Bailey v. Padgett

• Decision Date: 16 December 1915
• Docket Number: 890
• Citation: 195 Ala. 203,70 So. 637
• Parties: BAILEY v. PADGETT et al.
• Court: Alabama Supreme Court

70 So. 637

195 Ala. 203

BAILEY v. PADGETT et al.

No. 890

Supreme Court of Alabama

December 16, 1915

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by Edward M. Bailey against Dellie V. Padgett and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Boyles & Kohn, of Mobile, for appellant.

Webb McAlpine & Grove, of Mobile, for appellees.

MAYFIELD J.

Appellant sued appellees. The action was on the common counts. The basis of the claim was work and labor done, or services rendered, as broker, in the sale of lands for appellees. The trial was had on the general issue, and the court, at the request of the defendants, gave the affirmative charge for the defendants.

The following recital is taken from the record:

"The foregoing bill of exceptions contains all of the evidence which was introduced upon the trial of this cause.

"As soon as the evidence was given, the court gave its oral charge to the jury, and as soon as the court concluded its oral charge to the jury, and before the jury retired, the defendants requested the court to give the following charge which was in writing, viz.: (3) 'If the jury believe the evidence, they must find for the defendants.' Which written charge the court refused to give and indorsed thereon, 'Refused, Saffold Berney, Judge.'

"The jury then retired and did not bring in any verdict on the 5th day of February, 1915, but came into open court on the morning of February 6, 1915, as soon as the court convened on said 6th day of February, 1915, which said February 6, 1915, was a regular day of the said October term 1914, of the said law and equity court of Mobile, and announced to the court that it (the jury) was unable to agree on a verdict, and thereupon the defendants at once requested the court, before the jury retired, to give the following charge, which was in writing, viz.: (a) 'The amount charges the jury that if they believe the evidence they must find for the defendants.' Which written charge the court gave and indorsed thereon, 'Given, Saffold Berney, Judge,' to which action of the court in giving the said written charge the plaintiff at once, then and there in open court, and before the jury retired, duly excepted."

We are of the opinion that the trial court erred in so directing a verdict. The right of the plaintiff to recover was a question for the jury, and not for the court.

It is contended by the appellees that the instruction was proper because the plaintiff failed to prove, or to offer evidence tending to prove, that the prospective buyer of the land was "able" to buy, or that one of the appellees, Mrs. Padgett, consented to the terms of sale, or to the employment of appellant. There was sufficient evidence to carry both of these questions to the jury. Though there was no direct evidence of the first, there were other facts in evidence from which the jury could infer such fact, while there was direct proof of Mrs. Padgett's consent. Moreover, appellees' refusal clearly appears not to have been put on the ground that the purchasers were not able to carry out their contract of purchase, but on an entirely different ground. The evidence on this subject was, in part, as follows: While the plaintiff was being examined, the following questions and answers were propounded and elicited:

" 'Q. In your conversation with Mrs. Padgett on the 30th of December, was the price and terms mentioned to her? A. Yes, sir; $28,000, $10,000 cash--$250 down and--Q. And she said anything you and Mr. Padgett did would be perfectly all right to her? A. Everything was good over the phone. I gave her the name of Dr. Daniels. He had been to that place twice before that date, once with me; he had been over the grounds, not all the way over it. This December 31st made the third time. I received the letter now shown to me by my attorney, from Mr. Padgett. This was received in my office on the morning of January 1, 1914.' The plaintiff here introduced said letter in evidence marked as 'Exhibit 3,' said letter being in words and figures as follows: 'January 1, 1914. Mr. E.M. Bailey--Dear Sir: I am very, very sorry indeed that I must inform you that all negotiations in reference to the sale of lands belonging to Mrs. Padgett for the present are at an end. You are probably aware of the fact that the property belongs to Mrs. Padgett and she refuses to dispose of it now, and I cannot do anything to force her to sell it. I am sorry indeed, but I can't help it. There has been spent in the last few months more than a thousand dollars, besides Mrs. Padgett has bought 5,000 orange trees to set out next month. The place will be platted and some developed portions will be put on the market and I hope you will do the selling. Assuring you of my best wishes and highest regard, I am, Yours truly, [Signed] H.W. Padgett.' Ex. 3."

In the case of Baker v. Lehman, Weill & Co., 186 Ala. 493, 65 So. 321, the question of the ability of a purchaser to pay was involved, and the court said:

"It was competent for plaintiffs to show that they were and had been for many years regularly engaged in the legitimate business of buying cotton, for actual delivery all over a certain territory, not to show the legitimacy of the instant contract, but as tending to show their means and

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