Cook v. Forst

Supreme Court of Alabama

Cook v. Forst

116 Ala. 395

CourtSupreme Court of Alabama

DecidedNovember 15, 1896

StatusPublished

Cited by21 cases

This text of 116 Ala. 395 (Cook v. Forst) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cook v. Forst, 116 Ala. 395 (Ala. 1896).

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Opinion

COLEMAN, J.

The action is in assumpsit instituted by appellants to recover commissions alleged to be owing and due, for services rendered as real estate agents and brokers, in procuring a purchaser of certain real property. The case was tried by the court without the intervention of a jury, and the right to maintain the action depended more upon a finding from the facts, rather than any principle of law.

The owner of real property by employing a real estate agent or broker to effect a sale of the property, does not thereby preclude himself from employing other agents for the same purpose, or from effecting a sale himself, provided that in making the sale himself he acts in good faith. The owner of the property would not be permitted to avail himself of the services of an agent who procured a purchaser, to effect a sale himself to such purchaser, and thereby deprive the agent of his commission ; nor could he effect such sale at a small reduction from the price at which the agent was authorized to find a purchaser, nor make immaterial changes in the terms of the sale, if the purpose of the reduction was merely to save the commissions agreed .to be paid to the agent. The owner, however, has a right to fix a net value upon his property and the terms of the sale, and if the agent can not effect a sale, so that the owner may realize such net value, or upon the terms fixed, the owner has the power to dispose of the property at such price and on such terms. Fair dealing between the [397]*397parties would demand of the owner, that he disclose his intention to the agent, before concluding the sale to a purchaser procured by the agent. To entitle an agent or broker to commissions, he must show that he procured a purchaser who was able and ready to comply with the terms and conditions of sale. These principles are sustained by the following authorities : Birmingham Land & Loan Co. v. Thompson, 86 Ala. 146; Sayre v. Wilson, Ib. 151; Henderson v. Vincent, 84 Ala. 100; Bailey, McConnell & Howard v. Smith, 103 Ala. 643; Plant v. Thompson, 16 Am. St. Rep. 516; Note to Walker v. Osgood, 93 Am. Dec. 168; 2 Am. & Eng. Encyc. of Law, 582-6 and notes.

The testimony of the plaintiffs tends to sustain their claim for commissions. The testimony of the defendant, corroborated by that of the purchaser and other circumstances, directly contravenes that of the plaintiffs upon the material question of who procured the. purchaser. We are reasonably convinced that the finding of the court was in accordance with the preponderance of the evidence.

Affirmed.

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COLEMAN, J.

The action is in assumpsit instituted by appellants to recover commissions alleged to be owing and due, for services rendered as real estate agents and brokers, in procuring a purchaser of certain real property. The case was tried by the court without the intervention of a jury, and the right to maintain the action depended more upon a finding from the facts, rather than any principle of law.

The owner of real property by employing a real estate agent or broker to effect a sale of the property, does not thereby preclude himself from employing other agents for the same purpose, or from effecting a sale himself, provided that in making the sale himself he acts in good faith. The owner of the property would not be permitted to avail himself of the services of an agent who procured a purchaser, to effect a sale himself to such purchaser, and thereby deprive the agent of his commission ; nor could he effect such sale at a small reduction from the price at which the agent was authorized to find a purchaser, nor make immaterial changes in the terms of the sale, if the purpose of the reduction was merely to save the commissions agreed .to be paid to the agent. The owner, however, has a right to fix a net value upon his property and the terms of the sale, and if the agent can not effect a sale, so that the owner may realize such net value, or upon the terms fixed, the owner has the power to dispose of the property at such price and on such terms. Fair dealing between the [397]*397parties would demand of the owner, that he disclose his intention to the agent, before concluding the sale to a purchaser procured by the agent. To entitle an agent or broker to commissions, he must show that he procured a purchaser who was able and ready to comply with the terms and conditions of sale. These principles are sustained by the following authorities : Birmingham Land & Loan Co. v. Thompson, 86 Ala. 146; Sayre v. Wilson, Ib. 151; Henderson v. Vincent, 84 Ala. 100; Bailey, McConnell & Howard v. Smith, 103 Ala. 643; Plant v. Thompson, 16 Am. St. Rep. 516; Note to Walker v. Osgood, 93 Am. Dec. 168; 2 Am. & Eng. Encyc. of Law, 582-6 and notes.

The testimony of the plaintiffs tends to sustain their claim for commissions. The testimony of the defendant, corroborated by that of the purchaser and other circumstances, directly contravenes that of the plaintiffs upon the material question of who procured the. purchaser. We are reasonably convinced that the finding of the court was in accordance with the preponderance of the evidence.

Affirmed.

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116 Ala. 395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-forst-ala-1896.

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