Brown v. White

37 S.E.2d 213, 73 Ga. App. 524, 1946 Ga. App. LEXIS 352

• Court: Court of Appeals of Georgia
• Decided: February 14, 1946
• Docket: 31106.
• Status: Published

Opinions

Per Curiam.

Assuming, but not deciding, that the plaintiff may sue on the contract, we are of the opinion that the sustaining of the demurrer was correct. We think that the only reasonable interpretation of the petition is that it declares upon the written contract attached to the petition. It so states. See paragraph 7 of petition. The petition does not otherwise allege any basis of liability on the part of J. W. White, a purchaser, to pay a broker a commission for a sale made under a contract with a seller. The contract is not one based on the broker’s having obtained a purchaser, ready, able, and willing to purchase on terms made by a seller. Simplified, the action is one on the alleged agreement of the buyer to pay the commissions in the event he defaulted in the consummation of the contract of sale. “Default,” as used in this contract, means to fail to fulfill a valid and binding obligation. Meadows v. Continental Assurance Co., 89 Fed. 2d, 256; School District of City of Lansing v. Lansing, 260 Mich. 405 (245 N. W. 449). The word default here does not mean mere inability of the buyer to complete-the contract. Early-Foster Co. v. Gottlieb, (Tex. Civ. App.) 214 S. W. 520. If the contract as between the seller and buyer is not a valid and binding contract capable of being enforced by both parties, there could be no breach of the contract by either. We think that the provision in the contract, “This contract made subject to purchaser obtaining necessary loan” of $5,400, renders it too indefinite to be enforceable as between the seller and buyer; and since there could be no default in failing or refusing to carry out an unenforceable contract, the purchaser would not be liable to the broker for “default” in consummating the contract. The buyer’s undertaking was not merely to endeavor in good faith to obtain a loan. The condition was absolute that a loan must be obtained before the contract would be carried out. It is not specified in the contract on what security the loan should be obtained, nor at what interest rate, nor when the principal should be due. Neither does it appear that the buyer could have obtained on reasonable terms the necessary loan on the property described in the contract or on other property. We think that the ruling in Southeastern Realty Co. v. Griffin, 38 Ga. App. 220 (143 S. E. 435), is controlling in this case. The liability here must be determined by the validity of the contract between the seller and the buyer. Adams Loan &c. Co. v. Dolvin Realty Co., 48 Ga. App. 183 (172 S. E. 606).

The court did not err in sustaining the general demurrer to the petition, and in dismissing the action.

There being a dissent, the case was passed on by the court as a whole under the provisions of the act of 1945 (Ga. L. 1945, p. 232).

Judgment affirmed.

Broyles, G. J., Sutton, P. J., MacIntyre, Felton, and Gardner, JJ., concur.