Ingram Realty Co. v. Brown

• Decision Date: 16 November 1922
• Docket Number: 7 Div. 260.
• Citation: 94 So. 520,208 Ala. 455
• Parties: INGRAM REALTY CO. v. BROWN.
• Court: Alabama Supreme Court

94 So. 520

208 Ala. 455

INGRAM REALTY CO. v. BROWN.

7 Div. 260.

Supreme Court of Alabama

November 16, 1922

Appeal from Circuit Court, Calhoun County; S.W. Tate, Judge.

Action by the Ingram Realty Company against Katie L. Brown. From a judgment for defendant, plaintiff appeals. Affirmed.

Lapsley & Carr, of Anniston, for appellant.

Knox Acker, Sterne & Liles, of Anniston, for appellee.

SOMERVILLE J.

The contract upon which plaintiff seeks to recover is not one merely for the production to defendant of a purchaser for her property on stipulated terms, as to which plaintiff's undertaking was fully discharged when the purchaser signed the executory agreement here exhibited.

On the contrary, defendant's obligation was to pay an agreed sum to plaintiff for "negotiating this deal," and it was a part of, and manifestly dependent upon, the terms of the executory agreement between the parties in chief for the exchange of their respective properties.

Conceding that if, without just cause, defendant had refused to carry out the executory agreement, she would have been liable for plaintiff's commission, yet it is entirely clear that she cannot be placed in such default unless it is made to appear that Steele, the other party in chief to the contract, had performed his obligations in the premises, and was able ready, and willing to complete the transaction according to its terms.

There is nothing in the evidence that in any way tends to show that Steele ever executed and deposited with the designated depositary a warranty deed to his property, to be held in trust, and contingently delivered to defendant, as he was required to do within 10 days from the date of the executory agreement.

Again it appears without dispute that Steele made objections to defendant's title, which, so far as appears, may have been utterly unfounded and capricious, and which do not appear to have ever been satisfied or withdrawn. The evidence therefore fails to show an essential element of plaintiff's case, viz. Steele's willingness to accept defendant's title; it not appearing that defendant was in fault with respect thereto.

In view of the considerations above stated, it cannot be affirmed that defendant was bound to execute the agreement on her part, since the default of one party to a contract is not available as a basis for legal liability unless the other party was ready and able to perform, and was not in material...