Lunsford v. Bailey & Howard

• Decision Date: 11 January 1905
• Citation: 142 Ala. 319,38 So. 362
• Court: Alabama Supreme Court
• Parties: LUNSFORD v. BAILEY & HOWARD.

38 So. 362

142 Ala. 319

LUNSFORD v. BAILEY & HOWARD.

Supreme Court of Alabama

January 11, 1905

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Action by Bailey & Howard against Mrs. Susan Lunsford. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

This action was brought to recover commissions for procuring a purchaser for property owned by the defendant. The complaint contains four counts. The first three counts were common counts. The fourth count was in words and figures as follows "Plaintiffs claim of defendant the further sum of five hundred dollars damages, with interest thereon, for the breach of an agreement entered into by her during the month of July, 1902, in substance as follows: Defendant agreed that if plaintiffs, who were real estate agents in the city of Birmingham, Alabama, would procure a customer for her for a certain piece of property at the price of three thousand five hundred dollars, that she would pay them a reasonable commission for their services; and the plaintiffs say that although they have complied with all the provisions of said agreement on their part, the defendant has failed to comply with the following provision thereof, viz., she has failed to pay plaintiffs any sum for their services." To the fourth count the defendant demurred upon the following ground: "That it is not alleged in said count that the customer procured for the property mentioned in the complaint was ready, able, and willing to pay for the property referred to the sum of three thousand and five hundred dollars." This demurrer was overruled.

A Latady, for appellant.

Bowman Harsh & Beddow, for appellees.

TYSON J.

The fourth count of the complaint did not aver an undertaking on the part of the plaintiffs "to sell" defendant's property, as was done in the case of Sayre v. Wilson, 86 Ala. 151, 5 So. 157, but simply "to procure a customer for her for the property at the price of three thousand five hundred dollars," which it is alleged they did. That case therefore is not authority for the contention here made that the count under consideration should allege that the customer procured by plaintiffs was ready, able, and willing to pay for the property. It was entirely competent for the parties to contract for plaintiffs to procure for defendant a customer for her property, and, if they did so, as it is alleged they did, we can see no possible objection to the...