
    47151.
    PTACEK v. EDWARDS.
    Argued May 3, 1972
    Decided October 3, 1972.
    O. L. Crumbley, for appellant.
    
      Martin, Snow, Grant & Napier, Edward J. Harrell, T. Baldwin Martin, Jr., for appellee.
   Pannell, Judge.

This case is an appeal from a judgment obtained by a real estate broker against a seller for commissions on a sale of real estate. Error is enumerated on certain charges of the court and failure to charge, and on the admission of certain evidence. Held:

1. Among the issues in the case was whether the real estate agent was acting for the seller or the buyer. Requests to charge relating to this issue were improperly refused.

2. The trial court erred in permitting witnesses to testify that it was a custom of the real estate trade for the seller to pay the commission on a real estate sale, even though the agent represented the buyer, in the absence of an agreement to the contrary. There was no evidence showing the defendant seller knew of such custom and in the absence of knowledge of the custom on the part of the defendant, there could be no contract made in reference thereto. It was also error to submit the question of such custom to the jury. See Potts v. Moultrie Banking Co., 22 Ga. App. 498 (2) (96 SE 502); Franco, v. Bank of Forest Park, 118 Ga. App. 700, 705 (165 SE2d 593); Hendricks v. Middlebrooks Co., 118 Ga. 131 (2) (44 SE 835).

Judgment reversed.

Quillian, J., concurs. Hall, P. J., concurs in the judgment.  