First Southern Federal Sav. and Loan Ass'n of Mobile v. Nicrosi

Decision Date28 May 1976
Citation333 So.2d 780
CourtAlabama Supreme Court

Robert B. Stewart, Joel F. Dubina, Montgomery, for appellants.

T. W. Thagard, Jr., and Charles S. Coody, Montgomery, for appellee.

MERRILL, Justice.

The plaintiff-appellee, William K. Nicrosi, filed suit against the appellant, First Southern Federal Savings and Loan Association, a Corporation (hereinafter 'First Southern'). His claim consisted of one count--a demand of $48,500.00 for services he rendered to First Southern. Judgment was entered in favor of Nicrosi in the amount of $32,095.00. First Southern appeals. We affirm.

Nicrosi is a licensed real estate broker whose assistance was enlisted by General Deichelmann, Vice-President of First Southern. Nicrosi was to attempt to secure a new location for First Southern. On August 1, 1974, Nicrosi received a letter from Deichelmann authorizing him to help First Southern negotiate the purchase of the Greystone Hotel building, which was no longer used as a hotel. Prior to this, the record reveals that Nicrosi had negotiated with several companies on renovation estimates and had arranged for the property to be appraised; he had also made preliminary inquiries into the availability of several other suitable pieces of property. (The appraised value of the Greystone was between $485,000.00 and $545,000.00.)

Nicrosi had no written contract with First Southern or Deichelmann, but there is no question that he was employed by First Southern to help find adequate quarters. He contacted John Neill, President of Union Bank & Trust Co. (hereinafter 'Union Bank'), which owned the Greystone, to see if it was available for sale.

Subsequent to Nicrosi's visit to Neill, First Southern authorized Nicrosi to offer Union Bank $485,000.00 for the Greystone, on a cash basis. After deliberation, the Board of Directors of Union Bank authorized Neill to sell at a price of $503,055.12, ranging down to a floor of $485,000.00. Neill notified Nicrosi that the Bank would not accept an initial offer of $485,000.00, but would accept $503,500.00. (The bank was carrying the Greystone on its books for roughly that amount.)

Nicrosi asked Neill for two letters, one offering the building at a gross price of $530,000.00 and that Union Bank would pay Nicrosi's commission; the other stated that the Bank would pay a commission of $26,500.00. Nicrosi gave Deichelmann a copy of the first letter. First Southern refused to pay more than $485,000.00, and a cash sale was finally made at that price. Subsequently, Nicrosi billed First Southern for $29,100.00 as charges for his services.

In later negotiations between First Southern and Nicrosi regarding the latter's compensation, Nicrosi was offered $2,500.00 to $10,000.00 by First Southern. After refusing to accept offers made by First Southern, Nicrosi filed this suit demanding $48,500.00 as the reasonable value of his services. The court found for Nicrosi in the sum of $32,095.00. A motion for a new trial was overruled.

First Southern proffers two issues on appeal. First, it contends that the lower court entered judgment against the great weight and preponderance of the evidence. Second, it contends that the lower court erred in finding that during the course of Nicrosi's employment by First Southern that he had acted in good faith toward his employer.

In W. T. Ratliff Co. v. Purvis, 292 Ala. 171, 291 So.2d 289, certain principles are stated which are applicable here:

A verdict is presumed to be correct.

The refusal of the trial court to grant a new trial because of the insufficiency of the evidence strengthens the presumption that the verdict is correct.

Where, on appeal, the sufficiency of the evidence to support the verdict is at issue, only those tendencies of the evidence most favorable to the verdict are reviewed; and such references as the jury (or here, the court) was free to draw are indulged.

A motion for a new trial is properly overruled where there is credible evidence which justified the verdict.

A verdict will not be set aside because it is contrary to the mere preponderance of the evidence.

Here, the finding of the court was supported by credible and substantial evidence. Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' Ex parte Morris, 263 Ala. 664, 83 So.2d 717 (1955); Turner v. Ribicoff, 224 F.Supp. 284 (1963).

Some of the substantial evidence is listed. In the fall of 1973, First Southern hired Nicrosi, a licensed real estate broker, to secure 'larger corporate quarters in Montgomery.' He investigated numerous locations and First Southern preferred the Greystone Hotel building. Nicrosi investigated the accessibility and visibility of the Greystone, obtained renovation information from an architectual firm, obtained information for a modernizing feasibility-study from Otis Elevator Co., Triangle Electric Co. and Capital Refrigeration Co., investigated the availability of parking, and secured an appraisal from a qualified real estate broker, who appraised the property at $485,000.00 to $545,000.00. At the conclusion of his investigation, Nicrosi was authorized in writing 'as our representative, to negotiate the purchase of the former Greystone Hotel Building, from the Union Bank & Trust Company. * * * Please keep the names of Security Federal and First Federal Savings and Loan Association of Mobile confidential until a reasonably firm agreement is reached, if possible.' Also, the sales agreement, dated August 22, 1974, provided in § 10:

'Both parties agree that this sale was brought about by William Nicrosi, acting for the Purchaser. The Purchaser shall pay any compensation due him.'

This sales agreement was signed after the conclusion of all negotiations between the parties. Each party recognized that Nicrosi was the party who 'brought about the sale.' The purchase price was the very least which Union Bank would accept and was the floor price which had been quoted to Nicrosi.

Both parties to this sale agreed that the 'Purchaser shall pay any compensation due him.' We stress again that this sales agreement was not executed at the beginning or the middle of the negotiations but at the end, shortly before the exchange of the purchase money and the deed.

The dispute arose between First Southern and Nicrosi as to amount of the compensation to be paid to Nicrosi. The dispute was settled by the trial court after hearing all the testimony and the arguments of the parties.

The argument that Nicrosi did not spend many days and hours on the project, and thus was not entitled to as large a fee as was awarded, is not persuasive. It is common knowledge that compensation to realtors in deals similar to this are based upon a percentage of the sales or purchase price. This practice is not limited to real estate transactions, but is prevalent in other trades and professions.

When the evidence is heard orally before the trial court, the finding of the court has the effect of a jury's verdict and will not be disturbed on appeal unless plainly erroneous or manifestly unjust. And we must affirm the trial court's decree if fairly supported by credible evidence under any reasonable aspect, regardless of what might be our view of the evidence. Daugherty v. Gulf Shores Motel, Inc., 292 Ala. 252, 292 So.2d 454; Dunlavy v. Dunlavy, 283 Ala. 303, 216 So.2d 281.

These same legal principles apply to the trial court's finding that 'During the course of said employment, the Plaintiff (Nicrosi) acted at all times in good faith in his dealings with said Defendant.'


HEFLIN, C.J., and BLOODWORTH and EMBRY, JJ., concur. 1

MADDOX, FAULKNER and SHORES, JJ., recuse themselves.

JONES, J., dissents.

ALMON, J., not sitting.

JONES, Justice (dissenting):

This is a suit by a real estate agent...

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