Allison v. Fuller-Smith & Co.

• Decision Date: 22 July 1924
• Docket Number: 6 Div. 433.
• Citation: 101 So. 626,20 Ala.App. 216
• Parties: ALLISON ET AL. v. FULLER-SMITH & CO.
• Court: Alabama Court of Appeals

101 So. 626

20 Ala.App. 216

ALLISON ET AL. v. FULLER-SMITH & CO.

6 Div. 433.

Court of Appeals of Alabama

July 22, 1924

Rehearing Denied Aug. 19, 1924.

Appeal from Circuit Court, Cullman County; James E. Horton, Jr. Judge.

Action by Fuller-Smith & Co. against W. E. and Joe Allison. Judgment for plaintiff, and defendants appeal. Affirmed.

Assignments of error predicated on motion for new trial, on which no ruling is shown, are without merit, under Code 1907, § 2846 as amended by Acts 1915, p. 722.

Count 3 of the complaint is as follows:

"Plaintiff claims of the defendants $800 as damages for the breach of an agreement entered into by them with the plaintiff on, to wit, about the 25th day of March, 1923, by which the defendants employed the plaintiff as a real estate broker to procure for them a purchaser for certain real estate located on First avenue west in the city of Cullman between Third and Fourth streets, known as the Allison property, the said defendants agreeing to pay plaintiff a compensation of 5 per cent. on the selling price accepted by the defendants, and plaintiff avers that it procured for said defendants a purchaser who was ready, able, and willing to purchase said property, and who did purchase said property at the price of, to wit, $16,000. Said agreement had been breached in this: The said defendants have failed or refused to pay plaintiff for its services in procuring said purchaser as aforesaid."

The fourth count contains the averment that:

"Said defendants, with the purpose and intent of depriving the plaintiff of its right to compensation for said services, notified the plaintiff that said property had been taken off of the market, and thereafter consummated said sale with the purchaser so found by the plaintiff; the defendants have failed to pay the said compensation."

Defendants' plea 2 is as follows: "That before the consummation of the sale of said real estate the defendants revoked the authority of said plaintiff to sell said real estate for them, and therefore they are not liable to said plaintiff for said commission."

Charge 1, given at plaintiff's request, is as follows:

"If you are reasonably satisfied from the evidence that defendants employed the plaintiff to sell the property for a price acceptable to defendants, and plaintiffs found such purchaser, and the sale was consummated with the purchaser so found by plaintiff, and the defendants' effort to withdraw the property was not in good faith, but was to defeat the plaintiff of the agreed commission, then you should find for the plaintiff."

Charges refused to the defendants are as follows:

"(3) I charge you, gentlemen of the jury, that before the plaintiff is entitled to recover in this case you must be satisfied by a preponderance of the evidence that the plaintiff's negotiations with Lee were so complete that nothing remained to be done but acceptance of said property on the terms, price, and conditions of sale fixed by the Allisons, to said plaintiff on said property by said Lee."

"(7) I charge you, gentlemen of the jury, that the plaintiff is not entitled to recover in this case unless it was successful in procuring a satisfactory purchaser for the drug store property of the defendants, which purchaser was able, ready, and willing to buy the property on the terms fixed by the Allisons, and, if you find from the evidence that any purchaser found by it was not willing to pay the price fixed by the Allisons with the plaintiff for said property, then it is your duty to find favor of the defendants.

"(8) I charge you, gentlemen of the jury, that the Allisons had the right, at any time before sale of the property to Lee, to revoke the plaintiff's authority to sell such property to said Lee.

"(8) I charge you, gentlemen of the jury, that the law requires that a real estate agent, employed to sell land, must act in entire good faith and in the interest of his employer. To this end he must exact from the purchaser the price and conditions of sale which his employer has fixed. If he fails to do this, but induces the prospective purchaser to believe that the property can be bought for less, he fails to discharge that duty for his principal that good faith demands. Such conduct on the broker's part is well calculated to lead the purchaser to stand out and delay the sale, even if he finally buys at the price fixed, both detrimental to the interest of the seller."

W. E. James, of Cullman, and James J. Mayfield, of Montgomery, for appellants.

Brown & Griffith, of Cullman, for appellee.

BRICKEN P.J.

The contract upon which plaintiff sues, as declared in counts 3 and 4, 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. Handley et al. v. Schaffer, 177 Ala. 636, 59 So. 286; Stout v. Thornhill, 16 Ala. App. 480, 79 So. 154.

If it should be conceded that counts 3 and 4 are defective for failing to aver "a performance of the contract by plaintiff pursuant to or in accordance with its terms or some equivalent thereto," such as, "that the purchaser procured was accepted by the defendant," such defect is unavailing to appellant, for the reason that the demurrer interposed to these counts did not point out this defect and the counts were not subject to the grounds of demurrer assigned thereto, which were properly overruled. Code 1907, § 5340; Alabama Power Co. v. Holmes, 16 Ala. App. 633, 80 So. 736.

We have in the Code not only an abolition of general demurrers and a substitute of special demurrers, but we have in addition an express prohibition of the making or allowing of any objection not stated in the demurrer. (Italics ours.)

The object of the Legislature was to prevent surprise and to protect parties from injury in consequence of errors in pleading not made known until the time for amendment had passed. Henley v. Bush, 33 Ala. 642; Chewning v. Knight, 16 Ala. App. 357, 77 So. 967; Denson v. Caddell, 201 Ala. 194, 77 So. 720.

For all that appears from the averments of the defendant's special plea 2, to which demurrers were sustained, the revocation sought to be set up as a defense to plaintiff's action was after the plaintiff had performed its contract and found a purchaser. If this was true, the revocation could not defeat plaintiff's action for-

"courts are not disposed to allow brokers undertaking in process of accomplishment to be

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