Culver v. A. A. Gambill Realty Co.

The original opinion in this case is based upon the assumption that the Gambill Realty Company was not the broker of Culver, who undertook to furnish a purchaser for Culver's property, but in all of the negotiations the Gambill Realty Company acted for and on account of the purchaser, and therefore the decision in this case did not in any way contravene the decision in the case of Birmingham L. L. Co., v. Thompson, 86 Ala. 149, 5 So. 473. The principle announced in that case is fully recognized by this court in the original opinion. As to this holding, the Supreme Court on certiorari is at variance with this court as expressed in the opinion of Miller, J., on application for rehearing (107 So. 914¹), which under the statute must control the decision of the Court of Appeals.

It is to be observed that a majority of the Supreme Court do not express their views as to whether or not a party wall is an incumbrance on the property, the opinion of Mr. Justice Miller on that particular point being concurred in by only one of the justices.

It would therefore appear that the effect of the holding in this case is to submit the question of agency as between Gambill and Culver to the jury.

Upon the authority of Culver v. A. A. Gambill Realty Co., 6 Div. 464 (Ala. Sup.) 107 So. 914,¹ the judgment in this case is affirmed.

Affirmed.

¹ 214 Ala. 84.