Pargar, LLC, 277 Ga. App. 35, 625 S.E.2d 435, 2005 Ga. App. LEXIS 1321 (2005), cert. denied, No. S06C0788, 2006 Ga. LEXIS 337 (Ga. Apr. 25, 2006). Practice and Procedure 1. Pleading Ability of purchaser should be alleged. — Under this section, the ability to comply, that is that one is solvent and one’s compliance can be compelled or the question of one’s solvency has been waived, of the purchaser accepted by the principal and afterwards refusing to comply with the contract should be alleged. Harvil v. Wilson Bros., 11 Ga. App. 156, 74 S.E. 845, 1912 Ga. App. LEXIS 304 (1912); Wilson Bros. v. Verner, 12 Ga. App. 511, 77 S.E. 656, 1913 Ga. App. LEXIS 617 (1913). Allegation of what occurred between purchasers and defendants. — Plaintiffs should allege the facts as to what occurred between the defendant and the prospective purchasers upon which the plaintiffs rely in support of the plaintiffs’ claim for commissions. McMath Plantation Co. v. F.L. Allison & Co., 26 Ga. App. 744, 107 S.E. 420, 1921 Ga. App. LEXIS 622 (1921). Alleging direction to sign contract does not make action one on written contract of sale. — Allegations that clients directed agent to sign a written contract and that client would send a check as earnest money are not necessary to the cause of action whereby a licensed real estate dealer sues for commissions and will not establish the action as a suit upon a written contract to purchase real estate. Pierce v. Deich, 81 Ga. App. 717, 59 S.E.2d 755, 1950 Ga. App. LEXIS 976 (1950). Only one count need be sufficient. — In an action against the principal by the broker to recover commissions which 928 was brought in two counts, each for the same amount, one count alleging a contract by which the broker was to procure a contract of sale between the broker’s principal and the purchaser and the other count alleging that the plaintiff earned the commission under a brokerage contract by obtaining a customer ready, willing, and able to purchase the property and who actually offered to purchase upon the terms stipulated by the owner, when the verdict found for the plaintiff is sustainable under the second count, it is immaterial that the evidence was insufficient to support a verdict under the first count by reason of the contract of sale necessary to support such verdict being for any reason invalid as by an insufficient description therein of the land purported to be sold. Knowles v. Haas & Dodd, 70 Ga. App. 715, 29 S.E.2d 312, 1944 Ga. App. LEXIS 89 (1944). Plaintiff’s allegations held sufficient. — See Payne v. Ponder, 139 Ga. 283, 77 S.E. 32, 1913 Ga. LEXIS 404 (1913); McKenzie v. Patterson, 27 Ga. App. 465, 109 S.E. 174, 1921 Ga. App. LEXIS 217 (1921). Alleging contract for commission under this section from first payment and a first payment states a cause of action. Luckey v. Daniels, 25 Ga. App. 164, 102 S.E. 902, 1920 Ga. App. LEXIS 661 (1920). If the plaintiff specifically alleges the existence and duration of the broker’s agency, the property listed for sale, the terms of compensation for the performance of the broker’s services, the terms of sale stipulated by the owner and the procurement by the broker of a purchaser ready, able, and willing to buy on such terms, and a refusal by the seller to pay the broker’s commission in accordance with their contract, the plaintiff’s pleading is not subject to dismissal. Norwood v. Robie, 102 Ga. App. 206, 115 S.E.2d 729, 1960 Ga. App. LEXIS 588 (1960). Plaintiff’s pleading is not subject to dismissal because the pleading seeks to recover on an oral agreement for the performance of services by the broker or because the pleading does not allege that the transaction has been closed by a conveyance and payment of the purchase price. Norwood v. Robie, 102 Ga. App. 206, 115 10-6-32 S.E.2d 729, 1960 Ga. App. LEXIS 588 (1960). If a real estate sales contract provides that the broker is made a party thereto to enforce the broker’s commission rights and that liability for the commission can be based on the “seller’s inability, failure, or refusal to convey” an allegation that the seller “fails and refuses” to close the transaction is sufficient. Nussbaum v. Shaffer, 105 Ga. App. 430, 124 S.E.2d 