Espalla v. Lyon Co.

• Decision Date: 19 January 1933
• Docket Number: 1 Div. 728.
• Citation: 226 Ala. 235,146 So. 398
• Parties: ESPALLA et al. v. LYON CO.
• Court: Alabama Supreme Court

146 So. 398

226 Ala. 235

ESPALLA et al. v. LYON CO.

1 Div. 728.

Supreme Court of Alabama

January 19, 1933

Rehearing Denied March 9, 1933.

Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.

Suit to recover real estate broker's commission by Joseph Espalla, Jr., and another, partners doing business as Joseph Espalla, Jr., & Co., against the Lyon Company. From a judgment for defendant, plaintiffs appeal.

Reversed and the cause remanded.

Where broker produced several purchasers ready, able, and willing to purchase, fact that undisclosed purchasers might become interested held of no concern to owner, where purchasers disclosed were willing to consummate deal and to become jointly and severally bound for purchase price.

Amended count 9 of the complaint is as follows:

"9. The plaintiffs claim of the defendant the further sum of $25,000.00, together with interest thereon from to-wit, the 11th day of June, 1925, for that on, to-wit, the 11th day of June, 1925, the defendant employed the plaintiffs who were then engaged in the real estate business in the city of Mobile Alabama, to obtain for it a purchaser for a certain tract of land located in Mobile county, Alabama, and known as Hollinger's Island, together with approximately 2,226 acres adjacent thereto, the purchase price for the said property to be $525,000.00, of which $500,000.00 was to be net to the defendant; that defendant agreed with the plaintiffs that the plaintiffs should be paid for their services a commission of 5% on said $500,000.00, or a commission of $25,000.00, which commission should be paid to the said plaintiffs out of the total purchase price of $525,000.00; that the terms for the sale of the said land fixed by the said defendant were as follows: The purchasers to pay in cash $10,000.00 as earnest money as evidence of good faith; the defendant upon payment of such $10,000.00 to furnish to the buyers an abstract of title to the said property brought down to date; the buyers to be allowed ten days within which to examine the said abstract of title and if the title to the said property proved satisfactory to the lawyers for the buyer upon such examination, then the purchasers should pay, in cash, $115,000.00 in addition to the $10,000.00 earnest money, making a total of $125,000.00 as a cash payment, $100,000.00 of which should be paid to the defendant and $25,000.00 of which should be paid to the plaintiffs as their commission, and the balance of $400,000.00 to be paid to the defendant at the rate of $100,000.00 each year for the next four years, with 5% interest, the deferred installments on the purchase price to be secured by a mortgage or vendor's lien on the said property; and in event the title to said property was not found satisfactory to the lawyers for the buyers upon such examination the $10,000.00 earnest money was then to be returned to the said purchasers. The plaintiffs aver that within a reasonable time thereafter, and while said agreement was in full force and effect, the plaintiffs secured purchasers for said property at and for the agreed purchase price of $525,000.00 on the said terms and conditions agreed to by the defendant, and plaintiffs so advised the defendant. Plaintiffs aver that the purchasers so obtained by them were ready, able and willing to complete the purchase of said property on the terms and conditions stipulated by the defendant, but the defendant refused and failed to furnish the said abstract of title and refused and failed to sell said property on the terms and conditions theretofore agreed upon between the defendant and the plaintiffs, and that defendant refused to complete the sale of said property, wherefore plaintiffs have been damaged in the sum of $25,000.00 for which amount, together with interest thereon from, to-wit, the 11th day of June, 1925, plaintiffs sue. The plaintiffs aver that prior to the refusal of the defendant to consummate and complete said sale the plaintiffs informed the defendant that J. C. Prine, R. Herndon Radcliff, Frank W. Boykin George Crawford and John Everett were the persons who had agreed to purchase said property upon the terms and conditions agreed to by the defendant and plaintiffs aver that two of the said parties, viz.: J. C. Prine and R. Herndon Radcliff, representing themselves and the other purchasers above mentioned, came, under arrangement made by the said plaintiffs, to the plaintiffs' office and there met Mr. R. W. Hamill, the president and chief executive officer of the Lyon Company who had full authority to act for the Lyon Company in the premises and who acted for the said the Lyon Company on such occasion, for the purpose of closing this trade by paying over to the said representative of the Lyon Company the earnest money of $10,000.00 in cash and by obtaining from the said the Lyon Company the abstract of title covering the said property; that the defendant made no objection to the fact that three of the prospective purchasers were absent, nor raised any question as to the authority of the said Prine and Radcliff to represent them, and the said defendant refused to go ahead and close the said transaction in the manner theretofore agreed upon, the defendant basing its refusal to close the said transaction solely on the grounds that the purchase sought to be made was a purchase for the city commission of Mobile and that if said sale was made to said city commission that the defendant would have to pay double commission and the further ground that one of the purchasers, Frank W. Boykin, had been indicted in the federal court and by reason of this would not be able to carry out his contract of purchase and the defendant thereupon declined to consummate said trade. Wherefore, plaintiffs aver that they were not required to bring the other prospective purchasers, viz.: Frank W. Boykin, George Crawford and John Everett face to face with the said R. W. Hamill, nor, in view of the refusal of the said the Lyon Company to proceed with such trade, was there any duty on the part of the said plaintiffs to procure a binding contract of purchase from the said prospective purchasers. The plaintiffs further aver that this count No. 9 as amended could have been included in the original complaint, and the allegations thereof refer to the same transaction, property, title and parties as the original complaint."

