92 So. 470 | Ala. | 1922
Appellee recovered judgment against appellant for commissions earned by one Preston as his agent in procuring an exchange of lands between appellant and one Clay. Appellant defended on the ground that, without being apprised of Preston's agency, he had dealt with Preston as principal; that he had the right to determine with whom he would contract; and that another could not be thrust upon him without his consent.
There is an exception in the case of executory contracts involving personal trust and confidence (Birmingham Matinee Club v. McCarty,
Charge 2, requested by defendant, was properly refused. Fairly construed, there was no evidence going to show that plaintiff and Preston were partners at the time of the transaction in controversy.
There was no demurrer to the complaint, but now appellant suggests that it failed to state a cause of action. We cannot agree. There was an ellipsis; but, as against the objection now taken, the count was self-correcting. It shows that defendant failed or refused to pay commissions.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.