Rattray v. W.P. Brown & Sons Lumber Co., 7 Div. 481.

• Decision Date: 03 October 1939
• Docket Number: 7 Div. 481.
• Citation: 29 Ala.App. 93,192 So. 285
• Parties: RATTRAY v. W. P. BROWN & SONS LUMBER CO.
• Court: Alabama Court of Appeals

192 So. 285

29 Ala.App. 93

RATTRAY v. W. P. BROWN & SONS LUMBER CO.

7 Div. 481.

Court of Appeals of Alabama

October 3, 1939

Rehearing Denied Oct. 31, 1939.

Appeal from Circuit Court, Cherokee County; A. E. Hawkins, Judge.

Action in assumpsit by C. M. Rattray against W. P. Brown & Sons Lumber Company. From a judgment for defendant, plaintiff appeals.

Reversed and remanded.

Certiorari denied by Supreme Court in Rattray v. W. P. Brown & Sons Lumber Co., 192 So. 288.

Hood &amp Murphree, of Gadsden, for appellant.

Reed &amp Reed, of Center, for appellee.

SAMFORD Judge.

The complaint consisted of two counts. Count 1 was the common count. Count 2 was as follows: "Plaintiff claims of the defendant one thousand dollars and for cause of action states that in January, 1937, the defendant employed plaintiff to look up and find timber lands which the defendant desired to purchase in Cherokee and Dekalb Counties and agreed to pay to plaintiff a commission of five (5) per cent of the purchase price of all such lands he found and brought to their attention and plaintiff says that between January 1st, 1937 and December 1st, 1937, he found and brought to the attention of the defendant various and sundry tracts of all land under said agreement which it bought on which commissions became due to plaintiff in the sum stated which defendant has failed or refused to pay, hence this suit."

Eliminating defendant's pleas in abatement and demurrers thereto, the defendant's demurrer to count 2, not necessary to be considered in this appeal, defendant filed pleas 1, 2, and 3 to which plaintiff filed demurrer as to plea 3, which will be hereinafter considered.

The contract between the parties is rather clearly stated in the testimony of the plaintiff and Mr. Roy E. Loper, the defendant's responsible agent and who was defendant's general superintendent.

The plaintiff testified that in January, 1937, he had business dealings with the defendant with reference to locating timber for defendant, which continued for something like three months. Witness located timber for defendant for about three months; that within that period or at that time plaintiff had contact with Mr. Loper and Mr. Brown, representatives of the defendant company. Mr. Loper was the general superintendent of the defendant at that time and Mr. Brown was the owner of the business, or the defendant Lumber Company. He resided at Louisville, Kentucky; that both Mr. Loper and Mr. Brown talked with plaintiff with reference to locating timber; they wanted plaintiff to look up timber and see how much he could find, to see if they would be justifiable (justified) in locating a mill at Blanch. At that time they had not located the mill there. They told plaintiff to look up timber, that they would furnish a cruiser to cruise it, and if they bought the timber they would pay plaintiff five per cent commission if they got an ordinary deal and if they got a good deal they would pay him ten per cent, to which plaintiff replied by telling them he would look up timber and see what he could find, and that he did find several lots of timber and reported same to the defendant.

Mr. Loper, defendant's general superintendent, testified that: "We were checking the Alabama Power Company's timber and had an option with the right to buy it and while we were checking this timber I told Mr. Rattray (the plaintiff) we were reasonably sure we would buy it and anybody else around in this territory that had any timber for sale that if he would get the names and come and tell us who they were, that any timber that he could tell us about, after we checked it and if we bought it, we would allow him five per cent commission on any tract we bought, after he called our attention to it, that maybe it would be a couple of months before we could cut any and had our regular men to cruise and look after it." Later on Loper testified that he told plaintiff: "* * * we were there and had our feet on the ground and had our organization there and we would not need him to locate any other timber for us."

Loper, also, testified that if the timber showed up extraordinarily good the defendant was to pay the plaintiff ten per cent.

The foregoing statement of facts constitutes a contract binding on both parties when the terms of the contract have been complied with. 13 C.J., p. 247(17).

After all the testimony was in, the court, at the request of the defendant, gave the general affirmative charge upon which verdict was returned by the jury in favor of the defendant and a judgment rendered thereon.

The court, in overruling plaintiff's demurrer to plea 3 and giving at the request of the defendant the general affirmative charge, acted upon the theory that the contract as stated was void; in that the plaintiff had acted as a real estate broker in violation of Section 10112(1), Code of 1928 and subsequent subdivisions of said Section requiring a license for real estate broker, and giving a definition, or giving definitions, as to what constituted a real estate broker, together with other Sections...