Davis v. Clausen

• Decision Date: 19 December 1911
• Citation: 57 So. 79,2 Ala.App. 378
• Parties: DAVIS v. CLAUSEN.
• Court: Alabama Court of Appeals

57 So. 79

2 Ala.App. 378

DAVIS v. CLAUSEN.

Court of Appeals of Alabama

December 19, 1911

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

Action by George J. Clausen against Charles N. Davis. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Boyles & Kohn, for appellant.

Gordon & Eddington, for appellee.

DE GRAFFENRIED, J.

In the absence of a special agreement, the general authority of a real estate agent is only to find a purchaser, and to report him to the owner. He has, in the absence of special authority, no power to conclude a sale. His business generally is only to find a purchaser who is willing to buy the land on the terms fixed by the owner. Minto v. Moore 1 Ala. App. 556, 55 So. 542.

A broker employed to sell land becomes entitled to his compensation as a general rule, whenever a sale of the land is made by his principal to a purchaser introduced by him to his principal. When a broker employed to sell land interests a prospective buyer in the land which he has been employed to sell, and the owner of the land is thereby enabled to make and does make, a sale of such land to such prospective purchaser, the broker is entitled, as a general rule, to his compensation, although the seller personally conducts all of the negotiations and sells the land for a less sum than the amount for which he authorized the broker to offer the land for sale. In such case the seller is "liable at least for a reasonable commission, and the contract may be introduced as a guide for the jury in arriving at what is reasonable." Smith v. Sharpe et al., 162 Ala. 438, 50 So. 381, 136 Am. St Rep. 52. Of course, the mere fact that land which a real estate agent is authorized to sell is sold by the owner does not alone authorize the broker to recover compensation. The efforts of the broker to sell the land must be the procuring cause of the sale in order that he may be entitled to compensation. 19 Cyc. 257. The office of a real estate broker who is employed to negotiate sales of property is that he should find a purchaser able and willing to buy, and that he should be the efficient cause of bringing the minds of the proposed purchaser and would-be vendor together. Birmingham Land & Loan Co. v. Thompson, 86 Ala. 149, 5 So. 473.

1. It is evident from the above that for the appellee to be entitled to recover any sum of the appellant in this case he must show, by evidence, to the reasonable satisfaction of the jury that there was, in fact, a contract made by him with the appellant, whereby he became authorized, as appellant's agent, to sell the property, and, having offered such evidence, then that he was the procuring cause of the sale which appellant made of the land to Duval. Was there, in fact, a meeting of the minds of Clausen and Davis? If so, what was, in fact, their agreement? Did Clausen understand that Davis would sell for $8,000, and only $8,000? Was it the understanding of the parties, to be gathered from all that was said between them, that if Davis sold to Duval Clausen was to receive commissions only in the event a sale was made at $8,000? If there was a contract between the parties, was Clausen the procuring cause of the sale made by appellant to Duval? Clausen seems to have handed Duval a description of the land, and informed him that the land could be bought for $8,000. Duval seems to have refused to negotiate with Clausen with reference to the purchase of the property, and the negotiations were all conducted by Duval with Davis direct. Did the fact that Clausen handed Duval the description of the property with the statement that it could be bought for $8,000 operate as the procuring cause of the sale? If so, the appellee, under the decisions of the Supreme Court of Alabama, if he was Davis's agent, was entitled at least to reasonable compensation for the services rendered by him. Smith v. Sharpe et al., 162 Ala. 438, 50 So. 381, 136 Am. St. Rep. 52; B. L. & L. Co. v. Thompson, 86 Ala. 149, 5 So. 473; Henderson v. Vincent, 84 Ala. 100, 4 So. 180; Bailey, McConnell & Howard v. Smith, 103 Ala. 643, 15 So. 900.

2. It appears from the evidence that, before Clausen claims to have mentioned the subject of this sale to Duval, Duval had spent some time in the residence with Mr. and Mrs. Phygmyer, who were at that time in possession of the house as tenants of Davis. It further appears from the evidence of Mr. and Mrs Phygmyer, which, after it was given to the jury, the court excluded on the motion of appellee on the ground that it was irrelevant, that, while Duval was with them...