Opinion
6 Div. 747.
April 18, 1918. Rehearing Denied May 30, 1918.
Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.
James A. Mitchell, of Birmingham, for appellant. Erle Pettus, of Birmingham, for appellee.
Count 3 of the complaint was subject to the demurrer, for want of an allegation that plaintiff was ready to complete the loan transaction within a reasonable time after defendant's intestate had furnished plaintiff with a satisfactory abstract of title. It was not enough that plaintiff had merely procured a person who was ready, willing, and able to make the loan subject to an attorney's approval of the title, unless the matter was made ready for closing within a reasonable time after the furnishing of the abstract.
As we construe the contract exhibited in evidence, plaintiff fully discharged his obligations by procuring a lender, and by having the title of the property passed upon by an attorney, so that he was ready on December 13, 1916, to complete the loan transaction with the intestate by delivering to him the amount of the loan in exchange for the intestate's note and mortgage executed in due form. All this was done by plaintiff, as we think the evidence shows without dispute.
Conceding, without deciding, that it was necessary for plaintiff to allege and prove that the intestate was notified of the acceptance of his application for the loan, we think that such notice must be prima facie presumed, as matter of law, from the fact that the intestate had furnished plaintiff with an abstract of his title, which he was required to do only upon being notified of such acceptance.
Having brought the transaction to the point of readiness for final completion, plaintiff was clearly entitled to claim the compensation agreed on, unless the untimely death of intestate, at 9 o'clock a. m., on December 13, 1916, the day of plaintiff's readiness, before the transaction was completed, and presumptively before the intestate was notified of plaintiff's readiness to complete it, discharged the intestate's contract with plaintiff and released intestate from the obligation to pay for the services performed by plaintiff. "Contracts to perform personal acts are considered as made on the implied condition that the party shall be alive, and shall be capable of performing the contract, so that death or disability shall operate as a discharge." 13 C. J. 644, § 719. "The rule does not apply where the acts are of such a character that they may as well be performed by others as by the promisor's personal representatives." Id. 645.
We think it must be implied from the nature and purpose of the present contract that the parties did not contemplate the loss to plaintiff of his compensation, fully earned so far as his own initiative was concerned, by the accident of intestate's death before the loan was closed. Plaintiff was employed to perform a service, for which he was to be paid when he was ready to complete the loan, if so ready within a reasonable time. The failure of the intestate to be also ready, whether his failure was due to negligence, intention, or the mischance of death or other disability, cannot release him or his estate from the just obligation to pay for the services rendered at his request, in the absence of a provision in the contract to that effect. The legal reason for this is that his contract implied that he would be ready, and his obligation to pay was not conditioned on his final reception and enjoyment of the loan, but only upon plaintiff's readiness to complete it; and payment for the service rendered could as well be made by his personal representative after death as by himself if living.
We hold that the general affirmative charge, with hypothesis, should have been given for plaintiff, as requested by him in writing, and that its refusal was error which must reverse the judgment.
There was no error in the other rulings complained of.
Reversed and remanded.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.