Handley v. Shaffer

59 So. 286, 177 Ala. 636, 1912 Ala. LEXIS 289

• Court: Supreme Court of Alabama
• Decided: May 30, 1912
• Status: Published

Opinion

SOMERVILLE, J.

The contract upon which plaintiff sues, as declared in counts A and B of the complaint, is one of brokerage only. A real estate broker strictly speaking is but 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. Leathers v. Canfield (Mich.) 45 L. R. A. 33, note c, p.. 51.

If the employment is merely to procure a purchaser, Avithout specification as to the price he is to pay, it is evident that no compensation can be recovered by the broker unless the purchaser is accepted by his principal on the principal’s own terms. But if the broker is to procure a purchaser on specified terms, and does procure one Avho is able, ready, and Avilling to buy on those terms, he is entitled to the compensation agreed on, although, by reason of his principal’s fault or refusal, the sale is in fact never made.—19 Cyc. 242, 246. The principal cannot by a capricious refusal to accept such a purchaser defeat the broker’s right to compensation.—Notkins v. Pashalinski, 83 Conn. 458, 20 Ann. Cas. 1023, note; Sayre v. Wilson, 86 Ala. 156, 5 South. 157. What amounts to the procurement of a purchaser is a question of fact, and it is enough that the efforts of the broker, acting npon the purchaser, are the efficient cause of his offer to purchase.—Chambers v. Seay, 73 Ala. 372, 379; Birmingham L. & L. Co. v. Thompson, 86 Ala. 146, 149, 5 South. 473; Sayre v. Wilson, 86 Ala. 151, 156, 5 South. 157; Benderson v. Vincent, 84 Ala. 100, 4 South. 180; 19 Cyc. 257. They, of course, need not be the sole cause.

If such purchaser is accepted by his principal, this dispenses with the necessity of showing that the purchaser was able, ready, and willing to buy, since acceptance is taken as a conclusive admission of that fact. Royster v. Mageveney, 9 Lea (Tenn.) 151; Wray v. Carpenter, 16 Colo. 271, 27 Pac. 248, 25 Am. St. Rep. 265; Davis v. Morgan, 96 Ga. 518, 23 S. E. 417. Nor is it ordinarily material to the question of the broker’s right to compensation that his vendor-principal did not know that the purchaser whom he has accepted was procured by the broker.—19 Cyc. 264; 4 Am. & Eng. Ency. Law, 980; notes to Quist v. Goodfellow (Minn.) 9 Ann. Cas. 431, 8 L. R. A. (N. S.) 153; Lloyd v. Matthews, 51 N. Y. 124. Special circumstances may, however, impose upon the broker the duty of informing his principal that a person with whom the latter is negotiating is a customer sent by the broker, if such information is obviously necessary to enable his principal to protect himself against deception, imposition, and loss.—Skinner Mfg. Co. v. Douville, 57 Fla. 180, 49 South. 125; Wiggins v. Wilson, 55 Fla. 346, 45 South. 1011.

This is but one phase of the general duty of an agent to disclose to his principal every fact within his knowledge which is material to his principal’s interests in respect to the transaction to which his agency relates, including the agent’s own interest therein, and his relations with the adverse party. The duty to make such disclosures depends upon the nature and terms of the agency; i. e., whether the principal is entitled to the skill and judgment of the broker and his reasonable endeavors to induce his customer to purchase on the terms specified, and may therefore rely upon their exercise in his behalf.—Leathers v. Canfield, 117 Mich. 277, 75 N. W. 612, 45 L. R. A. 33; Quist v. Goodfellow, 99 Minn. 509, 110 N. W. 65, 8 L. R. A. (N. S.) 153, 9 Ann. Cas. 431, and case notes collecting the authorities.

Where, however, the broker is merely a middleman whose sole undertaking is to bring together a would-be seller and purchaser, so that they may negotiate as they choose, no confidence being reposed in the broker, he need not further advise his principal, and no question of his good faith can be raised for the purpose of defeating his right to compensation.—Johnson v. Hayward, 74 Neb. 157, 103 N. W. 1058, 107 N. W. 384, 5 L. R. A. (N. S.) 112, 12 Ann. Cas. 800; Stewart v. Mather, 32 Wis. 344; and authorities last above cited.

