Gulf Trading Co. v. Radcliff

• Decision Date: 20 October 1927
• Docket Number: 1 Div. 437
• Citation: 216 Ala. 645,114 So. 308
• Parties: GULF TRADING CO. v. RADCLIFF.
• Court: Alabama Supreme Court

114 So. 308

216 Ala. 645

GULF TRADING CO. v. RADCLIFF.

1 Div. 437

Supreme Court of Alabama

October 20, 1927

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action by Robert Herndon Radcliff against the Gulf Trading Company to recover real estate broker's commissions. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Whether revocation of agency ends obligations of principal to agent depends on nature of contract and status growing out of it.

The portion of the oral charge made the basis of assignment 28 is as follows:

"If you are reasonably satisfied that he did have this agreement, by the terms of which he was to receive 5 per cent. commission, and if you further find that this plaintiff did obtain and procure as a purchaser of the land one Mr Dickey, and you further find that the defendant subsequently even though that was after the time limit fixed by the defendant, if the defendant actually sold the property to the man Dickey, and you should find that Mr. Dickey was procured by the plaintiff, and that Mr. Dickey was ready, able, and willing to buy the property, and did buy the property, then the plaintiff should be entitled to recover, if the defendant took advantage of the service rendered by the plaintiff, even though the time for making the sale had expired."

The following charges were given at plaintiff's request:

"(3) The court charges the jury that, if they believe from the evidence that the defendant, acting through Mr Leatherbury, employed the plaintiff, Mr. Radcliff, to procure a purchaser for the property in question known as the Goelet place, and agreed to pay Mr. Radcliff 5 per cent. upon the purchase price for procuring such a purchaser, then the fact that the defendant subsequently gave Mr. Radcliff an option to purchase the property, and limited this option to the 31st day of May, 1925, would not in any manner limit the time within which Mr. Radcliff was entitled to earn his commission by procuring a purchaser.

"(4) The court charges the jury that, if there was a verbal agreement between the defendant represented by Mr. Leatherbury and the plaintiff, Mr. Radcliff, that Mr. Radcliff would procure a purchaser for the defendant, and that he should receive a commission of 5 per cent. for doing so, then this contract was not to any extent modified or affected by the further fact, if it is a fact, that the defendant subsequently gave Mr. Radcliff an option to purchase the property at $40 a front foot, and the expiration of the time limit fixed in such an option would not in any way end Mr. Radcliff's right to earn his commission by procuring a purchaser."

"(5) The court charges the jury that, if they believe the undisputed evidence in this case, then in making up their verdict they will proceed upon the theory that Mr. Radcliff procured Mr. Dickey as a purchaser of said property, and that the defendant sold the property to Mr. Dickey for $66,525."

"(7) The court charges the jury that, when the owner of property, knowing that his broker, whom he has employed to sell the property, has procured a certain purchaser, sells the property at any price that he pleases to accept to the person so procured by the broker, he becomes liable for the commission, even though he has postponed making the sale to the person so procured by the purchaser until after the expiration of the time limit fixed in the contract of employment.

"(8) The court charges the jury that, while it is necessary that a broker, in order to recover his commission, should prove that the person whom he procured was ready, willing, and able to make the purchase, this must be regarded as having been proven, when the evidence shows that the owner of the property sold it to such purchaser, and that the purchaser bought it and paid for it in an amount not less than the price at which the agent had been authorized to make the sale.

"(9) The court charges the jury that the plaintiff in this case was under no obligation whatever to render any bill for his services to the defendant, and the fact that he did not do so constitutes no reason whatsoever why he should not recover in this case, if the evidence shows the contract alleged in the complaint, and that the plaintiff did, in fact, procure a purchaser by the name of Dickey who was ready, willing, and able to purchase the property upon the terms authorized, and to whom the defendant actually sold the property at a higher price.

"(10) The court charges the jury that an owner of property cannot employ another person to find a purchaser for that property upon certain terms for a commission of 5 per cent. and then sell the property to the person so procured by the broker at a higher price, and escape liability for the commission upon the grounds that the time limit within which the broker was to make the sale had expired.

