret A. Barner, agrees to sell the property located at 14 Putnam Drive, N.W., in Atlanta, Georgia, for $36,500, and Mrs. Harry Norman Associates is designated as agent. The contract provides that "in negotiating this contract agent has rendered a valuable service and seller agrees to pay agent commission in accordance with the schedule printed on the reverse side hereof. If the sale is not consummated due to default of buyer, seller shall not be obligated to pay commissions but buyer shall pay said commissions . . . Agent may enforce this contract to the extent of his commission due hereunder against any party liable therefor under the terms hereof." According to the schedule on the contract, the sales commission on property in the city limits or within a six-mile circle is 5% on the first $10,000 and 3% on the balance, using the whole consideration as a basis. Possession is to be given the buyer on or before October 15, 1946, and the buyer is to place 10% of the purchase-price in escrow with the agent until the closing of the sale. It is alleged that the buyer has defaulted on the contract and has refused to pay the commission allegedly due.
Mrs. Harry Norman testified that she negotiated the sale of the property; that the defendant and the plaintiff signed the contract, of which there were three copies, one each for buyer, seller and agent, and that the defendant had stopped payment on a check for $1000 he had given her as earnest money, and had refused to carry out the contract, and that on the last Sunday in August, 1946, he had told her he was not going through with the trade. She explained that the property which was the subject of the sale was located within six miles of the city, and that the commission was computed by taking 5% of the first $10,000 of the purchase-price, and 3% on the balance.
Harry Norman Jr. testified that he delivered a copy of the contract to the defendant after the plaintiff had signed it.
J. A. Lloyd, the defendant, testified that he had signed the contract and that subsequently he learned that Dr. Barner, the husband of the plaintiff, had bought a house in Athens, and that the man from whom Dr. Barner had bought this house told him that Dr. Barner and his family would not be able to move into *Page 600 this house until November, and that after this he had a conversation with Dr. Barner, and Mrs. Barner, and Dr. Barner explained that he had bought a house in Athens, Georgia, and was remodeling it, and told him he could not get out of the house that defendant had agreed to buy until at least December 15th; and before school started in September, Dr. and Mrs. Barner told him they could not deliver possession of the property on or before October 15; that he was called upon by Dr. and Mrs. Barner and Mrs. Norman to put up the 10% in cash as provided in the contract, but that he had not done so because they would never tell him definitely when they could deliver the house, that once Dr. Barner had said it would be November 15th, and then said it would be at least December 15th, and that it was around February before he was able to move, and that at one time Dr. Barner had stated: "I'm sorry, maybe I've got you into something because I can't get my house. It is going to be on up into the winter and I can't tell you anything definitely." Defendant stated he had stopped payment on the check for $1000 the morning after he gave it to Mrs. Norman, for the reason that he did not want it to go through his account, and that he explained to Mrs. Norman that he would give her a check for 10% and run it through his wife's account whenever they were ready to close the loan and would give him a definite possession date.
Mrs. J. A. Lloyd testified that she went to see the plaintiff just before school started in September, and that Mrs. Barner was indefinite about the time delivery of the house could be made, and that she and her husband talked to Dr. Barner on several occasions, and that he was indefinite as to when they could get possession of the house.
The contract forming the basis of the action, of which the material provisions relative to the present action are set out above, and a check for $1000, dated July 16, 1946, drawn on the Citizens Southern National Bank, Mitchell Street Office, Atlanta, Georgia, payable to Mrs. Harry Norman, signed by J. A. Lloyd, and marked "to be used as earnest money on purchase of res. at 14 Putnam Dr., N.W.," on which it is indicated that payment was stopped by order of drawer, were admitted in evidence.
The jury found for the plaintiff in the sum of $1295 and judgment was rendered accordingly. Defendant filed a motion for a *Page 601 new trial, and the case is here on exceptions to the judgment overruling the motion. The original motion for a new trial, and the first three grounds of the amended motion are general, and raise only the question of whether there is any evidence, under the laws and facts, to support the verdict of the jury. There was no attack on the validity of the contract on which the action is based, and its execution on the part of the defendant was admitted. By the terms of the contract, when it was negotiated the agent had rendered a valuable service for which either the seller or the buyer was liable to her for a commission, the seller being primarily liable, and the buyer becoming liable if the sale was not consummated due to the buyer's default. The sale was not consummated, and the controlling question is whether the defendant is liable for the agent's commission under the evidence in the record here presented.
Although Mrs. Norman testified that the defendant had stopped payment on his check for $1000 earnest money and had refused to put up 10% escrow, as provided in the contract, the evidence of the defendant discloses that he went to the plaintiff's home at least twice, and that on the first occasion, which was on the Sunday following the signing of the contract, the plaintiff's husband told him, upon inquiry, that he did not know when the defendant could get possession of the property, and later told the defendant that it would be after October 15th before he could get possession. The defendant's wife testified that she received indefinite answers from the plaintiff as to when she and her husband would vacate the premises. The defendant admitted he had not put up the 10% in escrow, but said he did not put it up because the plaintiff, her husband, and Mrs. Norman would never tell him definitely or give him any satisfaction as to when the house could be delivered to him. The defendant testified that he had learned from the party from whom the husband of the plaintiff had purchased a home in Athens that this house would not be ready for occupancy until after October 15th, and that in fact the plaintiff and her husband did not vacate the property in question until February, 1947. Other *Page 602 evidence is merely cumulative, and it all leads to the conclusion that, although the contract called for the defendant to receive possession of the house on or before October 15, 1946, he was unable to get any assurance that this provision of the contract would be carried out. The contract called for delivery of possession of the property on or before October 15, 1946, and the promise of the seller to deliver possession and comply with the other terms of the contract are interdependent with the promise of the buyer to pay for the property. Neither the buyer nor the seller is obligated to perform unless the other is ready and able to perform his or her obligations under the contract. As a necessary element on which to base the seller's action to recover the agent's commission from the buyer, for the use of the agent, under the terms of the contract in this case, the seller must show that there was a readiness and ability on her part to carry out the terms of the contract at the time of any breach on the part of the buyer, and unless this is shown, the breach of the buyer is of no avail to the seller. The plaintiff failed to show this in the present case. The agent, Mrs. Norman, testified that the seller was ready and able to deliver possession of the property on October 15, 1946, but this evidence is only a conclusion on the part of the agent, unsupported by fact. There was uncontradicted evidence introduced by the buyer showing an intent on the part of the seller not to deliver possession on October 15, 1946, as provided in the contract, and showing that it was improbable, if not impossible, that possession would be given or offered to the buyer on October 15, 1946, although he might perform all of his obligations under the contract. "If the nonperformance is caused by the act or fault of the opposite party, that excuses the other party from performance." Code, § 20-1104. Also, see Bank of Commerce v. Knowles, 32 Ga. App. 800 (1), 802 (124 S.E. 910); Day, Gaskin Company v.Jeffords, 102 Ga. 714 (29 S.E. 591); McLeod v. Hendry,126 Ga. 167 (2) (54 S.E. 949); Pearson v. Horne, 139 Ga. 453 (3a) (77 S.E. 387); Turman v. Smarr, 145 Ga. 312 (2) (89 S.E. 214).
The verdict for the plaintiff was unauthorized by the evidence, and the court erred in overruling the defendant's motion for a *Page 603 new trial, and under this view it is unnecessary to pass on the other grounds of the motion.
Judgment reversed. Sutton, C. J., and Felton and Parker, JJ.,concur.