Grand Bay Land Co. v. Simpson

• Decision Date: 16 December 1920
• Docket Number: 1 Div. 157
• Citation: 87 So. 186,205 Ala. 347
• Parties: GRAND BAY LAND CO. v. SIMPSON.
• Court: Alabama Supreme Court

87 So. 186

205 Ala. 347

GRAND BAY LAND CO. v. SIMPSON.

1 Div. 157

Supreme Court of Alabama

December 16, 1920

Rehearing Denied Feb. 12, 1921

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Bill by J.M. Simpson against the Grand Bay Land Company. Judgment for complainant, and respondent appeals. Affirmed in part, and in part reversed and remanded.

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

Smiths Young & Leigh, of Mobile, for appellee.

THOMAS J.

The bill was for discovery and accounting for commissions alleged to be due appellee under a contract of employment by appellant, and for such other and further relief in the premises as complainant may be entitled to.

The contract of employment averred in the bill is of date September 12, 1913, and stipulated:

"In accepting employment as a real estate broker for the Grand Bay Land Company, for the sale of its lands in the territory known as the 'Mobile Department,' upon the terms to be fixed by the company, I agree to the following (1) That I will vigorously push the sales upon the terms and conditions to be fixed by the company and to use the company's forms and contracts and none other. (2) That all applications to purchase lands and payments on said applications shall be forwarded to the office of the Grand Bay Land Company on the day received by me for approval by said company. (3) That I will pay all expenses of every kind incurred by me and will not contract any obligation in the name of the Grand Bay Land Company without first obtaining the written authority of said company. (4) That I will not be entitled to any compensation or commission on any sales or applications consummated by me if the lands so sold or applied for have been sold by said company or any of its brokers prior to the receipt of my report of sale or application. (5) I agree to accept in full payment of my commission and compensation the sum of twenty per cent. (20%) on all sales made by me and accepted by said company to be paid as follows: Fifty per cent. (50%) of cash paid on such sales until the twenty per cent. (20%) is covered. (6) Should I be negligent, dilatory, or unsatisfactory in my services the Grand Bay Land Company shall have the right to immediately terminate this contract." The bill further averred:

That under said contract complainant sold for respondent two classes of land, viz. improved lands, planted with Satsuma orange trees, called orchards, and unimproved lands, spoken of as "lands"; that "*** said sales were all made in part upon credit, and payments upon the purchase money have been made from time to time, but complainant does not know, and has no means of ascertaining, except by discovery from the defendant, what payments have been made upon the purchase price of said property, and therefore does not know what sums are now due and payable to complainant under said contract;" that, "in addition to selling lands for the defendant under said contract, complainant was in the employment of the defendant and kept its books, and entered all sales of orchards and lands made for it, and all collections of purchase money therefor, upon the books of the defendant, and kept no other accounts thereof. Complainant left the employment of the defendant in February, 1915, and has not had access to the books of the defendant since that time."

It is further averred that an accounting is necessary to ascertain what payments have been made from time to time upon the purchase price of said sales made by the complainant. Julian v. Woolbert, 202 Ala. 530, 532, 81 So. 32.

Respondent's answer contained the admission that--

"*** The complainant *** was employed by the respondent to make sales of two different characters: First, sales of orchards; and, second, sales of undeveloped lands, upon commission. Under the agreement between the complainant and the respondent, the complainant was to receive as his commission 20 per cent. upon all sales made by him, payable only out of the moneys collected from the purchaser in the following manner, that is to say: That upon all orchards he sold the complainant was to receive 50 per cent. of the first $500 collected, and 10 per cent. upon the balance until his total commission of 20 per cent. upon the total had been paid, while his commission upon the sale of undeveloped lands was to be paid at a rate of 50 per cent. on all cash received from the sale until his commission of 20 per cent. upon the total had been paid in full. The complainant and the respondent had been doing business under this verbal agreement for a considerable period when the complainant presented to the respondent the written contract set forth in the original bill of complaint, and the president of the company, seeing that said written contract referred only to the sale of undeveloped lands, and realizing, as is alleged in the original bill of complaint, that this word 'lands' had been used and understood between the complainant and respondent to refer only to undeveloped lands as distinguished from orchards, signed the contract, and this respondent is ready to perform it in accordance with its true intent and meaning, but the respondent insists that this contract has no application whatever to the sale of orchards, and the commission of the complainant must be paid upon the sale of orchards in accordance with the original agreement under which the sales were made, and this respondent shows to the court that, owing to the fact that all purchasers do not pay up in full, the difference in the two methods of calculation make a considerable difference in the amount of the commissions that will become due to the complainant."

