Andrews v. Frierson

• Decision Date: 16 November 1905
• Citation: 144 Ala. 470,39 So. 512
• Parties: ANDREWS v. FRIERSON ET AL.
• Court: Alabama Supreme Court

39 So. 512

144 Ala. 470

ANDREWS v. FRIERSON ET AL.

Supreme Court of Alabama

November 16, 1905

Appeal from Chancery Court, Chambers County; Richard B. Kelly Chancellor.

"To be officially reported."

Bill by Walter Andrews against T. A. Frierson and another. From a decree modifying a master's report in favor of plaintiff he appeals. Reversed.

Oliver & Thigpen, for appellant.

J. J Robinson and T. D. Samford, for appellees.

DENSON J.

Walter Andrews is the complainant in this bill against T. A Frierson and R. M. Gann. Andrews was the administrator of the estate of J. E. Andrews, deceased. The estate consisted of a large quantity of real and personal property located in Chambers, Lee, and Tallapoosa counties, amounting in value to something near $76,000. In the month of October, 1900, Andrews obtained from the probate court of Chambers county an order to sell all the property of the estate of his said intestate. The sale and description of the property was extensively advertised, and was to begin on Saturday, November 17, 1900, at Lafayette, Ala., to continue through the following week at the various places in the counties where the property was located and to be concluded on Monday, November 26, 1900, at Opelika. Andrews went to Atlanta and there entered into a written contract with T. A. Frierson, an auctioneer, whereby he secured the services of Frierson as auctioneer to sell the property at the times and places advertised for a compensation of 5 per cent. on the gross amount of the sales made. Frierson performed the services under the contract, and the gross amount of the sales was $75,981.08. The bill was filed on the 5th day of January, 1901, and alleges, among other things, that Andrews was induced to make the contract through fraud practiced by Frierson and Gann; that before the contract was executed there existed between Frierson and Gann a secret agreement by which Gann, under cover of his confidential relations with Andrews, was to lead him to make the contract and they were to share what they could make out of him; and that the price they induced him to agree on, 5 per cent. of the amount of sales, was extortionate and excessive. The bill alleges that the fraud was not discovered by Andrews until after the sale was made, and when he discovered it he refused to pay the amount named in the contract, but offered to pay a reasonable amount. Gann brought suit at law against Andrews for one-half the amount named in the contract, and also sued Frierson for one-half the amount and garnished Andrews. The prayer of the bill is for a rescission and cancellation of the contract with Frierson, for injunction against the suit at law, for an ascertainment of the amount that ought to be paid Frierson for his services, for direction as to whom it should be paid, and for general relief. From a decree dismissing the bill for the want of equity and dissolving the injunction, the complainant prosecuted a former appeal to this court. On that appeal the bill was held to contain equity and the decree of the chancery court was reversed. Andrews v. Frierson, 134 Ala. 626, 33 So. 6. We here refer to the case as reported for a more extended statement of the facts alleged in the bill and a better understanding of its purposes.

After the case was remanded, the respondents answered, the testimony was taken, and on submission of the cause on the pleadings and proof a decree was rendered by the chancellor, May 27, 1904, adjudging the complainant entitled to the relief sought and ordering a reference to the register to "ascertain what would be a reasonable compensation to pay to the respondent Frierson for the services rendered by respondents under the contract which the bill seeks to have canceled. and report his action, together with the evidence offered, to the next term of said court." The reference was held, and the only evidence submitted was the written evidence upon which the cause was previously submitted to the court for final decree. The register filed his report on July 11, 1904, in which he found and reported that 1 1/2 per cent. of the gross amount of sales ($1,139.71) would be a reasonable compensation. No interest was allowed or calculated by the register on the amount. The respondents excepted to the report of the register and on submission to the chancellor he, on October 21, 1904, rendered a final decree, in which, without setting aside the report, he corrected it and fixed the rate of compensation at 3 per cent. of the gross amount of sales ($2,279.43), and allowed interest on this amount from November 26, 1900, making the total amount of compensation, inclusive of interest, $2,987.07. From this decree of the chancellor the complainant, Andrews, prosecuted this appeal.

