Henderson v. Vincent

• Decision Date: 16 May 1888
• Citation: 84 Ala. 99,4 So. 180
• Parties: HENDERSON ET AL. v. VINCENT.
• Court: Alabama Supreme Court

4 So. 180

84 Ala. 99

HENDERSON ET AL. v. VINCENT.

Supreme Court of Alabama

May 16, 1888

Appeal from circuit court, Mobile county; W. E. CLARKE, Judge.

I. M Henderson & Co., brought an action to recover commission on effecting a sale of real estate against Benjamin Vincent. Judgment for defendant. Plaintiffs appeal.

McIntosh & Rich, for appellants.

G B. Clarke and F. B. Clarke, Jr., for appellee.

CLOPTON J.

The appellants, who are real-estate brokers, bring the suit to recover commissions claimed to be due on a contract of employment to sell a house and lot in the city of Mobile, of which the defendant was the owner. By the express terms of employment the right to commissions is made dependent on selling the property at a fixed price-$2,500. The plaintiffs having accepted an employment by which their right to commissions was conditioned on effecting a sale at a designated price are not entitled to recover the agreed commissions, except on showing that the stipulated and specified services was performed, unless performance was prevented by the improper and unauthorized interference of the defendant. It is not claimed that the plaintiffs effected a sale. The claim is that they were prevented by a subsequent sale made by defendant, through another broker, at a less sum, to the purchaser procured by their efforts and instrumentality. By the contract of employment no time was specified during which the authority to sell should continue. It was, therefore, subject to revocation at any time before a sale was made or a purchaser procured who was ready and willing to comply with the authorized terms. Chambers v. Seay, 73 Ala. 372. Ordinarily, notice of revocation should have been given to the plaintiffs before the defendant dispensed with their services by disposing of the property to the same person with whom they had been previously negotiating. Under the contract, the plaintiffs were entitled, in the absence of a revocation, to a reasonable time to find a purchaser; but on failure to do so, after reasonable opportunity, the defendant was at liberty to sell the property at less than the fixed price without liability to the plaintiffs for commissions. The defendant could employ other brokers to sell the house and lot, being liable for commissions only to the broker who made the sale, or, he could have sold it himself, without liability to either broker. This rule is subject to the qualification that the broker by whose efforts and instrumentality the particular purchaser is procured is entitled to compensation, though he may not be present when the sale is actually consummated. A broker who is the efficient agent in producing the sale is entitled to commissions. Sussdorff v. Schmidt, 55 N.Y. 319; Satterthwaite v. Vreeland, 3 Hun, 152; 3 Wait, Act. & Def. 282. These general rules are dependent on the agent's exercise of good faith in dealing with his principal.

The undisputed facts are that Hibart, who became subsequently the purchaser, called at the office of plaintiffs, looking for property, and desirous of...