Alford v. Creagh , 7 Ala. App. 358 ( 1913 )

THOMAS, J.

This Avas an action by the appellee, Creagh, against appellant, Alford, to recover commis-' sions claimed for services performed' in selling certain real estate under a special contract. The plaintiff;' Creagh, resides--at Suggsville, Clarke county, Alá'.; where he is engaged in ruiihing a boarding house, and thé lands,- for selling which1 the' commissions áre claimed, are located in Clarke county,* :in- the' vicinity of Suggsville, and belong to defendant’s wife and lieF sistér. The deféndant, Alford, resided at or near Cant-den in Wilcox' county, a consi durable - di stance frohi the lands, "so : far that -Ávlieir going 'to thé same, in the'' looking-after -and management thereof,5!We'\vafe accut-tomed to remain- overnight at Suggsville, usually stopping there at plaintiff’s boarding house, where he was brought, in contact with plaintiff. On one such occasion, shortly before July 19, 1909, in a conversation between the two, the plaintiff remarked to defendant that some parties from Chicago and Michigan were coming down. South in that section in the coming fall (fall of 1909) to look over some farm lands (the Morris-place), which he (plaintiff) had been employed to sell, whereupon defendant told • plaintiff to show the parties over his place while they were down there; that he would allow plaintiff a commission of 5 per cent, to- sell it for $12,000, and would send plaintiff the description or government numbers of the' land on his return home. Shortly after the defendant’s return home he says' he received a letter from the plaintiff requesting the numbers of the land, in response to which, on July 19, 1909, he (defendant) wrote from Camden to plaintiff at Suggsville as follows (omitting formal parts and immaterial matter), to-wit: “I am inclosing you the numbers of the Forbes place [which was done] as requested some time ago. I have been so very busy that when I would think of the numbers I would not be at home where I could get them. * * * I have been expecting to be at your place before now, but am on the sick list. : * * * Hope soon to be all ‘O. K.,’ and then will come down. Hope you can meet up with good luck and sell the place for me. Will allow you 5 per cent, for sale. Do not care for all cash, a part of it, and balance on time with interest. Will take $12,000.00 for the place. Thanking you for anything you can do towards selling it, I am, “Yours,” etc. This letter was promptly received by plaintiff in due course of mail, but its receipt was never acknowledged, nor after its receipt was the defendant ever in any way notified by plaintiff of the latter’s acceptance of the employment.

The general rule unquestionably is, as contended by appellant, that a mere offer to employ another to sell land or do any other act cannot, within itself, create a binding obligation on the party making it, and that before it can have such effect it must be accepted or assented to by the party to whom it was made, and such assent or acceptance must be made known by him to the other party within a reasonable time. — Martin v. Black, 21 Ala. 721. Yet where that offer has been preceded, as here, by a verbal offer of practically identical import, and the party to whom it was made has given unmistakable evidence of his acceptance of that verbal offer by writing to the.party making it for the land numbers, as promised at the time, and, in response to this letter, the party making the offer writes and furnishes the land numbers and renews his offer of employment in terms none the less favorable to the other party than were contained in the verbal offer, we think an acceptance may be well implied, and that the party receiving the offer is relieved of the necessity of informing the other party of such acceptance.

If the offer contained in the letter from the defendant, which we have quoted, had been more onerous upon or less favorable to plaintiff in any material particular (for instance, in the commissions to be allowed, or otherwise) than was contained in the verbal offer, which had already been accepted, then the letter would probably be construed as the revocation by defendant of the verbal offer (Chambers v. Seay, 73 Ala. 372) and the making of a new offer, which would necessitate a new acceptance in order to make its terms a contract between the parties. Not being so, but providing, as it did, for the sale of the same lands on the same commis-sious at the same price on more favorable terms than as fixed by the verbal offer, which had been previously .accepted, and written, as the letter was, under the circumstances which called it forth, the plaintiff had a right to assume that the defendant would presume his acceptance of the offer.

We are aware of no provision or construction of the statute of frauds which necessitates a contract of the class here being in writing (Prout v. Robertson, 87 Ala. 599, 6 South. 190, and cases cited; Hutto v. Stough, 157 Ala. 566, 47 South. 1031), and we know óf no policy or principle of law that forbids the husband from making in his own behalf and incurring an individual liability upon a contract entered into by him Avith another to procure a purchaser for lands belonging to his Avife and her sister. — Rounds v. Alee, 116 Iowa, 345, 89 N. W. 1098.

Nor does the fact that the plaintiff had not paid the state for and taken out a license to engage in the real estate business, as required by the reArenue laAvs of the state,' vitiate the contract.

