dissenting.
I respectfully dissent from the result reached in Division 1 of the majority opinion. As the majority notes, "Gibbs concedes that he was not the agent of the S&Ls and not entitled to a commission from such associations...” However, the majority proceeds to determine that the evidence introduced at trial showing that the S&Ls conspired to defraud Gibbs of his real estate commission was sufficient to withstand the S&Ls’ motion for directed verdict.
"A conspiracy upon which a civil action for damages may be founded is a combination between two or more persons either to do some act which is a tort, or else to do some lawful act by methods which constitute a tort. Where it is sought to impose civil liability for a conspiracy, the conspiracy of itself furnishes no cause of action. The gist of the action, if a cause of action exists, is not the conspiracy alleged, but the tort committed against the plaintiff and the *615resulting damage. Martha Mills v. Moseley, 50 Ga. App. 536, 538 (2) (179 SE 159). Thus, where the act of conspiring is itself legal, the means or method of its accomplishment must be illegal and tortious.” (Emphasis supplied.) Vandhitch v. Alverson, 52 Ga. App. 308, 310 (183 SE 105) (1935). Here, the claim of Gibbs is for a commission allegedly owed by Brown. The only claim vis-a-vis the S&Ls is that said associations conspired with Brown to prevent Gibbs from obtaining his commission. However, Gibbs relies upon the fact that he was not apprised of or invited to attend the closing and that he was excluded from the negotiations. It is important to remember that the S&Ls had no dealings with Gibbs, Gibbs’ original contact being with the S&Ls predecessor in title. Although the majority relies upon the evidence that the S&Ls knew that Gibbs had acted in his capacity as broker in connection with previous proposed transactions, no authority is cited for the proposition that a broker must be invited to a closing or allowed to participate in negotiations instigated by a seller with whom he has no privity. I submit that there is no authority for such a theory. Even if all parties to a sale recognize that a broker is entitled to a commission, there is no requirement, that such broker be invited to be present at the consummation of the transaction. If a broker has a valid claim for a commission against any party or parties and the commission is not paid, the broker can enforce his right through a civil action just as Gibbs has done here against Brown. Since Gibbs was not a party to the sale, his presence or absence at the closing is immaterial.
In order for Gibbs to have a viable claim that the S&Ls conspired to cause damage to Gibbs, he must show that the S&Ls acted unlawfully to Gibbs’ detriment. The contention that the S&Ls surreptitiously sought to prevent Gibbs from claiming a commission is totally refuted by the uncontroverted fact that in the contract of sale between the S&Ls and Brown the S&Ls specifically foresaw the possibility of a claim against Brown and forthrightly provided that "[purchaser agrees to pay any real estate brokerage commission which may become payable due to this transaction.” The inclusion of siich specific language is inconsistent with the existence of any S&L conspiracy. Moreover, since by signing the contract Brown recognized the possibility of a commission claim which he would have to pay, this provision could have influenced the jury’s decision to return a verdict against Brown.
In Charles A. Mueller Realty Co. v. Tucker Real Estate Co., 131 Ga. App. 54 (205 SE2d 61), relied upon by the majority, there was no contractual language inserted by the parties sought to be charged with conspiracy requiring that the other party pay any claim for *616real estate commission which maybe asserted. More importantly, in Mueller the contract between the defendants not only failed to provide for a commission to Tucker Real Estate Co. (plaintiff), it specifically provided for a commission to Mueller. Under these circumstances it was properly held that there was a jury question as to whether the defendants conspired to benefit Mueller and damage the plaintiff. Also the holding in Mueller affirmed the denial of a motion for summary judgment and did not involve a trial court ruling on a motion for directed verdict at trial. For these reasons, it is my opinion that Mueller is distinguishable and not controlling.
"Where a plaintiff in a civil case supports his case solely by circumstantial evidence, before he is authorized to have a verdict in his favor the testimony must be such as to reasonably establish the theory relied on. There must be more than a 'scintilla’ of circumstances to carry the case to the jury. It is for the court to say whether the circumstances reasonably establish the hypothesis relied on by the plaintiff.” McCarty v. Nat. Life &c. Ins. Co., 107 Ga. App. 178 (2) (129 SE2d 408) (1962). See also Old Colony Ins. Co. v. Dressel, 220 Ga. 354, 358 (138 SE2d 886) (1964). Based upon the record before the trial court in this case, it is clear that the plaintiff relied solely upon circumstantial evidence and, in directing a verdict, the trial court found that the evidence did not reasonably establish the theory relied on. As recognized by this court in Mueller, supra, 58, "there are situations where a motion for summary judgment will be denied even though the same facts would authorize the direction of a verdict.” In my opinion, the facts in this case authorize the direction of a verdict and I believe such ruling by the trial court should be affirmed. Therefore, I respectfully dissent.