141 Ala. 551 | Ala. | 1904
The complaint is composed of two counts, the first is a special count for breach of a contract and is clearly in assumpsit. The second, is the common count for work and labor done. There was a demurrer for misjoinder of counts, the court overruled the demurrer. In this ruling there was no error. — York Mfg. Co. v. Bessemer Mfg. & Storage Co., 111 Ala. 332.
There were demurrers interposed to the counts separately, these demurrers were overruled by the court.
Upon examination of the first count of the complaint, we find that' the demurrer made to it is met by the aver-ments contained in it, hence the appellant’s first assignment of error is unavailing. Moreover, we find that the assignment of error, relating to the ruling of the court below on demurrer to the second count is not insisted upon by the appellant; this count states a substantial cause of action, and we would be warranted in not reviewing the ruling of the court as to this count even if error had been properly assigned. — Montgomery St. Ry. Co. v. Hastings, (Ala.) 35 South. 412; Mitchell v. Gambill, ((Ala.) 37 South. 402. The case was tried on plea of the general issue.
The plaintiff, Davidson, was a real estate broker in the: city of Montgomery, the defendant Bingham owned a plantation located in Elmore county which he desired to sell. The plaintiff contends that the defendant engaged him to procure a purchaser for said plantation and agreed to pay him flvei hundred dollars if he would do so; that he procured one, J. F. Thornton as purchaser, and brought the defendant and Thornton together in his (plaintiff’s) office, on the 1st day of February, 1902, and that there the defendant and Thornton, on that day, entered into a written executory contract of sale and purchase of the plantation, and that he was to be paid the five hundred dollars for his services, if he secured a purchaser, and effected a contract of sale of said land upon the terms of the written contract of February 1st, 1902. And that there was no agreement with defendant that his compensation depended on the fulfillment by Thornton of the terms of the contract, but that it was to be paid if he secured a purchaser acceptable to defendant. The written contract was offered in evidence, and the evidence shows that it was executed by Bingham and Thornton in' duplicate. Plaintiff was examined as a
Thornton testified as a witness for plaintiff on direct examination, that he made the contract of February 1st, 11)02, with the defendant; that the plaintiff brought about the trade between him and the defendant, and that said contract of February 1st, 1902, was written and signed in plaintiff’s office.. That witness had never known defendant until plaintiff introduced them: that he (witness) had carried out the terms of said contract and the deeds to the “properties” had been made by both parties; upon cross-examination he testified that he had not finished the Corner and Browder houses; tha’t he had not transferred the lease and rent notes to the Browder house until some time in July, 1902; that he went, into possession of defendant’s plantation and personal property immediately after said contract was signed; that the deed to the Corner house was made to the defendant on or about July 6th, 1902, and the mortgage for $11,000.00 was made on or about July 6th, 1902, by witness and wife upon said plantation to defendant. The witness swore that the trade had not been closed earlier because his attorney advised him that the title to said plantation was defective, lie further' testified that he owned no real estate in his own name; that the taxes and insurance on the Browder and Corner house had been paid by him and he carried out the terms of said February contract, except where the terms of the contract were changed subsequent to his execution, by agreement between him and the defendant.
The defendant testified in his own behalf that some time in January, 1902, he agreed with the plaintiff that if he would secure a purchaser and effect a sale of 2,413 acres of land belonging to him (defendant) in Elmore county, for $18,500i00, he would pay plaintiff $500.00 for his services; that plaintiff did secure one, J. F. Thornton as a purchaser with whom the “preliminary” agreement as to terms, of February, 1st, 1902, was made by him (defendant). That defendant made every effort to carry out his contract with Thornton; that he placed Thornton in possession of the lands, and also in posses-
Defendant on cross examination admitted that the original terms of the February contract were subsequent to its execution, modified by agreement by the parties thereto. He also testified that he was in possession of the city real estate mentioned in said contract, and that Thornton had prior to this suit executed the mortgage mentioned in said agreement as modified by subsequent agreement.
