Summary
In Garnett v. Gunn, 206 Ala. 471, 91 So. 382, the court, referring to the rule, speaks of "definite and bona fide interruption.
Summary of this case from Owens v. Mt. Sts. T. T. Co.Opinion
8 Div. 371.
October 13, 1921.
Appeal from Circuit Court, Morgan County; O. Kyle, Judge.
E. W. Godbey, of Decatur, for appellant.
Gunn is not entitled to commissions under the facts in this case. 167 Ala. 411, 52 So. 659, 140 Am. St. Rep. 45; 9 C. J. 603-605; 204 U.S. 228, 27 Sup. Ct. 275, 51 L.Ed. 454; 103 Ala. 641, 15 So. 900; 195 Ala. 236, 70 So. 273; 149 Ala. 256, 42 So. 740.
S. A. Lynne, of Decatur, for appellee.
Under all the facts, Gunn was entitled to the commission. 177 Ala. 636, 59 So. 286; 9 C. J. 532; 57 So. 79; 203 Ala. 191, 82 So. 441; 86 Ala. 146, 5 So. 473; 162 Ala. 433, 50 So. 381, 136 Am. St. Rep. 52.
Plaintiff, appellee, sued and had judgment for commissions alleged to have been earned in finding a purchaser for two certain lots owned by defendant in the city of Sheffield. Counts 1 and 3, framed in common and special assumpsit respectively, were submitted to the jury.
The evidence without dispute showed that, by the terms of the original contract between the parties, plaintiff was to be paid the sum of $100 in the event he procured a purchaser for defendant's lot at the price of $800, and that this plaintiff failed to do. At first defendant and his vendee agreed conditionally upon a sale of the lots on consideration that the vendee would convey to defendant an automobile; and the jury may have been authorized to infer that the defendant was to accept the automobile as a satisfactory equivalent for $800. Had the proposed trade been consummated in the terms stated, or on terms deemed equivalent, by the parties thereto, plaintiff would have been entitled to his agreed commissions. But the evidence showed — and this, too, without dispute — that the parties to the negotiation by mutual consent withdrew from a trade upon the terms mentioned, as they had a right to do without imposing any liability on defendant (Richardson v. Olanthe, 167 Ala. 411, 52 So. 659, 140 Am. St. Rep. 45), and that afterwards, it having been learned, as he testified by defendant, and as well by his proposed vendee, that defendant had only a one-fifth interest in the lots, they exchanged automobiles, defendant conveying his interest in the lots to boot. According to defendant's testimony, plaintiff had nothing to do with the negotiation for this last-mentioned trade, which, according to defendant, was entirely separate from the first. The contract between the parties to this cause not having been performed according to its terms, and plaintiff having no exclusive right in the premises, defendant had the right, without reference to plaintiff or his claim, to deal in good faith with his propperty on any terms that did not involve an appropriation of the benefit of what plaintiff had done in the way of procuring a purchaser. Bruce v. Drake, 195 Ala. 236, 70 So. 273; Alexander v. Smith, 180 Ala. 541, 61 So. 68; Handley v. Shaffer, 177 Ala. 636, 59 So. 286. It follows that plaintiff was not entitled to a verdict under the third count of the complaint unless, indeed, the parties to the trade undertook to achieve a result substantially in accord with the terms laid down in the contract between the parties to this cause, but gave it a different form in order to defraud plaintiff of his commission. But such a conclusion seems hardly possible under the undisputed evidence. And if defendant, without definite and bona fide interruption, continued the negotiation with his vendee, into the way of which he had been put by plaintiff, and thus accepted the benefit of plaintiff's services, but arrived at a trade radically different from that originally contemplated by the parties, he would be answerable to plaintiff in a quantum meruit. But, in that event, there devolved upon plaintiff, as a condition to recovery, the burden of proving the amount of the compensation he reasonably deserved to have for his labor. There was no proof of the value of the service rendered by plaintiff on the hypothesis now under consideration. The original contract between the parties, contemplating compensation for a definite, different result, in and of itself afforded no sufficient evidence of the value to defendant of the service actually rendered. Anderson v. Knox, 20 Ala. 161. We take it that the court in Smith v. Sharpe, 162 Ala. 433, 50 So. 381, 136 Am. St. Rep. 52, intended to say no more than that, in a case like that made by the common count in this record, the jury had a right to look to the contract in determining the reasonableness of the compensation awarded, not that a contract to pay a fixed price would, in and of itself, be evidence of the reasonable value of services rendered in procuring a purchaser at a substantially different price. Certainly the cases cited on page 439 of the opinion hold to no such doctrine. Our further conclusion, therefore, is that, on the evidence shown in this record, which purports to contain all the evidence adduced in the cause, plaintiff should not have been allowed to recover on the first count of the complaint.
Reversed and remanded.
ANDERSON, C. T., and GARDNER and MILLER, JJ., concur.