60 So. 99 | Ala. | 1912
Action by a real estate agent (appellee) against the owner (appellant) for commissions in respect of sale of lands in Winston county, Ala. On February 4, 1909, the folloAving written contract Avas executed by appellant: “This agreement, made betAveen J. S. Shannon and J. P. Lee, witnesseth: (1) Shannon owns and controls 7,000 to 10,000 acres timberland in Winston county, Alabama. He authorizes and empowers Lee to make sale of same, at $5 per acre, fee simple, except 1,100 to 1,200, and upon sale will
There are, in a presently important sense, tAVO phases of the engagement imported in this instrument: First, if Lee made a sale at $5 per acre, his commissions should be 50 cents per acre; second, if any trade for the sale of the lands was made Avithin 12 months Avith parties brought to Shannon by Lee, then Lee was to be protected in his commissions.
Evidently the latter stipulation contemplated “any trade” that might result from negotiations by Shannon, and not participated in by Lee — a matter of less effort on Lee’s part than would be naturally the case if he (Lee) effected a sale at the specified price per acre provided in the former (first) phase of the engagement. The latter phase presents the significant omission to specify the price per acre in effecting a sale “Avith parties brought to him (Shannon) by Lee,” and also an equally significant omission to stipulate for the same commissions Avhich were assured to Lee if he effected a sale at the specified price of $5 per acre.. Under the latter phase of the contract, Lee was constituted, for a period of 12 months, a real estate broker in the strict sense of the term, viz.: “A middleman, whose office it is to bring the principals together with the understanding that they are to negotiate with each other and trade upon such terms as may be mutually satisfactory.”—
There being no contention by the plaintiff that he “made a sale” of the lands, or any part of them, under the first phase of the contract, his right to recover must find support, if at all, under the strictly brokerage provision of the instrument. According to the evidence, the major meritorious issues were of fact, and were these: (a) Whether, within 12 months from the date of the contract, Lee “brought” to Shannon a party or parties with whom Shannon made a trade for the lands in Winston county; (b) whether Lee legally abandoned the undertaking (19 Cvc. p. 221) ; (c) if not, and if Lee brought such party or parties to Shannon there being no rate of commission specified, what was a reasonable compensation for the services rendered by Lee in bringing such party or parties to Shannon? The evidence on all these issues was in conflict; the court, without a jury, resolving them in favor of the plaintiff.
The first count of the complaint purports to declare upon a liability traceable alone to the first phase of the contract. Demurrer thereto was overruled. That ruling is now assigned for error. There was, as appears from the entire evidence set out in the bill no possible support for this count. After amendment, the (complaint contained, besides count 1, count B, and three common counts. If justified by the evidence, and if the other counts were sufficient, „ which is clear, the finding of the court will be attributed to the counts other than 1. So, if it be assumed (not decided) there was error in the ruling on the demurrer to the first count, it was harmless to the defendant.'
There was evidence tending to support plaintiff’s theory that he “brought” H. C. Howell to defendant; that, latter, Howell presented or interposed others
Errors are assigned as upon upwards of 30 rulings on the admission and rejection of evidence. All those urged in brief have been carefully considered, and no prejudicial error appears as to them. Many of the insistences for error arise out of a misapprehension of the legal effect of the stated second phase of the contract. All evidence, all circumstances, touching the conduct and acts of Lee, and of Shannon, Howell, Piersoll, and others related thereto, in reference to the lands mentioned in the contract, were admissible upon the issues of fact before stated. The organization of the corporation, the investigation, by an attorney, of the titles to the lands proffered by Shannon, and the payment therefor, Avere inquiries of immediate bearing on the issues in the case.
Upon the issues — -(c) before stated — the court finds no evidence tending in any degree to support a conclu
For this error, the judgment is reversed, and the cause is remanded.
Reversed and remanded.