Opinion
35388.
DECIDED JANUARY 18, 1955.
Action for broker's commission. Before Judge Mitchell. DeKalb Civil Court. August 4, 1954.
Charles E. Markeles, D. W. Krasner, for plaintiff in error.
Charles M. Lokey, Lokey, Bowden Rolleston, contra.
The petition in this case set forth a cause of action for a duly licensed "business broker" to recover a commission for the sale of a "business."
DECIDED JANUARY 18, 1955.
Atlanta Realty Company, Inc., brought suit in two counts in the Civil Court of DeKalb County against Myer Sloan to recover a commission alleged to be due for procuring a customer, who bought the defendant's business, in accordance with an oral agreement between the parties.
The petition alleges in count one the following: 1. The plaintiff is licensed by the City of Atlanta under its ordinances as a business broker, and B. Isenberg is one of its agents. 2. The defendant is subject to the jurisdiction of the court. 3. The defendant in October 1953, or thereabouts requested the plaintiff through its agent, B. Isenberg to find him a purchaser for his business, and Isenberg as agent of the plaintiff agreed to do so for a 10% commission. This was agreeable to the defendant. 4. After this oral contract was made, the plaintiff's agent took a prospective purchaser to the defendant's place of business, where the agent and the defendant explained in detail the fixtures, stock, sales, and the method of doing business there. 5. The defendant stated that he would like to get $6,500 for the business. The prospect stated that he liked the business, but that the price was more than he could pay at the time. The defendant stated that the matter could be worked out to the prospect's satisfaction. 6. Approximately two weeks later the defendant sold the business to the prospect furnished by the plaintiff. 7. The sales price was $4,500, this amount being agreeable to the defendant. The defendant has failed and refused to pay the plaintiff 10% of the sales price as was agreed between the parties. 8. The plaintiff has carried out his part of the contract by finding a purchaser for the defendant's store for $4,500. 9. The defendant owes the plaintiff $450, this being 10% of the sales price. 10. The defendant has been stubbornly litigious, causing the plaintiff unnecessary delay, expense, and trouble, and the plaintiff should receive $100 as attorney's fees. Count two contains allegations similar to those in count one, except that the plaintiff seeks to recover on a quantum meruit basis for services rendered. The allegations are that the plaintiff, through its agent Isenberg, contacted the defendant, who wanted to sell his grocery and market, and that the defendant requested the plaintiff, through its agent, to locate a purchaser; that the purchaser located by the plaintiff bought the business about two weeks after being introduced to the defendant by the plaintiff's agent; and that $450 is a fair and proper sum for such services, this being the usual or regular price for such services in Atlanta, Georgia, when a business is sold for approximately $4,500. Attorney's fees in the amount of $100 are also prayed for in this count.
To a judgment sustaining the defendant's renewed general demurrer to the amended petition, the plaintiff excepted.
The defendant in error argues in his brief that the plaintiff was attempting to collect a commission for the sale of realty, or an interest in realty; and that it had not pleaded that it was a duly licensed real-estate broker under Code Chapter 84-14, and therefore the petition was subject to general demurrer. The plaintiff in its petition alleges that it is a duly licensed "business broker" under the ordinances of the City of Atlanta, that the plaintiff contracted orally with the defendant to sell his business, and that the defendant sold his business to the prospect furnished by the plaintiff. "Business . . . does not, generally speaking, mean property. It means the activity, the energy, the capacity, the opportunities by which results are reached — a condition rather than fixed tangible objects from which conditions arise." Atlantic Postal Tel. c. Co. v. Mayor c. of Savannah, 133 Ga. 66, 73 ( 65 S.E. 184); Norman v. Southwestern R. Co., 42 Ga. App. 812 ( 157 S.E. 531). Although the allegations of the amended petition are not as exact as might be desired, rendering it subject to special demurrer, and, after referring to the contemplated business to be sold, the petition uses in parts the words, "store" and "place of business," yet, viewing the petition as a whole, this court construes it as seeking to collect a commission for selling the grocery and market business of the defendant, and not the real property in which he conducted the business. It is alleged that the plaintiff is a duly licensed "business broker," and it is argued in the brief of the defendant that the demurrer was properly sustained since the plaintiff did not allege that it held a real-estate broker's license. This court cannot say as a matter of law that a "business broker" necessarily sells realty, or an interest in realty, when he sells a "business," and that the plaintiff here was obliged to secure a license under Code Chapter 84-14 as a real-estate broker merely in order to operate as a "business broker." If the defendant desired to be informed whether or not the plaintiff meant by its allegations that it was a "business broker," If the defendant in connection therewith operated as a real-estate broker, he should have sought this information by special demurrer. Against the general demurrer the petition, though somewhat loosely drawn, set forth a cause of action for a commission earned as a "business broker". Accordingly, the trial court erred in sustaining the general demurrer.
Judgment reversed. Felton, C. J., and Quillian, J., concur.