Millican v. Haynes

SAYRE, J. Plaintiff in this cause suffered a nonsuit in the trial court, where demurrers were sustained to each count of his complaint, and prosecutes this appeal under the provision of section 6431 of the Code of 1923. Plaintiff had a contract with defendant by which he was to sell a certain tract of land for defendant on commission. A paragraph of the contract, which was in writing, provided : “It is further mutually agreed by and between the parties hereto that this contract is not subject to cancellation or revocation without the written consent of both parties, and same may be extended and readvertised if necessary,, as in the opinion of the party of the second part [plaintiff] may best serve the interests of the parties hereto and sold under this contract on the same terms and conditions named herein.” Before plaintiff had found.a purchaser of the tract or any part of it defendant no- *539 tilled plaintiff in writing, in effect, that the contract was revoked. Whereupon this suit. The contract contains language which appears to have been employed with a view to the creation of the semblance of an interest in the land described — words of conveyance are employed — but its whole effect, we think, is to grant the right to sell for a commission, to create an interest, not in the land itself, but in the exercise of the power to sell; that is, in the commissions to be earned. “But, if we are to understand by the word ‘interest,’ an interest in that which is to be produced by the exercise of the power, then they are never united. The power to produce the interest must be exercised, and by its exercise is extinguished.” Hunt v. Rousmanier, 8 Wheat. 204, 5 L. Ed. 589; 2 C. J. 532, note 64. The contract created no interest in the land which was the subject-matter of the power conferred on plaintiff. It created an agency only, as its provisions apart from the language of conveyance abundantly indicate, and was therefore subject to revocation by the owner at any time. Chambers v. Seay, 73 Ala. 372; Henderson v. Yincent, 84 Ala. 100, 4 So. 180; Cronin v. American Securities Co., 163 Ala. 533, 50 So. 915, 136 Am. St. Rep. 88. As for the rest, we quote from Chambers v. Seay, supra: “It is insisted further that the agency is rendered irrevocable by reason of the fact that the power of sale conferred on Chambers was stipulated to be exclusive. This cannot he stronger than the use of the word ‘irrevocable,’ which has been construed to fail of such a purpose, unless the agency comes within the exceptions above discussed”— that is, where the agency is coupled with an interest or it is necessary to effectuate a security. “In the case of a naked power, an express declaration of irrevocability will not prevent revocation.” And, since the questions here involvéd have been the frequent subject of consideration in the courts everywhere, we may add in the language of 2 C. J. 527-529, that, subject to the limitations stated, “the principal has absolute power to revoke an agency at any time, at his mere option, either with or without reason, and thereby terminate the agent’s power and authority to bind the principal by any further acts. This power to revoke an agent’s authority at any time is not at all affected by the fact that there is an express or implied contract between the agent and the principal that such agency is irrevocable, or that the employment of the agent shall continue for a specified time, or by the fact that the authority was conferred for a consideration, or that the agent has incurred expense in and about the business of the agency. * * * The only effect of such stipulations is to give the agent a cause of action against the principal for a wrongful revocation in breach of such contract.” In support of this text a host of adjudicated cases is cited, Chambers v. Seay, supra, among the rest. In other words, the power and authority of the agent to act for the principal may be revoked at any time; a valid contract cannot be revoked. 2 C. J. 528, note 31(a). The several counts of the complaint, as we understand them, proceed' upon the theory that defendant breached the contract alleged by revoking plaintiff’s power and authority to proceed thereunder, and hence that defendant is “indebted” to plaintiff as for commissions earned with interest thereon. No sales have been made; no purchasers have been found. The- pith of plaintiff’s complaint is that he has lost the opportunity to earn commissions during the stipulated term of his contract by which, no limit being fixed, he was entitled to a reasonable time in which to find a purchaser. Erswell v. Ford, 205 Ala. 494, 88 So. 429. Orneases, to which we have heretofore referred, appear to have been written to the end of asserting in substance that, by reason of the inherent nature of the contract relations between the parties, the agent’s right to earn commissions is finally determined when the principal revokes his authority. Perhaps it would better accord with sound principle and the distinction we have noted between revocation of authority and breach of contract to say that the damages suffered by the agent, the revocation of whose authority deprives him of the opportunity to earn commissions on those new transactions in which he might possibly or even probably have been engaged but for such revocation, are of necessity merely prospective and speculative, and as such are too remote to be recoverable. This last view would be in full agreement with the decisions of this court. Pollock v. Gantt, 69 Ala. 373, 44 Am. Rep. 519; Beck v. West, 87 Ala. 219, 6 So. 70. Whether one line or the other of the argument is adopted, it results that plaintiff cannot recover on the facts stated in his complaint. As pointed out in Chambers v. Seay, and Cronin v. American Securities Co., supra, plaintiff might have maintained an action to recover the value of his labor or for money expended in reliance upon the contract or commissions for sales brought about by his efforts prior to the revocation of his authority, but the complaint seeks no such recovery, but only to recover commissions which he might have earned by sales had defendant not revoked his authority. It results in our opinion that the judgment must be affirmed. Affirmed. ANDERSON, C. J., and GARDNER and MIDLER, JJ.,-concur.