658, 1962 Ga. App. LEXIS 945 (1962). Plaintiff’s allegations held insufficient. — By virtue of this section, if an action 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 plaintiff’s allegations 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 allegations are insufficient, even though it is 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. Price v. Cocke, 23 Ga. App. 578, 99 S.E. 47, 1919 Ga. App. LEXIS 226 (1919). In a suit to recover commissions alleged to be due under a broker’s contract, if the plaintiff’s pleading fails to show that the plaintiff produced a purchaser who was ready, able, and willing to buy the property placed in the plaintiff’s hands for sale, on the terms prescribed by the owner, the court does not err in dismissing the pleading. Montgomery v. Lester, 25 Ga. App. 660, 104 S.E. 28, 1920 Ga. App. LEXIS 138 (1920). Alleging efforts by a broker to sell property and that the broker interested certain persons and by the broker’s efforts created a demand for the property, making it possible for the owner to sell to one 929 Practice and Procedure (Cont’d) 1. Pleading (Cont’d) not alleged to have been interested by the broker, does not state a cause of action. Corker v. Simmons, 26 Ga. App. 515, 106 S.E. 558, 1921 Ga. App. LEXIS 506 (1921). Allegation that the “plaintiff was the procuring cause of the sale” is a mere conclusion of the pleader when not sustained by the facts stated by the plaintiff and the court does not err in dismissing the plaintiff’s pleading. Craigmiles v. Steyerman, 27 Ga. App. 14, 107 S.E. 386, 1921 Ga. App. LEXIS 650 (1921). Cause of action for commissions earned is not alleged if it does not appear that a purchaser was procured who actually offered to buy on the terms stipulated by the owner. Frederick May & Co. v. B. Karpf, Inc., 80 Ga. App. 1, 54 S.E.2d 916, 1949 Ga. App. LEXIS 757 (1949). Answer alleging defense of broker’s bad faith. — Answer alleging that the plaintiff broker misrepresented the financial ability of the buyer, that is, that the buyer was ready, willing, and able to buy on the terms stipulated by the seller, thereby inducing the defendant to accept the buyer’s offer and to enter into a contract which the buyer was unable to perform, set out a breach of the broker’s duty of exercising the utmost good faith toward the principal, the seller, which was a defense to the broker’s action for commissions. Reisman v. Massey, 84 Ga. App. 796, 67 S.E.2d 585, 1951 Ga. App. LEXIS 800 (1951). 2. Burden of Proof Burden on broker of showing all requirements of section. — Under the general rule stated in this section, ordinarily the burden of showing all the requirements recited is on the broker in an action for commissions. Phinizy v. Bush, 129 Ga. 479, 59 S.E. 259, 1907 Ga. LEXIS 491 (1907). Burden of proving defense of purchaser’s inability. — If the customer procured by the broker is accepted by the principal, the burden will be upon the latter to show that such purchaser was not able to comply with the contract, if the purchaser relies on that defense. Phinizy 10-6-32 v. Bush, 129 Ga. 479, 59 S.E. 259, 1907 Ga. LEXIS 491 (1907). Proof of conspiracy. — In order to establish that a conspiracy existed to deprive the broker of a real estate broker’s commission, a party must show that the commission was earned; that the broker, as the plaintiff-broker, has been the procuring or efficient cause of the ultimate sale; and that there has been a wrongful interference with the broker and the purchaser. Having shown that the broker was the procuring cause of the sale, the plaintiff broker must then demonstrate that the sellers actually knew that the purchaser may have been procured by the broker. Hodges-Ward Assocs. v. Ecclestone, 156 Ga. App. 59, 273 S.E.2d 872, 1980 Ga. App. LEXIS 2879 (1980). 