44 So. 203 | Ala. | 1907
This is an action of assumpsit by appellee against appellant. There are three counts in the complaint. The first and third are on an express contract; the second, for money had and received. The first and third, being only different as to the amount claimed, may be treated as one. As to the first count it is alleged that the plaintiff below had been authorized to sell certain lands (by Simpson & Co., the owners) on commission, “and it .was agreed between the plaintiff and the defendant that, if the defendant would find a purchaser for said lands, he and the plaintiff would divide equally the commissions,” and then it is averred that the commissions recovered by the defendant in a certain suit by him against Simpson & Co., “were earned under and pursuant to said agreement,” and that defendant had failed and refused to pay the plaintiff his share or any part thereof. There was a demurrer on various
The defendant filed a number of pleas, nearly all of which were stricken on motion of the plaintiff. We think there was error of the court in this regard. The power to strike pleadings, though found in Code 1896, § 3286, is one inherent in the very constitution of a court as an implied power for the proper discharge of
The rule, laid down in the Case of Brooks, supra, seems to be correct, and that is “that when a pleading, though not frivolous, unnecessarily prolix, or irrelevant, is supposed to be substantially defective, as when the facts alleged do not constitute a cause of action or defense, the objection must be raised by demurrer.’’ Ap
To the first ground we do not think it is obnoxious. It is a double plea, and altogether covers less than three pages. All the facts are stated in direct and appropriate language, and have a tendency to throw light on the question of estoppel.
As to the second objection, the plea cannot be said to be irrelevant. It contains a formal plea of the general issue, which we admit might have been stricken, on motion directed to it alone, as unnecessary, because there was another plea of the general issue. — Corpening v. Worthington, 99 Ala. 541, 12 South. 426; Kennon v. W. U. T. Co., 92 Ala. 399, 9 South. 200; Daughterly v. A. U. T. Co., 75 Ala. 168, 51 Am. Rep. 435. But the plea was not irrelevant as to that defense, nor as to the estoppel. We do not say that the estoppel was completely made out by the averments, for we are not called upon to decide that matter. But we say the character of the estoppel sought to be set up was not one available only in a court of equity. The only estoppels which are avail able in equity, and not in law, are such as depend on titles and relations not cognizable at law. Thus the law, looking only at the legal title, does not recognize the rights of cestuis que trust, and will not allow the legal title to land to be overcome by matters in parol.
In this case the necessary basis of the plaintiff’s right to recover is that there was a privy of contract between him and the defendant under and by which the defendant stood as his employe to perform services. The de
As to the third plea, we think it was irrelevant and properly stricken, since there is nothing in the case indicating that the plaintiff did not have the right to find a purchaser himself; but, on the principles we have noticed, we think as to pleas 4, 5, 8, and 9 the plaintiff should have been put to his demurrer.
Plea No. 7 alleged that the plaintiff was not the party really interested in the suit. The court sustained the demurrer to this, upon the idea, we suppose, that the facts stated in the plea limited the defendant to the proof of those facts to sustain the plea, which, we think would not be the case, and therefore the demurrer was improp
There were during the trial a great number of offers and rejections of evidence, and many charges given and refused, to which exceptions were duly reserved. We think it unnecessary to notice them all in detail; but we will notice some of them, and announce the principles upon -which they all may be disposed of.
The court very properly gave, at the request of the plaintiff, charge No. 7, which defines with precision the only issues left in the case, the leading one of which was a denial of the facts stated in the complaint. Either party on this question would have a right to introduce any legitimate proof tending to establish or disprove the truth of the allegations. It was a matter of importance, but perhaps not at all controlling, to know whether or not the agency of the plaintiff in the sale of the land -was exclusive. The plaintiff himself had testified, and also the owner, that it was exclusive. On cross-examination of the plaintiff, the defendant asked the plaintiff if he did not know, at the very time spoken of, the owner had other agencies to sell the land. It seems that, this was (dearly a legitimate question. Again, the plaintiff and the owner were permitted by the court to state what passed between them, and what passed between the owner and defendant, as to the authority given to the plaintiff and to the defendant in reference to a" sale of the land; but, when the defendant was asked to give his version of what passed between him and the owner respecting the powers and authority to sell the land, the court excluded the question, which, we think, was erroneous. The plaintiff being on cross-examination, defendant as not permitted to ask him if he had collected $25,000 from the owner for commissions on the
We have already referred to the right of the defendant to show, on cross-examination of the plaintiff, the payment of $25,000 of commissions to the plaintiff for the sale of the identical land, which would include the right to show the receipt for that payment. As the judgment in favor of the appellant against the owner concluded nothing between the plaintiff and defendant
The defendant offered in evidence the correspondence betiveen himself and the plaintiff before and after the sale, all of Avhicli was excluded by the court as irrelevant. We think this should have been admitted, as it might materially assist in determining the consistency of the past conduct of the several parties with their present positions. So we think the correspondence by letters and telegrams betAveen the defendant and the OAvner respecting the authority of the defendant and the nature of his dealings Avith the OAvner Avas admissible, not as declarations of third persons against the plaintiff, but as facts transpiring betAveen the owner and the defendant tending to shOAV the authority given by the OAvner to the defendant and Avliat he did thereunder. If this correspondence tends to shoAv an independent or apparently independent dealing betAveen the defendant and the OAAmer, it Avould tend to exclude the idea that the agency of the defendant Avas expressly subordinate to that of the plaintiff.
We discover no error in the charges given on the request of the plaintiff.
Charge 10, refused to the defendant, should have been given. There was evidence tending to show that the defendant only contracted Avith the plaintiff in reference
The appellee insists that the appellant wa,s estopped from'setting up that he sold the land under an independent contract with the owner and relies on the general equitable doctrine that an agent or other fiduciary cannot acquire an interest in the subject-matter of the agency adverse to his principal, which is set out in Walker v. Jones, 107 Ala. 341, 18 South. 277, and in S. U. N. Ins. Co. v. dangaix, 103 Ala. 394, 15 South. 956, and other cases. But, while accepting that principle to its full extent, we do not think it applies here, so as to prevent the owner and the defendant from entering into an independent contract. Certainly, if the agency between defendant and plaintiff was limited to a single purchaser, the relation would be at an end when that proposed purchase fell through; and there would be no principle of law forbidding a contract of agency between the owner of the property and the defendant. — 103 Ala.. 394 et seq., 15 South. 958. The plaintiff had no interest in the property. At most, he had a contract allowing him to find a purchaser for the land by his own efforts or those of his agents; and, of course, if he authorized the defendant to act under his power, and the defendant, so acting, found a purchaser, the plaintiff would be entitled to share in the commission. But such a contract is unilateral, binding upon neither party until the defendant, proceeding under the offer, had procured a purchaser. — Sheffield F. Co. v. H. C. & C. Co., 101 Ala. 477, 14 South. 672.
There was a right in the owner to employ other persons than the plaintiff to sell, and a right in the defendant to contract independently with him; and if he did in fact so contract, not proceeding under the privilege
We think it hardly necessary to say that a party as a witness may be discredited by conduct inconsistent Avitli his present contention or statements, or that the verdict of a jury must be unanimous on some point entitling the plaintiff to a recovery.
Reversed and remanded.