Price v. Cocke

99 S.E. 47, 23 Ga. App. 578, 1919 Ga. App. LEXIS 226

• Court: Court of Appeals of Georgia
• Decided: April 17, 1919
• Docket: 9992
• Status: Published

Opinion

Wade, C. J.

Where a suit for a commission- on a sale of land is based upon a contract authorizing the plaintiff to sell the land for the defendant for a fixed price per acre within a specified time, and it does not appear from the petition that the plaintiff procured a purchaser ready, able, and willing to buy at the price stipulated, or that during the life of the contract there ■ was such interference on the part of the defendant as to prevent a sale of the property, or any secret agreement, collusion, or mutual understanding between the defendant and the prospective buyer, while negotiations were pending, to delay the consummation of the trade until after the expiration of the contract, the petition is subject to general demurrer, even though it be' alleged that immediately after the expiration of the contract (time being of the essence) the defendant sold the property to one who had been negotiating with the plaintiff. The trial judge in this ease therefore did not err in dismissing the suit on demurrer. See Civil Code of 1910, §,3587; Morris v. Jackson, 9 Ga. App. 848 (72 S. E. 444) ; Emery v. Atlanta Real Estate Exchange, 88 Ga. 321 (14 S. E. 556); Humphries v. Smith, 5 Ga. App. 340, 342 (63 S. E. 248) ; Case Threshing Machine Co. v. Binns, 23 Ga. App. 46 (3), (97 S. E. 443).

Judgment affirmed.

Jenkins and Luke, JJ., concur. Yeomans & Willkinon, Ware G. Martin, for plaintiff cited:

Humphries v. Smith, 5 Ga. App. 343; Graves v. Hunnicutt, 8 Ga. App. 99; Doonan v. Ives, 73 Ga. 395 Hill v. Wheeler, 3 Ga. App. 349; 9 Corpus Juris, 601, 606.

Parks & Parks, for defendant, cited:

Civil Code (1910), § 3587; Morris v. Jackson, Emery v. Atlanta Real Estate Exchange, and Humphries v. Smith, supra.