Morgan v. Hemphill., 100 Ga. App. 229, 110 S.E.2d 780 (1959)

Summary

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Judgment affirmed. Gardner, P. J., Townsend, Carlisle and Nichols, JJ., concur. Felton, C. J., dissents.

Summary

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Judgment affirmed. Gardner, P. J., Townsend, Carlisle and Nichols, JJ., concur. Felton, C. J., dissents.

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David Gershon, R. Monroe Schwartz, contra.L. L. Russo, J. Walter LeCraw, for plaintiff in error.

Where a party asserts a right of recovery on the theory that he has fully performed a contract of employment and thereby accomplished the results that under the terms of the agreement entitled him to the compensation therein stipulated, and the petition is dismissed on a general demurrer because the facts alleged do not show that he accomplished the results on which his right of compensation depends, he can not be permitted to recover in a subsequent action brought on the theory that his failure to procure such results was prevented by the defendant's fault. To such a situation may be applied the words of Chief Justice Bleckley's famous opinion, Perry v. McLendon, 214 Ga. 555, 105 S. E. 2d 580). And the plaintiff's suit to recover her broker's commission under the provisions of said contract was held properly dismissed on general demurrer. Morgan v. Hemphill, 98 Ga. App. 732 (106 S. E. 2d 865). The present suit is not an attempt by the plaintiff to recover on the same contract previously ruled to be invalid. It does not seek a recovery under this same contract on a different theory as to the amount of compensation, as did the amendment in Kraft v. Rowland & Rowland, 33 Ga. App. 806 (128 S. E. 812). Rather it abandons entirely the invalid contract of January 23rd and specifically seeks to recover for services rendered under the previous agreement of January 20th. In my opinion, this is sufficient to remove it from the operation of the general rules as to res judicata on which the majority rely.

While I cannot agree that the trial court properly sustained the defendant's plea of res judicata, I believe that its judgment dismissing the petition on general demurrer should be affirmed. In order to withstand a general demurrer, the petition must contain allegations sufficient to show that the plaintiff, during the agency found "a purchaser ready, able, and willing to buy, and who actually offers to buy on the terms stipulated by the owner" (Code 4-213), or that a valid contract was entered into with the purchaser procured. "While the petition does allege that the purchaser procured actually offered to buy on the terms stipulated, and might thus be taken to aver that the purchaser was ready and willing to buy, it is nowhere alleged that the purchaser was in fact able to comply with his offer to buy." Dixon v. Brooks, 44 Ga. App. 608 (3) (162 S. E. 287). While it is time that this petition does allege "petitioner has completely performed the services for which she was engaged by defendant," this allegation is not sufficient against general demurrer, since the petition also alleges that the nature of such services was "to procure for him (the defendant) a contract of purchase and sale of his property" and goes on to show that the contract allegedly obtained through the efforts of the plaintiff is one which he was held to be invalid in the previous litigation cited above. If the contract now sued on was one which obligated the broker to procure a purchaser who was ready, willing and able to purchase on the term fixed by the owner I think that the general allegation that the plaintiff had fully performed the services she was employed to perform would have been sufficient to allege as against a general demurrer that the purchaser obtained was able to buy. However, since the plaintiff's obligation was to procure a contract of purchase the plaintiff's compliance with her agreement to procure a contract would necessarily mean a valid and enforceable contract, whereas the petition shown on its face that the contract actually procured was void and unenforceable.

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