Ferrell v. Montgomery

• Decision Date: 23 October 1924
• Docket Number: 2 Div. 849.
• Citation: 101 So. 732,212 Ala. 44
• Parties: FERRELL v. MONTGOMERY.
• Court: Alabama Supreme Court

101 So. 732

212 Ala. 44

FERRELL v. MONTGOMERY.

2 Div. 849.

Supreme Court of Alabama

October 23, 1924

Appeal from Circuit Court, Greene County; Fleetwood Rice, Judge.

Action for broker's commission by E. E. Ferrell against L. H Montgomery. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

J. F Aldridge, of Eutaw, for appellant.

Hildreth & Hildreth. of Eutaw, and R. B. Evins, of Birmingham, for appellee.

THOMAS J.

The suit was by a broker or real estate agent for commission on the sale of standing timber. The important question is presented by the rulings on evidence and the giving of defendant's charges, and is whether plaintiff was required to give notice to defendant that he had procured the J. T. Horn Veneer Company as the purchaser.

A question similar to that presented by this evidence is decided in Sharpley v. Moody & Co., 152 Ala. 549, 44 So. 650. The second headnote in that case thus states the holding:

"Where a real estate agent with whom property is listed for sale merely procures another to look at the property with a view to buying, and it is not made to appear that the owner of the property knew or could have known that the agent had shown the property to such a person, on a sale of the property by the owner to such person the agent is not entitled to his commissions for making the sale."

See the general authorities collected in 9 C.J. 615.

In Handley v. Shaffer, 177 Ala. 636, 652, 59 So. 286 291, it is declared:

"Nor is it ordinarily material to the question of the broker's right to compensation that his vendor-principal did not know that the purchaser who he has accepted was procured by the broker. 19 Cyc. 264; 4 Am. & Eng. Ency. Law, 980; notes to Quist v. Goodfellow (Minn.) 9 Ann. Cas. 431, 8 L. R. A. (N. S.) 153; Lloyd v. Matthews, 51 N.Y. 124. Special circumstances may, however, impose upon the broker the duty of informing his principal that a person with whom the latter is negotiating is a customer sent by the broker, if such information is obviously necessary to enable his principal to protect himself against deception, imposition, and loss."

The special circumstances of this case are that in the presence of the plaintiff and one Byrd the defendant told the agent of the J. T. Horn Veneer Company, the purchaser, that he would not sell the timber except for $12,000 net, and that said agent said that he would pay cash in that sum, and pay Byrd's commission, and this was accepted by the vendor. With such knowledge in his possession, it then became the duty of the plaintiff to assert his claim for additional...