Empire Securities Co. v. Webb

• Decision Date: 16 January 1919
• Docket Number: 6 Div. 855
• Citation: 81 So. 51,202 Ala. 549
• Parties: EMPIRE SECURITIES CO. v. WEBB.
• Court: Alabama Supreme Court

81 So. 51

202 Ala. 549

EMPIRE SECURITIES CO. v. WEBB.

6 Div. 855

Supreme Court of Alabama

January 16, 1919

Rehearing Denied Feb. 6, 1919

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by M.F. Webb against the Empire Securities Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W.T Hill and Haley & Haley, all of Birmingham, for appellant.

Thomas J. Judge, of Birmingham, for appellee.

MAYFIELD J.

The action is by appellee, a commission merchant, or broker against appellant, his principal, to recover his commission or compensation for procuring a purchaser able and willing to buy the property of the principal.

The complaint contained two counts, one declaring on an express contract, the other on a common count for work and labor done. The trial was had on the general issue as to these counts, and resulted in a judgment for the plaintiff, from which defendant appeals.

It appears from the express contract that a sale of the principal's property for cash was not contemplated, but only an exchange of city or suburban property for farm lands and that each party, plaintiff's principal and the owner of the farm lands, was to furnish to the other a good and merchantable title. The agreement to exchange the lands of appellant for farm lands in Louisiana was in writing. Plaintiff claims that he, by this contract, procured a purchaser able and willing to make the exchange, but that consummation was prevented by the fault of appellant in failing to furnish a good and merchantable title to its property to be exchanged, and not on account of any fault of plaintiff. Appellant, on the other hand, contends that plaintiff failed to furnish a purchaser who was able and willing to purchase or exchange on the agreed terms; that plaintiff, or the other party failed to furnish a good and merchantable title to the property to be exchanged, and that they furnished no abstract of title at all to the farm lands to be exchanged; and therefore it did not appear that there was a good and merchantable title, and hence appellant was not placed under any duty to make the exchange.

Opinion.

The office of a real estate broker is usually to bring two principals together, in order that they may negotiate with each other and trade as to lands on such terms as may be agreed upon between them. The broker may be the agent of both principals, if that be the understanding between all parties. He may be employed by one principal to procure a purchaser, and by the other to procure a seller, or an exchange of lands, as in this case, and each may agree to pay him a commission; but the fact that he is so acting as the agent of both parties must be known to each. He cannot be openly the agent for one and secretly the agent of the other; his dual relation and duties to each must be known to both principals in order to hold both parties as to his contract of agency and compensation for services. The law applicable to this case, as to whether or not this plaintiff was entitled to recover his commission from appellant, as his principal, for services as a broker, is well stated by Justice Somerville in the case of Handley v. Shaffer, 177 Ala. 636, 59 So. 286, and it is useless to now restate these principles.

If the plaintiff's evidence be true, he was entitled to recover the amount of the judgment. This being true, the question as to the right of recovery vel non, and the amount thereof, were properly submitted to the jury. Under some phases of defendant's evidence, the plaintiff was not entitled to recover under the count declaring on the express contract, because defendant denied making the contract, or agreeing to pay commission under any circumstances. The undisputed evidence, however, did show that plaintiff, with the consent, if not the express request, of defendant interested himself in effecting the exchange of the lands, and that he spent time and did work and service in trying to consummate the exchange.

The plaintiff was allowed, over defendant's objection, to testify that one of the parties to the exchange, or a third party, "made a deed." There was no attempt thereby to prove the contents of the deed, or the legal effect of a deed or any other instrument. It was but a prelude or introduction of other proof to follow. The factum of a deed that is, its existence, may be shown in this manner by parol, without its production or accounting for its absence, where there is no attempt to...