Casey v. Jones

• Decision Date: 11 December 1981
• Citation: 410 So.2d 5
• Parties: J. W. CASEY v. Mildred J. JONES. 80-276.
• Court: Alabama Supreme Court

Page 5

410 So.2d 5

J. W. CASEY v. Mildred J. JONES.

80-276.

Supreme Court of Alabama.

Dec. 11, 1981.

Rehearing Denied Feb. 19, 1982.

James W. Garrett, Jr. of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellant.

Jere L. Beasley of Beasley & Wilson, Montgomery, for appellee.

JONES, Justice.

This is a contract action based on an alleged "oral listing" agreement to sell real estate. On several occasions, and over a period of years, Defendant had listed property with Plaintiff under an oral agreement giving Plaintiff permission to list, show, and sell property from which Defendant would receive a "net" amount and Plaintiff would receive a commission. Up to the time of this transaction, Plaintiff had sold a total of 67.5 acres for Defendant and had obtained the net amount required by Defendant on each sale.

The property which is the basis of this action is a 2,600-acre tract of timberland near Tuskegee, Alabama, known as the Huddleston-Wadsworth tract. During a trip to see another piece of land, Defendant pointed out the Huddleston-Wadsworth property to Plaintiff. The parties' versions of the events following Plaintiff's introduction to the Huddleston property are completely contradictory. Plaintiff maintains that Defendant informed her that, even though the property was tied up in an option, he would give her an oral, nonexclusive listing on the property with an asking price of $600 per acre and a "bottom" sales price of $550 per acre; and, although Defendant wanted a net of $550 per acre, there was no agreement of nonpayment of commission if the property sold for $550 per acre. A Georgia real estate salesman, with whom Plaintiff had a subagency agreement, obtained Georgia-Pacific as a prospect for the Huddleston Property.

Plaintiff maintains that 1) Defendant specifically authorized her to show the Huddleston property at the expiration of the option; 2) she supplied Georgia-Pacific with maps and other information relating to the property supplied to her by Defendant; 3) Defendant told her to go ahead with the sale to Georgia-Pacific; and 4) although it was mutually agreeable that Georgia-Pacific concluded its negotiations through a third party, Defendant continued to agree to pay Plaintiff a 5% commission if the land sold to Georgia-Pacific.

Subsequent to these negotiations, but prior to the final sale, Defendant withdrew all authority from Plaintiff to list any of his property or to "show, sell or take any action in connection with any of his land." Plaintiff responded with a letter reminding Defendant that she and her sub-agent had procured Georgia-Pacific as a prospective buyer and that, if the property ultimately sold to Georgia-Pacific, Defendant owed them the 5% commission on the sale. After the sale, Plaintiff instituted this action against Defendant.

The jury returned a verdict for the Plaintiff and judgment was entered. Defendant's motion for a new trial was granted. A second jury trial and verdict for Plaintiff resulted in the verdict's being set aside on Defendant's motion for a new trial because of improper jury argument. A third trial resulted in a jury verdict for the Plaintiff and judgment was entered thereon. Defendant's motion for a new trial or J.N.O.V. was denied. Defendant appeals.

Appellant states the "Issues Presented for Review" as follows:

"I. Was the verdict of the jury in favor of Mildred Jones against J. W. Casey against the weight and preponderance of the evidence?

"II. Did the trial Court err in Denying Defendant's motion for directed verdict, motion for new trial, and motion for judgment notwithstanding the verdict following the third trial of this matter?

"III. Did the Court err in failing to grant Defendant's motion for judgment notwithstanding the verdict or for new trial for the reason that there was not sufficient credible evidence to support the jury's verdict?"

This appeal challenges the propriety of the trial court's orders denying the Defendant's respective motions for a directed verdict and a J.N.O.V., or, alternatively, for a new trial. The only issues, then, are 1) sufficiency of the evidence, and 2) weight of the evidence. We affirm.

We premise our analysis of the issues on certain familiar, and generally well understood, rules of judicial and appellate review. The standard of judicial review for testing a motion for directed verdict is identical to that for testing a motion for J.N.O.V. Evidence sufficient to take the case to a jury as against a motion for directed verdict is likewise sufficient to withstand a motion for J.N.O.V. ¹ Citing 5A Moore's Federal Practice P 50.07(2), this Court in Hanson v. Couch, 360 So.2d 942, 944 (Ala.1978), stated:

"A motion for judgment notwithstanding the verdict tests the sufficiency of the evidence in the same way as does the motion for directed verdict at the close of all the evidence. Ala.R.Civ.P. 50, Committee Comments. Granting the motion for judgment notwithstanding...