As has been Avell said by our Supreme Court on this subject, quoting approvingly' from Clark on Contracts, “when conditions prescribed by laAV for the conduct of á business, trade, or profession are not complied with, agreements in the course of such business, trade, or profession are (1) void, if the condition is for the benefit of the' public, as for the maintenance of public order or safety, or the protection of persons dealing Avith those upon whom it is imposed; (2) valid, if no specific penalty is attached to the specific transaction, and the condition is imposed simply for administrative purposes, such as the protection or convenient collection of. revenue.” — Sunflower Lumber Co. v. Turner Supply. Co., 158 Ala. 191, 48 South. 510, 132 Ant. St. Rep. 20. See, also, Houston v. Boagni, McGloin (La.) 164; Prince v. Baptist Church, 20 Mo. App. 332; Amato v. Dreyfus (Tex. Civ. App.) 34 S. W. 450. We have, tlien, for consideration and construction, a valid contract between tlie parties.

Failing, as it does, to fix a time within which it is to be performed,' the law supplies the deficiency by presuming that the parties intended that it was to he performed within a reasonable .time from the making.— Elliott v. Howison, 146 Ala. 568, 40 South. 1018.

What is a reasonable time is sometimes a question of fact and sometimes a question of law. Where it depends upon facts extrinsic to the contract, which are matters of dispute, it is a question of fact; when it depends upon the construction of a contract in writing, or upon undisputed extrinsic facts, it is a matter of law. — Cotton v. Cotton, 75 Ala. 345; Comer v. Way, 107 Ala. 300, 19 South. 966, 54 Am. St. Rep. 93; Griffin v. Ogletree, 114 Ala. 343, 21 South. 488; McFadden v. Henderson, 128 Ala. 221, 29 South. 640.

Here the terms of the contract are evidenced in writing by the letter, and all the material extrinsic facts leading up to and inducing the letter and shedding light on its meaning are without conflict, as well as all that was subsequently done and said between or by either party in reference to it, or by the plaintiff in his alleged performance of it, and all other material surrounding-facts and circumstances, antecedent and subsequent. Hence, the affirmative charge having been requested by and refused to the defendant, it becomes the duty of this court, in determining the correctness of the action of the lower court, to decide whether or not the alleged performance by plaintiff of the contract was accomplished within a reasonable time from its making, and, if so, whether this alleged performance was otherwise such a performance of the contract as entitles plaintiff to the commissions provided for by it.

To recover these commissions under the contract, it was therefore incumbent on plaintiff to sIioav that Avithin a reasonable time after the contract was executed, he, under it procured, or through another procured, a satisfactory purchaser, who was able, ready, and willing to purchase the property at the price and on the terms fixed by the contract of employment.— Am. & Eng. Ency. Law, vol. 23, p. 918; Sayre v. Wilson, 86 Ala. 156, 5 South. 157; Hutto v. Stough, 157 Ala. 571, 47 South. 1031.

In determining Avhat is a reasonable time, there must be taken into consideration the nature of the duty to be performed, the relation of the parties, the character of the subject-matter of the contract, and the other peculiar circumstances of the particular casé. — Cotton v. Cotton, 75 Ala. 345. The term is a relative one, and its meaning differs according to the circumstances of each particular case, and is to be determined in any case only by revieAving the situation confronting and the circumstances surrounding the contracting parties at the time the contract Avas made, and endeavoring to fix such a time as these reasonably indicate Avas within the contemplation and intention of the parties. — Cacker v. Franklin Hemp, etc., Mfg. Co., 3 Sumn. 530, Fed. Gas. No. 2,932.

We have hereinbefore recited the uncontradicted facts leading up to the writing of the letter in evidence from defendant to plaintiff, which we have quoted, and Avhich embodies the contract between the parties. It appears that in the fall of 1909, after plaintiff received this letter, the parties from the North, Avhich he had mentioned to defendant before the letter, as expecting, did come down and plaintiff showed them over the land. Neither of them was willing to buy, but plaintiff never once informed defendant that they had even been down, nor made any reference to the matter of the contract between them, or advised defendant that he was still endeavoring to find a purchaser or had endeavored to do so, although defendant spent the night at plaintiff’s wife’s boarding house three or four times after that fall, and he and plaintiff had conversations together. After this (hut it does not appear when) plaintiff says he wrote some 20 letters in an effort to sell the property, but it is not even contended that defendant knew anything about this. It further appears that in the spring of 1910, about March or April, one S. C. Garrett, from Grove Hill, Clarke county, Ala., was down at Suggs-ville, when plaintiff saw him and told him that if he (Garrett) in his travel would find a purchaser for the lands at $12,000 he could have half of plaintiffs commission at 5 per cent. Defendant Avas not informed of this employment of Garrett or that either plaintiff or Garrett Avas trying in any Avay to sell the land.

