Broyles, C. J.,
A. S. Miller as executrix of the will of Irving ■ Miller, deceased (hereinafter being referred to as Miller), brought suit against Adams-Cates Company (hereinafter called the defendant) to recover $793.74 alleged to be due Miller as commissions for his services in aiding the defendant in the consummation of a lease cbntract. The petition- sets forth the following allegations: The parties to said' contract were Sol I. Yudelson as lessor and Moe Ronis as lessee. The contract covered premises at- 59 Whitehall Street, Atlanta, Georgia. It began on August 15, 1936, and was to terminate on August 14, 1946, and provided for an agreed monthly rental of $750 from August 15, 1936, to August 14, 1941, and thereafter for $833.33 per month until the expiration of the lease. A copy of the lease was attached to the petition as an exhibit. In the contract the lessor covenanted and agreed to pay monthly to the defendant a commission of five per cent, on the gross rentals to arise under the contract. For his services in aiding the defendant to consummate the lease, the defendant agreed to pay Miller twenty-five per cent, of said five per cent., and confirmed the agreement in a letter to Miller, dated July 21, 1936, and attached .to the petition as an exhibit, From August 15,
1936, through January 15, 1940, the defendant paid monthly to-Miller or his representatives the said twenty-five per cent. In January, 1940, the defendant, without notice to Miller and without his consent, illegally and in violation of its agreement with him, agreed with the lessor and the lessee that the lease contract should be voluntarily canceled, and it was canceled, and after said cancellation the defendant notified Miller that he would not be paid any other commissions. Miller having died, his executrix brought suit to recover the commissions to which he was entitled under the lease contract and his agreement with the defendant. The letter addressed to Miller and signed by the defendant company, above referred to, is as follows: “Atlanta, Georgia, July
21,
1936. Mr. Irving Miller, Louisville, Ky. Dear Sir: Enclosed herewith you will find certified copy of lease between Sol J. Yudelson and Moe Bonis, covering the premises at 59 Whitehall Street, Atlanta. It is agreed that you are to receive one fourth of the commissions paid under this lease. I have agreed with Mr. Yudelson that the procurement fee of the first month’s rent shall be paid $150 out of the first month’s rent and $100 out of the next six months’ rent, making a total of $750, or [for?] the first month’s rent. This will be sent to you monthly as this rent is collected.” The defendant’s answer to the suit was substantially based on the contention that after “diligent inquiry and investigation of the facts surrounding the cancellation of said lease,” the defendant “determined that the lease could not continue, and all of its acts and doings in the premises were in good faith, and as it has collected no commissions under said lease over and above those in which plaintiff, or his representatives, has participated, it is under no duty, legally or morally, to pay plaintiff any further sum whatever.” The general and special demurrers to the answer were overruled, and to that ruling exception was taken. The verdict and judgment were in favor of the defendant.' A motion for new trial was denied, and that judgment was assigned as error. ■
Counsel for the defendant contend, that the agreement between Miller and the defendant was, in effect, that Miller should receive twenty-five per cent, of the commissions' arising from the rentals actually paid to the lessor by the lessee; that when the lessee became unable to pay the rentals and discontinued such pay-' ments, the- defendant was relieved from paying any.further com-
missions to Miller; and that this is shown by the statements in the defendant’s letter to Miller. The answer of the defendant appears to be based solely on this contention. We can not agree-to this argument. It is well-settled law that neither insolvency nor other' inability of the lessee to perform a lease is a defense, to an action by a broker for commissions.
“If
the broker’s principal once accepts the purchaser, he waives the right to question his financial ability, so far as the broker’s rights to compensation are concerned.”
Shaw
v. Chiles, 9
Ga. App.
460, 463 (71 S. E. 745). In
Baker
v.
Strawder,
50
Ga. App.
388 (178 S. E. 206), the headnotes are as follows: “1. When an agent employed to sell certain timber for the owners at a certain figure-procures a purchaser who is accepted by the owners and a contract is entered into between them, the commission for finding-such purchaser is earned, although the purchaser later defaults; for no reason caused by the agent. 2. A subsequent release of-the purchaser by the owners, or an agreed cancellation or rescission of the contract, will not prevent the agent from recovering-his commission for having procured the purchaser, when a valid: contract has been entered into between the owners and the purchaser. 3. Subject to some limitations affecting the good faith: of the agent, or his knowledge of the customer’s financial condition, the general rule is that the agent may recover his commission for procuring a purchaser with whom a valid contract is made, although the purchaser later is found to be financially unable to comply with the terms of the contract. 4. An agent: will not be prevented from recovering commissions for obtaining a purchaser who is accepted, in furtherance of which a binding-contract is made, though the purchaser deliberately refuses to* consummate the contract.”
