Erswell v. Ford

• Decision Date: 14 April 1921
• Docket Number: 6 Div. 163
• Citation: 205 Ala. 494,88 So. 429
• Parties: ERSWELL et al. v. FORD.
• Court: Alabama Supreme Court

88 So. 429

205 Ala. 494

ERSWELL et al. v. FORD.

6 Div. 163

Supreme Court of Alabama

April 14, 1921

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by C.W. Ford against Catherine Erswell and others for discovery and the fixing of compensation concerning the sale of real estate. From a decree overruling the demurrers to the bill respondents appeal. Reversed and remanded.

Leader Ullman & Ewing, of Birmingham, for appellants.

Arthur L. Brown, of Birmingham, for appellee.

MILLER J.

C.W Ford filed this bill in equity against Catherine Erswell and Louis Pizitz to collect $4,250 alleged to be due him by Catherine Erswell as commissions for the sale of lots Nos 112, 114, and 116, North Nineteenth street, in Birmingham, Ala., made by Catherine Erswell to Louis Pizitz, and for discovery.

The court below overruled demurrers to the bill of complaint and this is assigned as error.

The complaint avers that Mrs. Catherine Erswell owned the property, and wrote him the following letter:

"Birmingham, Alabama, September 5, 1910.

"Mr. C.W. Ford, c/o A.A. Adams & Co., Birmingham, Alabama--Dear Sir: I hereby give you the exclusive right to handle the sale and rental of my Birmingham property being situated at 909 South 21st Street, and 112th, 116 No. Nineteenth Street in Birmingham, Alabama.

"Yours very truly, Mrs. E. Erswell."

That under the authority of this letter he (Ford) leased said property on Nineteenth street to Louis Pizitz until December 31, 1922, which is now bringing $1,000 per month. Complainant further avers that "he had many conferences with the respondent Louis Pizitz in reference to buying the property, and induced him to offer the sum of $175,000 for said property, and was about to close the trade for said amount with said Pizitz when Pizitz conceived the idea that he could otherwise, and through other agencies, acquire the property for a less amount, and began negotiations to that end," which finally culminated in a sale of said property by respondent Erswell to respondent Pizitz at and for the sum of $170,000; and that Pizitz became interested in the purchase of the property through his long and persistent efforts, and "that his efforts brought about a sale thereof, although at a price $5,000 less than said Pizitz had offered for it." Complainant further averred:

"That after he had interested the said Pizitz in the purchase of said property, and after he had offered $175,000 for the same, which would have been accepted and closed by the said Pizitz, but the said Pizitz conceived the idea that he could procure the property for a less amount, and set about by himself and agents, through various and sundry methods, to so acquire said property, and by said methods, and with the assistance and acquiescence of the said respondent Erswell, did buy the said property for the sum of $170,000, as he is informed, believes, and so states, the said sale taking place in the early part of September, 1919, and did pay, or cause to be paid, to the said Erswell a part of the purchase price of said property."

The complaint also contains averments to the effect that Mrs. Erswell sold said property to Pizitz, and he has paid at least $10,000 of the purchase money, and the balance is still unpaid. He avers Pizitz offered him $175,000 for the property, but he does not aver that he ever submitted this offer to Mrs. Erswell. He also avers that respondents entered into a conspiracy to defeat the rights and equities of complainant, to which he became entitled by reason of his services and labor rendered in and about the purchase and sale of said property.

This letter gives complainant "the exclusive right to handle the sale" of the property.

"As a general rule, a real estate broker who is given an exclusive right to sell property is entitled to a commission on any sale thereof made by the principal, either independently, or through the efforts of another broker, within the time specified in the contract of employment." 9 Corpus Juris. § 101, p. 622.

This letter giving the complainant "the exclusive right to handle the sale" of said property fixes no definite time within which he must sell it or find a purchaser ready and willing to buy. No time is mentioned in it.

When no time is fixed for the performance of the contract, then the law presumes that it must be done within a reasonable time. Skinner v. Bedell's Adm'r, 32 Ala. 44; Henley v. Bush, 33 Ala. 636; Cotton v. Cotton, 75 Ala. 345.

"It has been held that a broker to whom is given the exclusive right to sell cannot recover his commissions when the owner sells the land unless he has produced a purchaser ready and willing to buy on the terms specified in his contract of employment." 9 Corpus Juris, § 101, p. 622, headnote 63.

This letter of defendant to complainant fixes no price; fixes no terms of sale. The bill does not aver that complainant ever asked Mrs. Erswell for the terms of sale. The law requires complainant to produce a purchaser under that letter, ready and willing to buy on terms satisfactory to her, and within the time fixed in his contract. It is necessary for him to notify her of an offer, in order to secure her price and terms, and to see if the offer is satisfactory. Yet for nine years after the letter was written he never inquired of respondent Erswell for her terms of sale; he never mentioned to her that he had a purchaser ready and willing to buy, if the terms were agreeable to her. If he did, the bill does not aver it. This court, in Smith v. Sharpe, 162 Ala. 439, 50 So. 383, 136 Am.St.Rep. 52, said:

"It is true, also, as a general proposition, that if a person enters into a contract with an agent authorizing him to sell land, and the agent fails after a reasonable time to effect a sale *** the principal may sell his own land, or do so by another agent, unless he has bound himself not to do so."

In Cook & Bro. v. Forst, 116 Ala. 395, 22 So. 540, this court wrote:

"To entitle an agent or broker to commissions, he must show that he procured a purchaser who was able and ready to comply with the terms and conditions of sale."

See Sayre v. Wilson, 86 Ala. 151, 5 So. 157, and authorities cited in Cook & Bro. v. Forst, 116 Ala. 395, 22 So. 540.

This letter of respondent Erswell to complainant did not fix the commissions; it did not fix the price of the property; it did not fix the terms of sale; it did not fix the time within which he could sell; it simply gave him "exclusive right to handle the sale" of the property. It is over nine years old when this bill is filed. It is over nine years old when he avers the sale was made by Erswell to Pizitz.

The bill by failing to aver it, shows he never inquired of her for her terms of sale, or time of sale, or price of the property. He never mentioned to her that he had a purchaser ready and willing and able to buy, if terms were reasonable, and for those terms. When did this "exclusive right to handle the sale" of the property terminate? Let the law answer:

"In the absence of a contract fixing the duration of a broker's agency, it continues for only a reasonable time." 9 Corpus Juris, pp. 519, 520, headnotes 6, 7.

The rule of law in Alabama is that--

"When a contract does not specify a particular time, or appoint the happening of a particular event for performance, the presumption is the parties intended performance within a reasonable time." Cotton v. Cotton, 75 Ala. 345; Alford v. Creagh, 7 Ala.App. 358, 62 So. 254.

"What is a reasonable time is sometimes a question of fact and sometimes a question of law. When it depends upon facts extrinsic to the contract, which are matters of dispute it is a question of fact; when it depends upon the construction of a contract in writing,, or when it depends upon undisputed facts, it is a matter of law." Cotton v. Cotton, 75 Ala. 345. Here, it is on a letter, and the allegations of facts in the bill of complaint. Under the demurrer, the facts alleged are considered undisputed; and thus it becomes necessary for the court to decide, under the written letter and the alleged facts, what is a reasonable time for the complainant to produce a purchaser ready, willing, and able to buy the property.

What is a reasonable time when the parties fix no time?

It "depends materially upon the nature of the duty to be

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