Bingham v. Davidson
| Decision Date | 02 December 1904 |
| Citation | 37 So. 738,141 Ala. 551 |
| Parties | BINGHAM v. DAVIDSON. |
| Court | Alabama Supreme Court |
Appeal from City Court of Montgomery; A. D. Sayre, Judge.
Action by William B. Davidson against Thomas C. Bingham for commissions due plaintiff as a broker. Judgment for plaintiff. Defendant appeals. Affirmed.
Gordon Macdonald and Reese & Sternfeld, for appellant.
Marks & Sayre, for appellee.
The complaint is composed of two counts. The first is a special count for breach of a contract, and is clearly in assumpsit. The second is the common count for work and labor done. There was a demurrer for misjoinder of counts. The court overruled the demurrer. In this ruling there was no error. York Mfg. Co. v. Bessemer Mfg. & Storage Co., 111 Ala. 332 20 So. 13.
There were demurrers interposed to the counts separately. These demurrers were overruled by the court. The assignment of error with reference to this ruling is single. Therefore each count of the complaint must be defective, or the error as assigned will not avail to reverse the judgment of the court. Mobile, J. & K. C. R. Co. v. Bromberg, 37 So. 395.
Upon an examination of the first count of the complaint, we find that the demurrer made to it is met by the averments contained in it. Hence the appellant's first assignment of error is unavailing. Moreover, we find that the assignment of error relating to the ruling of the court below on the demurrer to the second count is not insisted upon by the appellant. This count states a substantial cause of action, and we would be warranted in not reviewing the ruling of the court, as to this count, even if error had been properly assigned. Montgomery Street Ry. Co. v. Hastings (Ala.) 35 So 412; Mitchell v. Gambill (Ala.) 37 So. 402. The case was tried on plea of the general issue.
The plaintiff, Davidson, was a real estate broker in the city of Montgomery. The defendant, Bingham, owned a plantation located in Elmore county, which he desired to sell. The plaintiff contends that defendant engaged him to procure a purchaser for said plantation, and agreed to pay him $500 if he would do so; that he procured one J. F. Thornton as purchaser, and brought the defendant and Thornton together in his (plaintiff's) office on the 1st day of February 1902, and that there the defendant and Thornton on that day entered into a written executory contract of sale and purchase of the plantation, and that he was to be paid the $500 for his services if he secured a purchaser and effected a contract of sale of said land upon the terms of the written contract of February 1, 1902; and that there was no agreement with defendant that his compensation depended on the fulfillment by Thornton of the terms of the contract, but that it was to be paid if he secured a purchaser acceptable to defendant. The written contract was offered in evidence and the evidence shows that it was executed by Bingham and Thornton in duplicate. Plaintiff was examined as a witness in his own behalf, and his evidence supports his contention. Thornton testified as a witness for plaintiff, on direct examination, that he made the contract of February 1, 1902, with the defendant; that the plaintiff brought about the trade between him and the defendant, and that said contract of February 1, 1902, was written and signed in plaintiff's office; that witness had never known defendant until plaintiff introduced them; that he (witness) had carried out the terms of said contract, and the deeds to the "properties" had been made by both parties. Upon cross-examination he testified that he had not finished the Corner and Browder houses; that he had not transferred the lease and rent notes to the Browder house until some time in July, 1902; that he went into possession of defendant's plantation and personal property immediately after said contract was signed; that the deed to the Corner house was made to the defendant on or about July 6, 1902, and the mortgage for $11,000 was made on or about July 6, 1902, by witness and wife, upon said plantation, to defendant. The witness swore that the trade had not been closed earlier because his attorney advised him that the title to said plantation was defective. He further testified that he owned no real estate in his own name; that the taxes and insurance on the Browder and Corner houses had been paid by him, and he carried out the terms of said February contract, except where the terms of the contract were changed subsequent to its execution by agreement between him and the defendant. The defendant testified in his own behalf that some time in January, 1902, he agreed with the plaintiff that, if he would secure a purchaser and effect a sale of 2,413 acres of land belonging to him (defendant) in Elmore county for $18,500, he would pay plaintiff $500 for his services; that plaintiff did secure one J. F. Thornton as a purchaser, with whom the "preliminary" agreement as to terms, of February 1, 1902, was made by him (defendant); that defendant made every effort to carry out his contract with Thornton; that he placed Thornton in possession of the lands, and also in possession of about $4,000 worth of personal property, immediately upon the execution of said agreement. His testimony further tended to show that Thornton refused to carry out any of the terms of said February agreement upon the ground that defendant's title to the land was not good, and that Thornton refused to deliver back to him the lands and personal property defendant had turned over to him under said contract. Defendant further testified that Thornton was never ready and willing to carry out the terms of the agreement, and that Thornton never had the money to carry out the agreement of February 1, 1902. He further testified that he repeatedly, during the five months that "this matter" was pending, had the plaintiff to help him effect his sale, and that plaintiff finally declared that he was unable to close the trade and effect the sale, as he had done everything he could, and that he, some time in April, 1902, informed plaintiff, in person and in writing, that witness was going to employ attorneys and close the trade on the best terms possible, or employ them to recover his property back; that plaintiff at that time declared his inability to close the trade and effect the sale; that he did thereupon employ attorneys and close the trade on entirely different terms than those contained in the contract of February 1, 1902; and that this was in July, 1902. Defendant, on cross-examination, admitted that the original terms of the February contract were, subsequent to its execution, modified by agreement by the parties thereto. He also testified that he was in possession of the city real estate mentioned in said contract, and that Thornton had, prior to this suit, executed the mortgage...
To continue reading
Request your trial
-
Owen v. New York Life Ins. Co.
...Ry. Co., 85 Miss. 147; A. & V. Ry. Co. v. Dear, 87 Miss. 339; Carlton v. King, 40 So. 191; McCaughn v. Young, 37 So. 839; Bingham v. Davidson, 37 So. 738; I. C. R. R. Co. Schultz, 39 So. 1005. Respectfully submitted. A. H. Longino, for appellee. The plaintiff's attorneys as appears from the......
-
Riley v. Srofe
...ours.) See also, Geter v. Central Coal Co., 149 Ala. 578, 43 So. 367; McLendon v. Bush, 127 Ala. 470, 29 So. 56; Bingham v. Davidson, 141 Ala. 551, 37 So. 738; Greek-American Produce Co. v. Louisville & N. R. Co., 1 Ala.App. 272, 55 So. 455; City of Birmingham v. Cain, 17 Ala.App. 489, 86 S......
-
Montgomery-Moore Mfg. Co. v. Leeth
...trial there must have been a plain and palpable failure of the evidence to support the verdict. Cobb v. Malone, supra; Bingham v. Davidson, 141 Ala. 551, 37 So. 738; Lyon v. McGowan, 156 Ala. 462, 47 So. Montgomery T. Co. v. Haygood, 152 Ala. 142, 44 So. 560. We are unable to say, after all......
-
Ross Neely Motor Exp. v. Robinson
...with these well established rules, we entertain the view that we should not disturb the judgment of the able trial judge. Bingham v. Davidson, 141 Ala. 551, 37 So. 738; Alabama Great Southern R. Co. v. Hamilton, Adm'r, 135 Ala. 343, 33 So. 157; Brotherhood of Locomotive Firemen & Engineers ......