Kahalley v. Staples

• Citation: 103 So.2d 30,39 Ala.App. 61
• Decision Date: 26 February 1957
• Docket Number: 1 Div. 700
• Parties: A. KAHALLEY v. Alfred L. STAPLES et al., d/b/a Staples-Pake-Griffin.
• Court: Alabama Court of Appeals

Page 30

103 So.2d 30

39 Ala.App. 61

A. KAHALLEY v. Alfred L. STAPLES et al., d/b/a Staples-Pake-Griffin.

1 Div. 700.

Court of Appeals of Alabama.

Feb. 26, 1957.

Rehearing Denied March 26, 1957.

J. B. Blackburn, Bay Minette, for appellant.

Chason & Stone, Bay Minette, for appellees.

PRICE, Judge.

This is an action by appellees against the appellant to recover a real estate broker's commission.

The complaint consisted of two counts. The first is the common count for work and labor done, and the second is as follows:

'The Plaintiffs claim of the Defendant the sum of Two Thousand Dollars ($2,000), due from the Defendant as damages for the breach of a contract by the Defendant entered into by and between the Plaintiffs, licensed real estate brokers of the State of Alabama, and the Defendant, on, to wit; April 5, 1954, under the terms of which the Defendant promised to pay to the Plaintiffs a real estate commission of ten per cent. (10%) in consideration of the promise of the Plaintiffs to use their best efforts in securing a purchaser for the property owned by the Defendant located in Bay Minette, Baldwin County, Alabama, and known as A. Kahalley's Department Store, at 112 Hand Avenue in said City, if the said property was sold during the period of thirty days from the date of this contract upon any terms acceptable to the said Defendant. And the Plaintiffs further allege that in furtherance of their contract with said Defendant they, as such real estate brokers, diligently listed said property and advertised the same and made several trips to Bay Minette, Alabama, and several telephone calls to the said Defendant in an effort to consummate a sale of said property and that they did use their best efforts to secure a purchaser for the same for the said Defendant and in consequence of the efforts of the Plaintiffs, or their agents, servants or employees, aforesaid, the Defendant did sell said property to Charles Strong upon terms acceptable to the said Defendant and did accept the benefit of the Plaintiffs' efforts notwithstanding the fact that the day which the sale by the Defendant to the said Charles Strong was consummated was after the expiration of the time fixed in the contract entered into by and between the Plaintiffs and the Defendant, wherefore Plaintiffs bring this suit and ask judgment in the above amount.'

The court overruled demurrer to count 2 as amended. Defendant filed pleas of the general issue and special pleas setting up the contract and alleging that the plaintiff had not fully performed the services as required under the terms of the contract and within the time specified therein.

Demurrer was sustained to said special pleas.

Trial resulted in a verdict for the plaintiff for $900, without specifying under which count the verdict was rendered. Defendant prosecutes this appeal.

The evidence is undisputed that on April 5, 1954, the defendant entered into a written agreement with the real estate brokerage firm of Staples-Pake-Griffin, of Mobile, Alabama, which agreement, having been introduced in evidence by the defendant, stipulates that:

'In consideration of your promise to use your best efforts to secure a purchaser, I (we) appoint you exclusive agent to make sale of the property owned by A. Kahalley and located in Bay Minette, Ala. P. O. Box 276 and known as A. Kahalley's Department Store, at 112 Hand Avenue, at the price of Thirty Thousand Dollars ($30,000) cash upon the following terms:

'I (we) agree to pay you a cash commission of 10% of the price obtained if the said property is sold during the term of this contract by you or anyone else, upon the terms named, or upon any other terms that I (we) shall accept. This contract shall continue for 30 days from date hereof. * * *.'

For the plaintiff Irving Gandler testified that he was a licensed real estate salesman employed by plaintiff; that he had a telephone conversation with defendant to find out if he was interested in selling his store and business and later went to Bay Minette to see him; that on April 5, 1954, defendant signed the sales authority to plaintiff which is set out above; that witness advertised the property in a Mobile newspaper and Mr. Charles Strong called him in response to such advertisement and later he and Mr. Strong met with Mr. and Mrs. Kahalley at Bay Minette and looked at the stock of goods and fixtures; that the selling price of $30,000 was discussed, that he was in Bay Minette about two hours at that time; that he later received a copy of a letter from defendant to Charles Strong dated April 15, 1954. A copy of this letter was introduced in evidence. In the letter defendant offered to sell the stock and fixtures for $26,000 cash; that he called Mr. Strong, at Citronelle, by telephone on April 14, 1954, and again on April 20, 1954; in both of these conversations the sale and purchase of the Kahalley store was discussed; later, towards the last of April, Mrs. Kahalley and her daughter came to plaintiff's office in Mobile and talked with him. On cross examination the witness stated that he also called Mr. Strong on April 24, 1954, and after the thirty day period on June 14, 1954; that at no time during the 30 days after April 5, 1954, did he or his firm sell the business of Mr. A. Kahalley to Mr. Strong; that Mr. A. Kahalley interfered with his efforts to sell by dealing direct with his client; that in conversation with the Kahalleys and Strong at Bay Minette something was said about the price of $30,000 being too high; that the Kahalleys suggested to witness that a letter be written to Strong, but this did not meet with witness' approval and he told them not to write the letter; but that a copy of the letter was furnished to him upon request; at no time within thirty days after April 5, 1954, did he or any member of the firm which employed him, produce Mr. Strong or anyone else, who was ready, able and willing to buy the business at the price set out in the contract; that Mr. Kahalley did not sell the business within the thirty day period of time; that he did not say that Mr. Kahalley hindered or obstructed him in selling the property and that he co-operated to a degree; that shortly before the contract expired Mrs. Kahalley and her daughter, Miss Marguerite Kahalley, went to witness' place of business in Mobile and discussed the matter; that he indicated he would try to get an offer from Mr. Strong and then he had one more telephone conversation with Mr. Strong during the thirty day period; that he suggested a price to make as a counter offer to the letter received by Strong and asked his permission to draw up a firm offer to buy to submit to Mr. Kahalley; that Strong said he would consider it at a lower price; that he did not send Mr. Strong a form after the telephone conversation and within the thirty day period the contract was in force.

A. M. Moragues testified, over the objection of defendant, that the customary and standard commission of 10% of $18,000, the price for which the property was sold, would be a reasonable fee for the services rendered by plaintiff.

It was admitted by defendant that he executed the 'Sales authority,' introduced in evidence; that Mr. Strong was introduced to him as a prospective purchaser through the efforts of plaintiffs and that he did not know Mr. Strong previously; that the property was not sold by himself or plaintiff's agent, Gandler, during the time the contract was in force; that he sold the stock of goods for $15,000 and the fixtures for $3,000 to Charles Strong on June 6, 1954.

Mrs. A. Kahalley testified that in the conversation at the store on April 14, 1954, the property was first offered to Mr. Strong for $30,000, but Mr. Strong said the price was too high and the price was reduced to $26,000.

Charles Strong testified that he called plaintiffs as the result of an advertisement in a newspaper and later met with Mr....