65 So. 518 | Ala. | 1914
In this case plaintiff (appellee) brought suit against defendant (appellant) to recover commissions alleged to have been earned in and about the sale of a tract of land owned by defendant in the neighborhood of the city of Birmingham. After due examination of the evidence, we are clear to the conclusion that plaintiff was not entitled to recover on any aspect of the case, and that, defendant having omitted a request for the general charge in proper form, the verdict should have been set aside on defendant’s motion for a new trial. We will not undertake to state the evidence in detail, but only our conclusion concerning various phases of the evidence and the reasons for our judgment upon
On February 14, 1910,- defendant and his wife, upon the nominal consideration of $1, executed a paper writing by which they granted, bargained, and sold to-plaintiff the option or right to purchase defendant’s land at the price of $500 an acre, “less 5 per cent, commission.” This option was limited to be exercised before May 14th, next ensuing. These were the terms of the grant, except that defendant and his wife agreed that, in the event of a purchase within the time limited, they would execute a warranty deed conveying to plaintiff or his assignees a full, good and sufficient legal title. The complaint counted upon a breach of this undertaking, but there was in the evidence no pretense that plaintiff had offered to purchase, or had procured an offer of purchase by any one else, prior to the date fixed for the expiration of the option, and so- it appeared without question that plaintiff was not entitled to recover under that count which alleged a breach of this contract.
But plaintiff continued his effort to find a purchaser, that, it seems, being all he ever expected to do, and succeeded on June 14, 1910, in bringing defendant and one J. H. Taylor into communication with each other under circumstances and with result to be stated. The complaint contained a count upon the quantum meruit for the value of work and labor done by plaintiff for defendant from February 14, 1910, to June 14, 1910, and it may be inferred, as affording, perhaps, an explanation of the result, as plausible as any other, that plaintiff was allowed to recover under this count and upon the theory that defendant, by signing an agreement on
Any interest plaintiff may have acquired in the land by the instrument of the 14th of February was determined absolutely by his failure to purchase or to find a purchaser within the time therein stipulated. Thereafter defendant ivas entirely free to deal with the property in his own way and without reference to plaintiff. There was no express agreement for the further continuation of plaintiff’s efforts; and if it be conceded that thereafter plaintiff did continue his efforts to find a purchaser with the knowledge and consent of the defendant, and with the common understanding that the stipulations of the original instrument should govern the terms of any sale that might follow and plaintiff’s compensation, which is doubtful, still the implication is that plaintiff was bound to furnish a purchaser who was able, ready, and willing to pay in spot cash the price defendant had set upon his land, if defendant so demanded, or upon such other terms as might be settled by agreement between defendant and the purchaser to be furnished; and so it was that, on the concession above stated, plaintiff’s right to a commission depended upon a finding that defendant and Taylor did in fact agree upon terms on the 14th of June.—Alexander v. Smith, 180 Ala. 541, 61 South. 68.
They did not agree. The testimony shows without dispute that on the date in question Taylor, a man of businesss in the city, prepared the draft of an agreement stating the terms upon which he was willing to buy. This paper provided that Taylor should pay $500 as earnest money, and that at the end of 60 days he was
But upon the undisputed evidence, without regard to controverted questions of fact, plaintiff Avas not entitled to recover on this last-named theory. The paper 'writing signed by defendant on the 14th of June purported to AAÚtness a contract betAveen defendant and Taylor. Plaintiff was not a party. He Avas a mere middleman, a broker. He was to receive a benefit, but his right depended upon the execution of an agreement betAveen the negotiating principals. As for any right of plaintiff, the principals negotiating for a contract Avere free to insist upon their oavu terms. Taylor absolutely
As we have already said, after the negotiation for a sale to Taylor had failed, on the 15th of June, plaintiff procured a right, though not an exclusive right, to sell within 60 days after defendant’s title should be cleared. This contract was not declared upon, and there could have been no recovery upon it, for plaintiff’s testimony was that thereafter he made no effort to bring about a sale.
Some eight or ten months after the negotiation with Taylor had failed, and four or five months after a de
Finally plaintiff was allowed to testify that, after the sale to the corporation, defendant had promised to pay plaintiff a sum less than plaintiff claimed to be due to
An offer or agreement to pay, or even a payment, in the way of compromise, is not an admission of indebtedness nor of any fact from which indebtedness may be inferred. An unqualified statement conceding an opponent’s claim is receivable despite its occurrence as a part of an effort to compromise.—2 Wigm. Ev. § 1062. If an admission as of fact is made because it is a fact, the
The motion for a new trial should have been granted.
Reversed and remanded.