Rike v. McHugh & Groom

• Decision Date: 07 November 1914
• Docket Number: 826
• Parties: RIKE v. McHUGH & GROOM.
• Court: Alabama Supreme Court

66 So. 452

188 Ala. 237

RIKE v. McHUGH & GROOM.

No. 826

Supreme Court of Alabama

November 7, 1914

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by McHugh & Groom against E.G. Rike, for work and labor done. Judgment for plaintiff, and defendant appeals. Affirmed.

The controversy seems to have been over the sale of a house belonging to Rike; the sale having been made through the agency of plaintiffs to one Mr. Seeberg, which fell through for some reason not disclosed by the record, but after considerable correspondence had passed between the parties and after the papers had been delivered by Rike to one Moore. The charge complained of appears in the opinion. The charge made the basis of the eleventh assignment of error is as follows (requested by defendant):

"I charge you, gentlemen, that unless you are reasonably satisfied from all the evidence that Mr. Seeberg was able to pay cash for the said property on or before November 1, 1913 then you should return a verdict for defendant.

Gordon & Edington, of Mobile, for appellant.

William Cowley, of Mobile, for appellee.

GARDNER J.

The general rule of law is everywhere recognized to be that:

"To entitle an agent or broker to commissions, he must show that he procured a purchaser who was able and ready to comply with the terms and conditions of sale." Cook v. Forst, 116 Ala. 395, 22 So. 540; Birmingham v Thompson, 86 Ala. 146, 5 So. 473; Sayre v. Wilson, 86 Ala. 151, 5 So. 157; 19 Cyc. 246; Smith v. Sharpe, 162 Ala. 439, 50 So. 381, 136 Am.St.Rep. 52.

The court charged the jury that:

If "the real estate agent communicates to the owner the name of the purchaser, and he accepts that purchaser without objection, then that, in law, operates as a waiver of the requirement that the purchaser be ready, willing, and able to buy. In other words, the owner of the property takes that risk for himself, whether the man is able to buy or not."

There is no doubt about the fact that if the owner of the property, at the time he accepts the purchaser, knows or has notice that he is not or will not be able to comply with the terms of sale, and with that knowledge accepts him as a purchaser, though a binding contract is never made between them, the owner would thereby waive such condition.

In the case of Sayre v. Wilson, supra, the purchaser was a feme covert, which fact was known to the owner, and he, with that knowledge, accepted her, thereby waiving that infirmity.

The rule with reference to the exact point in hand seems to have been decided in the case of Kalley v. Baker, 132 N.Y. 1, 29 N.E. 1091, 28 Am.St.Rep. 542, that a broker employed to sell property becomes entitled to his commission when he finds a purchaser satisfactory to his employer, and they enter into a contract of purchase and sale, though it subsequently turns out that the purchaser is unable to comply with his contract, and on that account the sale is not consummated by transfer of the property. This question also came up in the case of Scully v. Williamson, 26 Okl. 19, 108 P. 395, 27 L.R.A. (N.S.) 1089, Ann.Cas. 1912A, 1265, wherein it is said:

"In the case at bar the broker brought to the owner of the property a prospective purchaser, with whom the owner was satisfied, and with whom he executed a contract for a sale, thereby determining for himself the ability of the purchaser to purchase. For any violation of this contract by the purchaser, defendant had his remedy for damages for the loss sustained by him by

reason of the purchaser failing to fulfill his contract."

The same rule seems to be recognized in the case of Francis v. Baker, 45 Minn. 83, 47 N.W. 452; 19 Cyc. 270, 271, and citations in note.

So that, though the owner may accept the proposed purchaser yet, if no contract is made between the owner and such purchaser, the owner does not seem to waive the condition that the...