Wefel v. Stillman

44 So. 203, 151 Ala. 249, 1907 Ala. LEXIS 530

• Court: Supreme Court of Alabama
• Decided: June 4, 1907
• Status: Published

Opinion

TYSON, C. J.

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 grounds to this and the third count, all of which were overruled. We think that some of them should have been sustained. The rule of pleading is that the plaintiff must state directly, and not by inference, such facts as, being true, will entitle him to relief, and he must show a sufficient consideration for every promise or undertaking sued on, except when relieved therefrom by statute. Here the plaintiff says Simpson & Co. authorized him to sell their lands for a commission, and that he and defendant agreed that if the latter would find a purchaser the commission should be divided equally; that the defendant recovered and collected a judgment against Simpson & Co. “for commissions to defendant as agent or broker in connection with the sale of certain real estate, which said commissions were earned under and pursuant to said agreement.” Of course, construing what is said with some indulgence to the pleader, and to accomplish the end in view of charging the defendant, we can understand what was intended; but pleadings, whether at law or in equity, are not to be supported on a direct attack in that way. — Bliss v. Anderson, 31 Ala. 612, 70 Am. Dec. 511; Cockrell v. Gurley 26 Ala. 105. The complaint does not aver with sufficient clearness the employment by the plaintiff of defendant, and his acceptance and performance of service under such employment, whereby commissions were earned and paid to him. The defendant might have agreed with plaintiff, as alleged, that if he (defendant) found a purchaser he worild give plaintiff half his commissions; but what consideration was there to defendant for such promise? This agreement would not put the defendant in any relation with the owner of the land, so as to give him any right to earn or claim and recover commissions from the owner; nor would it bind the defendant to do or undertake to do anything towards finding a purchaser for tlie lana. And if lie went forward and found a purchaser it would under such agreement he as plaintiff’s agent or subbroker, entitling the plaintiff to turn over the purchaser as found by him, and to claim the commissions from the owner, leaving the defendant to claim compensation only from the plaintiff. The averment, then, in the complaint, that the judgment recovered by defendant against the owner “for commissions as agent or broker in connection with the sale of certain lands” (meaning the plaintiff ivas authorized to sell) was earned under and pursuant to the agreement set out, is a conclusion of the pleader, which should have been confirmed by the averment of facts, such as are set out in the first charge asked by the plaintiff, directly connecting the services for which the judgment was recovered with the agreement between defendant. and plaintiff. Unless the defendant accepted employment as a broker from the owner under some such terms, or unless facts were alleged restricting him from direct employment by the owner, there would be no necessary connection between the agreement alleged and the service rendered to the owner, entitling the plaintiff to share in the commissions recovered, since the defendant, notwithstanding-said agreement, could have been employed directly as a' principal broker by the owner, as he certainly must have been; otherwise, he could not have recovered judgment against the owner in his own name. Under these views, we think the grounds of demurrer Nos. 10, 12,13, 21, 22, and 23 should have been sustained.

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 its function of administering justice. — 1 Tidd’s Prac. 616, 617. Irrelevant and frivolous pleadings are. such as are undeserving of the attention of the court, and are properly disposed of by striking them out; but prolixity is a very indefinite term, referring necessarily to the varying standard of composition approved by the presiding judge.- It is consequently a severe remedy to strike a pleading for this cause, and this should not be resorted to except in extreme and palpable cases. In cases of any doubt, the better and more liberal practice is to have the pleading corrected, so as to bring it to a correct standard of conciseness and brevity. — 1 Tidd’s Prac. supra. In this case this shorthand disposition of pleadings was used, contrary to the spirit of our practice and the decisions of this court. None, of the pleas were open to the remedy of being stricken for unnecessary prolixity. When general demurrers were abolished, aud special objections to pleadings were required, it was with the view of apprising the adversary of supposed faults, so that the matter could be corrected by amendment. To extend the practice of striking to cases in which the defect might be remedied by amendment would defeat the whole purpose of the statute of amendments, and of the abolition of general demurrers, and would work injustice by striking pleadings easily corrected by. amendment. — Sledge v. Swift, 53 Ala. 114; Brooks v. Continental. Ins. Co., 125 Ala. (518, 29 South. 13; Powell v. Crawford, 110 Ala. 294, 18 South. 302; Lindsey v. Morris, 100 Ala. 550, 13 South. 619.

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.’’ Applying this rule, we take up the pleas to the first count; the pleas to the others being substantially the same as those to the first. The second plea first denies all the allegations of the complaint, and then says, if mistaken in this, the plaintiff is estopped to claim anything, and then undertakes to set up the facts supposed to constitute the estoppel. The motion to strike is on two grounds: First, that the plea is unnecessarily prolix; and, second, that it is irrelevant, because it undertakes to set up an estoppel, which is not the subject-matter of defense at law.

