| Ala. | Nov 16, 1905
Walter Andrews is the complainant in this bill against T. A. Frierson and R. M. Gann. Andrews was the administrator of the estate of J. E. Andrews, deceased. The estate consisted of a large quantity of real and personal property located in Chambers, Lee, and Tallapoosa counties, amounting in value to something near $76,000. In the month of October, 1900, Andrews obtained from the probate court of Chambers county an order to sell all the property of the estate of his said intestate. The sale and description of the property was extensively advertised, and was to begin on Saturday, November 17, 1900, at Lafayette, Ala., to continue through the following week at the various places in the counties where the property was located and to be concluded on Monday, November 26, 1900, at Opelika. Andrews went to Atlanta and there entered into a written contract with T. A. Frierson, an auctioneer, whereby he secured the services of Frierson as auctioneer to sell the property at- the times and places advertised for a compensation of 5 per cent, on the gross amount of the sales made. Frierson performed the services under the contract, and the gross amount of the sales was $75,981.08 The bill was filed on the 5th day of January, 1901, and alleges, among other things, that Andrews was induced to malee the contract through fraud practiced by Frier-son and Gann; that before the contract was executed there existed between Frierson and Gann a secret agreement by which Gann, under cover of his confidential relations with Andrews, was to lead him to make the contract and they were to share what they could make out of him; and that the price they induced him to agree upon, 5 per cent, of the amount of sales, was extortionate and excessive. The bill alleges that the fraud was not discovered by Andrews until after the sale was made, and when he discovered it he refused to pay the amount named in the contract, but offered to pay a reasonable
After the. case was remanded, the respondents ansAvered, the testimony was taken, and on submission of the cause on the pleadings and proof a decree was rendered by the chancellor, May 27.1804, adjudging the complainant entitled to the relief sought and ordering a reference to' the register to “ascertain what would be a reasonable compensation to pay to the respondent Frierson for the services rendered by respondents under the contract Avhich the bill seeks to have canceled, and report his action, together Avith the evidence offered, to the next term of said court.” The reference was held, and the only evidence submitted was the Avritten evidence upon Avhich the cause Avas previously submitted to the court for final decree. The register filed his report on July 11, 1901, in Avhich he found and reported that 11-2 per cent, of the gross amount of sales ($1,139.71) would be a reasonable compensation. No interest was allowed or calculated by the register on the amount. The respondents excepted to the report of the register and on submission to> th chancellor he, on October 21, 1904, rendered a final decree, in which, without setting aside the report, corrected it and fixed the rate of compensation at 3 per cent, of the gross-amount of sales ($2,279.43), and allowed interest on this amount from November 26, 1900, making the total amount of compensation, inclu
The assignments of error are: “The court erred in not confirming the register’s report. (2.) The court erred in correcting the register’s report so as to' fix the rate of compensation to which the respondent Frierson is entitled at 3 per cent, on the gross amount of said sales. (3) The court erred in allowing interest on the amount decreed to be paid.”
The established rule is that when questions of the sort we have in hand are referred to a register, “and he is directed to draw a conclusion from evidence to be produced before him, every reasonable presumption is to be made in favor of his decision, and it will not be interfered with unless it is plainly wrong.” — Kinsey v. Kinsey, 37 Ala. 397. Or, to state it in the language of Walker, C. J.: “The rule is to indulge all reasonable presumptions in favor of the register’s decision upon questions of fact, such as those now under consideration, and not to reverse it unless clearly satisfied that it is wrong.” Judge Story goes so far as to say “that the court must be clearly satisfied that there has been an unquestionable error.” — Mahone v. Williams, 39 Ala. 202" court="Ala." date_filed="1863-06-15" href="https://app.midpage.ai/document/mahone-v-williams-6507141?utm_source=webapp" opinion_id="6507141">39 Ala. 202; Jones v. White, 112 Ala. 449" court="Ala." date_filed="1895-11-15" href="https://app.midpage.ai/document/jones-v-white-6516869?utm_source=webapp" opinion_id="6516869">112 Ala. 449, 20 Sotuh. 527. Or, as was said by the present Chief Justice, in respect of the rule, in Speakman v. Burleson, 123 Ala. 678" court="Ala." date_filed="1898-11-15" href="https://app.midpage.ai/document/speakman-v-burleson-6518299?utm_source=webapp" opinion_id="6518299">123 Ala. 678, 27 South. 322, a case in which all the evidence submitted to the register and from which he drew his conclusion was in writing: “We have carefully read and considered all the evidence in the x*e-cord, all of which and no other was before the register at reference. From it we can by no means affirm that the conclusion and report of the register is plainly and palpably incorrect and erroneous; and only such conclusion would justify us in reversing the decree confirming the report.” — Speakman v. Burleson, 123 Ala. 678" court="Ala." date_filed="1898-11-15" href="https://app.midpage.ai/document/speakman-v-burleson-6518299?utm_source=webapp" opinion_id="6518299">123 Ala. 678, 27 South. 322. See the authorities cited there. As was said by the court in Pollard v. American Freehold Land Mortgage Company, 139 Ala. 183" court="Ala." date_filed="1903-11-15" href="https://app.midpage.ai/document/pollard-v-american-freehold-land-mortgage-co-of-london-6520210?utm_source=webapp" opinion_id="6520210">139 Ala. 183, 35 South. 767: “Formerly the conclusion of the chancellor on all matters of fact brought with it to this court on appeal a prima facie presxxmption of correctness, which for the purpose of review here displaced the presumption of correctness which
