Walker v. Allendale Land Co.

• Citation: 132 So. 904,222 Ala. 457
• Decision Date: 12 March 1931
• Docket Number: 6 Div. 761.
• Parties: WALKER v. ALLENDALE LAND CO.
• Court: Alabama Supreme Court

132 So. 904

222 Ala. 457

WALKER v. ALLENDALE LAND CO.

6 Div. 761.

Supreme Court of Alabama

March 12, 1931

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Suit by the Allendale Land Company against John J. Walker, wherein defendant filed a cross-bill. From the decree, defendant appeals.

Affirmed.

Hugh A Locke, E. M. Creel, and Earl McBee, all of Birmingham, for appellant.

A. Leo Oberdorfer, of Birmingham, for appellee.

SAYRE J.

Complainant's (appellee's) bill prays an accounting, for discovery of collections by way of cash and notes made by defendant as agent for complainant, and for an injunction to restrain defendant from collecting money, notes, and checks, the property of complainant. In his answer defendant prayed for a decree against complainant for services rendered by the former to the latter in negotiating the sale of lots in Midfield, a development adjacent to the city of Birmingham for commissions on the sale of a part of the Midfield tract to one Morton for a manufacturing site, on the clearing up by purchase for complainant of a leasehold interest which incumbered a part of the tract held by one Jacks, and commissions earned in procuring for complainant a right of way and a dedication and improvement of a continuous public road or street through the Midfield tract and an adjacent tract owned by the Tennessee Coal, Iron & Railroad Company. Defendant had a decree for $614.74, commissions earned in the sale of lots in Midfield, conditioned, however, upon the delivery by defendant to the register for complainant of all notes and certified checks (other than checks drawn on the Bank of Ensley, which had failed) which defendant had received by way of payments on lots sold by him. Other relief was denied to defendant, and he was enjoined against the further prosecution of three several actions at law which he had brought to recover the compensations claimed in his answer. Defendant appeals.

Defendant's claim for one thing, other than that for commissions on the sale of lots, is that he was entitled to the sum of $10,000 for services rendered in procuring the board of revenue of Jefferson county to build the Grasselli-Fairfield road continuously through the Midfield plat and the adjacent property of the Tennessee Company, a matter of great advantage to the Midfield property. And further defendant claimed compensation for negotiating a release of the Jacks lease upon a large part of the Midfield plat which on account of the use made by him of that part of the tract, viz., the operation of a dairy farm, greatly impaired the value of the rest of the tract for residence purposes. And, further defendant claimed compensation for services rendered in bringing about the sale of 140 acres of the Midfield tract to one Morton for a cement plant. The three stated claims of defendant were denied by the decree under review. There was one other lien of difference between the parties; but of that hereafter.

The only question of law in the cause presented by the record arises out of defendant's (appellant's) contention that-to quote from the brief-"where a contract is entered into providing that an agent shall plat and superintend the laying out of a city, and as compensation therefor shall have the exclusive right to a commission on all lots and other property sold within the development, an alleged verbal modification of the contract, by which the agent, at a time when the work preliminary to putting lots on sale had almost been completed, is alleged to have gratuitously and voluntarily waived a commission due him under the terms of the contract by virtue of the sale of a factory site, constitutes an alteration of the contract in its essential features, and a consideration is necessary to support the alleged modification agreement, and there being no consideration, such alleged modification agreement is void and of no binding effect whatsoever upon the agent," citing Moore v. Williamson, 213 Ala. 274, 104 So. 645, 42 A. L. R. 981, and some concurring authorities from other jurisdictions. But the facts do not admit of an application of the stated principle. According to our understanding of the voluminous record, after careful consideration, there was no modification of the contract between the parties calling for a new consideration. The services rendered by defend...