Stout v. Thornhill , 16 Ala. App. 480 ( 1918 )

The plaintiff's right to recover for his services as a broker in procuring a purchaser for the defendant's lands, in pursuance to a contract between the plaintiff and the defendant, is in no way dependent upon a consummation of such sale, or the failure of such consummation resulting from the conduct of the defendant.

When a real estate broker, who has been engaged to procure a purchaser for certain real estate on certain terms, in good faith presents a purchaser who is ready, able, and willing to make the purchase for the price and on the terms specified, it is the duty of the principal to accept the purchaser and consummate the sale. Birmingham L. L. Co. v. Thompson,86 Ala. 146, 5 So. 473; Handley v. Shaffer, 177 Ala. 636,59 So. 286; Bailey v. Padgett, 195 Ala. 203, 70 So. 637. In such case the broker is entitled to his compensation, whether the sale is consummated or not, and is likewise entitled to his compensation if the principal accepts the purchaser on terms previously proposed, "or upon modified terms then agreed upon, and a valid contract is entered into between the principal and the person presented by the broker." Birmingham L. L. Co. v. Thompson, supra.

While the failure to consummate the sale because of the fault of the principal, or its consummation on terms other than first proposed through the broker, may be incidentally or collaterally involved in the issues, the breach of the contract essential to the broker's right to recover is with respect to the obligation to pay the broker compensation, and an averment showing the failure or refusal of the defendant to pay the compensation is essential to the stating of a cause of action in a special count declaring on such contract. No such averment appears in the several special counts of the complaint brought in question by the demurrers.

The application of the principles stated above shows that the trial court erred in overruling the demurrers to the several special counts. This error, however, was without injury, as under the undisputed evidence, if the plaintiff was entitled to recover at all, he was entitled to recover under the common counts. Barnes v. Marshall, 193 Ala. 94, 69 So. 437; Kellar v. Jones Weedon, 196 Ala. 417, 72 So. 90.

The letters from Dorroh to his attorney and his agent, indicating that he did not desire to close the trade with Stout unless he could acquire the Nelson tract, were, in the absence of evidence showing or tending to show that the Nelson tract was not available, not relevant to the issues. No such evidence was offered, and the rulings of the court on the objections to these letters were free from error.

The exceptions to the oral charge of the court cannot be sustained. Chapman v. Lee, Adm'r, 55 Ala. 616. Charge 8, given at the request of the plaintiff, asserts a correct proposition of law. Richardson v. Olanthe Milling Elev. Co., 167 Ala. 411,52 So. 659, 140, Am. St. Rep. 45.

Charges 10, 11, 12, 13, and 16, as applied to some phases of the evidence, assert correct propositions of law, and were properly given.

This disposes of all matters insisted upon in brief of counsel. There being no reversible error in the record, the judgment is affirmed.

Affirmed.