Finney v. Long

• Decision Date: 14 April 1927
• Docket Number: 6 Div. 869
• Parties: FINNEY et al. v. LONG.
• Court: Alabama Supreme Court

114 So. 200

216 Ala. 628

FINNEY et al. v. LONG.

6 Div. 869

Supreme Court of Alabama

April 14, 1927

Rehearing Granted Oct. 20, 1927

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action to recover real estate commission by J.P. Long against Julia Finney and T.L. Finney. From a judgment for plaintiff defendants appeal. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded on rehearing.

Erle Pettus, of Birmingham, for appellants.

Lange Simpson & Brantley and Ormond Somerville, Jr., all of Birmingham, for appellee.

THOMAS J.

The three counts on which the trial was had were common counts and on alleged contract. The latter count avers that defendants employed the plaintiff as an agent to sell designated lots and agreed to pay plaintiff the customary real estate commission of 5 per cent. of the first $5,000 sales price and 2 1/2 per cent. of the balance; and it is further averred that as such agent the property was sold for the price of $7,000 on October 1 1923, and that defendants breached the contract in that they failed to pay as agreed upon and recited above. The demurrer being overruled, the reply thereto was in short by consent, with leave to give in evidence any matter which if well pleaded would be admissible in defense, etc.

The subject of commissions of real estate brokers has been often considered by the court and not necessary to be repeated. As to good faith exacted, see Clay v. Cummins, 201 Ala. 34, 77 So. 328; Id., 207 Ala. 105, 91 So. 790; Berry v. Marx, 206 Ala. 619, 91 So. 583; Peters Min. Land Co. v. Hooper, 208 Ala. 324, 94 So. 606; Jackson v. Berry-Snellings R. Co., 211 Ala. 174, 100 So. 111; Meeks v. Miller, 214 Ala. 684, 108 So. 864. And the rights of subbrokers were given extended consideration in Hale v. Brown, 211 Ala. 106, 99 So. 645; Id. (Ala.Sup.) 110 So. 376.

The relation of the parties to the sale must be determined. Distinguished counsel thus state their respective views as to this question: For the appellee, it is insisted that the bill of exceptions fails to show that plaintiff's capacity was that of "salesman only," and cites, in support of this, that plaintiff testified:

"I don't know whether you would consider that I was a partner of the Watson Investment Company. I went in with Mr. Watson." That he and Mr. Finney "talked about this transaction dozens of times. The first time was right in the office. He came in the office and gave me the property. He told me to go ahead and sell the property and he would pay a commission."

The plaintiff, as a witness, defines his position and the facts to have been as follows:

"I asked Mr. Finney how they traded, what he got for the place, and he said, in the way he got it, about $7,000. Mr. Finney said: 'Mr. Long, I will take care of your commission; don't bother about that.' It went along for a week or two. I went to Mr. Finney and asked him about it, and he said he wanted to see Erle Pettus; that Mr. Watson was in on that and he wanted half of it, and he put me over to a certain day the next week. The next week I came up to see Mr. Finney about the matter, and he said, 'I have not decided, but you will get your pay.' *** The next time I went he said if we would get Mr. Watson out of it he would pay it. I told him to call up Watson, and he called up Watson, and Mr. Finney told me what Watson had said. He said Watson said he had no interest in it. ***

"It is a fact that the Watson Investment Company was the real estate agency and I was there working merely as a salesman for the Watson Investment Company. I don't know whether you would consider that I was a partner in the Watson Investment Company. I went in with Mr. Watson. I gave Mr. Watson 40 per cent. of all of the sales I made. I did business in the name of the Watson Investment Company, and the listings I took and the sales I made were in the name of the Watson Investment Company. Mr. Watson was the Watson Investment Company. That is the same Mr. Watson that is here as a witness. His name is J.C.C. Watson, and the business was conducted in his name, and the license was paid in his name. I didn't take out any license in my name.