Some months later Garrett Avas in the railroad station at Cincinnati Avith a negro prisoner, en route South, Avlien one H. F. Owings, of Pulaski, Tenn., in a chance Avay met him. The íavo Avere on the train together from Cincinnati to Nashville, and OAvings, hearing Garrett say he was from Alabama, introduced himself, and in the course of a conversation between them OAvings made inquiries as to Alabama lands and the prices. Garrett then told him about defendant’s plantation and other lands in Clarke county being for sale, but did not advise him of his alleged agency to sell. In regard to the price, Garrett told OAvings that the parties wanted $12,000 for the place, but he believed it could be bought for $10,000, and for OAvings to come down and look at it. Later (it does not appear how long after) Owings Avrote Garrett that he was coming down; and shortly thereafter, about September 20, 1910, he and his associate in business, one Hunter, came down to Grove Hill, spent the night Avith Garrett, and the three Avent together in Garrett’s teams the next day to look over' the land. They each of them say that Garrett never at any time infornied them that he Avas an agent to sell this land, nor does he swear positively that he ever so advised either of them. After looking over the land, they spent the night in that vicinity, and Garrett admits again then telling them he thought they ■could buy the place for $10,000. The next morning he -carried Hunter to the railroad station, Avho returned to Birmingham, and Garrett to Grove Hill, leaving Owings down there, Avhere he remained several days looking over lands in that section. Garrett admits that this was the extent of his connection Avith the sale of the land, and it does not appear that plaintiff kneAv then or until after the sale either the parties or that they had been in that vicinity, although they, Avith Garrett, passed through Suggsville in going to the land and spent the' night, in the vicinity, only about half a mile from Avliere plaintiff lived and kept a boarding house. Garrett says he heard at the time that plaintiff was not at home. After Garrett’s return home, he from Grove Hill, on September 29, 1910, Avitliout the knoAvl-cdge, Ave infer, of either Owings or Hunter, writes defendant at Camden as folloAVs: “Notify me by phone or return mail the least money that Avill buy your place near Suggsville. This is Avith a view of purchasing, and if the price suits me we may get on a trade. Will expect an immediate reply.” Garrett admits that he was endeavoring to buy the property for his. OAvn benefit. Defendant promptly replied by letter stating that $12,-000 Avas the least he Avould take. .

Owings, after Garrett and Hunter left him, and after ■remaining several days in the neighborhood of the land, not even knowing the plaintiff or defendant, and not knowing that Garrett had any interest whatever in the sale of .the lands, or that defendant had employed an agent to sell them, of his own motion went over to Camden to see defendant about trading for the land, and after two other trips there, from Birmingham to Camden, to see the defendant, the negotiations between them were finally closed and consummated by the defendant, his wife and sister, executing on December 29, 1910, for $12,000, a conveyance of the lands to the Oastie Plantation Company, a corporation organized at Birmingham by Owings and his associates, Smith and Hunter, for farming purposes, on December 5, 1910, the date of the filing of the certificate.

Neither Owings nor Hunter, who came down and looked over the lands, ever knew that Garrett was or claimed to be an agent to sell the land, and never became acquainted with plaintiff at all or knew that he was or claimed to he an agent to sell the land, until long after the trade was consummated. Defendant was never informed that plaintiff had employed Garrett to assist him in selling the lands, or knew that Garrett was in any way instrumental in bringing the purchaser to him, or claimed to be, until long after the sale was accomplished. From the time (July 9, 1909) the date of the letter of employment to sell which we have quoted, from defendant to plaintiff, to the time of the completed sale of the land on December 29, 1910, covering a period of nearly 18 months, the plaintiff never once informed defendant that he had done, or was doing, or expected to do anything in an effort to sell said lands, nor even advised defendant that the parties from Chicago and Michigan, the information as to whose expected coming led to the employment, had been down in the fall of 1909 and looked over the land, but declined to buy, notwithstanding that during this 18 months the defendant a number of times was at plaintiff’s house and they conversed together. The first information that defendant had that .plaintiff claimed to have been in any way instrumental in bringing about the sale was in February, 1911, some months after the same was completed on December 29, 1910, when plaintiff wrote defendant demanding his commissions of 5 per cent. Plaintiff here predicates his right to recover solely upon the services of his alleged sub-agent, Garrett, whose whole services in connection with the sale we have hereinbefore recited.

While it is time that, where the sale results from the effort of a subagent or employee of the broker, he has the same right to recover commissions as though the sale had been the result of his own personal effort, and that it is not necessary, to entitle the broker to his compensation, that the owner should have known that the person to whom he sold was procured-and sent to him by the broker or his subagent, or that either had any connection with the sale (23 Am. & Eng. Ency. Law, p. 913) ; yet we are of opinion that under the facts of this case the plaintiff was not entitled to recover, and that the affirmative charge requested by defendant should have been given for several reasons.

