Handley v. Shaffer

• Decision Date: 30 May 1912
• Citation: 177 Ala. 636,59 So. 286
• Parties: HANDLEY ET AL. v. SHAFFER.
• Court: Alabama Supreme Court

59 So. 286

177 Ala. 636

HANDLEY ET AL. v. SHAFFER.

Supreme Court of Alabama

May 30, 1912

Appeal from Circuit Court, Randolph County; S. L. Brewer, Judge.

Action by G. R. Shaffer against W. A. Handley and others for broker's commissions. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

The court directs the following statement: Plaintiff sues for commissions due to him as an agent or broker by reason of the sale of 24,000 acres of land. The original complaint contained two counts, the first for work and labor done, and the second setting up a special contract by which it is alleged defendants agreed to pay plaintiff 25 cents per acre to negotiate for them a sale of 24,000 acres of land, which plaintiff carried out by procuring a purchaser who was able ready, and willing to buy on defendants' terms, and who did actually buy. Counts A and B were added by way of amendment, after demurrer had been sustained to count 2, and demurrer was overruled to counts A and B. In these counts it is alleged that defendants employed plaintiff to procure a purchaser for a tract of about 24,000 acres of land, and agreed to pay him 25 cents an acre for this service; count A alleging that he did procure a purchaser for said tract of land who was ready, able, and willing to buy the same on terms agreed to by the defendant, and said purchaser was accepted, and said lands were bought by and sold to him on said terms and conditions, but that defendants, after said sale, wholly failed and refused to pay plaintiff the amount of commissions that is due him. Count B alleges simply that he did obtain such purchaser, who subsequently did purchase said property, wherefore defendants now owe to the plaintiff the sum of $6,000, with interest thereon, for which he sues.

The plea of the general issue and 14 special pleas were filed and demurrers were sustained to these special pleas, from 2 to 10 and 11, 13, and 14, and the cause went to the jury on special pleas 12 and 15. Errors were assigned as to the following pleas, to which demurrers were sustained:

(7) "Defendants say that plaintiff is estopped to claim any fee or commission for and on account of his services in connection with the matter averred, for the reason that plaintiff, without disclosing to the defendants the fact that he had obtained or procured the purchaser referred to in said complaint, knowingly allowed said purchaser to negotiate direct with the defendants in the effort to purchase said lands at the lowest figure that could be obtained, and said purchaser did obtain said lands at a price lower than any figure which had been quoted to plaintiff by defendants, or either of them, as the price which the defendants were ready to accept for said lands. Wherefore defendants say that it would be unconscionable to allow plaintiff to recover any commission whatever."

(10) "Defendant says that plaintiff ought not to have and maintain this action, for the reason that, without disclosing fully the circumstances to the defendants, the said plaintiff in person, or through his agent, represented the purchaser in and about the sale alleged. Wherefore these defendants say that they should not be compelled to pay him any commission whatever, as their agent or representative."

(11) "Defendants say that, notwithstanding the alleged employment of plaintiff, if that be the fact, he knowingly allowed the alleged purchaser to deal direct with the defendants for said land, and that in dealing with said purchaser direct defendants had no knowledge or notice of the fact that plaintiff had brought said purchaser into the transaction, and therefore paid or caused to be paid to said purchaser a commission for bringing about the sale referred to; and that plaintiff withheld any information to the defendants of the fact, if it be a fact, that he had procured or had any connection with said purchaser, and thereby caused defendants to close with said purchaser on terms not admitting of further commission. Wherefore defendants aver that plaintiff is estopped to claim any commission, and defendants aver that they had no notice of plaintiff's connection therewith."

(13) "Defendants refer to and readopt each and every averment of defendants' plea designated 7, and add thereto the following words of averment: For these defendants aver further, that plaintiff knew, at the time he allowed said purchaser to deal direct, that purchaser was to approach defendants as an independent or original buyer, and not as a purchaser procured by plaintiff, and defendants aver that they were to their injury thereby induced to close a trade with such purchaser at their lowest net price, which excluded the payment of any further commission."

