C. W. Fоrd filed this bill in equity against Catherine Erswell and Louis Pizitz to collect $4,250 alleged to be due him by Catherine Erswell as commissions for the sale of lots Nos. 112, 114, and 116, North Nineteenth street, in Birmingham, Ala., made by Catherine Erswell to Louis Pizitz, .and for discovery.
The court below overruled demurrers to the bill of complaint and this is assigned as error.
The complaint avers that Mrs. Catherine Erswell owned the property, and wrote him the following letter:
“Birmingham, Alabama, September 5, 1910.
“Mr. C. W. Eord, % A. A. Adams & Co., Birmingham, Alabama — Dear Sir: I hereby give you the exclusive right to handle the sale and rental of my Birmingham property being situated at 909 Sоuth 21st Street, and 112th, 116 No. Nineteenth Street in Birmingham, Alabama.
“Yours very truly, Mrs. E. Erswell.”
That under the authority of this letter he (Ford) leased said property on Nineteenth street to Louis Pizitz until December 31, 1922, which is now bringing $1,000 per month. Complainant further avers that “he had many conferences with the respondеnt Louis Pizitz in reference to buying tbe property, and induced him to offer the sum of $175,000 for said property, and was about to close the trade for said amount with said Pizitz when Pizitz conceived the idea that he could otherwise, and through other agencies, acquire thе property for a less amount, and began negotiations to that end,” which finally culminated in a sale of said property by respondent Erswell to respondent Pizitz at and fdr the sum of $170,000; and that Pizitz became interested, in the purchase of the property through his long аnd persistent efforts, and “that his efforts brought about a sale thereof, although at a price $5,000 less than said Pizitz bad offered for it.” Complainant further averred:
“That after he had interested the said Pizitz in the purchase of said property, and after he had offered $175,000 for the same, which would have been accepted and closed by the said Pizitz, but'the said Pizitz conceived the idea that he could procure the property for a less amount, and set about by himself and agents, through various and sundry methods, to so acquire said property, and by said methods, and with the assistance and acquiescence of the said respondent Erswell, did buy the said property for the sum of $170,000, as he is informed, believes, and so states, the said sale taking place in the early part of September, 1919, аnd did pay, or cause to he paid, to the said Erswell a part of the purchase price of said property.”
The complaint also contains averments to the effect that Mrs. Erswell sold said property to Pizitz, and he has paid at least $10,-000 of the рurchase money,. and the balance is still unpaid. He avers Pizitz offered him $175,000 for the property, but he does not aver that he ever submitted this offer to Mrs. Erswell. He also avers that respondents entered into a conspiracy to defeat the rights and equities of сomplainant, to which he became ‘entitled by reason of his services and labor rendered in and about the purchase and sale of said property.
“As a general rule, a real estate broker who is given an exclusive right to sell property is entitlеd to a commission on any sale thereof made by the principal, either independently, or through ,the efforts of another broker, within the time specified in the contract of employment.” 9 Corpus Juris. § 101, p. 622.
This letter giving the complainant “the exclusive right to handlе the sale”- of said property fixes no definite time within which he must sell it or find a purchaser ready and willing to buy. No time is mentioned in it.
“It has been held that a. broker to whom is given the exclusive right to sell cannot recover his commissions when the owner sells the land unless he has produced a purchaser ready and willing to buy on the terms specified in his coiitraet of employment.” 9 Corpus- Juris, § 101, p. 622, headnoto 63.
“It is true, also, as a general proposition, that if a person enters into a contract with an agent authorizing him to sell land, and the agent fails after a reasonable time to effect a sale * * * the principal may sell his own land, or do so by another agent, unless he has bound himself not to do so.”
In Cook & Bro. v. Forst,
“To entitle an agent or broker to commissions, he must show that he procured a purchaser who was able and ready to comply with the terms and conditions of sale.”
See Sayre v. Wilson,
This letter of respondent Erswell to complainant did not fix the commissions; it did not fix the price of the property; it did not fix the terms of sale; it did not fix the time within which he could sell; it simply gave him- “exclusive right to handle the sale” of the property. It is over nine years old when this bill is filed. It is over nine years old when he avers the sale was made by Erswell to Pizitz.