In this case we are considering, the duty imposed upon the register was to ascertain what would be a reasonable compensation to be paid Frierson for his serving as an auctioneer in making the sale. This was to be done, too, without any regard to the contract that had existed. The contract was annulled by the decree: of the court. It was no longer of any efficacy. It will be observed, too, that the fact to be ascertained was dependent for establishment upon opinion evidence — opinion as to the value of services rendered. And, without intending any reflection on any witness whose evidence was taken in the case, we remark that it is always an easy matter to obtain evidence on either side of such a proposition when friendly experts are called to give opinions, as this case clearly demonstrates. Again, we note the great variation in the opinions of the experts who- were called to express an opinion. The opinions as to value range from one-half of 1 per cent, to 5 per cent. This of itself illustrates the sensibleness of the rule laid down by the Supreme Court, of the United States with respect of the manner in which the jury might deal with the opinions of witnesses in regard to value. — The Conquerer, 166 U.S. 110" court="SCOTUS" date_filed="1897-03-08" href="https://app.midpage.ai/document/the-conqueror-94641?utm_source=webapp" opinion_id="94641">166 U. S. 110, 17 Sup. Ct. 510, 41 L. Ed. 937" court="SCOTUS" date_filed="1897-03-08" href="https://app.midpage.ai/document/the-conqueror-94641?utm_source=webapp" opinion_id="94641">41 L. Ed. 937. There it was said by the court, speaking through Mr. Justice Brown, with regard to opinion evidence on the question of value: “While there are doubtless authorities holding that a jury (and in this class of cases the court acts as a jury) has no right
The rale, then ,to be deduced from the authorities, would seem to be that, where the facts and circumstances attending the rendition of services and the nature of the services are developed by the evidence, opinions of witnesses as to value are not conclusive, but may be considered as advisory, and 'the register must use his own judgment, guided by the evidence and assisted by such opinions. — Moore v. Ellis, 89 Wis. 108" court="Wis." date_filed="1894-12-11" href="https://app.midpage.ai/document/moore-v-ellis-8184704?utm_source=webapp" opinion_id="8184704">89 Wis. 108, 61 N. W. 291; Stevens v. Minneapolis, 42 Minn. 136" court="Minn." date_filed="1889-12-06" href="https://app.midpage.ai/document/stevens-v-city-of-minneapolis-7966262?utm_source=webapp" opinion_id="7966262">42 Minn. 136, 43 N. W. 842; Laflin v. Chicago, W. & N. R. Co. (C. C.) 33 F. 415" court="None" date_filed="1887-12-10" href="https://app.midpage.ai/document/laflin-v-chicago-w--n-r-8311093?utm_source=webapp" opinion_id="8311093">33 Fed. 415; Pollard v. A. F. L. M. Co., supra. The nature of the services rendered, the circumstances under which they were rendered, and the time consumed, were all developed by evidence submitted to the register in this case. The testimony of the expert witnesses as to the value of the sendees of the defendant Frierson is conflicting. Six witnesses testified in behalf of the complainant. One of them estimated the value of the services at 2 1-2 per cent., one from a half to 1 per cent., two of them at 1 per cent., and two at 1 1-2 per cent. Eleven witnesses, including the respondents, testified in behalf of 'the respondents. All of them placed the value of the services at 5 per cent. One of them, Henry L: Wilson, placed it at 5 per cent, on the first $2.000 and 2 1-2 on the balance. At a previous time, when he was examined with respect to 'the value of the services .rendered by Frierson, be placed the value at 11-2 per cent, on the gross amount of sales. Thus we have, from the variant evidence of the 17 witnesses examined in this case with respect to value, an illustration of the soundness of the rule, heretofore stated, that, where the facts and circumstances attending the rendition of services are developed by the evidence,
• The register in his report makes no mention of interest on the amount he ascertained and reported as reasonable compensation, although this matter was called to his attention. The respondents excepted to the report on this, among other grounds, and the chancellor decreed that respondents were entitled to interest from November 26, 1900, the day on which the sales were concluded. It is not claimed by the complainant that tender was ever made to Frierson of any amount; but complainant’s insistence is that under the evidence he was excused from actual tender. We cannot give our assent that the insistence is well founded. The case of Root v. Johnson, 99 Ala. 90" court="Ala." date_filed="1891-11-15" href="https://app.midpage.ai/document/root-v-johnson-6515165?utm_source=webapp" opinion_id="6515165">99 Ala. 90, 10 South. 293, cited by complainant’s counsed holds that “when, before tender made, 'the party to whom money is due declare.-; he will not receive it, or makes any declaration or demand which is equivalent to a refusal to accept the money if tendered, then actual tender is dispensed with.” There can be no dispute about the correctness of this ruling, but the evidence in the case in hand does not bring it within the influence of the rule, even if i-t should be conceded that the averments in the bill are sufficient on the question of tender to relieve plaintiff from the payment of interest. The only evidence relied upon by complainant with reference to the question is the testimony of E. S. Thigpen. The substance of Thigpen’s testimony was that he was employed by Andrews as one of his attorneys to go to1 At
The decree of the chancellor with respect to- the amonnt of compensation fixed must be reversed, and a decree will be here rendered confirming the register’s report, fixing the compensation at $1,139.70. This amount should bear interest at the rate of 8 per cent, per annum from November 26,1900; and it -will be so-adjudged. The amount of compensation, including interest, being-easy of calculation, is ascertained to Ire $1,595.58. A decree will therefore be rendered that the respondents in the bill (appellees here), T. A. Frierson and R. M. Gann, each have and recover of the complainant (ap
Reversed and rendered.