Worthington v. McGarry

• Decision Date: 05 February 1907
• Citation: 42 So. 988,149 Ala. 251
• Parties: WORTHINGTON v. MCGARRY.
• Court: Alabama Supreme Court

42 So. 988

149 Ala. 251

WORTHINGTON v. MCGARRY.

Supreme Court of Alabama

February 5, 1907

Appeal from Circuit Court, Colbert County; Ed B. Almon, Judge.

Action by A. J. McGarry against J. W. Worthington. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The contract made the basis of the second count is as follows "Florence, Ala., April 2, 1898. It being desirable that they co-operate in the matter of securing certain option leases, etc., on certain ore lands in the state of Tennessee it is therefore, for value received from each by each, agreed between J. W. Worthington and A. J. McGarry, parties to this agreement, as follows: If the said McGarry shall, by himself or in connection with the said Worthington, secure for the said Worthington an option to purchase the majority of the stock of the Lawrence Iron Co.--that is, shall enable the said Worthington to secure an option on the stock of one McCormick, of the state of Pennsylvania--and shall further secure an option to purchase all of the ore lands of Herrin's heirs, said lands being situated at or near the town of West Point, Tenn.: Now, if the said McGarry should secure these options above described and at a price that the said Worthington may for himself or associates buy the property described herein, or intended to be described herein, then in that event the said Worthington shall pay to the said McGarry two thousand five hundred dollars, and the said Worthington shall pay to the said McGarry any and all legitimate expenses the said McGarry may incur in connection with the transaction herein described, whether the said Worthington shall purchase all or any part of said property. Executed in duplicate." The averments are that plaintiff did secure the option mentioned as provided in said contract but the said Worthington has failed and refused.

Wilhoyte & Nathan, for appellant.

T. R. &amp A. J. Roulhac, for appellee.

TYSON C.J.

This is an action by the appellee against the appellant to recover for services rendered in procuring an option for the purchase of certain property. The complaint contains two counts. The first is on an account stated; but, as no proof was offered in support of this count, it may be disregarded. The other count is on a written contract, under and by which the defendant agreed to pay plaintiff $2,500 if the plaintiff should secure for him options on two properties mentioned (certain ore lands and the majority of the stock in a corporation named) "at a price that the said Worthington [defendant] may for himself or associates buy the property described." The count as amended alleges that the plaintiff procured the options, except as to the stock in the corporation, "which * * * said defendant undertook to procure for himself." The proof showed that the plaintiff did procure an option upon the ore lands which was entirely satisfactory to defendant, though the lands were not, in fact, purchased, owing to the want of compliance by defendant with the terms of the option contract as to payment at the time stipulated. The evidence further showed that the defendant directed the plaintiff not to make any effort to procure the option on the stock, and that he undertook to do that himself, but failed. There was no proof as to the value of the services rendered by the appellant in procuring the option upon the ore lands. The court below having rendered judgment for the plaintiff, the defendant below appeals.

Two questions arise. The defendant insists, first, that the proper construction of the contract contemplated that there should be an actual purchase of both properties before the plaintiff could earn the $2,500 stipulated to be paid. We cannot accept this construction as being what the parties intended and what they have expressed in writing. It was only options that plaintiff was required to obtain, which are entirely...