Green v. Southern States Lumber Co.

• Decision Date: 18 November 1909
• Citation: 163 Ala. 511,50 So. 917
• Parties: GREEN v. SOUTHERN STATES LUMBER CO.
• Court: Alabama Supreme Court

50 So. 917

163 Ala. 511

GREEN v. SOUTHERN STATES LUMBER CO.

Supreme Court of Alabama

November 18, 1909

Appeal from Circuit Court, Baldwin County; Samuel B. Browne, Judge.

Action by John M. Green against the Southern States Lumber Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Gregory L. & H. T. Smith, for appellant.

James H. Webb, and Frank F. Stern, for appellee.

McCLELLAN J.

This case, in general outline, may be found stated in its report on former appeal. Green v. Southern States Lumber Co., 141 Ala. 680, 37 So. 670.

The trial was had on counts 1, 2, and 3, the last added by amendment. The first rests the right to recover compensation--commissions--for services in respect of the sale of lands in Baldwin county, alleging, in extenso, the agreement to pay 10 per cent. commissions, and concluding to the effect, within the agreement, that plaintiff (appellant) obtained Jones and Foley as purchasers of the land. The second is the common count for work and labor done on February 11, 1902. The third declares on the breach of the agreement averred in the first count, and concludes with the allegation that, notwithstanding performance on plaintiff's part, Jones and Foley and defendant (appellee) by mutual consent canceled the contract of purchase.

The defense to all the counts, additional to general traverses of the allegations of each, was, we summarize, that in the transaction counted on plaintiff, without the mutual knowledge and consent of the parties, represented both parties, and hence lost any right to compensation in the premises. This principle was announced on former appeal, and from brief of counsel its abstract soundness is not controverted. But the plaintiff sought to avoid the defense by matter set up in several replications. All of these replications, save 4, 6, 7, and 8, filed October 30, 1907 fell in response to demurrer.

The pleas were well drawn within the principle before stated. The insistence in brief that the seller's knowledge of, and consent to, where he is impleaded by the broker or agent, the inconsistent relation occupied by the broker or agent, avoids the rule, cannot be approved. It is in direct contravention of the principle stated. It is the conduct and relation of the agent, involving trust and confidence not necessarily crystallized into contract with both parties, that precludes him from recovering for his services. He can only avoid its effect to deny him compensation by showing that both parties knew of his relation in the premises and, so knowing consented to his acting in such inconsistent capacities. Bollman v. Loomis, 41 Conn. 581; Rice v Davis, 136 Pa. 439, 20 A. 513, 20 Am. St. Rep. 931; Scribner v. Collar, 40 Mich. 375, 29 Am. Rep. 541; Rice v. Wood, 113 Mass. 133, 18 Am. Rep. 459; Holcomb v. Weaver, 136 Mass. 265; Murray v. Beard, 102 N.Y. 505, 7 N.E. 553; Meyer v. Hanchett, 39 Wis. 419; Strawbridge v. Swan, 43 Neb. 781, 62 N.W. 199.

The second count, there can be no doubting, rests on the transaction of February 11, 1902--that counted on in the first and third counts. The averment in the second count of date of service was material, and the count could not be sustained by the proof of service on any other date; nor could a recovery thereunder be based upon service rendered on any other date. Williams v. McKissack, 125 Ala. 544, 27 So. 922; M. J. & K. C. R. Co. v. Bay Shore Lumber Co., 48 So. 377. It need hardly be added that, to sustain count 2, it was, in practical effect, necessary to sustain counts 1 and 3, wherein the transaction of February was alone declared on. These observations answer the appellant's argument in respect to charges precluding consideration of, or a recovery on, the subsequent dealings in August, 1902, between defendant and Foley.

There is no merit in the two assignments predicated on the questions to the witnesses, plaintiff and...