The bill by failing to aver it, shows he never inquired of her for her terms of sale, or time of sale, or price of the property. He never mentioned to her that he had a purchaser ready and willing and able to buy, if terms were reasonable, and for those terms. When did this “exclusive right to handle thе sale” of the property terminate? Let the law answer:
“In the absence of a contract fixing the duration of a broker’s agency, it continues for only a reasonable time.” 9 Corpus Juris, pp. 519, 520, headnotes 6, 7.
The rule of law in Alabama is that—
“When a contract does not specify a particular time, or appoint the happening of a particular event for performance, the presumption is the parties intended performance within a reasonable time.” Cotton v. Cotton,75 Ala. 345 ; Alford v. Creagh,7 Ala. App. 358 ,62 South. 254 .
It “depends materially upon the nature of the duty to be performed, the relations of the parties, and the peculiar circumstances of the particular case.” Cotton v. Cotton,75 Ala. 345 ; Alford v. Creagh,7 Ala. App. 358 ,62 South. 254 .
In this case the letters giving the “exclusive right to handle the sale” was written on September 5, 1910. It was written by her in Birmingham, Ala. The bill shows that she and Pizitz reside there. The complainant resides there, and has been in the real estate business in that city since May, 1910. All three residing in the same city, how long would it take him (complainant) to inquire *497 of her for her price for the property, her terms of sale, the amount of his commissions? One month, one year, or nine years? Nine years passed, and the bill shows, by failing to aver it, that he (complainant) never secured her price or her terms of sale for the property, or informed her o:f the offer. The bill shows that, under that same letter authorizing him to rent this property, he leased it to Pizitz until December 31, 1922, and under said lease it is now bringing $1,-000 rent per month. From the averments of the bill, it was easily rented. The bill avers that Pizitz offered him $175,000 for it. It does not state when this offer was made. It was never communicated to respondent Erswell, yet she and cоnrplainant were both in Birmingham, Ala., where the property is located. Under the lease, the rent was being collected monthly — no doubt remitted monthly — but nothing was said or written to her about the $175,000 offer to buy the property.
How much time would it require in the city of Birmingham for a rеal estate broker, with authority to get a purchaser, to inform his principal that he had an offer of $175,-000 for her property, and to see if it met with her approval? Would it take one hour, one day, one month, one year, or nine years? Nine years pаssed, and the complainant never mentioned it to respondent Erswell. This was valuable property, renting for $833 per month at first; then it gradually increased until it reached $1,000 per month. The bill avers only one prospective purchaser making an offer for this valuаble property in nine years, and his offer was $175,000, and it was not communicated to the owner; and the owner sold to the same person for $170,-000 — losing' $5,000. Was the time too short, or too long? Was nine years too short, or too long, a time for him to inquire of Mrs. Erswell for her priсe, for her terms of sale, and to get a purchaser ready and willing and able to buy? If it was too short, then he would be entitled to commissions under the letter giving him “exclusive right to handle the sale” of the property, if she sold it to Pizitz; if it was too long, then he would not be entitled to commissions, under the averments of the bill, if she sold it to Pizitz. The bill avers she sold to Pizitz in the early part of September, 1919. Nine years is more than a reasonable time, under the written letter giving him “exclusive right to handle the sale” and rental of the property, and, under the averments of the bill, for him to “procure a purchaser who was able and ready to comply with the terms and conditions of sale.”
The demurrers raising these points, and questioning the equity of the bill for want of sufficient averments to show a cause of action for commissions on the sale, should havе been sustained.
The bill avers'that respondent Ecswell sold said property to respondent Pizitz, and that the papers or contracts of sale have not been placed on record, purposely done, so he cannot find out- the exact terms of sale; that respondents pretend to complainant that no sale has been made of the property, but a mere option of purchase made; but that a sale has been made, and the terms thereof are not given to complainant; that they are not placed on record; that he cannot secure the papers or copies of them; that they are in possession of respondents, and they are necessary to determine complainant’s rights. The complaint avеrs “that respondents entered into a conspiracy to defeat the rights and equities of complainant,” and they are trying to defraud him out of his reasonable commissions on said sale.
The respondents also demur to certain parts of the bill of complaint. The decrees on the court contain no ruling thereon. The cause was submitted to the court on demurrers to the bill of .complaint, and they were overruled by the court.
Reversed and remanded.