Kalas v. MacMahon
| Decision Date | 02 October 1951 |
| Docket Number | 1 Div. 612 |
| Citation | 54 So.2d 322,36 Ala.App. 238 |
| Parties | KALAS v. MacMAHON. |
| Court | Alabama Court of Appeals |
Jere Austill and Gordon & Gordon, Mobile, for appellant.
W. O. MacMahon, appellee, pro se.
This is an appeal from a judgment in favor of the plaintiff on a suit seeking recovery of a real estate broker's commission.
The complaint below contained three counts.
Count I was for work and labor done by the plaintiff as a real estate broker, at defendant's request, in procuring a purchaser for real estate owned by the defendant in the City of Mobile.
Count 2 claimed damages for breach of a sealed written contract, authorizing plaintiff to sell certain described real estate in Mobile belonging to the defendant, the count averring that the original of said contract was attached to and made a part of the count.
Count 3 is unusual in verbiage and allegations, and as far as we are able to determine, sounds in work and labor.
No demurrers were filed to the complaint however, so we pretermit further consideration.
The defendant filed seven pleas to the complaint.
Plea 1 was the general issue, and plea 2 was a general denial of indebtedness.
The remaining pleas did not more than deny plaintiff's cause of action on various asserted grounds.
The plaintiff filed demurrers to the pleas, which were sustained as to pleas 4, 6, and 7.
This action by the court in sustaining the demurrers to these pleas is asserted as error by the appellant, appellant contending that the demurrers were speaking demurrers. We fully agree with appellant's contention that the demurrers were speaking demurrers. They should therefore have been overruled. However plea 4 averred that there was 'no consideration paid to the defendant by the plaintiff for the written agreement dated December 18, 1948, whereby the plaintiff undertook to sell certain real estate property of the defendant and that the plaintiff thereby acquired no option or exclusive agency thereunder binding the defendant to pay his commission on account of the subsequent sale thereof by the defendant.'
The common counts were based upon an implied promise to pay for work and labor done by plaintiff for defendant at his request, and therefore showed an executed consideration.
The count based on the written contract showed mutual promises, each furnishing consideration for the other. At best this plea did no more than deny the plaintiff's cause of action, which was elsewhere properly done, and upon the issue thus made the case was tried. No reversal will therefore be posited upon this ruling on the demurrer as to plea 4. Mertins v. Hubbell Publishing Co., 190 Ala. 311, 67 So. 275.
The matters averred in plea 6 could have been shown under plea 3, and the matters averred in plea 7 could have been shown under plea 5. Further, the matters averred under pleas 6 and 7 could also have been shown under the plea of general issue. Any error resulting from the court's action in sustaining the demurrers as to pleas 6 and 7 was therefore without injury.
The evidence presented by the plaintiff tended to show that on December 18, 1948, the defendant and his wife signed an agreement whereby, in consideration of plaintiff's promise to advertise and use his best efforts to secure a purchaser,...
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...were speaking demurrers and should have been overruled. She cites Brown v. City of Fairhope, 265 Ala. 596, 93 So.2d 419; Kalas v. MacMahon, 36 Ala.App. 238, 54 So.2d 322. This is probably true. Nevertheless, grounds of demurrer 4 properly pointed out the contradiction discussed above and fa......
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...necessitated an overruling of the demurrer in this aspect. Brown v. City of Fairhope, 265 Ala. 596, 93 So.2d 419; Kalas v. McMahon, 36 Ala.App. 238, 54 So.2d 322; United States Fidelity & Guaranty Co. v. Town of Dothan, 174 Ala. 480, 56 So. Appellant's Assignments of Error numbers 3 and 4, ......
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