Hughes v. Daniel

• Decision Date: 14 May 1914
• Docket Number: 646
• Citation: 65 So. 518,187 Ala. 41
• Parties: HUGHES v. DANIEL.
• Court: Alabama Supreme Court

65 So. 518

187 Ala. 41

HUGHES v. DANIEL.

No. 646

Supreme Court of Alabama

May 14, 1914

Rehearing Denied June 4, 1914

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by William H. Daniel against R.J. Hughes. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

F.D Nabers and Arthur L. Brown, both of Birmingham, for appellant.

Harsh Beddow & Fitts, of Birmingham, for appellee.

SAYRE J.

In this case plaintiff (appellee) brought suit against defendant (appellant) to recover commissions alleged to have been earned in and about the sale of a tract of land owned by defendant in the neighborhood of the city of Birmingham. After due examination of the evidence, we are clear of the conclusion that plaintiff was not entitled to recover on any aspect of the case, and that, defendant having omitted a request for the general charge in proper form, the verdict should have been set aside on defendant's motion for a new trial. We will not undertake to state the evidence in detail, but only our conclusion concerning various phases of the evidence and the reasons for our judgment upon the whole case. It will thus appear, we think, that the court below committed error at several points in the progress of the trial and as well in its ruling upon the motion for a new trial.

On February 14, 1910, defendant and his wife, upon the nominal consideration of $1, executed a paper writing by which they granted, bargained, and sold to plaintiff the option or right to purchase defendant's land at the price of $500 an acre, "less 5 per cent. commission." This option was limited to be exercised before May 14th, next ensuing. These were the terms of the grant, except that defendant and his wife agreed that, in the event of a purchase within the time limited, they would execute a warranty deed conveying to plaintiff or his assignees a full, good and sufficient legal title. The complaint counted upon a breach of this undertaking, but there was in the evidence no pretense that plaintiff had offered to purchase, or had procured an offer of purchase by any one else, prior to the date fixed for the expiration of the option, and so it appeared without question that plaintiff was not entitled to recover under that count which alleged a breach of this contract.

But plaintiff continued his effort to find a purchaser, that, it seems, being all he ever expected to do, and succeeded on June 14, 1910, in bringing defendant and one J.H. Taylor into communication with each other under circumstances and with result to be stated. The complaint contained a count upon the quantum meruit for the value of work and labor done by plaintiff for defendant from February 14, 1910, to June 14 1910, and it may be inferred, as affording, perhaps, an explanation of the result, as plausible as any other, that plaintiff was allowed to recover under this count and upon the theory that defendant, by signing an agreement on the last-named date for the sale of the property to Taylor, accepted the benefit of plaintiff's efforts and bound himself on that account to pay a commission of 5 per centum to plaintiff. Plaintiff was not entitled to recover on this theory of the case.

Any interest plaintiff may have acquired in the land by the instrument of the 14th of February was determined absolutely by his failure to purchase or to find a purchaser within the time therein stipulated. Thereafter defendant was entirely free to deal with the property in his own way and without reference to plaintiff. There was no express agreement for the further continuation of plaintiff's efforts; and if it be conceded that thereafter plaintiff did continue his efforts to find a purchaser with the knowledge and consent of the defendant, and with the common understanding that the stipulations of the original instrument should govern the terms of any sale that might follow and plaintiff's compensation, which is doubtful, still the implication is that plaintiff was bound to furnish a purchaser who was able, ready, and willing to pay in spot cash the price defendant has set upon his land, if defendant so demanded, or upon such other terms as might be settled by agreement between defendant and the purchaser to be furnished; and so it was that, on the concession above stated, plaintiff's right to a commission depended upon a finding that defendant and Taylor did in fact agree upon terms on the 14th of June. Alexander v. Smith, 61 So. 68.

They did not agree. The testimony shows without dispute that on the date in question Taylor, a man of business in the city prepared the draft of an agreement stating the terms upon which he was willing to buy. This paper provided that Taylor should pay $500 as earnest money, and that at the end of 60 days he was to make a first payment of one-fourth of the proposed purchase price, or forfeit the $500, provided defendant was able in the meantime to get a judicial decree clearing his title of a cloud that rested upon it; otherwise defendant was to return the earnest money. By its terms a commission of 5 per centum was to be divided among defendant and two other named persons. This paper writing, along with a check for $500, Taylor gave to plaintiff in order that he might take it to defendant, who lived in the country, and get his agreement and signature. Plaintiff had no other authority. Plaintiff procured the signatures of defendant and his wife to this paper and delivered the check, but not until he had changed the stipulations so as to make the entire commission of 5 per centum payable to himself, excluding the other two persons named in Taylor's draft of the contract. On the next day this paper was put into the possession of Nabers, defendant's attorney, who scratched and interlined it at numerous points; the most important change, probably, being to require a first payment of one-third of the purchase price instead of one-fourth, as Taylor had written it. In this shape it was submitted to Taylor, who refused to accept it. Thereupon defendant returned the check to Taylor and drew lines of cancellation through the signatures of himself and wife. The parties are not in accord as to all the facts of the transaction of the day before between plaintiff and defendant. Plaintiff testified and contends that there was an unconditional delivery to him for Taylor. Defendant offered the evidence going to show that he delivered the paper to plaintiff with the express understanding that it should not be delivered to...