
    3368.
    WEST v. MORRIS.
    The court did not err in overruling the general demurrer.
    Decided January 15, 1912.
    Rehearing denied March 2, 1912.
    Complaint; from city court of Atlanta — Judge Reid.
    April 1, 1911.
    
      Smith, Hastings & Ransom, for plaintiff in error.
    
      A. E. Ramsaur, A. E. Wilson, contra.
   Russell, J.

According to the allegations of the petition, the • defendant requested the plaintiff, as his agent, to employ an attorney to make an abstract of title for him. This, of course, would imply a promise on the part of the defendant to pay a reasonable fee to the attorney whom the plaintiff, as the defendant’s agent, employed ; and, consequently, there was enough in the petition to withstand a general demurrer, and the court did not err in overruling the demurrer in the form in which it was presented.

It appears, however, from the contract which was entered into, tliat the petition would have to be amended by inserting a new plaintiff, suing for the use of the present plaintiff, before he could recover the commissions, also claimed, even if he establishes the other allegations of the petition. The contract upon which the suit is based is as follows:

“Atlanta, Ga., Feby. 17, 1910.

“I hereby agree to purchase from owner, through E. S. Morris, agent, one house and lot, known as 305 Fonnwalt St., for which 1 agree to j>ay $3,400.00 on the following terms: $2,500.00 cash, assume loan for $-, due-at-, and balance $25.00 per month with 7 % interest made on or before. I have this day, at 9 o’clock a. m., deposited with E. S. Morris, agent, $25.00 to bind this trade. A reasonable length of time to be allowed for examination of titles by my attorney, and if titles are good, I agree to make settlement at once; but if titles are not good, and can not be made good in a reasonable length of time, this deposit is to be returned to me and trade canceled. TJpon my failure to comply with contract, I agree to pay E. S. Morris, agent, the amount of his commission on said sale.

“[Signed] W. H. West, purchaser.

“- hereby accept the above offer upon the terms and conditions herein named, and guarantee the titles to be good, and agree to pay E. S. Morris, agent, a commission on the gross amount as follows, viz.: 5 per cent, on the first $2,000, and 2% per cent, on the excess over the first $2,000. In the event the buyer fails to pay for the property as stipulated above, then the amount paid in is forfeited, and is to be kept by E. S. Morris, agent, as compensation for services rendered by him in the trade.

“[Signed] D. M. Deitch, owner.”

Morris can not recover upon this contract, though Deitch, the owner, suing for his use, might do so.

Judgment affirmed.

Note:

The ease of Taylor et al., trustees, v. Matthews et al., decided at the October Term, 1911 (February 24, 1912), is reported on page 852, infra.

CASES DECIDED IN THE COURT OF APPEALS OF GEORGIA ■ AT THE MARCH TERM, 1912.  