Opinion
6 Div. 203.
November 22, 1927. Rehearing Denied January 10, 1928.
Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.
Action by the Sudduth Realty Company against C. L. Ellison and M. J. Ellison. Judgment for plaintiff, and defendants appeal. Affirmed.
Certiorari denied by Supreme Court in Ellison et al. v. Sudduth Realty Co., 217 Ala. 337, 116 So. 333.
The complaint alleges that plaintiff, which was engaged in the business of selling real estate in the city of Birmingham, entered into an agreement with defendants, wherein defendants employed plaintiff to sell the real estate described upon terms and conditions set forth, and agreed to pay plaintiff the regular and customary commission allowed for the sale of real estate in Birmingham; that plaintiff performed its part of said agreement, by procuring a purchaser, ready, willing, and able to buy upon the terms and conditions fixed, but that defendants breached said agreement by failing and refusing to pay plaintiff its commission.
The plea was in short by consent. C. L. Ellison and his mother, M. J. Ellison, jointly owned the property involved in the suit.
Plaintiff introduced as a witness one Elliott, who testified that he signed a contract to purchase the property at a price of $18,500, giving his check for $1,000 as earnest money, agreeing to pay $6,500 additional when the deal was closed (the sale to be consummated in 30 days), and to pay the balance in four annual installments. Elliott testified that he dealt with one Cardwell, an agent of the plaintiff, and did not know the defendants in his negotiations; did not know who the owners were; that he gave his check for earnest money, to be held by the plaintiff, with the understanding that it was to be returned to him in event the trade did not go through. He did not know the date he signed the contract, but his check for earnest money was dated February 11, 1926, and the signing, he said, was on or about that date. He further testified that he was ready, able, and willing to purchase on the terms stated, that the deal did not go through, and that his check was returned to him. He further testified that another real estate agency sought to sell him this property.
C. W. Anderson, a witness for plaintiff, testified that he was an agent of the plaintiff, and had had negotiations with the defendants looking to the sale of their property, making several proposals which were rejected; that within the week before February 11, 1926, C. L. Ellison came to his office and reached an agreement upon the price and terms of sale of the property and the amount of commission to be allowed to plaintiff for making a sale; that a contract was drawn embodying the terms fixed by Ellison; that Ellison stated that he would have to carry the contract to his mother for her signature; that on the following day Anderson called at the home of defendants, and that Mrs. Ellison brought the contract out to him, and said that she and her son had agreed to take that for the property, and told him to "get it signed, and then we are ready to sign." The witness testified that an interlineation had been made by defendants in the typewritten form, relating to payment of earnest money, and that the price therein stated was $18,500; that "it was either that day or the day before Mr. Elliott's contract was procured"; that on the night of February 11th witness went to the home of the defendants, taking with him the contract signed by Elliott; that defendant C. L. Ellison told witness his mother was in Atlanta, and that he would go to Atlanta the following (Friday) night and secure her signature; that witness handed Ellison the contract and Elliott's check for $1,000, and that Ellison unpinned the check and returned it to him, and told him to keep it until the contract was returned; that Ellison returned from Atlanta Sunday night, called witness on the telephone, and informed him that his mother had refused to sign the contract, and that he (Ellison) "got mad about it and tore it up." This witness further testifies that he never did have any contract signed by the defendants; that he did not try to get the property listed solely with the plaintiff company, and Ellison did not tell him he had the property listed with others; and that Ellison told him of the other sale Monday week after Ellison returned from Atlanta.
Defendants introduced in evidence a contract of sale of the property to one Jaffe, through Phil Dorn, as agent, said contract being dated February 8, 1926, and the defendant C. L. Ellison and the agent Dorn testified that the sale was closed with Jaffe, the contract being signed by defendants, from one to three days after the date of the contract. Defendant Ellison testified that he had listed the property with four realty firms for sale; that when the Elliott contract was presented to him the Jaffe contract had already been signed. Further, he testified that when Anderson, representing the plaintiff, first sought a listing of the property from him, he told Anderson that it was already listed with other agents, and Anderson thereupon took a memorandum of the property; that the price he told Anderson he would take for the property was $21,000; that, when Anderson presented the Elliott contract to him, reciting a price of $18,500, he told Anderson this was not the price agreed on, and also told him that he had already signed a contract for the sale of the property — that to Jaffe — and hence that he could not sign the contract offered; that he thought that sale would go through within the time provided (30 days); that he agreed to take the Elliott contract to Atlanta to be considered by his mother, in event the Jaffe deal did not go through, but did not take the check for earnest money; that he did so carry the Elliott contract, his mother refused to sign, and he tore it up; that he did not get in touch with Anderson after returning to Birmingham, but that Anderson got in touch with him several times; that he told Anderson his mother declined to sign and that the contract had been torn up, and, Anderson persisting, told him there was no use — that he thought the other sale would go through. He further testified that the sale went through, and that he paid to the agent Dorn his commission by check dated March 23, 1926.