Plea 4 is: "That the alleged consent of J. C. Prine, R. Herndon Radcliff, Frank W. Boykin, George Crawford and John Everett to purchase said property was conditioned upon the title to said property proving satisfactory."

Plea 5 is that the alleged consent of the named parties to purchase said property was conditioned upon the title proving satisfactory to their attorneys, which condition was never agreed to by defendant. Plea 17 is that the offer obtained by plaintiff was conditioned upon defendant's executing a warranty deed, to which condition defendant never consented. The substance of plea 35 is that the persons named as proposed purchasers were not acting on their own account, but simply members of a syndicate, the names of the other members of which were never revealed to defendant, that the members of the syndicate had no provision for payment of the purchase price further than the earnest money, and that it was the purpose of the syndicate to pay the earnest money to obtain an opportunity to resell the property, but they were never ready and willing to make further payments on account of the purchase price except in event of a resale during the period allowed for examination of the title. Plea 37 alleges that the only agreement defendant ever entered into with plaintiffs authorizing them to find a purchaser was limited to a sale to the city of Mobile.

Plaintiffs offered in evidence a letter, dated February 9, 1926, addressed to Norville Bros. and signed R. W. Hamill, stating "our present price on Hollinger's Island proper is $700,000.00, and the price on the Island and the adjacent property amounting in all to something over 9,000 acres, is $900,000.00," and specifying the terms and commission. Defendant's objection to this letter was sustained.

Stevens, McCorvey, McLeod, Goode & Turner, of Mobile, for appellants.

Harry T. Smith & Caffey, of Mobile, for appellee.

GARDNER Justice.

The cause was tried on plaintiffs' part upon count 9 as amended (appearing in the report of the case), which was fashioned after the complaint in Charles R. Byrd & Co. v. Age-Herald Pub. Co., 219 Ala. 505, 122 So. 831, and which seeks damages within the contemplation of the parties in the amount of plaintiffs' commission as a broker arising from the breach of the special contract therein set out.

At the conclusion of the evidence, there was a directed verdict for the defendant, and the action of the court in giving such charge presents the question of first importance on this appeal.

The partnership of Joseph Espalla, Jr., & Co. was composed of Joseph Espalla, Jr., and J. E. Crabtree, Jr., and was engaged in a general real estate business, including selling and renting property for owners.

Joseph Espalla, Jr., conducted all negotiations as to the contract, the subject-matter of this litigation, but we think it clearly inferable from the proof that such transactions were within the course of the firm's business (47 Corpus Juris, 996), and in fact a partnership affair. The suggestion to the contrary is without merit.

We also entertain the view that the authority of R. W. Hamill president of defendant corporation, to make a binding agreement, was a jury question. The resolution of the directors of May 2, 1911, is to be read in connection with the broad language of the corporation's by-laws, and all of which is to be considered in relation to the evidence...