50 So. 381 | Ala. | 1909
This action was brought by tJie appellant against the appellees to recover $1,000 claimed to he due to the plaintiff as a broker for services rendered in and about a sale of certain property which belonged to the defendants. The defendants interposed a plea of the general issue, and'also a special plea, to the effect that plaintiff had not taken out a license as a real estate broker. A demurrer to this second plea ivas interposed, and was overruled by the court. At the conclusion of the evidence the court; on the written request, of the defendants, gave the following charge, to wit: “The jury will return a verdict for the defendants.”
The first count alleges that on 26th of March, 1.906, defendants employed plaintiff, “on a reasonable commission, to make a sale or find a purchaser” for the land, giving him the .exclusive right to sell for six -jmonths; that, before the expiration of six months, plaintiff introduced to defendants one Ashcraft as a prospective purchaser; that immediately thereupon defendants, at the instance and request of plaintiff, imdertook the negotiation of said sale, and concluded the same within a short time at the price of $13,000; that $1,000 is a reasonable compensation, etc. A demurrer was sus tained to the second count, and no insistence, of error on this account is made in the brief of appellant. The third count alleges the contract, as in the first, except that the compensation was definitely agreed on, in case the land should he sold for as much as $20 per acre, and alleges the introduction, and that the defendants “through such introduction” sold the land, and that
Tbe only evidence of employment shown by the bill of exceptions is a written contract, under seal, dated March 26, 1906, by which the exclusive right to sell the land is given to the plaintiff for six months, and it states: - “We also agree that, if the said John Smith secures a purchaser for the above described farm at $20 per acre, we will pay him $1,000 for making the sale; his commissions to be paid out of the first purchase money.” It is insisted by the appellee that the general-charge was properly given in favor of the defendant, because of a variance between the allegata and probata. This principle is undoubtedly sustained by numerous authorities, and some of them hold specifically that an allegation of a verbal contract, or of one not under seal cannot be sustained by proof of a sealed'instrument. It Is also stated that indebitatus assumpsit, under the common counts, cannot be maintained on a sealed instrument. — Nesbitt v. Ware & McClanahan, 30 Ala. 69, 74; Sommerville v. Stephenson & Johnson, 3 Stew. 271, 276, 277; Hatch v. Crawford, Admx., 2 Port. 54; 4 Cyc. 323, 324. It is also true, even as to unsealed instruments, that, in order to maintain indebtitatus assump sit on the contract, the party suing must have performed all of .the stipulations of the contract on his part, leaving nothing for the other party to do but to pay the money. — Darden v. James, 48 Ala. 34; Ezell v. King, 93 Ala. 470, 473, 9 South. 534; Maas & Swartz v. Montgomery, I. Works, 88 Ala. 323, 329, 6 South. 701; Wilson v. Smith, 111 Ala. 170-176, 20 South. 614; Martin v. Massie, 127 Ala. 504, 508, 509, 29 South. 31; 4 Cyc. 326-328.
At an early day in Alabama, when the distinction between sealed and unsealed instruments was probably more marked than at this time, it was said: “Covenant can only be maintained upon a writing under seal. If a contract be unattested by seal, or is unwritten, the action by which redress can be had for nonperformance is debt or assumpsit, or either, according to the subject-matter. If new terms are introduced into a contract, other duties imposed, or another day provided for its consummation, it is clear that the original contract does not remain unimpaired, so that an action would then lie for a breach of its stipulations.” The court went on to hold that the remedy was on the modified parol agreement. — McVoy v. Wheeler et al., Port. 201, 205, 206. To the same effect are the cases holding that, when a Avritten building contract is subsequently modified by the parties, the contractor may recover on a quantum meruit. — Hutchison v. Cullum, 23 Ala. 622. It is a general principle, frequently applied to builders’ contracts and to others, that a modification of the requirements by mutual consent will be a waiver of special stipulations thereby rendered impossible, and that the party- who consents to such modification is liable for reasonable compensation to the other party, whose work and labor has been accepted and availed of. — Cornish v. Suydam, 99 Ala. 620, 622, 13 South. 118; 6 Cyc. 84; Davis v. Badders & Britt, 95 Ala. 348, 359, 11 South. 422.
Coming particularly to the rights of real estate brokers, it may be stated as a general proposition that a
In the view we take of this case it is not necessary to determine whether the fact that the contract gives the exclusive right to the agent and fixes a definite time within which the sale shall be made modifies this prin
Much stress is laid in the cases on the facts whether the agent has had a reasonable time to effect the sale
Under these authorities, Ave hold that the court erred in giA'ing the general charge in favor of the defendants.
The fact that Smith had not taken out license as a broker did not invalidate his contract, — Sunflower Lumber Co. v. Turner Supply Co, 158 Ala. 191, 48 South. 510. The evidence show'ed, at any rate, that he Avas not engaged in that business.
The judgment of the court is reversed, and the cause remanded.
Reversed and remanded.