The law requires that a real estate agent, employed to sell land, must act in entire good faith and in the interest of his employer. — Henderson v. Vincent, 84 Ala. 101, 4 South. 180. To this end he must exact from the purchaser the price, the terms, and conditions of sale which his employer has fixed. — 23 Am. & Eng. Ency. Law (2d Ed.) p. 902. If he fails to do this, but induces the prospective purchaser to believe that the property can be bought for less, be fails to discharge that duty to his principal that good faith demands. Such conduct on the broker’s part is well calculated to lead the purchaser to stand out and thereby either force from the seller a lower price than that fixed or delay the sale, even if he finally buys at the price fixed, both detrimental to the interest of the seller.

Furthermore, it is equally bad faith in the agent to-attempt to buy the property at a less price than that fixed by the seller, Avith a view of reselling to the prospective purchaser at a profit. He is thereby putting his' own interest in direct conflict with that of his employer. — 23 Am. & Eng. Ency. Luav (2d Ed.) pp. 907, 90s"

The real estate agent loses his right to commissions Avhere, in his dealings in reference to the subject-matter of his employment, he is guilty of either fraud or bad faith towards his employer. — 23 Am. & Eng. Ency. Law (2d Ed.) p. 921.

Applying these principles to the undisputed evidence as to the conduct of Garrett, we are impressed that it shoAvs such bad faith towards the interest of defendant as to defeat a recovery of commissions by plaintiff, who relies solely for recovery on the services of Garrett in bringing the parties together. Plaintiff cannot be permitted to claim the benefits, and at the same time repudiate the burdens, of Garrett’s conduct. He was plaintiff’s agent, and his acts, good or bad, in the course of and with reference to the employment were plaintiff’s acts.

Furthermore, pretermitting all other questions, the alleged performance Avas not within a reasonable time from the employment of plaintiff. Considering the conversation betAveen defendant and plaintiff, antedating, and the other circumstances Avhich called forth, the letter of employment in evidence, together with the situation of the respective parties, we are constrained to regard that, letter somewhat in the nature of a written acknowledgment and confirmation by defendant of the verbal offer, designed more with the view of preventing-misunderstanding and preserving some informal memorial of its terms than for the purpose of making a new offer. Though it fixed no time limit for performance, yet it is to be reasonably supposed from all the attendant facts and circumstances that each party likely understood and contemplated that it would be performed, if at all, the fall following (that is, the fall of 1909), when the prospectors from Chicago and Michigan were to come down. This, under the circumstances of this case, we fix as the reasonable time for performance, and in doing so are governed by what the parties themselves are supposed to have intended, as near as it can be ascertained from the whole surroundings. If before this time defendant had desired to revoke the employment, affirmative action on his part would have been necessary; but after the lapse of such time the contract expired by its own limitations, and no revocation by defendant was necessary in order to put an end to the employment or avoid liability under it.

To fasten a liability upon him for the service the plaintiff or his subagent might perform, after the lapse of siich time, in procuring a purchsaer for the land, it would be incumbent on plaintiff to show that the defendant consented, either expressly or impliedly, to an extension of the time. He would be held to have so consented if plaintiff, after failing to get the purchaser originally contemplated,, had informed him that, notwithstanding such failure, he Avould continue to try to find a purchaser, and defendant had made no objection; or defendant would be held to have so consented if he bad accepted tbe actual purchaser, with knowledge that he was procured by plaintiff or his snbagent under and in reliance upon the contract. He could not accept the benefits of a tendered performance and repudiate the burden. However, it is without dispute that not one word passed between plaintiff and defendant about this contract from the time it was made until after the trade for the sale of the land was closed, and that it was closed by defendant in absolute ignorance that either plaintiff or his agent had procured the purchaser, or that plaintiff or his subagent had ever taken a single step in carrying out the employment. It therefore becomes unnecessary to consider the question as to whether or not plaintiff’s subagent, Garrett, upon whose acts plaintiff solely relies for recovery, was the efficient cause in bringing together the seller and purchaser. In passing, however, we may say that to be such he must have performed the service, assuming that it Avas sufficient, under and in consideration of the contract, and not gratuitously as a public-spirited citizen. A person is not permitted to do something for another gratuitously at the time and afterAvards charge for it. It is singular, if Garrett had the employment as subagent, AAdiich is claimed, and if he Avas acting at the time under this employment, that he did not communicate the fact to either the seller or the purchaser, pending the negotiations, so as to avoid the possibility of subsequent dispute. It is likewise unnecessary to review the rulings of the lower court on the pleadings, or on the refused charges, since what Ave have said will be a sufficient guide for another trial, should there possibly be one.

The judgment of the loAver court is reversed, and the cause remanded.

Reversed and remanded;