The following charges were refused to defendant:
"(4) I charge you, if you believe the evidence, you cannot find for the plaintiff under count A of the complaint."
"(6) I charge you, if you are reasonably satisfied from the evidence that the plaintiff did not have the exclusive right to sell the property in question, then your verdict should be for the defendants.
"(7) If you are reasonably satisfied from the evidence that the defendants had contracted to sell the property in question prior to February 11, 1926, then your verdict should be for the defendants."
There were jury, and verdict for plaintiff, and judgment accordingly, from which defendants have appealed.
Beddow Ray, of Birmingham, for appellants.
Where parties intend that an oral agreement is to be reduced to writing, the transaction remains invalid until the writing is executed. Houston v. Faul, 86 Ala. 232, 5 So. 433; Bissinger v. Prince, 117 Ala. 480, 23 So. 67. A person may list his real property with as many brokers for sale as he deems fit, but it is the broker who first produces a buyer that is ready, able, and willing to purchase on the terms of the seller that becomes entitled to the commission. Freedman v. Havemeyer, 37 App. Div. 518, 56 N.Y. S. 97; Paige v. Powers, 215 App. Div. 721, 212 N.Y. S. 435; Vreeland v. Vetterlein, 33 N.J. Law, 247.
Black Fort and Wilkinson Burton, all of Birmingham, for appellee.
The broker is entitled to his commission when he produces to his principal a purchaser who is able, ready, and willing to buy on the terms presented by such principal, within the period allowed, or, if the time is not limited, before revocation of the agency. Handley v. Shaffer, 177 Ala. 636, 59 So. 286; Dancy v. Baker, 206 Ala. 236, 89 So. 590; Allen v. Farmer, 21 Ala. App. 524, 109 So. 555; Birmingham Land L. Co. v. Thompson, 86 Ala. 146, 5 So. 473; Henderson v. Vincent, 84 Ala. 99, 4 So. 180. Whenever the facts in evidence, proving or disproving the issues in the case, are in dispute, the case is properly submitted to the jury. Allen v. Farmer, 21 Ala. App. 524, 109 So. 555.
This was a suit by appellee against appellants, in which it recovered judgment in the court below for an amount claimed by it as its commission for the sale of certain real estate. The statement made by the reporter sufficiently shows the relation of the parties. We see no need for any extended discussion by us. Most of the facts are undisputed.
It appears that appellee, a real estate broker, had listed with it, for sale, the real estate in question. It appears further that it found and produced a purchaser ready, willing, and able to buy the property at the price and upon the terms which it submitted to him. If it had a binding agreement with appellants, the owners of the property, authorizing it to sell the property at this price and upon these terms, then it was entitled to recover its commission, even though the sale, by fault of the seller, was never consummated. Handley v. Shaffer, 177 Ala. 636, 59 So. 286.
The big dispute in the case, and the one upon which it turned, was as to whether or not appellee had such an agreement with appellants. Without, as we said, any extended discussion, we state our conclusion that this disputed question of fact was by the trial court submitted to the jury under fair and correct legal instructions. The contract, it is true, was never signed by appellants, but it was not such a contract as was required to be in writing, and we do not find in the evidence anything from which it can be said, as a matter of law, that it was never intended to be binding unless reduced to writing. It follows that the holding in Bissinger v. Prince Blackman, 117 Ala. 480, 23 So. 67, is without application here.
As we read the record, the testimony of the witness, Anderson, as to both appellants agreeing to the terms of sale, etc., and instructing appellee to proceed with its efforts to sell the property, made the question of whether or not appellee had a binding agreement with appellants one for the jury's decision. There was then, of course, no error in refusing to give at appellants' request the general affirmative charge in their favor.
As stated, the above disposes of the main question raised in the court below and argued here.
The other questions are of but slight importance and do not seem to merit specific mention by us. In none of the rulings underlying same do we find prejudicial error. The judgment is affirmed.
Affirmed.