Alexander v. Smith

61 So. 68, 180 Ala. 541, 1912 Ala. LEXIS 334

• Court: Supreme Court of Alabama
• Decided: December 5, 1912
• Status: Published

Opinion

SAYRE, J.

Plaintiff (appellee) sued for commissions earned in finding a purchaser for a tract of land owned by defendant. The contract between the parties was evidenced by a letter written to plaintiff, in which - defendant said: “I hereby put said place in your hands for a sale at a price not less than fifteen thousand dollars ($15,000) and will allow you 10 per cent, for effecting any sale thereon to your parties. However, as I now have prospects of selling same, and may have other future prospects, I reserve the rignt to make such sales myself to parties I myself may interest. But any sales to parties you find I shall allow the said commission of 10 per cent, and all you get above said price of fifteen thousand dollars ($15,000).” This was in June, 1910. 'During the next six months plaintiff negotiated with one McBurnett for a sale of the place, and, though plaintiff and McBurnett at no time reached an agreement, no reason appears for doubting that plaintiff was instrumental in taking McBurnett to defendant as a prospective purchaser, or that defendant was unaware of plaintiff’s agency in bringing about the result. After the negotiation between defendant and McBurnett had reached a point where nothing deferred complete agreement and its formal execution except their common purpose to secure partial relief from plaintiff’s demand, the justice of which in principle they both recognized, defendant by an offer of $1,000, McBurnett by an effort to have plaintiff take his commission in the stock of a corporation which he proposed to form — after the negotiation had reached this stage, defendant sold the property to his wife in payment of a debt he owed her, advised plaintiff of the sale, and notified him that the property was withdrawn from the market. Shortly thereafter defendant and his wife sold the property to McBurnett. As to the terms of the sale so made to McBurnett, the transaction was given a guise somewhat different, but the effect of it was that the property was sold for $15,000, part of which was presently paid; the balance being deferred and secured by a vendor’s lien expressly reserved.

Pretty well all the law involved in this case had clear and careful statement in our' recent case of Handley v. Shaffer, 177 Ala. 636, 59 South. 286. For the most part Ave need only to make application of the principles of that case to the questions raised by the assignments of error.

McBurnett testified that pending the negotiation between plaintiff and himself plaintiff said that he was a friend of Alexander, and “intimated” that he might buy the property for less than $15,000, but that “he (plaintiff) never did get and present an offer of the property for anything less than $15,000.” On the strength of this bit of evidence, Avhich was undisputed, appellant (defendant) insists that plaintiff betrayed his employer, and ought not to he allowed to recover —that defendant was entitled to the general charge. Plaintiff owed defendant full fidelity in the service he undertook and upon his faithfulness depended his right to compensation. Whatever the jury might have inferred, it cannot he said that the evidence in question established as matter of laAV plaintiff’s betrayal of his employer’s interest. By the terms of his contract plaintiff could claim nothing unless the property brought the stipulated price, thus removing the tempttation for him seriously to represent that it might be bought for less. An intimation is a mere hint, an obscure or indirect suggestion, a remote or ambiguous reference, and is easily capable of erroneous interpretation. In view of the nature of the evidence upon which appellant’s contention is placed and of the necessary operation of the stipulation of the contract for a minimum price, and evidence which went to shoAV that plaintiff informed defendant .that McBurnett would try to get the property for less than $15,000 and advised defendant not to accept less, stating, in substance, that McBurnett would come to that figure, we think the trial judge properly held the law of the case when he instructed the jury, as he did in effect, that, if in other respects plaintiff had earned his commission, he was not to be deprived merely because he may have stated to the purchaser that Alexander might be willing to.sell the land for less, if he did so state, but that, in order to deprive him of his right to compensation on this account, he must have acted in bad faith toward defendant, thus leaving with the triers of fact the question of plaintiff’s alleged unfaithfulness.