The foregoing decisions, although not involving the procurement of a lease contract, are applicable and controlling in this; case. And it is well settled that,
“A
real-estate broker and hissubagent stand in practically the same relative position inter sewith reference to the right to compensation as do the principal and the broker. The broker who was directly employed is entitled to recover the whole commission from his employer, and the only remedy of the broker who was employed to assist in the sale is against the first broker who is his employer.” 12
C. J. S. 175, § 80. In
Bush
v.
Mattox,
116
Ga..
42 (42 S. E.. 240), which involved a lease contract, the court made the following ruling: “Where a lessee of convicts, who has á right to sublet them to other persons, employs another to assist him in procuring some one to sublet them, and agrees in writing to pay to the person so employed, for his services, all excess over $14 per month for each convict sublet, and, with the assistance of the intermediary, the original lessee makes a contract subletting the convicts at $16 per month, and subsequently, without the knowledge of the intermediary, releases the sublessee and voluntarily reduces the amount from $16 to $14, the intermediary is entitled to recover [from the original lessee] on his contract.” The principle of that ruling is applicable to the instant case. We do not think that the letter from the defendant to Miller could properly be construed as agreeing to pay Miller his promised commissions
only in the event that the lessee paid his rentals.
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Broyles, C. J.,
A. S. Miller as executrix of the will of Irving ■ Miller, deceased (hereinafter being referred to as Miller), brought suit against Adams-Cates Company (hereinafter called the defendant) to recover $793.74 alleged to be due Miller as commissions for his services in aiding the defendant in the consummation of a lease cbntract. The petition- sets forth the following allegations: The parties to said' contract were Sol I. Yudelson as lessor and Moe Ronis as lessee. The contract covered premises at- 59 Whitehall Street, Atlanta, Georgia. It began on August 15, 1936, and was to terminate on August 14, 1946, and provided for an agreed monthly rental of $750 from August 15, 1936, to August 14, 1941, and thereafter for $833.33 per month until the expiration of the lease. A copy of the lease was attached to the petition as an exhibit. In the contract the lessor covenanted and agreed to pay monthly to the defendant a commission of five per cent, on the gross rentals to arise under the contract. For his services in aiding the defendant to consummate the lease, the defendant agreed to pay Miller twenty-five per cent, of said five per cent., and confirmed the agreement in a letter to Miller, dated July 21, 1936, and attached .to the petition as an exhibit, From August 15,
1936, through January 15, 1940, the defendant paid monthly to-Miller or his representatives the said twenty-five per cent. In January, 1940, the defendant, without notice to Miller and without his consent, illegally and in violation of its agreement with him, agreed with the lessor and the lessee that the lease contract should be voluntarily canceled, and it was canceled, and after said cancellation the defendant notified Miller that he would not be paid any other commissions. Miller having died, his executrix brought suit to recover the commissions to which he was entitled under the lease contract and his agreement with the defendant. The letter addressed to Miller and signed by the defendant company, above referred to, is as follows: “Atlanta, Georgia, July
21,
1936. Mr. Irving Miller, Louisville, Ky. Dear Sir: Enclosed herewith you will find certified copy of lease between Sol J. Yudelson and Moe Bonis, covering the premises at 59 Whitehall Street, Atlanta. It is agreed that you are to receive one fourth of the commissions paid under this lease. I have agreed with Mr. Yudelson that the procurement fee of the first month’s rent shall be paid $150 out of the first month’s rent and $100 out of the next six months’ rent, making a total of $750, or [for?] the first month’s rent. This will be sent to you monthly as this rent is collected.” The defendant’s answer to the suit was substantially based on the contention that after “diligent inquiry and investigation of the facts surrounding the cancellation of said lease,” the defendant “determined that the lease could not continue, and all of its acts and doings in the premises were in good faith, and as it has collected no commissions under said lease over and above those in which plaintiff, or his representatives, has participated, it is under no duty, legally or morally, to pay plaintiff any further sum whatever.” The general and special demurrers to the answer were overruled, and to that ruling exception was taken. The verdict and judgment were in favor of the defendant.' A motion for new trial was denied, and that judgment was assigned as error. ■
Counsel for the defendant contend, that the agreement between Miller and the defendant was, in effect, that Miller should receive twenty-five per cent, of the commissions' arising from the rentals actually paid to the lessor by the lessee; that when the lessee became unable to pay the rentals and discontinued such pay-' ments, the- defendant was relieved from paying any.further com-
missions to Miller; and that this is shown by the statements in the defendant’s letter to Miller. The answer of the defendant appears to be based solely on this contention. We can not agree-to this argument. It is well-settled law that neither insolvency nor other' inability of the lessee to perform a lease is a defense, to an action by a broker for commissions.
