Sharpley v. Moody & Co. , 152 Ala. 549 ( 1907 )

HARALSON, J.

The rule is well settled in this state, that a broker or real estate agent, employed to effect a sale of lands on specified terms, becomes entitled to his commission, or agreed compensation, when he procures a purchaser who is able, ready and willing to buy on the terms specified, and the vendor accepts him, although the purchaser afterwards declines to complete the contract, and the sale is never consummated by reason of the vendor’s fault. — Sayre v. Wilson, 86 Ala. 151, 5 South. 157; B. L. & L. Co. v. Thompson, 86 Ala. 146, 5 South. 473; Cook v. Forst, 116 Ala. 395, 22 South. 540; Stephens v. Bailey, 149 Ala. 256, 42 Sopth. 740.

It is admitted by appellant’s counsel, that the case was tried on the fourth, fifth, and sixth counts of the complaint, and it is necessary to consider the demurrers alone to these counts.

The fifth and sixth counts allege practically the same thing, as to the agreement of defendant to pay the plaintiff the commissions sought to be recovered in these counts, — viz., that defendant listed with plaintiff, on the 21st of July, 1906, the lot described to he sold, or procured to be sold, or to find a purchaser therefor, at the sum of $2,750, agreeing to pay plaintiff therefor, a reasonable commission for his services so to be rendered, and that, thereafter, on, to wit, the 10th of September, 1906 plaintiff procured one Mrs. F. Erlick to look a.t said described property, for the purpose of buying it, and in some way unknown to plaintiff, the fact that said Mrs. F. Erlick had looked at the property for said purpose, came to defendant, and he sold the property, himself, to her at $2,500, and defendant, thereafter, failed and refused to pay plaintiff his reasonable commissions on said sale.

It is to be noticed, that the counts do not allege that plaintiff sold the property, but merely state that it was listed by plaintiff “to he sold, or procured to be sold, or to find a purchaser therefor, at the sum of $2,750.” They do not aver, as stated, that plaintiff sold the property, nor that he “procured it to be sold,” nor that he found “a purchaser therefor,” but simply, that he “procured one Mrs. F. Erlick to look at said described property for the purpose of buying it.” Neither does it appear from said counts, nor in the fourth count, that the defendant knew or could have known, that the plaintiff had shown the property of the defendant to Mrs. Erlick, with the view of selling it to her.

The plaintiff could have earned his commissions only when he found a purchaser (able and willing to purchase and Avho was accepted by the owner of the property) , although the sale may have never been completed. The counts fall short in the averments of a sale, or the procuring of a purchaser. Authorities supra.

The court erred in overruling the demurrers to the fourth, fifth, and sixth counts. Without these counts, which were sustained by the court against the demurrers to them, there could have been no judgment properly-rendered against the defendant.

Reversed and remanded.

Tyson, C. J., and Simpson and Densson, JJ., concur.