Crosthwaite v. Lebus , 146 Ala. 525 ( 1906 )

TYSON, J.

This cause ivas tried by the court without the intervention of a jury. The action is on the common counts to recover commissions for the sale of real estate. Two defenses are invoked: (1) That the sale was not consummated according to the terms prescribed by the principal; and (2) that the plaintiff was doing a real estate brokerage business and had not procured state and county license to carry on such business.

The terms of sale, prescribed by the principal are contained in a letter from him to plaintiff, and may he briefly stated as follows: “I will let you sell it for the best price you can get, but not less than $6,000.00, one-third cash, balance in one and two years, interest at rate of 6 per cent, on deferred payments, or all cash, at option of purchaser. * * Also that the purchaser pay a proportionate amount of the taxes for the current year.” The plaintiff procured a prospective purchaser, and the memorandum of sale was as follows (after describing the property and acknowledging receipt of $100 as part payment) : “It is understood that the price, and terms of sale are as follows: Two thousand dollars ($2,000.00) cash (less $100.00 here receipted for), and the balance of four thousand dollars ($4,000.00) evidenced by notes, $2,000.00 each, payable on or before one and two years, respectively, and bearing interest at the rate of (> per centum. * * * The seller to furnish at his own expense an abstract of title to said property. (Signed) Lewis Lebus, per J. (1. B. Orosthwaite, Agent.” The sale was not consummated; the seller refusing to make the deed upon the terms noted in memorandum of sale.

The rule is well settled that a broker is not entitled to commissions until he has performed the undertaking assumed by him. The right to compensation depends upon a performance of the stipulations and conditions of the contract of agency, and the broker must act strictly, according to the authority conferred upon him by the principal. — 19 Cyc. pp. 240, 241, and notes. Bid the plaintiff do this? YCe think not. The notes for the deferred payments were to be made payable on or before one and two years. No stipulation for a payment of a proportionate part of the taxes for the current year was contemplated, and the seller ivas to furnish an abstract of title at his costs.

The question to which an objection was sustained did not hypothesize the terms of sale upon 'which defendant agreed to sell the property, but contained entirely different stipulations from those prescribed by him. There was, therefore, no error in the ruling of the court. One of the essential ingredients of an estoppel in pais is knowledge of the facts upon which the estoppel is sought to be predicated. No knowledge on the part of the defendant was shown. On the contrary, it appears that defendant was not informed by plaintiff that the attempted sale by him was upon terms different from those prescribed by defendant. Indeed, it appears that defendant for the first time learned of this difference after this action was commenced. An estoppel is never presumed, but must be proven.

Entertaining these views, it is unnecessary to consider the other assignments of error.

Affirmed.

Weakdey, O. J., and Simpson and Anderson, J.J., cur.