Stout v. Thornhill

• Decision Date: 15 January 1918
• Docket Number: 8 Div. 500
• Citation: 16 Ala.App. 480,79 So. 154
• Parties: STOUT v. THORNHILL.
• Court: Alabama Court of Appeals

79 So. 154

16 Ala.App. 480

STOUT v. THORNHILL.

8 Div. 500

Court of Appeals of Alabama

January 15, 1918

Rehearing Denied June 4, 1918

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Action by J.A. Thornhill against L.O. Stout for commissions in the sale of real estate. Judgment for plaintiff, and defendant appeals. Affirmed.

G.O Chenault, of Albany, for appellant.

E.W Godbey, of Decatur, for appellee.

BROWN P.J.

The plaintiff's right to recover for his services as a broker in procuring a purchaser for the defendant's lands, in pursuance to a contract between the plaintiff and the defendant, is in no way dependent upon a consummation of such sale, or the failure of such consummation resulting from the conduct of the defendant.

When a real estate broker, who has been engaged to procure a purchaser for certain real estate on certain terms, in good faith presents a purchaser who is ready, able, and willing to make the purchase for the price and on the terms specified, it is the duty of the principal to accept the purchaser and consummate the sale. Birmingham L. & L. Co. v. Thompson, 86 Ala. 146, 5 So. 473; Handley v. Shaffer, 177 Ala. 636, 59 So. 286; Bailey v. Padgett, 195 Ala. 203, 70 So. 637. In such case the broker is entitled to his compensation, whether the sale is consummated or not, and is likewise entitled to his compensation if the principal accepts the purchaser on terms previously proposed, "or upon modified terms then agreed upon, and a valid contract is entered into between the principal and the person presented by the broker." Birmingham L. & L. Co. v. Thompson, supra.

While the failure to consummate the sale because of the fault of the principal, or its consummation on terms other than first proposed through the broker, may be incidentally or collaterally involved in the issues, the breach of the contract essential to the broker's right to recover is with respect to the obligation to pay the broker compensation, and an averment showing the failure or refusal of the defendant to pay the compensation is essential to the stating of a cause of action in a special count declaring on such contract. No such averment appears in the several special counts of the complaint brought in question by the demurrers.

The application of the principles stated above shows that the trial court erred in overruling the demurrers to the several special counts. This error,...