Sayre v. Wilson & Ingram , 86 Ala. 151 ( 1888 )

SOMERVILLE, J.

A broker who is employed to sell property on commission, earns his compensation, when he has been the efficient agent in procuring a satisfactory purchaser who is able, ready and willing to buy the property, on the terms fixed by the owner. And if the sale is not consummated, by reason of the owner’s fault, this fact is no bar to the recovery of commissions.' — Chambers v. Seay, 73 Ala. 372; Henderson v. Vincent, 84 Ala. 99; Vinton v. Baldwin, 45 Amer. Rep. 447; McClave v. Paine, 10 Amer. Rep. 431. If an unsatisfactory purchaser is found — one who is not able or ready or willing to accept and perform the proffered terms —the owner may refuse to accept him, and is under no liability to pay the broker for his services. The theory of the law is, that when the broker has brought the minds of the buyer and seller to an agreement upon all the terms of sale, and the buyer is able, ready and willing to buy, this is a constructive consummation of the sale, so far as the broker is concerned, because he has done all that he was required to do. If he has negotiated to sell the property to a minor, or a lunatic, or a feme covert, or other person who is legally incapacitated to bind himself to perform the terms required, the owner may refuse to accept the proffered purchaser, and incurs no obligation to pay commissions for the service of procuring such a buyer.

The complaint was defective, in failing to aver that the purchasers, alleged to have been found by the plaintiffs, were able, ready and willing to carry out the alleged sale, or else to aver facts showing a waiver by defendant of these requisites. The demurrer based on this defect should have been sustained, and the court erred in not doing so.

. The sale of one of the lots owned by appellant is shown to have been contracted to be made to a married woman— one Mrs. Mayberry. The terms of the sale provided for a cash payment of one-half of rhe purchase-money, and the remainder to be paid in twelve months. A jeme covert in this State being at that time incapable of binding herself personally for the payment of the purchase-money, the pellant could properly have objected to Mrs. Mayberry as an unsatisfactory purchaser. But, if he knew her status, and did not object for that reason, or declined to consummate the sale on other specified grounds, this objection must be construed to have been waived by him.

It was, in our judgment, competent to show by parol evidence a separate and distinct antecedent agreement, as to what commissions should be charged for brokerage. The correspondence of the parties, by which appellees were employed to make the sale, does not cover the question nf compensation. The appellant Sayre’s letter of authority only fixes the price and terms of sale, being responsive in this particular to the letter of the appellees, "Wilson & Ingram, dated February 6th, 1886, which called for such terms. The contract of employment, as expressed in the correspondence, is not perfect and complete in itself, and shows on its face that it was not intended to regulate the subject of commissions, either expressly or by necessary implication. The case is one, therefore, where oral evidence is admissible to show a separate oral agreement collateral to the written contract, and not inconsistent with its terms, without infringing the rule excluding parol evidence of contemporaneous stipulations, which contradict or vary the legal effect of written instruments. — Huckabee v. Shepherd, 75 Ala. 342; Welz v. Rhodius, 44 Amer. Rep. 747; West v. Kelly, 19 Ala. 353; s. c., 54 Amer. Dec. 192; Hersom v. Henderson, 53 Amer. Dec. 185; 1 Stephen’s Dig. Ev., Art. 90.

But it would, however, be straining the principle too far, we think, to authorize oral proof of an anterior agi’eement that the property was to be sold subject to Sayre’s approval or confirmation, and that the deeds were to contain certain peculiar and unusual conditions, restricting the use to which the property was' to be devoted. The written contract of employment authorizes a sale of the lots at specified prices and terms. This, by necessary implication, means an unconditional sale, without extraordinary or unusual conditions, with a conveyance by the usual warranty deed. These matters are not collateral to the subject-matter, or contract of sale, but are of the very essence of it. There was no error in excluding this evidence.

The letter of Sayre fixing the terms of sale, expressly made reference to a plat which he inclosed to the appellees, and also to the prices for each lot as marked on the plat. This made the plat a part of the letter, and the prices affixed a part of the contract as fully as if incorporated in the body of the letter.-— Oliver v. Ala. Gold Life Ins. Co., 82 Ala. 417.

If the evidence satisfactorily shows an agreement for a particular compensation by way of commissions, that would, of course, prevail. If not, then the plaintiffs would be entitled to recover, if at all, a fair and reasonable commission, subject to any limitations imposed by the terms of the contract. Established and customary charges for like services in the community would be competent evidence to prove what was fair and reasonable.

If Sayre authorized the sale of the Sharpe lot at $3,000, as shown by his letter introduced in evidence, and which seems to be without date, and this letter was received by the appellees, and under its authority they made a contract to sell the lot, their right to compensation would not be prejudiced by any letter which Sayre may have subsequently written and mailed to them, increasing the price to be charged, provided the letter was never received by reason of miscarriage or otherwise-. The authority to sell, having been conferred, .could not be revoked by a lost letter, which never came to the possession or knowledge of the broker or agent.

The testimony of Ingram — that the firm never received this ■letter — was competent, to show that neither he nor his partner, Wilson, had received it. .Whether satisfactory or sufficient to establish the fact, it was for the jury to say. This would depend upon circumstances, including an inquiry as to who generally controlled the correspondence; how and where the letters were kept; what search had been made for them among the firm correspondence, and.other like considerations.

If the plaintiffs agreed to withdraw the Sharpe lot from market, at request of the defendant, after they had effected a sale of it, and they did this under a mistake of its identity, reasonably believing that Sayre’s instruction to withdraw had reference to a different lot, this mistake would not operate to rescind the contract in regard to the sale of the Sharpe lot, so as to prevent the plaintiffs from recovering commissions for such sale, if they were otherwise entitled to it.

The plea of the statute of frauds was no answer to the complaint. Admitting that the sale made by the brokers to the proposed purchasers, the Messrs. Mills and Mrs. May-berry, was voidable under the statute of frauds, because not reduced to writing and signed by the party to be charged, that is not the contract here in suit; and these purchasers, moreover, have not attempted to avoid its performance, but evince a readiness to comply with its terms. That they possessed the power to avoid it, would be immaterial to the plaintiffs’ claim of compensation for bringing together the minds of the proposed seller and buyer, so long as no effort was made by them to avoid it. The demurrer to this plea was properly sustained.

These principles will be sufficient to guide the court upon another trial.

Beversed and remanded.