(14) "Defendants say that plaintiff ought not to have and maintain his said action, for the reason that, while assuming to act as the employé of these defendants, he withheld from defendants material facts known to him which it was his duty to disclose, and which were reasonably calculated to and did cause defendants to sell said land at a less advantageous figure than they would have sold same, had said plaintiff advised them of the said material facts within his knowledge."

The following are special pleas 12 and 15, that went to the jury:

(12) "Defendants aver that, after receiving notice that the alleged purchaser intended to go direct to defendants for the purpose of acquiring said lands at the lowest possible price and independently of plaintiff, he nevertheless withheld all information from the defendants to the effect that he (plaintiff) had brought said purchaser into the transaction and defendants aver that said purchaser, who had been approached by defendants long prior to the time that plaintiff had any relation with said purchaser, thereupon came direct to the defendants for the purchase of said lands, and negotiated and secured binding agreements therefor, and a commission upon said sale, without any notice to defendants of any connection of plaintiff therewith, and independently of plaintiff; and defendants aver that they were by this means induced to deal with said purchaser as a party whose purchase of said lands would entail the payment of no commission to plaintiff, and in pursuance thereof defendants aver that they sold said lands to said purchaser at their lowest net price. Wherefore they aver that plaintiff, by standing by and allowing defendants to be dealt with in that manner by said purchaser, is estopped to claim any commission."

(15) "Defendants say that plaintiff ought not to have and maintain his said action, for that, after bringing said purchaser's attention to said land, he was notified by said purchaser that he intended to approach defendants directly and independently of plaintiff, and that plaintiff thereupon, in person or by his agent, to the knowledge of plaintiff, confederated or conspired, or acquiesced, without notice to the defendant, in a confederation or agreement, between his agent and the purchaser to induce or compel defendants to sell said land at a less advantageous price than they would have required, had plaintiff not failed to disclose the facts to defendants as he did."

The following charges were given at plaintiff's instance:

(1) "To be the procuring cause of the sale, it was not necessary that plaintiff should himself have conducted all the negotiations culminating in the sale of the property. It was enough if he set in motion the machinery by which the work was done."

(3) "The broker, it is often said, must be the procuring cause of the sale; but it is not held that he must be personally present when the vendor and vendee meet, and introduce them in the familiar sense of the word. It is enough if he be the cause of their coming together in the relation of vendor and vendee. They may meet by chance, and finally effect a sale; but if the broker be the means of putting the vendee's mind into the mood of purchasing, he certainly in that case procured the purchase."

(4) "Brokers are persons whose business it is to bring buyer and seller together. They need have nothing to do with the negotiation of the bargain. A broker becomes entitled to his commission whenever he procures for his principal a party with whom he is satisfied and who actually contracts for the purchase of the property at a price acceptable to the owner."

(7) "It is a well-established rule in this as well as in other states that, when a broker is employed to sell real estate, it is not necessary that the whole contract should be completed alone by him in order to entitle him to his commission, but that if, through his instrumentality, the purchaser and the owner are brought into contact, and a sale is made through the instrumentality of the agent, he is entitled to his compensation; and this without reference to whether the owner, at the time the sale was perfected, had knowledge of the fact that he was making the sale through such instrumentality."

(8) "If the agent be authorized to make the sale and a purchase secured by him, it is of no consequence that the owner did not know the fact and made the sale himself."

(9) "It is not material that the owner did not at the time know that the purchaser was plaintiff's customer. It is sufficient that the purchaser is in fact such a customer."

The following charges, among others, were refused to the defendant:

(31) "I charge you that a joint employment is averred in this complaint, and that if you believe plaintiff was employed by only one of the defendants, if by either, your verdict must be for the defendants."

(34) "I charge you that there is a direct conflict in the evidence in this case as to whether or not plaintiff was employed by the defendants, or either of them, as alleged in his complaint, and...