The assignments of error are: "The court erred in not confirming the register's report. (2) The court erred in correcting the register's report so as to fix the rate of compensation to which the respondent Frierson is entitled at 3 per cent. on the gross amount of said sales. (3) The court erred in allowing interest on the amount decreed to be paid."

The established rule is that when questions of the sort we have in hand are referred to a register, "and he is directed to draw a conclusion from evidence to be produced before him, every reasonable presumption is to be made in favor of his decision, and it will not be interfered with unless it is plainly wrong." Kinsey v. Kinsey, 37 Ala. 397. Or, to state it in the language of Walker, C.J.: "The rule is to indulge all reasonable presumptions in favor of the register's decision upon questions of fact, such as those now under consideration, and not to reverse it unless clearly satisfied that it is wrong." Judge Story goes so far as to say "that the court must be clearly satisfied that there has been an unquestionable error." Mahone v. Williams, 39 Ala. 202; Jones v. White, 112 Ala. 449, 20 So. 527. Or, as was said by the present Chief Justice, in respect of the rule, in Speakman v. Burleson, 123 Ala. 678, 27 So. 322, a case in which all the evidence submitted to the register and from which he drew his conclusion was in writing: "We have carefully read and considered all the evidence in the record, all of which and no other was before the register at reference. From it we can by no means affirm that the conclusion and report of the register is plainly and palpably incorrect and erroneous; and only such conclusion would justify us in reversing the decree confirming the report." Speakman v. Burleson, 123 Ala. 678, 27 So. 322. See the authorities cited there. As was said by the court in Pollard v. American Freehold Land Mortgage Company, 139 Ala. 183, 35 So. 767: "Formerly the conclusion of the chancellor on all matters of fact brought with it to this court on appeal a prima facie presumption of correctness, which for the purpose of review here displaced the presumption of correctness which attended the register's finding before the chancellor, so that this court would affirm the decree sustaining exceptions to such finding, unless, after indulging the presumption, just referred to, of the correctness, it still appeared here to be erroneous. The statute now, however, provides that this court shall give no weight to the decision of the chancellor upon the facts (Code, § 3826); and from this it would seem to follow that such finding of the register, although it has been disallowed or modified by the chancellor, comes before us on appeal for original review, attended by the same presumption of correctness that waited on it before the chancellor, and that it should not be disturbed here unless, that presumption to the contrary notwithstanding, it appears to us to be clearly erroneous."

In this case we are considering, the duty imposed upon the register was to ascertain what would be a reasonable compensation to be paid Frierson for his services as an auctioneer in making the sale. This was to be done, too, without any regard to the contract that had existed. The contract was annulled by the decree of the court. It was no longer of any efficacy. It will be observed, too, that the fact to be ascertained was dependent for establishment upon opinion evidence--opinion as to the value of services rendered. And, without intending any reflection on any witness whose evidence was taken in the case, we remark that it is always an easy matter to obtain evidence on either side of such a proposition when friendly experts are called to give opinions, as this case clearly demonstrates. Again, we note the great variation in the opinions of the experts who were called to express an opinion. The opinions as to value range from one-half of 1 per cent. to 5 per cent. This of itself illustrates the sensibleness of the rule laid down by the Supreme Court of the United States with respect of the manner in which the jury might deal with the opinions of witnesses in regard to value. The Conqueror, 166 U.S. 110, 17 S.Ct. 510, 41 L.Ed 937. There it was said by the court, speaking through Mr. Justice Brown, with regard to opinion evidence on the question of value: "While there are doubtless authorities holding that a jury (and in this class of cases the court acts as a jury) has no right arbitrarily to ignore or discredit...