Finney v. Newson

• Decision Date: 01 May 1919
• Docket Number: 8 Div. 147
• Citation: 203 Ala. 191,82 So. 441
• Parties: FINNEY v. NEWSON.
• Court: Alabama Supreme Court

82 So. 441

203 Ala. 191

FINNEY v. NEWSON.

8 Div. 147

Supreme Court of Alabama

May 1, 1919

Rehearing Denied June 30, 1919

Appeal from Circuit Court, Madison County; Robert C. Brickell Judge.

Assumpsit by A.W. Newson against D.C. Finney. Judgment for plaintiff and defendant appeals. Affirmed.

Defendant asked W.E. Wood the following questions:

(1) "What did Mr. Finney tell you about canceling the trade?"

(2) "When you failed to pay the $10,000 according to this paper, what did Mr. Finney tell you?"

The following are the charges given for the plaintiff:

(3) I charge you that to be the procuring cause of the sale it would not be necessary that the plaintiff himself had concluded all the negotiations culminating in the sale of the property. It is enough if he set in motion the machinery by which the work was done.

(4) I charge you that if the broker introduces a prospective purchaser, and the seller undertakes to conduct the negotiation and finally sells the property, he thereby waives his right to insist on the terms of the contract in that respect and is liable for a reasonable commission, and the contract may be introduced as a guide for the jury in arriving at what is a reasonable compensation.

(5) A broker employed to sell land is entitled to his compensation if he brings to the seller a purchaser ready willing, and able to buy on the terms named, or if he brings them together and the sale is afterwards consummated by the seller himself.

The following charges were refused the defendant:

(1) If the jury find from the evidence that E.B. Morring was the agent of the plaintiff negotiating the transaction between the plaintiff and the defendant, and that it was agreed that in the event of a sale the plaintiff should be paid a commission based upon the amount when paid by W.E Wood to the defendant, then the jury can award compensation payable on the amount so paid.

(4) If the jury find from the evidence that Morring was the agent of the plaintiff negotiating the sale, and that he agreed that the commission should be collected only on the amount paid and from time to time as the same was so paid, the jury will not take into consideration the payment of $4,000 under the terms of the contract, unless the said sum of $10,000 was paid on the contract of purchase prior to the institution of this suit.

Assignment 17:

If the jury find from the evidence that the plaintiff was employed by the defendant to sell the tract of land owned by the defendant at an agreed price, then plaintiff must show that plaintiff found a purchaser who was not only financially able to pay the price on the specific terms, but he must also show that the purchaser was prepared to make the cash payment required of him and that he was willing to perform the contract.

Assignment 18:

If the jury find from the evidence that the purchaser secured by the plaintiff to buy the defendant's tract of land tendered to the defendant a check on a bank in the place of the money stipulated to be paid as a partial payment, that the bank refused to pay said check for want of funds, and that the purchaser did not otherwise make said partial payment, then the plaintiff was not entitled to recover, and the verdict should be for the defendant.

Cooper & Cooper, of Huntsville, for appellant.

Lanier & Pride, of Huntsville, for appellee.

McCLELLAN J.

Action by real estate agent or broker (appellee) to recover of the owner (vendor) commissions for services in reference to the sale of land. To state his case the plaintiff employed the common counts and two counts (5 and 6) declaring on a special contract. Since the plaintiff's recovery, if he was so entitled, may be referred to the common counts, either because he had fully performed the contract or on a quantum meruit, the action of the court in overruling the defendant's demurrers to counts 5 and 6 was in any event without prejudice to defendant. Kellar v. Jones, 196 Ala. 417, 420, 72 So. 89; Barnes v. Marshall, 193 Ala. 94, 69 So. 436. The theory of liability upon which plaintiff relied was that the defendant, owner, engaged the plaintiff to present a purchaser for a certain tract of land at the gross price of $35,000, "less 5 per cent commission" to the plaintiff; $10,000 to be paid in cash, and the terms with respect to the balance either to be ordered to suit the defendant or to be divided into annually maturing installments. The plaintiff, by his own and his agent's (Morring's) activity, interested one Wood in the purchase of the land; Wood being willing to buy at the gross price, "to be paid," to quote the paper signed by Wood of date December 19, 1917, "as follows: $10,000.00 cash, a note for $2,000.00 due January 1, 1918; *** four notes of $5,750.00 *** each, to be dated January 1, 1918, and due respectively one, two, three and four years with interest payable annually" he paying to plaintiff and Morring $100 in cash, "as earnest money." The plaintiff and Morring having presented Wood to defendant as a purchaser, defendant subsequently made and effected a sale of the land to Wood upon terms different in some respects from those phases of the evidence tended to show were originally contemplated when plaintiff and defendant first engaged. The defendant asserted that he annulled plaintiff's authority to sell when it appeared that Wood was not able to meet the conditions upon...