Though much alike in some respects, there are important distinctions between a broker’s undertaking to negotiate or effect a sale and one to merely find a purchaser, although they are often dealt with by courts as being identical in nature and results. The failure to properly distinguish.between these two differing classes of contracts, and the attempt to apply to one class all of the principles which regulate the other, have produced many of the inconsistencies and much of the confusion with which the reported cases on this subject seem to abound. The distinction is clearly emphasized in the two cases of Montross v. Eddy, 94 Mich. 100, 53 N. W. 916, 34 Am. St. Rep. 323, and McDonald v. Maltz, 94 Mich. 172, 53 N. W. 1058, 34 Am. St. Rep. 331. See, also, Wiggins v. Wilson, 55 Fla. 346, 45 South. 1011, and Blodgett v. Sioux City R. Co., 63 Iowa, 606, 19 N. W. 799.

An agent employed to sell ordinarily owes to Ms principal the duty of service, with the exercise of such skill and industry as may be requisite to accomplish the object of his employment, and with full fidelity to the just interests of his employer.—Henderson v. Vincent, 84 Ala. 99, 4 South. 180; Green v. South. States Lumber So., 141 Ala. 680, 37 South. 670; McGar v. Adams, 65 Ala. 106, 45 L. R. A. 42, note,

He is entitled to his commissions when he produces to his principal á person who is able, ready, and willing to buy on the terms prescribed by such principal within the period allowed, or, if the time is not limited, before the revocation of Ms agency. This assumes that the broker’s negotiations have produced a result so complete that nothing remains to be done but acceptance of the purchaser by his principal.—Wiggins v. Wilson, 55 Fla. 346, 45 South. 1011. In such a case it is clearly his duty to disclose to his principal the fact that he has found a suitable purchaser; and, if the broker is aware that a person with whom he is negotiating is about to approach or has approached his principal with a view to dealing with him independently, it would be the broker’s duty to inform his principal that such person is his customer, in order that the principal may protect his own as well as his broker’s interests, by either declining to thus deal with the purchaser, or by so dealing as to make due allowance for the broker’s commissions. Where the broker undertakes to himself effect the sale, the principal is not upon notice that every one- who approaches him to buy may be a customer of his broker’s, and he is under no duty to find out as he would be if he had employed the broker merely to find a purchaser for him. Nevertheless, the principal must act in entire good faith, and he cannot collusively or knowingly sell to his broker’s customer, and by such interference defeat the broker’s right to effect a sale and earn his commissions.

Nor can he unfairly and dishonestly avail himself of the broker’s labor by revoking his authority in the midst of his negotiations with a customer,. and himself complete the sale with such customer, upon the same or even less advantageous terms, for the purpose of evading his liability to the broker.—Hutto v. Stough, 157 Ala. 571, 47 South. 1031; Cook v. Forst, 116 Ala. 396, 22 South. 540; Bailey v. Smith, 103 Ala. 641, 15 South. 900; Henderson v. Vincent, 84 Ala. 100, 4 South. 180.

But if, while the agency to sell is still in force, and while the broker is yet negotiating with a prospective purchaser, that purchaser, contrary to fair dealing, should approach the vendor-principal without the knowledge or connivance of the broker, and the principal, having a clear right to sell independently of his broker, should in good faith sell to such purchaser in ignorance of his previous dealings with the broker, is the principal liable to the broker for commissions? This question is not presented in this case, and it is stated only for the purpose of excluding it from the control of the principles above discussed. See Ball v. Dolan, 21 S. D. 619, 114 N. W. 998, 15 L. R. A. (N. S.) 272, and note citing the cases; also, Henderson v. Vincent, 84 Ala. 99, 4 South. 180; Cook v. Forest, 116 Ala. 395, 22 South. 540; Bailey v. Smith, 103 Ala. 641, 15 South. 900; Hutto v. Stough, 157 Ala. 566, 571, 47 South. 1031; Sharpley v. Moody, 152 Ala. 549, 551, 44 South. 650. Time and space do not suffice for a detailed discussion of each plea, ground of demurrer, and charge given or refused, and we undertake to do no more than simply apply the principles above outlined, along with others which may be stated as Ave proceed.

