Jackson v. Berry-Snellings Realty Co.

• Decision Date: 24 April 1924
• Docket Number: 2 Div. 823.
• Citation: 211 Ala. 174,100 So. 111
• Parties: JACKSON v. BERRY-SNELLINGS REALTY CO.
• Court: Alabama Supreme Court

100 So. 111

211 Ala. 174

JACKSON v. BERRY-SNELLINGS REALTY CO.

2 Div. 823.

Supreme Court of Alabama

April 24, 1924

Appeal from Circuit Court, Marengo County; John McKinley, Judge.

Action in assumpsit by Florence P. Jackson against the Berry-Snellings Realty Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

I. I Canterbury, of Linden, for appellant.

Wm Cuninghame, of Linden, for appellee.

GARDNER J.

Suit by appellant against appellee on the common count for money had and received. Upon conclusion of the evidence, the court, at the request of the defendant, instructed a verdict in its favor, and from the judgment following the plaintiff has prosecuted this appeal.

In the year 1918 plaintiff owned some farm lands situated about a mile from the city of Demopolis, Ala., known as the Clover Hill plantation, but the plaintiff was residing in Kentucky. E. R. Berry was president of the Berry-Snellings Realty Company, a corporation engaged in the real estate business in the city of Demopolis, buying and selling real estate on commissions. Berry was a personal friend of plaintiff and her husband, F. H. Jackson. The evidence is without dispute that the plaintiff listed her plantation for sale with the Berry-Snellings Realty Company; all correspondence, however being carried on between E. R. Berry, the president of the corporation, and F. H. Jackson, the husband of the plaintiff.

The realty company advertised the place for sale, concluding the advertisement, "owner in failing health, and must sell." One Cooper was the secretary of the realty company in the year 1918. He was well acquainted with the lands and with the Jacksons. He testified that these lands were listed with the realty company for sale during that year, and that they were sold by the company for Mrs. Jackson to Mr. Sparks for $40 per acre, and that to the best of his knowledge the company was acting as the agent of Mrs. Jackson in the sale. When the land was listed by the plaintiff for sale by the company the price authorized was $7,500, which, with the usual commission of 5 per cent. deducted, would have netted the plaintiff $7,125. The realty company reported the sale to the plaintiff at $32.50 per acre, and settled with the plaintiff on that basis, and refused to account for the difference between the $32.50 and the $40 per acre, for which the land was sold to Sparks. Were this the whole story the case would be free from difficulty.

It appears, however, that on January 5, 1918, the plaintiff entered into a written contract leasing this land for one year to the defendant, and in said lease gave to the defendant an option to purchase the property at the price of $7,125, provided the purchase price be tendered not later than January 1, 1919; and on October 22, 1918, the plaintiff executed a deed to the defendant company conveying the plantation for a consideration of $6,611.15; and on October 26, 1918, defendant conveyed the property by warranty deed to Sparks for a recited consideration of $8,136.80. The defendant therefore insists that it purchased the property from the plaintiff under the exercise of its option, and sold it to Sparks for and on its own account, and that profit realized therefrom was its own profit, with which the plaintiff has no concern. Counsel for appellee further argues upon the assumption that the evidence as to the relation of principal and agent, and that these lands were listed with the defendant for sale by the plaintiff, is without material effect, in view of the written option and the deed executed by the plaintiff direct to the defendant.

We are not in accord, however, with this view. This is an action for money had and received, in its nature an equitable action maintainable whenever one person has money which in equity and good conscience belongs to another. In such a form of action, as said by this court in Farmers' Bank & Trust Co. v. Shut & Keihn, 192 Ala. 53, 68 So. 363:

"Equitable principles are given influence and effect, no mere legal niceties should be permitted to defeat ends of common justice and fair play and prevent a recovery."

The court is not so much concerned in this particular action as to where rested for the moment the actual legal title, but rather with the question as to whether or not the defendant has in its hand money which in equity and good conscience belongs to the plaintiff. The mere fact that the plaintiff had given the defendant an option does not preclude the further proof that in fact the defendant was also the agent for the plaintiff for the purpose of making a sale of this plantation. Such was the conclusion of this court in the case of Cox v. Morton, 193 Ala. 401, 69 So. 500.

As previously stated, the evidence was without dispute that this land was listed with the defendant for sale, and that in fact the sale was made for and on account of the plaintiff. All communication with reference to this particular sale were by letter and telegram. On October 2, 1918, the defendant wired Jackson:

"We have a chance to place your farm at $36.50 net to you, all cash January first. If acceptable wire us and forward abstract."

Plaintiff through her husband wired acceptance on the following day. On October 3, 1918, the defendant wrote Jackson confirming the telegram, and...