83 Ala. 274 | Ala. | 1887
— The Louisville & Nashville Railroad Company, by power of attorney bearing date December 16, 1886, empowered Miller & Co. to make sale of certain lands and mineral interests, at any time within thirty days, and “ at a sum not less than five hundred thousand dollars.” The contract, or power, whichever it may be termed, has an additional stipulation, which is unusual in such instruments. It contains no stipulation for compensation to the agents making the sale; but, if it were simply silent on this subject, the law would imply a promise to make reasonable payment for the services to be rendered. It is not silent. On the contrary, it recites a consideration of five thousand dollars paid, or to be paid to the railroad company, for the thirty days privilege of making the sale. Options to buy, and options to sell, are sometimes bought and sold. To purchase, and at large price, the privilege of becoming the agent of another to make a sale, is certainly an anomaly. It is an anomaly, because the agent stands in a fiduciary relation to his principal, and is not permitted to be interested in the purchase, nor to make a profit on the transaction, beyond his reasonable compensation. — 2 Addison Contracts, 924; Adams v. Sayre, 76 Ala. 509. In the present case, the agent was authorized to sell at not less than five hundred thousand dollars; and he was to sell as agent. It was his duty to sell for as much more as he could, obtain, and whatever sum he might realize above the fixed minimum of five hundred thousand dollars, he was bound to account for to his principal. Other clauses of the instrument might be commented on, but we need not. Parties, however, if sui juris, may make their own contracts; and if they violate no principle of law, or of public morality, they must perform their contracts as they make them. It is our province to enforce, not to make contracts for parties.
What we have to say in this case, will be confined to the case made by the bill.
The bill charges that the alleged sale was to a minor, known to Miller to be such, and that the alleged purchaser had no property, which Miller also knew. It also charges
Many of the grounds of demurrer complain, that the complainant fails to tender the notes and money to the purchaser, and yet claims rescission. The bill avers that, “on the 18th day of January, 1887,’) [the alleged sale was made January 14, 1887] “and immediately after it was known to orator that the said, pretended sale had been made, orator tendered to said Miller the said money and notes, repudiated the said pretended and unauthorized contract of sale, and notified said Miller and said Jones that orator would not comply with such contract.” This averment would probably have been more complete, if it had offered to bring the money into court, to abide any order the court might make, and to bring in the notes, to be restored to Jones, or to be cancelled. But, at the present stage of the proceedings, we do not consider this omission fatal to the equity of the bill. Of course, the chancellor will. not grant the relief prayed for, without requiring the complainant to do equity.
If reformation of the contract was the sole purpose for which the bill was filed, it would then become necessary to inquire, whether Miller should not have been requested to correct the alleged mistake, before filing the bill to have it corrected. — Robbins v. Battle-House Co., 74 Ala. 499. We have seen above, however, that the bill rests on an independent equity — the alleged bad faith of Miller, in which Jones is charged to have participated. Having jurisdiction for one purpose strictly equitable, the court will dispose of the whole controversy, even though, in doing so, it may be. called on to'administer relief which pertains to courts of common law.
Affirmed.