72 So. 89 | Ala. | 1916
Suit by appellees against appellant for the recovery of compensation for services rendered as real estate agents in the sale of a farm owned by the appellant. The cause proceeded to trial upon the common counts, for work and labor done, etc., and count 7 as amended, which declared upon a special contract. This latter count shows a written contract, signed by the defendant, giving to the plaintiffs the exclusive agency for the sale of the farm, naming the price, fixing the commission at 5 per cent, and reserving the right to terminate the agency at any time on 30 days’ notice in writing, and containing the further stipulation: “If sale is made by W. M. Keller, we agree to allow him a commission of 2% per cent.”
“Coming particularly to the rights of real estate brokers, it may be stated as a general proposition that a broker employed to sell land is entitled to his compensation if he brings to the seller a purchaser able, ready, and willing to purchase on the terms named, or if he brings them together and the sale is afterwards consummated by the seller himself. Again, if he introduces a prospective purchaser, and the seller undertakes to conduct the negotiations, and finally sells the property for less than the terms named in the contract, he thereby waives his right to insjst on the terms of the contract, in that respect, and is liable at least for a reasonable commission, and the contract may be introduced as a guide for the jury in arriving at what is reasonable compensation. * * * ‘The owner of real estate cannot avail himself of the services of an agent employed by him, who procured a purchaser, to effect the sale himself to such purchaser, and thereby deprive the agent of his commissions.”—Smith v. Sharpe, 162 Ala. 438, 440, 50 South. 383, 136 Am. St. Rep. 52.
And from Hutto v. Stough & Hornsby, 157 Ala. 572, 573, 47 South. 1034: “If, as claimed by the plaintiffs, they were interrupted by the request of the defendant to hold the propositions, for a few days, until he could ascertain whether he could borrow the money, and during said few days, without terminating the agency, defendant continued the negotiations along the same line,
The seventh count shows the services of the plaintiffs in securing the prospective purchaser and the acceptance of said services and the benefits derived therefrom by the defendant, and a final consummation of the sale by the defendant at his own request, and with the express understanding that he was to pay only a commission of 21/2 per cent. Under the above authorities this count was not subject to any demurrer interposed thereto. See, also, Handley v. Shaffer, 177 Ala. 636, 59 South. 286.
The evidence was in sharp conflict, and was properly submitted to the jury for their determination. We see no error in .the refusal of the court to give the affirmative charge. We need not discuss the testimony, though it has been most carefully considered.
No reversible error appearing, the judgment of the court below will be affirmed.
Affirmed.