Stephens v. Bailey & Howard

• Decision Date: 30 June 1906
• Citation: 149 Ala. 256,42 So. 740
• Parties: STEPHENS v. BAILEY & HOWARD.
• Court: Alabama Supreme Court

42 So. 740

149 Ala. 256

STEPHENS v. BAILEY & HOWARD.

Supreme Court of Alabama

June 30, 1906

Rehearing Denied Dec. 21, 1906.

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

Action by Bailey & Howard against Robert Stephens. From a judgment in favor of plaintiffs, defendant appeals. Reversed and remanded.

The action was to recover commissions as brokers in the sale of certain real estate. The averments of the counts in the complaint are sufficiently stated in the opinion.

Bradley & Morrow, for appellants.

Cabaniss & Weakley, for appellee.

HARALSON J.

The first and second were the common counts,--the first claiming $250.00 due by account made by defendant with the plaintiff on the 7th of February, 1899; and the second for a like amount for work and labor done by plaintiff for the defendant at his request, on the 7th of February, 1899.

The third was for the same amount, with interest, setting up that on the 7th of February, "the defendant employed the plaintiffs who were real estate agents doing business in the city of Birmingham, Alabama, to obtain for him a purchaser for a certain piece of property * * * in said city, and agreed with plaintiffs that they should be paid for their services all of the purchaser's price over and above the sum of eight thousand dollars, the defendant only insisting that he should realize said sum of eight thousand dollars net to him. And the plaintiffs aver that they did, within a reasonable time thereafter, and while said agreement was in full force, obtain a purchaser for said property at and for the sum of eight thousand two hundred and fifty ($8,250.00) dollars, said purchaser being acceptable to said defendant and being then ready, willing and able to pay therefor. Plaintiffs further aver, that notwithstanding the premises the defendant has wholly failed, neglected and refused to pay them said sum of two hundred and fifty dollars," etc.

The fourth and fifth counts were no more in respect to the employment of plaintiffs, than that defendant authorized the plaintiffs, who were real estate agents, to obtain for him a purchaser for the property referred to, who would pay him $8,000.00, and to the plaintiffs such additional sum as they required for their compensation, etc.

It is said, "In order to entitle a broker to recover compensation for his services, it is necessary that the person from whom he claims, shall have employed him to render the services out of which his claim arises, or that there should have been such an acceptance and ratification of his services by such person, as will in the eyes of the law amount to the same thing as an original employment." It is also stated, "that the burden of proving the existence of the employment, is upon the person claiming compensation for his services; and whether or not, there was an employment of the broker who claims commissions, is a question for the jury on conflicting evidence." 23 Am. &amp Eng. Ency. Law (2d Ed.) 911, 912, and authorities there cited.

The definition of a broker seems to be, that he is an agent employed to make bargains and contracts between other persons in matters of trade, commerce or navigation, for a compensation, commonly called brokerage. Story on Agency, § 28.

In B. L. & L. Co. v. Thompson, 86 Ala. 146, 5 So. 473, and in Sayre v. Wilson, 86 Ala. 151, 5 So. 157, the court held that the broker, or real estate agent, employed to effect a sale of land on specified terms, becomes entitled to his commissions, or agreed compensation, when he procures a person who is able, ready and willing to buy on the terms specified, and the vendor accepts him, although the purchaser afterwards declines to complete the contract on account of a defect of title. These cases seem to place the right of the real estate agent to compensation on the fact of his employment by the seller to sell the designated property. No one, it would seem, on sound principle, has the legal right to charge another for services rendered, unless he had been employed by that other, by contract express or implied, that he would compensate him therefor.

In the case of Castner v. Richardson (Colo.) 33 P. 163,--after stating that, to entitle an agent to commissions, a contract of employment is necessary,--the court say: "When a real estate broker asks and obtains from the owner the price of certain real-estate, or the price at which the owner is willing to sell, this, without more, does not establish the relation of principal and agent between the owner and the broker; it does not establish a contract of employment. If the rule were otherwise, no one would be safe in stating the price of his own property in the hearing of a broker." Viley v. Petit (Ky.) 29 S.W. 438.

No objection is raised to the first and second counts. The third avers employment of the plaintiffs as real estate agents by the defendant, to sell the property at a stipulated price to be paid by the purchaser; its sale to one Miller who was able and willing...