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. But the use of estoppels in pais from conduct is perhaps as broad at law as it is in equity, when they refer to the mere legal rights of parties. The action of assumpsit, whether in the. common form for money had and received, or by special count on the facts making the defendant a debtor by express or implied promise, is essentially an. equitable, action, and any conduct on the part of the plaintiff towards the defendant, making it unjust and inequitable to permit the claim to prevail, is a perfect defense at law, as much so as in equity. Parties can no more at law than in equity occupy inconsistent positions. “Generally speaking, estoppels in pais are available as well at law as in equity. This is true even of the so-called equitable estoppel. Indeed, it has been laid down that the estoppel is not available as such in equity, but that there must be some equity apart from the estoppel to give a court of equity the right to entertain it.” — Big. on Estop. (5th Ed.) 557, 575, 712; Drexel v. Berney, 122 U. S. 241, 7 Sup. Ct. 1200, 30 L. Ed. 1219; Jones v. Peebles, 130 Ala. 273, 30 South. 564; Hill v. Huckabee, 70 Ala. 183; Bank v. Leland, 122 Ala. 289, 25 South. 195; Duchess of Kingston’s Case, 1 Smith’s Leading Cases, 805 et seq. “The doctrine (of estoppel in pais) originated in chancery, but it is now adopted by the courts at law. It is accordingly established that, when an act or statement cannot be withdrawn without a breach of faith on the one hand and injury on the other, it will rise from the rank of evidence to that of an estoppel, and bind the jury in opposition to the. clearest evidence.” — 1 Smith’s Leading Cases, supra, 859.

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 defendant was thus necessarily a subagent for the plaintiff, and this fact is assumed as a predicate for recovery in the first charge asked by the plaintiff. In other words, the plaintiff claims that the defendant accepted service as a subagent under him, and that if he contracted with the owner of the land it was in pursuance of that agreement, notwithstanding the defendant became an apparent principal towards the owner of the land. Assuming that all this was satisfactorily proved, the question is: Could not the defendant well say, in bar of the claim, that the plaintiff himself threw off the privity between them and renounced the contract, putting the defendant to the necessary costs and danger of litigation with the owner of the land, and that he accepted him at his word? — Roehm v. Horst, 178 U. S. 1-9, 20 Sup. Ct. 780, 44 L. Ed. 953; The Eliza Lines, 199 U. S. 119, 26 Sup. Ct. 8, 50 L. Ed. 115; Sheffield Furnace Co. v. Hull Coal & Coke Co., 101 Ala. 446, 14 South. 672; Bedford, & Cambridge R. Co. v. Stanley, 2 Johns. & H. 746-763. This was the defense the defendant was attempting to set up in his plea No. 2, and we have no hesitation in saying that he had a perfect right to have the sufficiency of the plea tested on demurrer.

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 improperly sustained. But, as there was another plea of this kind in the record, there would he no reversal for this error, as it was without injury to the defendant.

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 sale of the land. This had a bearing on the issue of the plaintiff’s interest in this suit. If he had been paid in full for the sale made, it might be a matter of legitimate argument as to his interest in a further recovery in this suit for the same sale. The plaintiff was asked On cross-examination whether, at the trial of the case of the defendant against the owner for his commissions, he had not told the defendant that he would give him 25 cents for his chances to win. The court refused to allow the question to be answered. When it is recollected that the theory of the plaintiff in this suit, and in his testimony given in support of that theory, is that there was a privity of contract between him and the defendant, and that the defendant’s suit against the owner was an assertion of a right in which he was jointly interested with the defendant, while the defendant’s theory denies all this, and asserts that he was an independent contractor on his own account with the owner, we see at once that any conduct or statements by either party inconsistent with their respective theories is entirely legitimate evidence, and we see that such a remark as this question imputed to the plaintiff might have a very important bearing. It might be argued to the jury that, if the plaintiff then felt that he was interested in the suit, he would have referred to the chances of recovery as “our chances,” and he would have made the remark, if it was made, regretfully and sympathetically, and not contemptuously, if it was spoken contemptuously.

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 in this case, the fact that the plaintiff had been paid his commissions for the sale by the owner, without explanation, might well be considered on the question whether the plaintiff had any interest in the money collected by defendant from the owner. And for the same reason the testimony of the witness Hyer, who urns interested with the plaintiff on a “commission basis,” as to his participation in the $25,000 commissions collected by the plaintiff, and his denial of any interest in the commissions collected by the defendant, should have been allowed to remain in evidence.

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 to a sale to ITepburn; and, as that sale fell through, he had a right to the charge that there could be no recovery if the jury found that the contract was so limited.

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 extended by the plaintiff, it would be a renunciation of any contract relation with the plaintiff, and any commissions earned would belong to the defendant, and the plaintiff, would have to sue for damages, if there was such a contract as would, on its breach, support an action. We do not think the principle invoked by the appellee has any application to this case, except upon the factum of the defendant’s service being rendered to the owner for the plaintiff, or in pursuance of the engagement with the plaintiff. The contract between plaintiff and defendant did not per se transfer to the plaintiff any lien or property right to defendant’s labor, or put any obligation on the defendant to proceed under the offer extended to him by the plaintiff, or restrict his or the owner’s right to contract as principals, so as to pass any property right to the plaintiff in the wages of defendant in a service to the owner under an independent contract. But, of course, any breach by defendant of any binding contract with the plaintiff gives to the latter a plain remedy at law for his full damages.

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.

Haralson, Simpson, and Denson, JJ., concur.