Berry v. Marx

• Citation: 206 Ala. 619,91 So. 583
• Decision Date: 13 October 1921
• Docket Number: 2 Div. 754.
• Parties: BERRY ET AL. v. MARX.
• Court: Supreme Court of Alabama

91 So. 583

206 Ala. 619

BERRY ET AL. v. MARX.

2 Div. 754.

Supreme Court of Alabama

October 13, 1921

Rehearing Denied Nov. 17, 1921.

Appeal from Circuit Court, Greene County; Henry B. Foster, Judge.

Action by E. Rockwood Berry and another against Jacob Marx. From a judgment for defendant, plaintiffs appeal. Affirmed.

Henry McDaniel, of Demopolis, and Harwood, McKinley, McQueen &amp Aldridge, of Eutaw, for appellants.

R. B Evins, of Greensboro, Edward de Graffenried, of Tuscaloosa and William Hawkins, of Eutaw, for appellee.

MILLER J.

This suit was commenced by appellants against the appellee by attachment for $3,000. The defendant is a non-resident. The attachment was executed by being levied on certain land of defendant in Greene county, Ala.

There were several counts in the complaint. One claimed $3,000 for commissions under contract, for securing a purchaser for certain land of defendant, known as the Simmons place, in Marengo county, Ala.; another count claimed $3,000 damages for breach of contract between plaintiffs and defendant of sale of said land; and another count was for $3,000 for work and labor done and services rendered by plaintiffs for the defendant.

The case was tried on plea of general issue with agreement of counsel that defendant could show thereunder any matter that would be a defense by special plea, and plaintiffs could introduce in evidence any matter that would be proper in rebuttal under general or special replication. The court gave the jury this written charge at defendant's request:

"The court charges the jury that, if they believe the evidence in this case, they must find a verdict for the defendant."

The giving of this charge and the adverse rulings of the court to plaintiffs on questions propounded to some of their witnesses are assigned as errors.

A real estate agent must be faithful to his principal; he must not be disloyal; he must act in good faith with him; he must represent the interests of his principal; and, if he is guilty of bad faith with his principal in the transaction of the business for which he is to receive commissions, he thereby forfeits his compensation. McGar v. Adams, 65 Ala. 106; Clay v. Cummins, 201 Ala. 34, 77 So. 328. This court, through Justice Thomas, in Clay v. Cummins, 201 Ala. 34, 77 So. 328, approving what was said by Justice Manning in People v. Township, 11 Mich. 222, declared:

The law "will not permit an agent to act for himself and for his principal in the same transaction, as to buy of himself, as agent, the property of his principal, or the like. All such transactions are void, as they respect the principal, unless ratified by him with a full knowledge of all the circumstances. To repudiate them, he need not show himself damnified; whether he has been or not is immaterial. *** And in the case of a sale at a fixed price, by an agent, it is said to be immaterial that the principal has not been injured *** or that the principal had fixed the price at which he was willing to sell, and that the agent buys at that price."

The agent, failing to disclose fully all the facts and circumstances of the transaction to the principal, and to receive a ratification thereof by him, is the fraud that renders the transaction void. Clay v. Cummins, supra.

The plaintiffs are real estate agents. The defendant resides in New York, and owned lands in Greene, Sumter, and Marengo counties, Ala. All the transactions between plaintiffs and defendant in the matters involved in this suit are in writing by letters or telegrams. The bill of exceptions contains copy of each letter and telegram. Plaintiffs requested defendant to list his lands with them for sale, by letter of July 24, 1917. In reply of July 26th, defendant places his land with them for sale. The land, the subject-matter of this suit, was described as follows:

"Simmons land about 300 acres $6,000."

This letter stated:

"I hope you can dispose of some of these places. Prices are subject to change without notice."

Plaintiffs wrote defendant on July 28th, in reply to said letter, as follows:

"Of course the price you have named carries the usual commissions to us, five per cent. Please advise us tho whether or not this is your intention."

On August 6th, plaintiffs wrote defendant:

"We have not yet had reply to our recent letter to you, in which we asked you whether or not the prices you named for your properties were net."

The defendant replied August 9th:

"That the prices named you in my recent letter are net prices to me for my lands."

These letters contained many other matters, but it is not necessary for us to even give their substance. On August 20th plaintiffs wired defendant: "Simmons place sold, see letter." August 21st plaintiffs wired defendant:

"Sold Simmons place six thousand to you, five hundred cash, thousand January first, balance five annual payments, six per cent. Wire confirmation."

On August 21st plaintiffs wrote defendant letter confirming the telegrams. This letter also stated:

"You are to furnish an abstract of title and the survey of the land is necessary."

On August 20, 1917, prior to sending the telegrams, the plaintiffs, as agents for defendant, entered into a written contract with one E. L. Mims-the former to sell and the latter to purchase the Simmons place containing 317 acres, more or less, at the price of $30 per acre, payable as follows: $500 cash, $3,000 on or before January 1, 1918, balance in five equal annual payments, each bearing interest at 6 per cent., interest payable annually; the defendant to furnish complete abstract of title showing title to be merchantable, and to survey the lines and establish the acreage and defendant to pay for it-to be completed not later than January 1, 1918; the $500 cash to be returned to Mims in the event satisfactory title was not furnished. This contract was not mailed by plaintiffs to defendant. The purchase price for the land, the full terms and conditions of the trade were never written or wired by plaintiffs to the defendant. In the trial of this case, it appeared to him for the first time; then were its contents fully made known to him. On August 22d, the defendant wired the plaintiffs:

"Will accept six thousand Simmons place. One thousand cash, one thousand January 1st, balance four annual payments with six per cent. interest. Title close January 1st, if satisfactory. Send contract. Will return New York next week."

On August 23d, plaintiffs wired defendant:

"Can close on Simmons place five hundred cash, fifteen hundred January 1st, balance four annual payments, option to pay sooner. Interest from January 1st, possession to be given Jan. 1st. Wire acceptance."

Confirming this telegram on August 33d, plaintiffs wrote defendant in a letter, among other things, this:

"We inferred from your previous instructions that you were willing for reasonable terms, and made the sale to our client on that understanding. We collected from him $500 to bind trade, said $500 to be part payment on the place if the title shows up all right, but to be returned to him should the title be imperfect."

This letter notified defendant that E. L. Mims was the purchaser and deed would have to be made to him. On August 24th, defendant wired plaintiffs:

"Accept your last proposition Simmons place, abstract place and survey not necessary I have owned the property more than

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