In the course of the oral charge the tidal judge said to the jury that: “If he, the plaintiff, has reasonably convinced' you from this evidence that he effected the sale for the price mentioned in the contract, $15,000, he would be entitled to his 10 per cent, commission, or, in case he found this purchaser, McBurnett, and the defendant accepted him, he has made out a prima facie case.” Objection was taken specifically to the last alternative of this instruction. Three faults are found in the court’s statement of the law: (1) It is alleged to have ignored the terms of the contract of employment which appellant construes as contemplating a sale for spot cash only; (2) it ignored appellant’s right to revoke plaintiff’s agency and to make a sale for himself, which right was expressly reserved in the contract; (3) it authorized a recovery by plaintiff, even though 'defendant accepted McBurnett as a purchaser in ignorance of the fact that there had been negotiation between him and the plaintiff. As to the first objection: The contract fixed a minimum selling price; but it said nothing of terms upon which payment might be deferred. It was not necessary, under this contract, that plaintiff should find a purchaser for cash to be presently paid. It was enough that he found a purchasin’ who bought at the stipulated minimum price on terms in other respects satisfactory to his principal.—Rabb v. Johnson, 28 Ind. App. 665, 63 N. E. 580. “When a contract of employment does not mention the terms upon Avhich a sale Avill be made, terms satisfactory to 'the principal are implied.”—19 Cyc. 242, note 80. This is the laAV of our cases.—Bingham v. Davidson, 141 Ala. 551, 37 South. 738. It Aims substantially so stated by the court in that other part of the oral charge to which exception Avas reserved. By accepting the purchaser the principal estopped himself to deny that the terms offered Avere satisfactory. As to the second and third : There had been negotiation between plaintiff and McBurnett Avhich took the latter as a prospective purchaser to defendant, or to Mc'Kleroy, who seems to have acted for both McBurnett and defendant — as he might do Avitli propriety, if both parties Avere advised of his dual capacity — of all Avhich the evidence shows conclusively and without conflict defendant had notice. The sale was confessedly effected for the stipulated minimum price. For the purposes of a statement of the law to the jury the court might Avithout error assume the existence of these uncontroverted facts.—Montgomery v. Wyche, 169 Ala. 181, 53 South. 786. As for defendant’s sale to his wife, the court could not properly assume as matter of law that it Avas a device by AAdiicli defendant sought to avail himself of the benefit of plaintiff’s efforts Avhile avoiding liability for plaintiff’s compensation thereby earned, yet the sale to the Avife and the Avife’s sale to McBurnett Avere so nearly related in point of time and so apparently the result of one purpose as to constitute prima facie one transaction, herein differing from Bailey v. Smith, 103 Ala. 641, 15 South. 900, in which case negotiations were definitely broken off, and the owner subsequently in good faith sold on terms far less favorable than those upon which he had authorized the broker to sell, and this, along with other circumstances which may have attracted the attention of court and jury, though they need not be stated in detail, was enough, not only to afford an inference of a design to accept the beneficial result of plaintiff’s efforts without awarding just compensation, but sufficed perhaps to put the burden of explanation upon the defendant. At any rate, the hypothesis of the charge that “the defendant accepted'’ the purchaser found by plaintiff implied an acceptance in the manner indicated by the tendencies of plaintiff’s evidence. Any adequate statement of the law of this feature of the case required further statement along the line we have pointed out, but the court could not in a sentence lay down the entire law of the case, and we must presume, to save error, that in other parts of its oral charge the court laid down the law in respect to all disputed propositions fully and fairly to the jury.—A. G. S. Ry. v. Sanders, 145 Ala. 449, 40 South. 402.

There was no error in the refusal of charge 1 requested by defendant. So far as concerned defendant’s withdrawal of the land from the market, implying of course a revocation of plaintiff’s authority to sell, the charge was abstract, since the only evidence of a withdrawal was that which showed Mrs. Alexander’s withdrawal. But there was no occasion for her act of withdrawal, for she had at no time engaged the services of plaintiff. The charge was misleading because it tended to fix the jury’s attention upon what Mrs. Alexander did as determinative of plaintiff’s right to a commission, whereas plaintiff had no contract with her and what she did was immaterial except as the jury may have accepted it as tending to show her collusion with defendant in an effort to deprive plaintiff of justly earned compensation. Moreover, if a revocation attempted at the stage then reached by the negotiation, which thereafter progressed without a halt to a consummated sale, could have been of any consequence, it could have been so only upon actual notice of it carried home to the broker.—Sayre v. Wilson, 86 Ala. 158, 5 South. 157.