Pleas 7, 10, and 13 are not good answers to counts A and B, which show a contract only “to obtain a purchaser”; the pleas themselves not averring any facts which would impose on plaintiff the duty of disclosing to defendants the fact that the party who presented himself to the principals was plaintiff’s customer, and not averring defendants’ ignorance of that fact.

Pleas 11 and 14 are subject to the first objection attributed to pleas 7, 10, and 13.

Plea 14 is bad also for not averring defendants’ ignorance of such facts.

Charges 1, 3, and 4, given for plaintiff, state general principles of law which are correct. Charges 7, 8, and 9 are correct general statements of the law as applicable to a mere brokerage contract to obtain a purchaser ; and as applicable to an undertaking by the agent to sell, defendants had the benefit of a full explanation and qualification in charge 5 given at their request. So far as the bill of exceptions discloses, both theories of the contract were open to the consideration of the jury.

The complaint avers a joint employment of the plaintiff by defendants Handley and Johnston. In such a case, as repeatedly held by this court, section 2504 of the Code notwithstanding, proof of employment by only one of them, not participated in by the other, does not authorize a recovery against either of them. The probatum does not support the allegatum, and the variance •is fatal to any right of recovery.—Gamble v. Kellum, 97 Ala. 677, 12 South. 82; Lee v. Wimberly, 102 Ala. 539, 15 South. 444; Garrison v. Hawkins Lumber Co., 111 Ala. 308, 20 South. 427. It is clear, therefore, that plaintiff could not recover here at all, unless the jury were reasonably satisfied that he was employed by the joint act of both defendants, either directly or mediately, so that both were bound by it. To show this was an essential part of plaintiff’s case, and defendants’ plea of the general issue imposed upon him the burden of its proof.

The bill of exceptions contains no recital that it sets out all, or substantially all, of the evidence or its tendencies. It does, however, set out in full the testimony of all of the dramatis personae, including plaintiff and his subagent, Douville, and defendants and the purchaser, Wefel; and practically all of the letters and telegrams by which the various negotiations were carried on.

We discover nothing in the evidence shown which can support any inference whatever that Handley in any Avay participated in the alleged employment of plaintiff to obtain a purchaser for the land at 25 cents an acre, or was in any way bound therefor. On the contrary, Handley’s own testimony fully and explicitly denies this, and the testimony of plaintiff and defendant Johnston shows quite clearly that whatever contract Avas made with plaintiff Avas made by Johnston alone. On this phase of the evidence defendants requested written charge 38: “If you believe from the evidence that Jos. F. Johnston alone employed plaintiff and offered him a commission to procure a purchaser, your verdict must be for the defendants.” This at as clearly a correct statement of the law as applicable to the issues presented by the pleadings. It is, hoAvever, argued for appellee that the refusal of the charge cannot be reviewed, because the bill of exceptions does not recite that it contains all of the evidence; that without all the evidence before the trial court the appellate court cannot pass upon the propriety of charges given or refused; and that such a state of the evidence will be presumed as would support the ruling complained of. Where a refused charge hypothetically instructs the jury on some particular issue or phase of the evidence, it is not always necessary that the bill of exceptions should set out all the evidence, or all of its tendencies. Such a practice has, indeed, been often condemned by this court as unnecessarily incumbering the record, increasing the costs of the appeal, and aggravating the labors of the appellate court. The requirement is that enough of the testimony or its tendencies shall be stated to enable this court to properly understand the question sought to be raised, and to clearly see that the charge does not ignore the bearing of any conflicting or qualifying testimony, or does not tend to mislead, and is or is not a proper charge to be given in the case on trial. Circuit court rule 32, 2 Code 1907, p. 1526.

