
    15056.
    LINGO v. BLAIR.
    The oral contract between the broker and the owner of the real estate sold, upon which this suit for commissions was based, was not within the statute of frauds; and the court did not err in overruling the demurrer.
    Decided April 19, 1924.
    Certiorari; from Fulton superior court — Judge Bell. September 20, 1923.
    
      Jackson & Moore, T. L. Lanford, for plaintiff in error.
    
      Frank Garter, contra.
   Jenkins, P. J.

Blair sued Lingo for a real-estate broker’s commission, which he alleged the defendant owner had orally agreed to pay in the event the plaintiff should procure a purchaser on certain terms for described property. The judge of the municipal court of Atlanta found in favor of the plaintiff, upon the disputed issue as to whether the defendant had agreed to pay the commission sued for. The plaintiff showed that he had procured a purchaser, who agreed in writing to buy the premises on the terms listed, and who was accepted by the owner, and that by consent of all parties the deed was made by the defendant to another named person.

1. “A contract for the performance of services such as are above set forth does not come within the provisions of the statute of frauds (Civil Code (1910), § 3222 (4)), as constituting a ‘contract for the sale of lands, or any interest in, or concerning them;’ but even if it did, the rule would not be applicable ‘where there has been performance on one side, accepted by the other in performance of the-contract.’ Civil Code (1910), § 3223 (2).” Garrett v. Wall, 29 Ga. App. 642 (1) (116 S. E. 331). The judge did not err in overruling the demurrer to the plaintiff’s petition.

2. The evidence, while in dispute upon the question whether the defendant had agreed to pay the commission, authorized the > judgment rendered in the municipal court, and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Stephens and Bell, JJ., concur.  