Johnston v. Guice

114 So. 409, 217 Ala. 27, 1927 Ala. LEXIS 314

• Court: Supreme Court of Alabama
• Decided: November 10, 1927
• Docket: 4 Div. 342.
• Status: Published

Opinion

BOULDIN, J.

The prior parol understanding looking to a sale of the property was merged into the written agreement expressed in correspondence.

The contractual rights of the parties are to be found in the writings; their construction was for the court and not the jury.

By the letter of October 19th, the defendant constituted the plaintiff, her agent, to sell the property on the terms therein stated. Under süch appointment, the condition upon which commissions become due is the production of a purchaser, ready, able, and willing to buy upon the terms stated. As a rule, this must be done while the agency is in force.

The letter of October 29th, advising that plaintiff could probably sell the property, and that of November 10th, asking for a 30-day option, are not evidence of a concluded sale, entitling plaintiff to commissions.

A valid option upon a present consideration for a stipulated time is irrevocable. It is a frequent method employed by real estate brokers to effect sales to customers, carrying to the purchaser the rights of an assignee or appointee of the broker under the option. Clearly there was no obligation on defendant to give the option; neither did request therefor affect the status of the parties under the agency agreement.

The letter of November 17th was in' effect a revocation of the agency to sell.

Subject to certain conditions of good faith, the owner is free to revoke the agency here involved at any time before a purchaser is produced, before receiving advice of compliance with the conditions on which commissions accrue to the agent. Chambers v. Seay, 73 Ala. 372; Henderson v. Vincent, 84 Ala. 100, 4 So. 180; Cronin v. American Securities Co., 163 Ala. 533, 50 So. 915, 136 Am. St. Rep. 88; Millican v. Haynes, 212 Ala. 537, 103 So. 564.

No question of a fraudulent or color-able revocation with intent to sidestep the broker and take advantage of his services by selling to a purchaser enlisted by him appears in this record. In the absence of exclusive agency, the owner is free to negotiate sales himself to other than the broker’s customers, while the agency is still pending. But no sale was effected to any one. Handley v. Shaffer, 177 Ala. 636, 59 So. 286; Alexander v. Smith, 180 Ala. 541, 61 So. 68.

Apart from the right of revocation at that stage, the plaintiff by his letter of November 20th abandoned the contract and severed the relation of agency. Subsequent correspondence never reinstated such relation. Jackson v. Parrish, 157 Ala. 584, 47 So. 1014; Cooper v. Cooper, 206 Ala. 519, 91 So. 82.

At that time defendant had not been advised of any consummated agreement with a purchaser. The name of the purchaser was never disclosed, nor was the price or profit plaintiff was making^ on the deal disclosed until the date attachment was served.

We deem it unnecessary to deal with the question presented in appellant’s brief to the effect that plaintiff occupied a confidential or fiduciary relation which imposed upon him the duty to obtain the best price obtainable for the property, giving the owner the benefit of same, less reasonable commissions; or the duty to disclose to his principal the facts as to the price he was obtaining for the property. Suffice to say, the obligations of good faith are mutual in such matters. Eastburn v. Espalla, 215 Ala. 650, 112 So. 232.

To conclude, 'the evidence does not make out a case for recovery, and the defendant was entitled to the affirmative charge as requested.

Reversed and remanded.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.