3. Questions for Jury or Court Whether broker has produced a purchaser during the term of the agency is an issue of fact. Ocean Lake & River Fish Co. v. Dotson, 70 Ga. App. 268, 28 S.E.2d 319, 1943 Ga. App. LEXIS 296 (1943). Which broker’s efforts were procuring cause. — If the services of a broker, as well as those of another broker, have conjointly contributed to the successful termination of negotiations resulting in the sale of real estate for an owner, it becomes a question of fact as to which broker was the proximate, predominating, and procuring cause of the sale. Gresham v. Lee, 152 Ga. 829, 111 S.E. 404, 1922 Ga. LEXIS 291 (1922); Nicholson v. Smith & Son, 29 Ga. App. 376, 115 S.E. 499, 1923 Ga. App. LEXIS 13 (1923); City Nat’l Bank & Trust Co. v. Orr, 39 Ga. App. 217, 146 S.E. 795, 1929 Ga. App. LEXIS 261 (1929). Whether contract applied to property is for jury. — Issue whether contract as to commissions applied to goods accepted but not delivered was for jury, not court. Interstate Chem. Corp. v. Slade & Treadwell, 20 Ga. App. 776, 93 S.E. 422, 1917 Ga. App. LEXIS 1080 (1917). Reasonable time. — If no time is specified for a real estate agent to procure a ready, willing, and able purchaser, under the agency contract what would be 930 10-6-32 a reasonable time is for the jury to determine under all the facts and circumstances of the case. Wood v. Planzer, 73 Ga. App. 731, 37 S.E.2d 813, 1946 Ga. App. LEXIS 402 (1946). If a contract between the owner of real estate and the real estate agent for the sale of property specified no time limit, and the commitment to purchase property by the purchaser was obtained ten days after the contract was made, and the sale was made by the agent on the terms stated less than three months from the date of the owner’s contract with the agent, the jury is authorized to find that the agent has earned a commission under the contract. Wood v. Planzer, 73 Ga. App. 731, 37 S.E.2d 813, 1946 Ga. App. LEXIS 402 (1946). Whether broker made attempt to perform. — Under provisions in a broker’s contract for sale under the terms stipulated “or any other terms acceptable to me,” a bona fide attempt to procure an offer to buy for a lesser price is sufficient to constitute performance, and whether or not such performance has occurred is a jury question. Stone v. Reinhard, 124 Ga. App. 355, 183 S.E.2d 601, 1971 Ga. App. LEXIS 918 (1971). If a promise as stated in a contract is “to list, offer for sale, and endeavor to sell” upon the terms stated in the contract or any other terms acceptable to the owner, and the plaintiff’s affidavit shows that there were efforts to find prospects, show the prospects the property, and relay offers to the owner, it is a jury question whether or not there was such compliance with the contract as to entitle the plaintiff to commissions. Stone v. Reinhard, 124 Ga. App. 355, 183 S.E.2d 601, 1971 Ga. App. LEXIS 918 (1971). Whether a sales agent breaches a fiduciary duty to the seller by working in concert with the agent’s spouse, the purchaser, in the negotiations and execution of the sales contract is a question of fact for the court. Paredes v. Bud Bailey Corp., 160 Ga. App. 572, 287 S.E.2d 620, 1981 Ga. App. LEXIS 3103 (1981). Verdict for defendant required as matter of law. — If in a suit by a broker for commission it appears that the plaintiff never produced a customer who was ready, able, and willing to buy, and who actually offered to buy on the terms expressly stipulated by the defendant, the owner of the property in question, that prior to the sale of the property by the defendant personally to one who had been introduced to the defendant by the plaintiff’s agent as its prospect, the negotiations between such prospect and the plaintiff had come to an end, and that the defendant had not at any time interfered with the efforts of the plaintiff to effect a sale during the agency, a verdict in favor of the defendant was demanded as a matter of law. Landrum v. Lipscomb-Ellis Co., 62 Ga. App. 649, 9 S.E.2d 205, 1940 Ga. App. LEXIS 392 (1940). 4. Instructions Owner’s right to sell. — Since there was an issue of fact as to whether a broker was employed to sell property or the broker’s acts ratified, and it appeared that the owner sold the property personally, without the broker’s aid, to a purchaser with whom the broker negotiated, the court should have charged pursuant to this section that placing the property in the hands of a broker did not prevent the owner from selling unless otherwise agreed. Folds v. Lifsey Co., 26 Ga. App. 297, 105 S.E. 854, 1921 Ga. App. LEXIS 109 (1921).