Glass v. Smith , 21 Ala. App. 325 ( 1926 )

BRICKEN, P. J.

This is a suit by appellee as plaintiff against appellant as defendant, claiming damages for an alleged breach of contract, whereby defendant, a married woman, placed her separate real estate in the hands of plaintiff to effect a sale thereof on commission.

Plaintiff alleged and proved that he procured a purchaser ready, willing, and able to purchase the property on the terms set out in the contract, which is essentially a contract of employment. Plaintiff was made defendant’s agent to effect a sale of the property, and plaintiff performed his part of the contract when he procured a purchaser ready, able, and willing to buy on the terms specified in the contract between them. Plaintiff had fully performed, and was entitled to remuneration, whether defendant could, or would, perfect the sale by executing deed to the waiting purchaser.

There are many assignments of error in the record, but practically all of them depend finally upon whether or not the trial court was correct in sustaining demurrer to defendant’s special plea numbered two. The contract was set out in full in the complaint, and, as a defense, plea 2 set up the disabilities of coverture with respect to the conveyance of real property by the wife without the consent of the husband manifested in the mode prescribed by the statute. Had the suit been for the enforcement of such a contract, or based upon a contract declared void by the statute, of course there could have been no recovery in the face of the plea; it would have been perfectly good. But the contract sued on was not a contract for alienation of real estate, but a contract for services between a married woman and one whom she had appointed as her agent to procure a purchaser for her property. The words of the contract are; “I hereby appoint you exclusive'agent to make a sale of the real property described,” etc., for which service she further agreed to pay a certain specified commission. This could only mean that plaintiff was employed to find a purchaser for the property. This, within the contemplation of the partiés, was making a sale. It was not a contract to convey the property, nor an effort to make plaintiff her attorney in fact to effect, or complete, the sale. Consequently the plea was inapt.

All other assignments of error are manifestly without merit.

Affirmed.