Fields Realty & Insurance v. Smith

180 S.E.2d 909, 123 Ga. App. 342, 1971 Ga. App. LEXIS 1217

Opinions

Hall, Presiding Judge.

The briefs of all parties discuss at length the badges of fraud, elements of a conspiracy, election of remedies, etc. We believe the determining factor lies elsewhere. In a similar action, this court said, "it is manifest throughout all of the cases that the gist of an action by a broker to recover commissions is the showing that the plaintiff-broker was the procuring or efficient cause of the sale. See annotations Code §4-213 and 12 CJS 207, Brokers, §91. ... In absence of alleging those essentials, there can be no contract breached in the first instance nor a conspiracy coupled with a wrong done in the second.” Woodall v. McEachern, 113 Ga. App. 213, 221 (147 SE2d 659).

While the Woodall case was determined on demurrer, the same principles apply if the word "proving” is substitued for "alleging.” See also Morgan v. Ezzard, 121 Ga. App. 208 (173 SE2d 423).

Plaintiffs here failed to make a prima facie case that they were the procuring or efficient cause of the sale. On the contrary, the evidence shows that any transaction involving plaintiffs had been abandoned by all defendants, and that if anyone was the procuring cause of the sale as it finally transpired, it was Mrs. Klee. Plaintiffs made no showing which contradicted this evidence.

Judgment affirmed.

Bell, C. J., Jordan, P. J., Eberhardt, Pannell, Deen, Quillian and Whitman, JJ., concur. Evans, J., dissents.