Chitwood v. White , 18 Ala. App. 331 ( 1921 )

The defendant entered into a verbal contract with plaintiff, by the terms of which plaintiff was employed as agent to sell defendant's farm at a price to net defendant $15,000, the excess, if any, to be plaintiff's compensation. The contract was informal, and no time limit was specified in which the place was to be sold, not was there any stipulation in the contract making time of its essence. Where this is the case, the party agreeing to perform the service has a reasonable time in which to effect the sale according to the terms agreed upon; such reasonable time being determinable upon the character of the service to be rendered, the magnitude of the undertaking, and the circumstances surrounding the parties, within the knowledge of both. 6 Rawle C. L. p. 896, § 285; McFadden Bro. v. Henderson, 128 Ala. 221, 29 So. 640. And where the facts proving the contract are undisputed, what is a reasonable time is a question of law for the court. Authorities, supra.

The agreement between plaintiff and defendant being executory, with no time limit for its performance, and being unilateral, was subject to revocation at any time before the plaintiff complied with its terms, or had incurred liability under the terms of the agreement in the procurement of a purchaser. Consolidated Portrait Frame Co. v. Barnett,165 Ala. 655, 51 So. 936.

The obligations assumed by the plaintiff as a real estate broker, entitling him to a recovery, were to furnish to the defendant, before authority to sell had been revoked, a purchaser for his farm, ready and willing to purchase the farm at the price named, and with the present ability to meet the terms of sale named in the agreement between plaintiff and defendant, which was in this case the payment of the entire purchase price in cash. Underwood v. Duskin Stewart, 17 Ala. App. 543,85 So. 845; Eldorado Coal Co. v. Rust Shelburne,202 Ala. 625, 81 So. 567.

The plaintiff in this case did find and furnish a purchaser willing to purchase at a price which, if carried out, would entitle plaintiff to a recovery of $500. As to whether Scarbrough, the prospective purchaser, was acting for himself or another, is of no moment in the consideration of the case at bar. Did he, at the time he was presented as a purchaser of the property, have then under his control for immediate payment the amount of the purchase money in cash? This, as we see it, is the determinating issue presented by this record; and, while there may have been no doubt in his own mind as to his ability to pay, the legal status of the funds with which he expected to make the payment must here he considered. The payment in order to meet the terms of sale must have been presently paid in cash. Not in a month, week or day. Was he so able? Fourteen thousand six hundred dollars of the money claimed by Scarbrough to be available was in hands of the court as the proceeds of the sale of lands belonging to certain minors, which sale was subject to confirmation, and even after confirmation could not be paid out except upon another order of the court to be obtained upon proper application and legal hearing. The verbal statement, of the man who was at that time holding the office of circuit judge, that he was satisfied with the purchase and would in due course make the order, was not binding on the court, and parties had no legal rights under such a statement.

The judgments and orders of courts to be binding must become a part of the minutes of the courts rendering them.

This was the condition of the parties when the defendant broke off negotiations, and the court erred in refusing to give, at the request of defendant, the general affirmative charge.

It is therefore not necessary to pass upon the other question presented.

For the error pointed out, the judgment is reversed and the cause is remanded.

Reversed and remanded.