Richardson v. Olanthe Milling & Elevator Co. , 167 Ala. 411 ( 1910 )

SIMPSON, J.

The suit is by the appellant against the appellee, to recover commissions claimed to be due the plaintiff for services in selling a certain quantity of flour. The evidence is without conflict that plaintiff was authorized to take orders from merchants for flour to be furnished by the defendant; that plaintiff did take orders from two mercantile firms for a quantity of flour at prices which had been fixed by defendant; that the defendant, thinking from the size of the orders that said merchants had not understood the quality of the flour, wrote to them explaining that it was an inferior quality of flour, and they countermanded the orders.

It is true, as contended by the appellant, that when a broker has found a customer ready, able, and willing to purchase at the price fixed by the seller, he has earned his commissions; yet it is also true that when the result of the broker’s labors is a mere order for goods, which is revocable at the pleasure of the party making the order (McKindly v. Dunham, 55 Wis. 515, 13. N. W. 485, 42 Am. Rep. 742; Gould v. Cates Chair Co., 147 Ala. 633, 634, 41 South. 675), a revocation of said order is conclusive evidence that the purchaser is not willing to purchase the goods.

The seller, in this case, did not refuse to fill the order, but merely made a candid and honest statement of the quality of the flour, leaving the purchasers the option either to reaffirm the order, to change it to a better quality, or to revoke the order.

It is true also that if the seller refuses to deliver the property, or by any improper action on his part prevents the consummation of the purchase, he would, be liable for the commissions, but we cannot consider the action of the seller in this case as improper.' To hold otherwise would be to place a man in fault for telling the truth.

The court properly gave the general charge in favor of the defendant, and the judgment of the court is affirmed.

Affirmed.

Anderson, Mayfield, and Sayre, JJ., concur.