82 So. 441 | Ala. | 1919
Action by real estate agent or broker (appellee) to recover of the owner (vendor) commissions for services in reference to the sale of land. To state his case the plaintiff employed the common counts and two counts (5 and 6) declaring on a special contract. Since the plaintiff's recovery, if he was so entitled, may be referred to the common counts, either because he had fully performed the contract or on a quantum meruit, the action of the court in overruling the defendant's demurrers to counts 5 and 6 was in any event without prejudice to defendant. Kellar v. Jones,
The two questions propounded by the defendant to the witness Wood, seeking to elicit a recital by Wood of statements made to Wood by defendant, plaintiff not being present, were properly disallowed. The rights of plaintiff, under his asserted contract, could not have been prejudiced in any degree by statements made, out of his presence, by the defendant. The matter the examiner sought to bring out would have been hearsay, if not self-serving, in so far as plaintiff's rights were qualified or denied thereby.
Special charges 3, 4, and 5, given at the instance of the plaintiff, were well framed, according to the apt authority of Handley v. Shaffer, supra.
Pretermitting consideration of the soundness of the proposition asserted in special charge 1, refused to defendant, and in special charge 5, given at the instance of the defendant, it appears that the former was substantially covered by the latter, thereby averting, in any event, prejudicial error in refusing special charge 1.
There was no error committed in refusing *193
defendant's special charge numbered 4. The evidence conclusively established a sale of the land, on partially modified terms, by defendant to Wood, within a very short time after Wood — the prospective purchaser — had been presented by plaintiff, which terms, according to the defendant's contention, fixed the purchase price to be actually paid by Wood at the same sum for which the defendant originally authorized plaintiff to sell the land. Unless the plaintiff agreed to the terms of the sale the defendant made with Wood — wherein a $500 commission discount was to be yielded by the plaintiff and, also, the payment of the commission should be made in proportion and as Wood paid the purchase price — the plaintiff had earned the commission originally stipulated, viz., 5 per cent. on $35,000, payable when the sale the defendant made was effected. B'ham Land Co. v. Thompson,
The trial court properly declined to consider the affidavits of jurors whereby the verdict was sought to be impeached, thus leaving the first ground of the motion for new trial without support.
If, as is insisted for appellant, he was surprised that on the trial plaintiff's agent, Morring, should deny statements or agreements attributed to him by defendant's witnesses, his remedy was to invoke the court to stop the trial and continue the cause. He could not speculate. Brown v. Brown,
No error appearing, the judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.