The answer avers that the amounts of the commissions to which the complainant has become entitled and the amounts received by him are both incorrectly stated in the original bill of complaint, as was sought to be made to appear from the facts set forth.

While the answer of the Grand Bay Land Company contains no specific reference to the sale of "listed lands" by complainant or his subagent, or of credits sought for commissions received thereon by complainant or his subagent, the relationship of the parties as principal and agent and the existence of mutual accounts are fully averred. The terms of Clark's employment by Simpson stipulated for commissions on "all sales of the company's lands" and "for 50 per cent. commission on all sales of listed property." There was evidence to the effect that sales of "listed lands" with the company were made by complainant or his subagent, and that commissions were obtained by Simpson or Clark therefrom. It cannot be successfully insisted that the terms of Simpson's contract as sales manager were broad enough to permit him or Clark, as his subagent, to compete with his principal in the sale of that company's listed lands. On all such sales he and his subagent must be treated (in a court of equity) as acting for the Grand Bay Land Company, and that commissions earned or received on sales of listed lands be treated as the property of the company, and should have been credited by complainant (respondent's only bookkeeper) on the books of the company as an asset. Halstead v. Rabb, 8 Port. 63; Hall v. McKeller, 155 Ala. 508, 46 So. 460; County of Dallas v. Timberlake, 54 Ala. 403; Phillipps v. Birmingham Industrial Co., 161 Ala. 509, 50 So. 77, 135 Am.St.Rep. 156.

The mere filing of a bill for accounting implies that there were items on both sides, that the balance is uncertain, and that the true amount and to whom due must be ascertained by the court. It further implies an offer on complainant's part to pay any balance that might be found owing to the defendant without a specific averment of an offer to that effect. This is necessary to enable the court to do complete justice between the parties. Both parties are regarded as actors by the act of filing the bill, the register must state the full account between them, and the court must pass upon it, declaring their respective rights by a final decree; that is to say, of the instant bill, the complainant seeks an accounting against the defendant, but does not offer to pay any balance that may develop in favor of the latter when a full accounting is had; nor does the respondent present a cross-bill praying to be allowed such a balance. He does not even ask credit for any allowance in his favor other than that set up in his answer in deduction of the complainant's claim. He does however, pray that "this cross-complainant may have such other and further relief as it may be entitled to receive the premises considered, as in duty bound it will ever pray."

The question is: First, may the respondent be allowed his credits without a cross-bill? And, if we decide in the affirmative, may a balance in his favor be decreed without a cross-bill, if his credits exceed the claims of the plaintiff? In Alston v. Alston, 34 Ala. 15, it was held that a cross-bill is not necessary for a guardian to obtain credits on an accounting in so far as they operate as discharges in his favor, and the principle was already recognized in Goodwin v. McGehee, 15 Ala. 232, 248, and Nelson v. Dunn, 15 Ala. 501, 515. See Taunton v. McInnish, 46 Ala. 619; Cotton v. Scott. 97 Ala. 447, 449, 12 So. 65. So there can be no question that the defendant may be allowed his credits up to the amount of the plaintiff's claim.

But how about any balance in his favor? By the later English practice, which is supposed to govern us in the absence of law or statute in Alabama to the contrary, a bill for accounting was treated differently from ordinary bills for relief, and if the defendant was found on the accounting to be the one entitled to the balance, it was customary to decree it in his favor on his...