This case is distinguishable from those cases in which it is held that to entitle an agent or broker to recover his commissions, he must aver in his complaint and show by the evidence that he procured a purchaser who was able, ready and willing to comply with the terms and conditions of sale. In the case here, plaintiff’s insistence is that, he procured the purchaser and that the purchaser was accepted by the defendant, and that a valid
The contract between plaintiff and defendant, on the plaintiff’s version of it, contained no stipulation in respect to the ability of the purchaser to be procured. The plaintiff found Thornton and presented him to the. defendant as a purchaser, and without any unfair practices on the part of any one, so far as the record shows, defendant- accepted him and after agreeing upon the terms of sale and exchange of property, a contract in writing (unbracing the terms agreed upon was entered into. The contract entered into between defendant and Thornton was one of sale and exchange of property. True, it was not in the form required to pass, the legal title to the real estate, but it gavri an equitable right and bound the parties thereto to cany out its provisions, and either of them might Lave resorted to- a court of equity to compel specific performance. The plaintiff, as has been shown, admits that he was to effect a contract of sale with the purchaser, and the defendant testified that the agreement made with the plaintiff, was that plaintiff was: to secure a purchaser and effect a sale of 2,413 acres of land at |18,500.00, and for this service he was to pay plaintiff !|500.00. T;liis discrepancy in the evidence of plaintiff and defendant as to the contract, would make no difference as to the right of plaintiff to recover, as
Defendant’s testimony that “repeatedly” during the five months that this matter was pending he; had the plaintiff to help him effect his sale, and that plaintiff finally declared he was unable to close the trade and effect the sale as he had done everything he could, would not of itself cut off plaintiff’s right to recovery, nor would this result be accomplished by the fact that defendant may have notified plaintiff in writing that lie was going to employ attorneys and close the trade on the best terms possible, and that plaintiff at the time of the notification declared his inability 1m close the trade and effect a sale. „ This was said and done after -the contract of sale heretofore adverted to was executed, after plaintiff, according to his insistence, had complied with his contract, and had earned his compensation.
That he aided the defendant in his efforts to get Thornton to carry out, the contract of sale, may have been found by the jury not inconsistent with the contract he testified to between himself and defendant, and his utterances as to not being able to effect the sale, may have been, as they doubtless were, regarded by the jury as referring to the efforts made in getting Thornton to carry out the contract of February 1st, 1902, made between defendant and Thornton, especially so,, when plaintiff testified that his compensation did not depend upon Thornton’s compliance with the sale contract. Nor would the subsequent modification of the terms of the contract between defendant and Thornton deprive plaintiff of his right to compensation if he had complied with the terms of his contract with defendant. — Cook Brothers v. Forest et al. 116 Ala. 395.
These conflicting versions and contentions of the parties were no doubt submitted to the jury by the court under proper oral instructions upon the evidence, and it was the province of the! jury to make their own deduc-
On cross-examination of the plaintiff, while on the stand as a Avitness, the defendant’s counsel asked him a dozen questions consecutively and the bill of exceptions shows that counsel for plaintiff objected to all of them and the court after counsel for defendant made kno-Avn to the court that the answers sought to be elicited from the witness were material to the general issue and they would constitute a part of defendant’s; defense and avouM be connected, sustained “said objectionsTo this ruling of the coAU't no exception Avas reserved, hut the defendant in his motion for a neAV trial, after verdict- and jiidgment rendered against him, assigns the ruling of the court as one of the grounds for his motion. “A failure to reserve an exception to the ruling of the trial court at the proper time cannot be cured by a motion made, for a neAV trial, so as; to render such ruling reversible on appeal.” — Tobias v. Treist, 103 Ala. 665; McClendon v. Bush, 127 Ala. 470.
The bill of exceptions fails to slio-w that the affirmative charge was requested, hence, the fifth -assignment of error is groundless.
To authorize a reversal of a judgment overruling a motion for a new trial, on the- ground that the verdict of the jury a vas contrary to the eAddence, it must appear that there Avas a palpable failure of evidence to support the finding of the jury. We do not find in this case such failure in the evidence. — Cobb v. Malone, 92 Ala. 630; Dillard v. Savage, 98 Ala. 598; Jones v. Tucker, 132 Ala. 305.
From our conclusions with reference to the substantive law of the case, there was no error in overruling the motion for a new trial on the ground that the verdict of the jury Avas contrary to the law.
We fail to find reversible error in the record upon any of the assignments of error, and the judgment of the city court is affirmed.
Affirmed.