Underwood v. Duskin Stewart Realty Co. , 17 Ala. App. 543 ( 1920 )

The defendant was the owner of 160 acres of land, which he desired to sell, and for this purpose employed plaintiff to procure a purchaser, agreeing to pay for the service 5 per cent. of the purchase price. The plaintiff did procure a purchaser at a satisfactory price, to wit, $6,400, and after some negotiations as to terms and time of delivery of possession defendant and the purchaser entered into an agreement, dated March 19, 1918, which will be set out by the reporter.

This contract was accepted by both parties, and the consideration named was paid. The commission agreed upon between plaintiff and defendant was demanded, but never paid, the defendant claiming that the contract of sale had never been consummated. On March 31, 1919, the purchaser executed and delivered to defendant, and defendant accepted, a quitclaim deed to the property, which quitclaim deed recognized the binding force and effect of the original contract of sale, and recited that the defendant and purchasers had mutually agreed to rescind the contract of sale, and that defendant should retain the $500 cash payment. This quitclaim deed was admissible as going to show what construction the defendant put upon the contract of purchase and sale. McGowin Lumber Export Co. v. Camp Lumber Co., 16 Ala. App. 283, 77 So. 433.

The plaintiff having procured a purchaser ready, willing, and able to purchase defendant's property, upon terms satisfactory to defendant, was entitled to be paid the agreed commissions. Kellar v. Jones Weeden, 196 Ala. 417, 72 So. 89. When the contract of purchase and sale had been executed and accepted, the duty of plaintiff was ended. Whether defendant ever enforced it, or whether he afterwards agreed to rescind it, as in this case he did do, was of no consequence to plaintiff; plaintiff was not a party to it, and had no control over it. Whatever was necessary to guarantee performance was a matter of contract between the parties, and was determined by the terms of the writing by which the entire matter was taken out of the hands of plaintiff. Under the terms of the purchase and sale contract, the defendant "sold" the lands therein described to the purchaser, and, as a margin to secure the balance of the purchase money, $500 in cash was paid, and an agreement in writing to pay the balance at a fixed time. The defendant recognized this, when on a mutual rescission he required a quitclaim deed reconveying the title. These were the negotiations of defendant, of which he assumed the responsibility, and apparently were satisfactory to him, with a purchaser furnished by plaintiff. He cannot avail himself of the services of the plaintiff, employed by him, who procured a purchaser, and then avoid the payment of the commission because the contract of sale made by himself does not terminate as he desires. Smith v. Sharpe, 162 Ala. 438, 50 So. 381, 136 Am. St. Rep. 52.

Admitting that some of the rulings of the court on the evidence may have been error, which we do not decide, upon the undisputed evidence in this case, and considering everything offered to be proved by defendant, plaintiff was entitled to the general affirmative charge, and such rulings could not affect the result.

The court committed no error in giving the general charge as requested in writing by plaintiff, and the judgment is affirmed.

Affirmed.