“If
the broker’s principal once accepts the purchaser, he waives the right to question his financial ability, so far as the broker’s rights to compensation are concerned.”
Shaw
v. Chiles, 9
Ga. App.
460, 463 (71 S. E. 745). In
Baker
v.
Strawder,
50
Ga. App.
388 (178 S. E. 206), the headnotes are as follows: “1. When an agent employed to sell certain timber for the owners at a certain figure-procures a purchaser who is accepted by the owners and a contract is entered into between them, the commission for finding-such purchaser is earned, although the purchaser later defaults; for no reason caused by the agent. 2. A subsequent release of-the purchaser by the owners, or an agreed cancellation or rescission of the contract, will not prevent the agent from recovering-his commission for having procured the purchaser, when a valid: contract has been entered into between the owners and the purchaser. 3. Subject to some limitations affecting the good faith: of the agent, or his knowledge of the customer’s financial condition, the general rule is that the agent may recover his commission for procuring a purchaser with whom a valid contract is made, although the purchaser later is found to be financially unable to comply with the terms of the contract. 4. An agent: will not be prevented from recovering commissions for obtaining a purchaser who is accepted, in furtherance of which a binding-contract is made, though the purchaser deliberately refuses to* consummate the contract.”
The foregoing decisions, although not involving the procurement of a lease contract, are applicable and controlling in this; case. And it is well settled that,
“A
real-estate broker and hissubagent stand in practically the same relative position inter sewith reference to the right to compensation as do the principal and the broker. The broker who was directly employed is entitled to recover the whole commission from his employer, and the only remedy of the broker who was employed to assist in the sale is against the first broker who is his employer.” 12
C. J. S. 175, § 80. In
Bush
v.
Mattox,
116
Ga..
42 (42 S. E.. 240), which involved a lease contract, the court made the following ruling: “Where a lessee of convicts, who has á right to sublet them to other persons, employs another to assist him in procuring some one to sublet them, and agrees in writing to pay to the person so employed, for his services, all excess over $14 per month for each convict sublet, and, with the assistance of the intermediary, the original lessee makes a contract subletting the convicts at $16 per month, and subsequently, without the knowledge of the intermediary, releases the sublessee and voluntarily reduces the amount from $16 to $14, the intermediary is entitled to recover [from the original lessee] on his contract.” The principle of that ruling is applicable to the instant case. We do not think that the letter from the defendant to Miller could properly be construed as agreeing to pay Miller his promised commissions
only in the event that the lessee paid his rentals.
In the light of all the facts of the case, of the law applicable thereto, and the established rule that ambiguous statements in a writing should be construed most strongly against the writer, the letter should properly be construed as an
unconditional
agreement to pay Miller all of his commissions. The failure of the lessee to pay his rent did not relieve the lessor of his obligation to pay the defendant’s commissions; and the defendant, if it had not agreed to the cancellation of the lease contract, could have recovered the full commissions from the lessor, and would have been obligated to pay to Miller his per cent, thereof. Only the defendant could sue the lessor for the commissions; and since it estopped itself, by its conduct in consenting to the cancellation of the contract, from so doing, Miller was damaged in the amount of his unpaid commissions. In our opinion the answer failed to set out any valid defense to the suit, and the court erred in overruling the general demurrer. We think also that the answer was subject to all of the special demurrers, and that they should have been sustained. The error in overruling the demurrers rendered the further proceedings nugatory.
Judgment reversed.
MacIntyre, J., concurs.