Green v. Southern States Lumber Co.

• Decision Date: 30 November 1904
• Citation: 37 So. 670,141 Ala. 680
• Parties: GREEN v. SOUTHERN STATES LUMBER CO.
• Court: Alabama Supreme Court

37 So. 670

141 Ala. 680

GREEN v. SOUTHERN STATES LUMBER CO.

Supreme Court of Alabama

November 30, 1904

Appeal from Circuit Court, Baldwin County; Wm. S. Anderson, Judge.

Action by John M. Green against the Southern States Lumber Company. From a judgment granting a new trial, plaintiff appeals. Affirmed.

The purpose of the suit and the facts introduced in evidence are sufficiently shown in the opinion. Among the charges given by the court at the request of the plaintiff, to the giving of which the defendant separately excepted, was the following "(14) The court charges the jury that, if you believe from the evidence that the defendant employed plaintiff as a broker to find a purchaser for lands claimed by the defendant, at a price which should be satisfactory to the defendant, and the purchaser when they met, defendant cannot defeat this action for commissions defendant agreed to pay plaintiff, by proof that plaintiff was also to be paid for his services by the purchasers."

L. H. &amp E. W. Faith, for appellant.

Blount & Blount, for appellee.

HARALSON J.

The defendant withdrew its fourth, fifth and sixth special pleas and the case was tried on pleas 1, 2, 7 and 8 to the first count and general issue to the second count.

In the first count plaintiff claims of the defendant $9,484 due to plaintiff from defendant under an agreement made between them, whereby plaintiff agreed to undertake to obtain for defendant a purchaser or purchasers for lands in Baldwin county, Ala., claimed by defendant as its property, and that defendant agreed that in the event plaintiff obtained a purchaser or purchasers, for any of its lands, it would pay plaintiff for his services a commission of 10 per cent. of the purchase price of said lands.

It is averred that acting under said contract, the plaintiff obtained for the defendant two proposed purchasers, S. B Jones and J. B. Foley, for two large tracts of land in said county, and that on, to wit, the 11th day of February, 1902, plaintiff introduced said purchasers to defendant's vice president, and he and said Jones and Foley entered into said contracts of purchase and sale of said tracts of land, containing in the aggregate, 25,291.10 acres, more or less, and that the said Jones and Foley entered into two written agreements to pay said defendant for said land, at the rate of $3.75 an acre, and defendant agreed in writing to sell said lands to said Jones and Foley at that price, and that, thereupon, plaintiff became entitled to his commissions of 10 per cent. on the purchase price, to wit, $9,484, and plaintiff has demanded payment of the same, which defendant has refused to make, and has denied all liability therefor, whereupon plaintiff sues, etc.

The second count claims a like amount from defendant for work and labor done for defendant by the plaintiff, on the 11th of February, 1902, at defendant's request, etc.

Pleas 1 and 2 to the first count, were the general issue. Pleas 7 and 8 set up the defense, that plaintiff was guilty of fraud, in that he was representing both parties, and that defendant and Jones and Foley, seller and purchasers, were in ignorance of this fact,--plea 7 setting up the double employment and alleging that Jones and Foley were ignorant of this fact, and plea 8 setting up the double agency, and alleging that defendant was ignorant of this fact. Both pleas appear to be substantially the same until reaching the allegation as to the contracting parties being in ignorance of the double employment. The averment is made in each plea, "that before the employment of the plaintiff by the defendant, as alleged in the declaration, the plaintiff had entered into an agreement with the said Jones and Foley, by the terms of which the plaintiff was to negotiate with the defendant for the purchase of lands owned by it in Baldwin county, Alabama, upon the best terms obtainable from defendant," etc.

A verdict was found in favor of the plaintiff for $10,346.21. The defendant made a motion to set aside the verdict and grant a new trial, on many grounds, which motion the court granted. From that ruling the appeal is prosecuted.

1. The court on the conclusion of the evidence, delivered a long and carefully considered oral charge, as to the facts and law of the case, which charge seems to have been accepted as fair and correct. No exceptions appear to have been reserved to any part of it, by either party. Referring to the first count, the court stated, that to entitle himself to a recovery, the plaintiff must prove to the reasonable satisfaction of the jury what is set out in that count,--that the plaintiff agreed to undertake to obtain for the defendant a purchaser or purchasers for the lands mentioned, claimed by defendant as its property, and defendant agreed in the event that plaintiff obtained the purchaser or purchasers for any of the lands, that he was to be paid for his services a commission of...