"The listing of this particular property was just a verbal listing. I never talked to Mrs. Julia Finney in my life about it. As a matter of fact, the title to this property was in her name, and she was the owner of the property and made the deed, so far as I know. *** He came in the office and gave me the property. He told me to go ahead and sell the property and he would pay a commission. At first he gave me a price of $10,000 on it. I didn't sell it for $10,000. He told me he would take $8,000 or trade it for other property. In the trade I don't know what Mr. Finney got for the property. As a matter of fact, the property went into a trade for other property. I never had any writing at all from Mr. Finney or Mrs. Finney. ***

"Mr. Watson had Mr. Smith's property for sale. Mr. Watson helped make the trade. Watson had Smith's property listed and had an agreement to get a commission out of Smith. I was working for Watson, and me and Mr. Watson went into an agreement that he was to get his commission out of Smith and I was to get mine from Finney. Mr. Finney was right there in the office when Mr. Watson and I, made that agreement, but I don't know whether he was paying any attention to it or not. Mrs. Finney was not there. I never had any conversation with Mrs. Julia Finney about this matter. Mr. Finney listed this property with me and said he didn't want Watson to have anything out of it, but he would pay me the commission. He told me this the day I showed the property. Mr. Finney was there when Mr. Smith came in, and I don't know where Mr. Finney and Mr. Smith went after I left. The property was sold the next day after that. ***

"I was working as a salesman for the Watson Investment Company at that time. Mr. Watson never told me that he was going to charge the commission to Smith. He told me he was going to pay his part of his commission; that he would take Smith's part and Finney would pay me.

The whole matter was handled through Watson Investment Company as agent. The whole transaction, both for Mr. Smith and Mr. Finney, was handled through the Watson Investment Company. Watson Investment Company was the only agent in it. The contract I had with the Watson Investment Company was that when a sale was made through the Watson Investment Company I was to get 60 per cent. and the Watson Investment Company 40 per cent. of the commission."

The testimony of Mr. Watson was to the effect:

That he "was running the Watson Investment Company. That was a real estate company. Mr. Long was employed by me as a sales agent, and was not employed by me in any other capacity. He was employed by me in connection with the business of the Watson Investment Company, and I was the Watson Investment Company. *** Mr. Smith had property listed with me for sale or trade. Mr. Finney listed some property at Central Park with me for sale. Mr. Long was working for me, and the property was listed in my office." That it was his "understanding that this property was listed with me by Mr. Finney on a net basis. That was the agreement between us, and the property was sold through my office on that basis. The property was traded at a net price. Any commissions that were to be earned were above that net price, according to the agreement."

The witness testified further as follows:

"Mr. Smith came in my office and listed his property 160 acres of land, for sale or trade. It is my recollection that under this agreement I had with Mr. Finney on this trade that was made, I was not to charge Mr. Finney any commission at all on the trade. Mr. Long was to get 60 per cent. of all trades he made for the Watson Investment Company, and I was to get the balance. ***

"That was Mr. H.E. Smith that talked with me. That is the man who listed his property with me. When I listed his property I was going to charge him a commission on the sale of it. Mr. Finney listed some property with the Watson Investment Company. I did not charge Mr. Finney any commission on his property. I was and I was not going to work for Mr. Finney for nothing. I can explain the transaction if you want me to. Mr. Finney said, 'You trade this way and I will give you my farm to sell it over.' When Mr. Finney came in there and listed his Central Park property the farm was discussed. Indirectly Mr. Finney listed the Central Park property with me to trade for a farm. When Mr. Finney listed the Willis street property with me, he told me to trade it for a farm and said he would take my judgment on the value of the farm. He listed the property with me to either trade or to make an ordinary sale for cash. I don't remember who was present at the time he listed the property with me. I don't remember who heard me tell him I would not charge him any commission. Mr. Smith listed his property with me. Mr. Long would have gotten 60 per cent. of the commission from Mr. Smith if we had gotten anything. We have not gotten anything out of the deal yet. ***

"Q. Mr. Long never has gotten a cent either from Mr. Smith or Finney? *** A. I did not get anything; I don't know whether Mr. Long did or not. ***

"Under the agreement I had with Mr. Long, in the event I collected the commissions from Mr. H.E. Smith, Mr. Long was to get 60 per cent. of that commission when it was paid in. I am suing Mr. Smith for that commission now. I have got a suit by the Watson Investment Company against Mr. Smith for the amount of the commission which I say he owes me on this claim. The agreement was that if I collected the commission from Mr. Smith, Mr. Long was to get 60 per cent. of that commission. The

...