On the issue stated, defendants requested, also, the general affirmative charge; and, to justify its refusal, we must, and do, presume that there was other evidence before the trial court tending to show a joint employment. But it is evident that, whatever we might presume in this regard, the issue itself remains clearly defined in the pleadings and clearly contested in the evidence; and that no presumption as to the presence of conflicting evidence, however weighty, can suffice to remove the issue and disentitle defendants to a proper instruction thereon. We are, therefore, constrained to hold that the trial court erred in refusing to give to the jury written charge 38 as requested by defendants. Illustrations will be found in the following cases: Davis v. State, 17 Ala. 415; Ex parte Huckabee, 71 Ala. 427; M. & E. Ry. Co. v. Kolb, 73 Ala. 396, 405, 49 Am. Rep. 54; Davis v. Badders, 95 Ala. 348, 361, 10 South. 422; Postal Tel. Co. v. Hulsey, 115 Ala. 193, 207, 22 South. 854; Hurdy v. State, 116 Ala. 441, 22 South. 993.

It is to be observed that, where the issues involve confession and avoidance, it will be presumed in support of the trial court’s ruling on requested charges that there was evidence to avoid, and so to remove the effect of conflicting evidence on the original issue, thereby justifying, it may be, even the general affirmative charge.—Sanders v. Steen, 128 Ala. 633, 29 South. 586; Davis v. Badders, 95 Ala. 361, 10 South. 422; Beard v. Du Bose, 175 Ala. 411, 57 South. 703. Most of the reported cases dealing with incomplete bills of exceptions state the rule as applicable to the giving or refusal of the general affirmative charge, and hence are not pertinent to cases like the present. We refer, however, to the recent case of Baker v. Patterson, 171 Ala. 88, 55 South. 135, Avhich reviews the general subject someAvhat fully, and the reasoning of which is to some extent referable to the present case.

Other charges refused to defendants need not be considered.

Count B of the complaint, after setting up plaintiff’s employment by defendants to obtain a purchaser, on a commission of 25 cents per acre, undertakes to show plaintiff’s performance of the contract by averring merely that plaintiff “did obtain such purchaser, Avho subsequently did purchase said property.” Its sufficiency in this respect Avas challenged by defendants’ demurrer, Avhich Avas overruled. Specifically, the objections are that there is no averment that a purchaser was obtained pursuant to plaintiff’s employment, or in compliance with its terms, or as a proximate result of his service. We are inclined to the view, and so hold that a complaint such as this should aver a performance of the contract by plaintiff pursuant to, or in accordance with its terms, or something equivalent thereto. It Avas expressly so held in Fenwick v. Watkins (Ky) 79 S. W. 214; and our decisions in Wefel v. Stillman, 151 Ala. 249, 44 South. 203, and Union Ref. Co. v. Barton, 77 Ala. 148, are strongly analogous, if not directly in point. If the averments of this count were held sufficient, they would be supported by proof that a purchaser had been obtained either before the employment began, or after it had terminated, and plaintiff would be entitled to recover; and this, too, even though the purchaser were obtained for some other person than defendants. This is not the law.—Shields v. Sterrat, 77 N. J. Law, 404, 71 Atl. 1129; Kimball v. Hayes, 199 Mass. 516, 85 N. E. 875; Sibbald v. Iron Co., 83 N. Y. 379, 38 Am. Rep. 441. Certainly the services shown must be in some way connected with the contract with defendants. This is a part of plaintiff’s case, and the conclusion does not follow as a necessary inference from the facts averred, at least not in the face of an apt demurrer.

By comparison, count A must also be regarded as insufficient in this respect, for, although it avers that plaintiff procured a purchaser “who was ready, able, and willing to buy on the terms agreed to by defendants, and said purchaser was accepted, and said lands were bought by and sold to him on said terms and conditions,” it still does not connect the alleged procurement with any contractual service to defendants. It may be that, if the averment were that the purchaser procured was accepted by defendants, the connection would be sufficiently shown; but such is not the case. The authorities cited by appellee on this proposition are not in point. In Lunsford v. Bailey, 142 Ala. 319, 38 South. 362, there is an averment that plaintiff had “complied with all the provisions of said agreement”; and neither in that case nor in Desmond v. Stebbins, 140 Mass. 339, 5 N. E. 150, was there any question of the sufficiency of the complaints in this respect.

For the errors pointed out, the judgment of the circuit court will he reversed, and the cause remanded.

Reversed and remanded.

All the Justices concur.