73 Ala. 372 | Ala. | 1882
— The main contention in this case involves the right of the principal to revoke the agent’s authority to sell, so as to deprive the latter of his commissions.
The agreement, which is the'basis of this suit, is in writing, bearing date February 28, 1878, and is signed by both the plaintiff and defendant. Its substance is briefly as follows: Seay was the owner of a tract of land in Talladega county, valuable for the quantity of iron ore it was known to contain. He placed this land in the hands of Chambers for sale, subject to Seay’s ratification, if he (Seay) should “ deem the price to be paid for said property sufficient to warrant a sale.” Chambers, on his part, agreed' to undertake the sale of the land, and to this end undertook and promised to transport specimens of ore taken from it to Birmingham, England, for inspection there; and also to advertise- the property in one respectable paper in each of the cities of Birmingham and London, England. By way of compensation for his services and expenses, it was stipulated that Chambers should receive “ an undivided one-fourtli interest in the proceeds of sale When sold as aforesaid,” and his right to sell was made “ exclusive.”
The evidence' tends to show that Seay revoked the agency of Chambers in January, 1880, and very soon afterwards himself sold the property to one Grlidden for the sum of twenty thousand dollars.' The circuit court charged the jury, that the agreement in question was a mere revocable agency, which could be recalled by the principal, Seay, at-any time before it had been executed by his making a sale of the property; and if it was so revoked prior to the sale made by Seay to Grlidden, then Chambers was not entitled to recover any commissions.
The rule is not denied, that, in ordinary cases, a principal, who has empowered an agent to sell, may at any time before sale revoke the agent’s authority. It is equally true that the usual theory of commissions is, that the agent is to receive them ouly in the event of success. — Wood’s Mayne on Damages (Amer. Ed.), §§ 746-747.
It is argued that the present agreement does not come within this general rule, because it confers on the’ agent a power coupled with an interest, and that such a power is irrevocable. It is a generally admitted proposition of law, that a principal is not permitted to revoke the authority of his agent, where such authority is coupled with an -interest, or 'where it is necessary to efecimate a security. — Ewell’s Evans on Agency,.marg. page, 83. These are the two established exceptions, which seem, indeed, to be essentially similar in principle. - It is contended that the agency of the' plaintiff, Chambers, comes within the influence of the first exception, as being coupled with an interest, and it was not competent, therefore, for Se.ay to revoke
The power conferred on Chambers was not of this nature very clearly. lie had no interest in the subject-matter of his agency, the land itself. lie was interested only in the money to be derived as the proceeds of the sale of the land, which could only be realized by the completion of his agency, or by some negotiation which was tantamount to it. He had parted with no money, or other value, for the security of which the power of sale was conferred in the agreement. He had risked in the venture of his agency only his personal services and the expenses incidental to its execution. The undertaking to transport specimens of iron ore to England, and to advertise the lands there, may be embraced as a part of the ordinary expense to be incurred in the usual course of such an employment. It is fair to presume that he risked this much in view of the large compensation to be reaped as commissions, in the event of a successful sale. — Simpson v. Lamb, 17 C. B. 603.
It is insisted further that the agency is rendered irrevocable by reason of the fact, that the power of sale conferred on Chambers was stipulated to be exclusive. This can not be stronger than the use of the word “irrevocable,” which has been construed to fail of such a purpose, unless the agency comes with the exceptions above discussed. In the case of a naked power, an express declaration of irrevocability will not prevent revocation. — McGregor v. Gardner, 14 Iowa, 326; Blackstone v. Buttermore, 53 Penn. St. 266.
'The chief difficulty arises in those cases where the agent has. incurred trouble and expense in the execution of his agency, and has been prevented from effecting a sale by the interference of his principal, whether by revocation of his authority, or
The pleadings in the present case, opon which it was tried, are framed very clearly with reference to a recovery of the stipulated commissions promised to Chambers, and the gravamen of the action ■ is, in effect, alleged to be the wrongful revocation of the agency by act of tlie principal. We need not, for this reason, discuss the question as to the plaintiff’s right to recover for the value of his services, or for expenses incurred. The first and fifth counts were obviously actions on the case, and the other counts were in assumpsit. — Myers v. Gilbert, 18 Ala. 467. The demurrer for misjoinder was consequently well taken, and was properly sustained by the court.
The rulings of ’the circuit court were in accordance with the above views, and its judgment must be affirmed.
