Birmingham Land & Loan Co. v. Thompson

• Decision Date: 20 February 1889
• Citation: 86 Ala. 146,5 So. 473
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM LAND & LOAN CO. v. THOMPSON.

5 So. 473

86 Ala. 146

BIRMINGHAM LAND & LOAN CO. v. THOMPSON.

Supreme Court of Alabama

February 20, 1889

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

N. F Thompson sued the Birmingham Land & Loan Company, to recover commissions for the sale of land. The charges referred to therein are as follows: The plaintiff asked the court to give the following charge in writing, which the court did, and to which giving the defendant duly excepted: "If you find from the evidence that the defendant did not have the legal title to the land, and that there was an incumbrance thereon to the amount of ten thousand dollars or more, and that the defendant did not offer to make Painter a title, and if you further find that the defendant only offered to give its bond for title to the land indorsed by Clisby and Jemison, the court charges you that there was a defect in the title." The defendant then asked the court to give the following charges to the jury, and duly excepted to the court's refusing to give them: "(E) If the jury find from the evidence that the contract between Painter and defendant did not specify or fix the time when the deed to the land should be executed, then the defendant was not bound to execute a deed until the purchase money was all paid; and if they find from the evidence that the defendant was able to pay off all the liens on the land, and convey a clear title to Painter when he paid the purchase money, then Painter had no right to refuse to complete the trade because of defect in the title. (F) If the jury find from the evidence that, at the time of the attempted sale of the land, the defendant had an interest in the land which they were willing and able to convey to Painter, and that defendant was able to make a good title to the land on the payment of the purchase money, and that Painter failed to comply with the terms of the sale, then the verdict must be for the defendant." There was verdict and judgment for plaintiff. Defendant now appeals.

Houghton & Jemison, for appellant.

S.D. Weakley, and Martin & McEachin, for appellee.

STONE C.J.

The undisputed facts in this case are as follows: On January 3 1887, the appellant corporation, through its president, engaged the appellee, a real-estate broker, to sell a certain lot in the city of Birmingham, upon the agreement that if the appellee sold the lot during that day, at a specified price, the appellant would pay him as commissions the sum of $150. On the afternoon of the same day (January 3, 1887) the appellee, Thompson, negotiated with one Painter for the sale of the said lot at the stipulated price and terms, and carried Painter, the proposed purchaser, to the office of the appellant company, where said Painter and the president of the company entered into an oral agreement to buy and sell the said lot. There was no written evidence of the contract of purchase, but Painter paid the said company $10 to confirm the sale, and took the company's receipt therefor, which showed the terms of the sale, and the description of the lot. By special agreement with the defendant company that the payment should be regarded as a payment pro tanto on the first cash payment for the lot, Painter bought an option on the lot from another party for $350. Nothing was said about the title of the property held by the Birmingham Land & Loan Company,-as to its nature or otherwise,-either at the time it was placed in the broker's hands for sale, or at the time of the agreement to purchase; nor was anything said as to the time when the title was to be made to him. The same day or the day after the agreement of sale, the said company turned their bond for title over to Painter, in order that he might have the same investigated. The only showing for title to the lot held by the Birmingham Land & Loan Company was a bond for title from the Elyton Land Company, the original vendor, which bond had been transferred to several intermediate transferees before it came into the possession of the Birmingham Land & Loan Company. There was shown to be a large amount of purchase money due upon the property. By the advice of counsel, Painter refused to consummate the purchase, on account of a defect in the title, stating at the same time that he "was able to make the cash payment and complete the purchase." The appellee here, plaintiff below, brings this action against the appellant corporation to recover the commission which the defendant agreed to pay him; claiming that he, the plaintiff, has performed all the duties imposed on him by the agreement. The contention on the part of the defendant is that, as the sale was never consummated with Painter, the plaintiff is not entitled to recover; and, further, that, as the purchase money to be afterwards paid by Painter would have been sufficient to...