Copeland v. Dabbs

• Decision Date: 17 April 1930
• Docket Number: 6 Div. 574.
• Citation: 129 So. 88,221 Ala. 489
• Parties: COPELAND v. DABBS.
• Court: Alabama Supreme Court

129 So. 88

221 Ala. 489

COPELAND v. DABBS.

6 Div. 574.

Supreme Court of Alabama

April 17, 1930

Rehearing Denied June 26, 1930.

Appeal from Circuit Court, Jefferson County; Wm. Hugh McEniry Special Judge.

Action in assumpsit by Fred R. Dabbs against W. R. Copeland. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Affirmed.

In action for services in procuring signature to deed question asked owner of part of property held proper as tending to show admission of defendant that he bargained with plaintiff for services in procurement of deed.

The following charges were refused to defendant:

"6. I charge you, Gentlemen of the jury, that if you believe from the evidence that the contract whereby the plaintiff alleges he was to be paid for services by the defendant was cancelled by plaintiff and defendant, then I charge you that your verdict must be for the defendant."

"9. I charge you, gentlemen of the jury, that if you believe from the evidence that the defendant was to pay plaintiff for his services only on condition that the defendant purchased said property for $10,000.00 and that the plaintiff was unable to consummate the purchase of said property by the defendant for $10,000.00, then your verdict must be for the defendant."

"11. I charge you, Gentlemen of the jury, that if you believe from the evidence that the plaintiff failed to live up to and discharge the duties and obligations of his alleged contract with the defendant in any material matter thereof, then your verdict must be for the defendant.

"12. I charge you, Gentlemen of the jury, that if you believe from the evidence that the plaintiff failed to discharge any material obligation or duty of his alleged contract with the defendant without fault on the part of the defendant and upon which failure the plaintiff repudiated his alleged contract with defendant, then I charge you that the plaintiff would not be entitled to recover.

"13. I charge you, Gentlemen of the jury, that if you believe from the evidence that the defendant was to pay the plaintiff for his services in securing said deed only on condition that the defendant purchased and became the owner of said property by said deed for the sum of $10,000.00 and that the plaintiff was unable to secure and deliver said deed to the defendant for the sum of $10,000.00, then your verdict must be for the defendant."

"18. I charge you, Gentlemen of the jury, that the burden of proof in this case is not upon the defendant, W. R. Copeland, to reasonably satisfy you that he is not indebted to the plaintiff, Fred R. Dabbs, but on the contrary the burden of proof is on the plaintiff, Fred R. Dabbs, to establish to your reasonable satisfaction that the defendant, W. R. Copeland, is indebted to him and that if Fred R. Dabbs fails to so satisfy you, then your verdict must be for the defendant, W. R. Copeland."

The charges made the basis of assignments 11, 14, and 15 are as follows:

"(11) I charge you, gentlemen of the jury, if you believe from the evidence in this case that the defendant did have a reasonable time in which to have said abstract examined and title approved, then what constitutes a reasonable time is for your determination."

"(14) I charge you, gentlemen of the jury, that if you believe the evidence in this case, then the defendant would have a reasonable time in which to consummate the conditions of the trade and close this deal, and what is a reasonable time to do so, is for you to decide.

"(15) I charge you, gentlemen of the jury, that if you believe the evidence in this case, the defendant W. R. Copeland would have a reasonable time in which to have the abstract examined by his attorney and title approved, and to have the deed examined by his attorney and approval, and what would be a reasonable time in which to have this done will be for you to decide."

The question, the overruling of defendant's objection to which is made the basis of assignment 31, is as follows:

"Q. You did all you could to get him to put up earnest money. Now, something was said at that time, Mr. Dabbs, about conveying through Prof. Copeland to a third party that you might sell it to, and that he told you that he wanted $400.00 reimbursement before he would allow the property to be deeded through him to another party."

The letter introduced in evidence by plaintiff, and marked "Exhibit C," is as follows:

"Fairfield, Ala., June 16, 1926.

"Mr. Ed Dabbs, Bessemer, Ala.

"Dear Sir: I am wondering if you have disposed of your 37 acres. If you find that some other folks did not fully mean what they said about buying you out all at once we shall be glad for you to give us a chance to handle it, as I said before we never stop when we start out to do a thing until it is done. You will hardly expect us to warrant a title without a penny but we can handle the place if we have a little time.

"Yours truly,

W. R. Copeland."

BROWN, J., dissenting in part.

Ross, Bumgardner, Ross & Ross, of Bessemer, for appellant.

Benton, Bentley & Moore, of Bessemer, for appellee.

SAYRE J.

Briefly stated, appellee's case was that he had performed services for appellant looking to the purchase by the latter of a 37-acre tract of land. Appellee and nine others had inherited the land from his father. One of the owners lived in each of the states of Louisiana, Texas, and Arkansas. It was thought to be necessary that the co-owners in the states mentioned as well as the rest of them in Jefferson county be interviewed in person in order to get their joinder in a conveyance to appellant. Appellee's testimony was that appellant had agreed to pay him $200 when he got the signatures of all the heirs. Appellant's contention was that he had agreed to pay appellee after he had paid the purchase money and received a conveyance, that he had never paid for the land nor received a conveyance, and therefore owed appellee nothing.

It is urged on behalf of appellant that appellee violated the criminal law, section 6248 of the Code, in performing the services in and about preparing and procuring signatures to the conveyance which appellant refused to accept and pay for. Whatever may be said of the utility or constitutional validity of this section of the Code, it could not be effectual to prohibit appellee's activity in the matter of the services here in question, for the very good reason that he was one of the owners of the property and was attending to his own interest in what he did as well as the interest of his co-owners. He cannot be denied the right to attend to his own affairs out of court, or in court for that matter (Constitution, § 10), or required to procure a license to practice law in order so to do by reason that others were interested in the same affairs. We have spoken of section 6248 of the Code. We had in view the section as printed in Michie's Code, which includes the Act of September 7, 1927 (page 669), where will be found the provision here in question.

Appellee was permitted to put into evidence a paper writing which, if properly executed and delivered, would operate as a conveyance to appellant and his brother-the brother was jointly interested with appellant in the negotiation for the purchase-of the land out of the attempted sale of which this suit arose. The certificates of the Louisiana and Arkansas notaries were substantially (Moore v. Bragg, 212 Ala. 483, 103 So. 452) in the form prescribed by section 6845 of the Code. The Louisiana certificate witnessed the fact that the notary taking the acknowledgment set his hand and seal thereto. The Arkansas notary's certificate, certifying the acknowledgment of one of the heirs interested in the land, was witnessed in this language: "I hereunto set my hand." In both cases the introductory recital of the certificate was that the person taking the acknowledgment was a notary public. The form set out in section 6845 of the Code does not prescribe any recital as to a seal. In Powers v. Bryant, 7 Port. 17, the court said: "The act of eighteen hundred and three, does not require the certificate of a judicial officer of the acknowledgment or proof of deeds to be made under seal, so that these acts would be quite as valid, without that appendage. The act of eighteen hundred and eighteen, which confers the authority given by the previous enactments, on the clerks of the courts, only requires that they shall execute it, in the like manner and form as theretofore required. Now as seals were not therefore essential to the validity of a certificate, it would seem necessarily to follow, that the objection founded upon the want of a seal, was not well taken."

Section 6842 of the Code provides that acknowledgments may be taken within the United States and beyond the state of Alabama by notaries public, and the substantial form of acknowledgment to be used in this state, as we have already noted, contains...