"(11) The court charges the jury that, if Mr. Radcliff was employed by the defendant to procure a purchaser for the property in question at a 5 per cent. commission, and did procure Mr. Dickey, and Mr. Dickey was ready, willing, and able to purchase the property, but the defendant undertook to call the transaction off upon the theory that the time limit had expired, and Mr. Radcliff then procured the assistance of Mr. Boykin and Mr. Prine to induce the defendant to go forward with the transaction and make the sale to the purchaser so procured by Mr. Radcliff and Mr. Boykin, and Mr. Prine, acting for Mr. Radcliff, did see Mr. Leatherbury, and insisted upon his making a sale to the purchaser, Mr. Dickey, whom Mr. Radcliff had obtained, and Mr. Leatherbury did take advantage of the services of Mr. Radcliff in procuring the purchaser, and did sell the land to said purchaser for a price exceeding the price which he had authorized Mr. Radcliff to offer the property for, then the defendant is liable to the plaintiff for 5 per cent. commission upon the amount for which he sold the property to Mr. Dickey."

The following requested charges were refused to defendant:

"(4) The court charges the jury that, unless they are reasonably satisfied that J.L. Dickey was ready, able, and willing to purchase the property in question prior to the receipt by Radcliff of the letter telling him that the property had been withdrawn off the market, or prior to the expiration of his authority to sell, then your verdict should be for the defendant.

"(5) The court charges the jury that, under the evidence in this case, if they believe that the defendant revoked the authority of Radcliff to sell, or that his authority to sell expired prior to the time when Dickey was ready, able, and willing to buy, then you must find for the defendant under count 3 of the plaintiff's amended complaint.

"(6) The court charges the jury that under the evidence in this case the defendant had the right to revoke the agency of Radcliff to sell the Goelet place at any time, and further charges that, if they are not reasonably satisfied that a purchaser ready, able, and willing to buy said property had not been procured by Radcliff prior to the time when his agency was revoked, if you further find that it was revoked, or prior to the expiration of his agency, then your verdict should be for the defendant."

"(9) The court charges the jury that there must have been an actual and expressed agreement on the part of the defendant to pay to the plaintiff a commission of 5 per cent. for the sale of the Goelet place before you can find a verdict for the plaintiff under count 3 of the plaintiff's complaint as amended."

The following is the ninth interrogatory propounded to witness Dickey:

"(9) Please state any other facts that may be within your knowledge showing, or tending to show, that Mr. Robert Herndon Radcliff, representing the Gulf Trading Company, brought the Goelet property to your notice, and procured your consent to purchase the same from the Gulf Trading Company, and put you in communication with that company, and that his services resulted in the sale to you."

The answer is as follows:

"I understood that, after seeing the property with Mr. Robert Herndon Radcliff, he had seen the Gulf Trading Company, and that they were willing to sell the property, and it was my understanding at all times that he was representing the Gulf Trading Company until the sale was closed. His services did result in my purchasing the property from the Gulf Trading Company."

Inge & Bates, of Mobile, for appellant.

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

BOULDIN J.

The suit is to recover alleged commission due a real estate broker.

The complaint contained the common count for work and labor done, and a special amended count No. 3, as follows:

"The plaintiff claims of the defendant $3,326.25 damages for the breach of an agreement entered into on, to wit, the 23d day of May, 1925, as follows, that is to say, that the defendant employed the plaintiff to procure for it a purchaser for certain land, sometimes known as the Wilson property, and sometimes as the Goelet place, and agreed to pay the plaintiff for obtaining such purchaser 5 per cent. of the purchase price,

for which the defendant might sell said property to such purchaser, and the plaintiff avers that, in accordance with said contract, he procured a purchaser for said property, and the defendant soid said property to said purchaser for a large sum of money, to wit, the sum of more than $66,000, the defendant failed and refused to pay to the plaintiff the commissions due to him on said sale."

The matter of special plea No. 5 was covered by the general issue, and evidence was fully presented thereunder. Striking plea 5 on motion of plaintiff, was harmless, and therefore its sufficiency as addressed to the third count need not be...