141 Ala. 680 | Ala. | 1904
The defendant withdrew its 4th, 5th and 6th special pleas, and the case was tried on pleas 1, 2, 7 and 8 to the first count, and general issue to the second count.
In the first count plaintiff claims of the defendant <|9,484.00 due to plaintiff from defendant under an agreement made between them, whereby plaintiff agreed te undertake to obtain for defendant a purchaser or purchasers for lands in Baldwin county, Alabama, claimed by defendant as its property, and that defendant agreed that in the event plaintiff obtained a purchaser or purchasers, for any of its lands, it would pay plaintiff for his services a commission of ten per cent, of the purchase price of said lands.
It is averred that acting under said contract, the plaintiff obtained for the defendant two proposed purchasers, S. B. Jones and J. B. Foley, for two large tracts of land in said county, and that on, to-wit, the 11th day ( f February, 1902, plaintiff introduced said purchasers to defendant’s vice-president, and he and said Jones and Foley entered into said contracts of purchase and sale of said tracts of land, containing in the aggregate, 25,-291.10 acres, more or less, and that the said Jones and Foley entered into two written agreements to pay said defendant for said land, at the rate of $3.75 an acre, and defendant agreed in writing to sell said lands to said Jones and Foley at that price, and that, thereupon, plaintiff became entitled to his commissions of ten per
The second count claims a like amount from defendant for work and labor done for defendant by the plaintiff, on the 11th of February, 1902, at defendant’s request, etc.
Pleas 1 and 2 to the 1st count, were the general issue. Pleas 7 and 8 set up the defense, that plaintiff was guilty of fraud, in that he was representing both parties, and that defendant and Jones and Foley, seller and purchasers, were in ignorance of this fact, — plea 7 setting-up the double employment and alleging that Jones and Foley were ignorant of this fact, and pleas 8 setting up the double agency, and alleging that defendant was ignorant of this fact. Both pleas appear to- be substantially the same until reaching the allegation as to the contracting parties being in ignorance of the double employment. The averment is made in each plea,. “That before the employment of the plaintiff by the defendant, as alleged in the declaration, the plaintiff had entered into an agreement with the said Jones and Foley, by the terms of which the plaintiff was to negotiate with the defendant for the purchase of lands owned by it in Baldwin county, Alabama, upon the. best terms obtainable from defendant,” etc.
A verdict was found in favor of the plaintiff for $10,-346.21. The defendant made a motion to set aside the verdict and grant a new trial, on many grounds, which motion the court granted. From that ruling the appeal is prosecuted.
1. The court on the conclusion of the evidence, delivered a long and carefully considered oral charge, as to the facts and law of the case, which charge seems to have been accepted as fair and correct. No exceptions appear to have been reserved to any part of it, by either party. Referring to the. first count, the court stated, that to entitle himself to a recovery, the plaintiff must prove to the reasonable satisfaction of the jury what is set out in that count, — that the plaintiff agreed to un
As to the defense set up by the defendant the court said, in substance, that the defendant denies, in a general way, that any such contract existed, or that he is liable under that contract, if it existed, and pleads specially, that before the employment of the plaintiff by the defendant, the plaintiff had entered into an agreement with Jones and Foley, by the terms of which the plaintiff was to negotiate with the Southern States Lumber Company, for the purchase of the lands owned by it in Baldwin county, upon the best terms obtainable from the defendant, and if a purchase of said lands should be negotiated by him under such agreement, the lands should be conveyed to Jones and Foley, and thereupon a corporation should be formed, to which the lands should be conveyed, by which corporation the plaintiff should be employed and receive from it, compensation or commissions from the sale of such lands made by or through him, such commissions or compensation to be guaranteed by it to be not less than $100 per month, and that plaintiff should receive a part of the stock of such corporation to be paid for by his commissions in excess of said $100 per month, and these were to be in consideration of his negotiation of said lands and his services in handling* them after the said purchase; that after said agreement, he negotiated with and persuaded defendant to contract with him to represent it; and that after said Jones and Foley had employed the plaintiff to negotiate for them the purchase of said lands, under this compensation which was- to be paid to him provided the plaintiff negotiated with defendant and procured it to agree to pay him a commission of ten per cent, for selling its lands, as its agent, as set forth in the complaint.
The general rule on this subject is: “That a real estate broker or agent who is negotiating a sale of property
This principle is not disputed by either party. There Aras much evidence introduced by each, and the transcript is voluminous. So far as this phase of the motion for a new trial is concerned, we prefer to express no opinion, as the question Aras fairly presented to the jury, and they rrere instructed in a manner unobjectionable to each side.
2. Nor do we need to consider and pass on all the grounds for this motion. It appears to us, that the court erred in giving for plaintiff, the charge No. 14. That charge assumed that the defendant agreed to pay the plaintiff commissions. It referred to the action as one “for commissions defendant agreed to pay plaintiff.” The plea of the defendant denied such an agreement, and its witnesses, Young and Bingham, testified that the defendant did not agree to pay commissions unless the purchase price Avas paid to defendant by the buyer, and that defendant had not been paid.
Again, the charge is in effect, that if a broker is not given the power to close the contract of purchase and sale, he may persuade and influence by any improper acts or devices of his OAvn, and keep him in ignorance, that in so doing he is or may be influenced by the reivard he is to obtain from the seller, and yet be able to recover his commissions. The charge hypothesises that if the jury “believe from the evidence that defendant employed plaintiff as a broker to find a purchaser for lands claimed by the defendant, at a price which should be satisfactory to the defendant and the purchaser AAdien they met, (then) defendant cannot defeat the action for commissions (Avhich) defendant agreed to pay plaintiff, by proof that plaintiff_Avas also to be paid for services by the purchaser.” The principle asserted is unsound. The broker has other duties than merely fixing the price, — a privilege more frequently withheld than con
Foley testified that wben the parties met, and the ■seller named |3.75, as the loAvest price the company Avould take, the purchasers were astonished, since they had been induced by plaintiff to believe that the lands could be bought for much less. They indicated an intention to AvithdraAY from the deal, Avhen they and plaintiff, at his instance, had a private conference, and plaintiff Avas very strenuous in his insistence that “we [speaking of them and himself] should not let this go,” saying: “We cannot afford to let this opportunity go, there is a great chance here to make money and you cann'ot afford it. The price is high, but we can make money out of it, and you cannot afford to let this opportunity go. There are other people after it; there are people here in the hotel.”
On account of this double dealing, on the part of the plaintiff, the contract failed of consummation, — Jones and Foley, Avhen they ascertained the true state of the facts, refusing to consummate it.
This charge, under this state of the evidence, was an improper instruction and should not have been given.
Affirmed.