Charge 2, of the refusal of which appellant complains, assumes that the sale was made without the effective agency of plaintiff. But the testimony showed right clearly that plaintiff had been instrumental in bringing about the sale. The charge was properly refused.

Charges 3 and 1, requested by appellant, were well refused. To earn commissions for finding a purchaser, the broker need not participate in the negotiation between vendor and vendee. Enough that he is an efficient cause of the offer to purchase. He need not he the sole cause.—Handley v. Shaffer, supra.

Charges 9, 11, and 16, refused to appellant, would have told the jury that, if defendant sold the land to his wife before his wife sold to McBurnett, plaintiff could not recover. If, in order to help along appellant’s argument, we could • indulge an inference not necessarily involved in the language used, we might suppose that the intention was to formulate statements of the law in respect to executory agreements of sale, rather than consummated sales, -for otherwise, in view of the uncontradicted testimony concerning the order of these sales, these charges would have amounted to the general charge for defendant, to which obviously the defendant was not entitled. But these charges were bad, even though their language in reference to sales be construed with unwarranted favor to appellant, for they omit entirely the inseparable inquiry, propounded by the evidence, whether the intervening sale to the wife was not a mere device to save the commission defendant had agreed to pay on any sale to a purchaser found by plaintiff.—Cook v. Forst, 116 Ala. 395, 22 South. 540.

Charge 17 dealt with a question foreign to the issues made by the pleading, or, as we see it, the evidence— a supposed right of action against Mrs. Alexander. Thus the charge was confused and misleading. It was refused without error.

Charges 10 and 12 seem to assert that, although plaintiff had done everything necessary to earn a commission under his contract with defendant, yet he could have no commission if defendant then sold the property to McBurnett without intending to deprive plaintiff of his commission. This proposition is obviously bad.

The question raised by charge 13 has been discussed at sufficient length. So of charges 14, 15, 20, 2l, and 22.—Handley v. Shaffer, supra.

If plaintiff found the purchaser for defendant’s land at $15,000, he was entitled to his commission. The contract so provided. Charge 18 was well refused.

Charge 19 was refused' without error. The burden of proof was on plaintiff, and this meant that a verdict for the plaintiff should express the jury’s reasonable conviction that the plaintiff had the right of the contention formulated by the pleadings betwéen the parties. The familiar and adequate instruction is that the qdaintiff carries the burden of proving his case to the reasonable satisfaction of the jury. This, and more in the way of emphasis and definition, the court gave in charge to the jury on defendant’s request. The charge added nothing that could help the jury. On the contrary, it carried a vague suggestion that the result might be made to depend upon moralities more subtle than those which engage the attention of a practical jurisprudence. It seems to intimate the necessity for a greater degree of certainty than the law requires. The customary formula was enough, and we will not reverse for the court’s refusal to state the proposition in unfamiliar and metaphysical shapes.

We find no error in the court’s ruling which permitted appellee to state what length of time was covered by his correspondence with appellant. A true history of the case required a statement of that character, and, while the question may have been unduly general, the witness in his answer gave approximate dates which removed any objection to the testimony.

The court allowed the witness McBurnett to testify that defendant in a conversation with him expressed a willingness to treat plaintiff right, and that he Avas willing to give plaintiff something regardless of any suit or anything. As an admission of indebtedness this may have been very weak, but doubtless it Avas appraised by the jury at its true value. It Avas not an offer of compromise. It Avas the expression of an intention in some sort to pay, when, if defendant’s contention Avere true, a denial of liability might have been expected. The testimony Avas competent. — 16 Oye. 948-9.

Other allegations of error need not be specifically argued out. In several instances appellant had the frill benefit at a later stage of the case of those matters of evidence of the exclusion of AAdiich at any earlier stage he noAV complains. Others — a few — are manifestly without merit.

Appellant devotes much of his brief to a discussion of the weight of conflicting testimony. Appellee, ex major e cautela, apologetically follows suit. Questions of that sort were for the jury. We are not a jury, and, as the case is presented, we are unable, even though we were inclined, to interfere with the result. The case was fairly submitted to a jury for decision, without material error so far as we can see, and parties must abide the result. Let an affirmance be entered.

Affirmed.

All the Justices concur.