Agee v. Messer-Moore Ins. & Real Estate Co.

• Decision Date: 10 February 1910
• Citation: 51 So. 829,165 Ala. 291
• Parties: AGEE v. MESSER-MOORE INS. & REAL ESTATE CO.
• Court: Alabama Supreme Court

51 So. 829

165 Ala. 291

AGEE v. MESSER-MOORE INS. & REAL ESTATE CO.

Supreme Court of Alabama

February 10, 1910

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by the Messer-Moore Insurance & Real Estate Company against Walter C. Agee. Judgment for plaintiff. Defendant appeals. Affirmed.

Bowman Harsh & Beddow, for appellant.

N. L Miller, for appellee.

MAYFIELD J.

Appellee sued appellant to recover compensation or commission, as a real estate agent, for making sale of a certain tract of land. The land belonged to a third party, a corporation. Appellant was a stockholder in the corporation, and was authorized by it, or by a majority of its stockholders, to sell the land. One Bowman was the largest stockholder, and desired to sell the lands, and conferred with appellee's agent, Messer, and with appellant, relative to the sale. It is not agreed, nor is it certain from the evidence, as to the exact capacity in which Bowman acted in the matter--whether as a mere stockholder of the corporation, or jointly with appellant in effecting a sale. There is some evidence that appellant had purchased, or was endeavoring to purchase, a majority of the stock of the corporation, for the purpose of effecting a sale of the land in question. The evidence is also in conflict as to whether he was acting merely as the agent of the corporation, or for himself as the owner of the majority of the stock of the corporation.

The complaint consisted of the common counts--one for a breach of a special agreement by which the plaintiff should, for and on behalf of defendant, make sale of the lands, and two for breach of a special agreement whereby plaintiff was to find a purchaser for the land at the price of $16,000. The defendant pleaded the general issue, the statute of frauds, and want of consideration. The pleas were to the complaint as a whole and to each count thereof. Some of the pleas were therefore inapt to some of the counts, but it is unnecessary to notice that feature of the pleadings. It is sufficient to say that the evidence tended to support the verdict and judgment rendered.

The plaintiff obtained a purchaser for the land at the price of $16,000, and the purchaser paid $500 of the purchase price, but finally declined to consummate the purchase, assigning as a reason that the land did not lie in a continuous body, but that 10 acres thereof were separated from the other 90 acres by a road or alley. Whether the land was so separated, or whether defendant or Bowman represented to plaintiff's agent, or to the purchaser, that it was in one compact body, was disputed. Whether such representations were made to the purchaser, and, if so made, whether a breach thereof would be sufficient to excuse nonperformance of the contract of sale, and authorize rescission, are matters not before the court.

The trial court, at the request of the defendant in writing, instructed the jury as follows:

"Unless plaintiff was working for Agee personally, then the jury could not find for plaintiff, without regard to any other point in the case."

"Even if Agee had an option on all the stock of the Birmingham Matinee Club, yet if the land belonged to the corporation, and not to Agee, and Agee was acting for the owner of the land, and not for himself, the jury would find for defendant, Agee."

"Under the undisputed evidence in this case, if the jury believe it, the land in question belonged to the corporation, and not W. C. Agee."

"The undisputed evidence in this case, if the jury believe it, shows that W. C. Agee was authorized by the Birmingham Matinee Club to sell the land, and if the jury are reasonably satisfied from the evidence that Agee in fact was acting for said company, then the jury must find for defendant."

The court refused the following charges, which were requested in writing by defendant:

"Unless Agee, or somebody authorized by him, represented to Messer that the land lay in a body, or ratified such representation, if such was made, the jury could not find for plaintiff, regardless of any other point in the case."

"Agee is not responsible for the mistake of Bowman, if any, unless Bowman was his agent, or unless Agee, with knowledge of such mistake, if any, ratified it."

The first of these charges was properly refused, because it was not absolutely necessary to a recovery under any of the counts, and under all the evidence, as the charge assumes that defe...