Ferrell v. Montgomery

*45 THOMAS, J. The suit was by a broker or Teal estate agent for commission on the sale of standing timber. The important question is presented by the rulings on evidence and the giving of defendant’s charges, and Is whether plaintiff was required to give notice to defendant that he had procured the J. T. Horn Yeneer Company as the purchaser. A question similar to that presented by this evidence is decided in Sharpley v. Moody & Co., 152 Ala. 549, 44 So. 650. The second headnote in that case thus states the holding: “Where a real estate agent with whom property is listed for sale merely procures another to look at the property with a view to buying, and it is not made to appear that the owner of the property knew or could have known that the agent had shown the property to such a person, on a sale of the property by the owner to such person the agent is not entitled to his commissions for making the sale.” See the general authorities collected in 9 <3. J. 615. In Handley v. Shaffer, 177 Ala. 636, 652, 59 So. 286, 291, it is declared: “Nor is it ordinarily material to the question of the broker’s right to compensation that his vendor-principal did not know that the purchaser who he has accepted was procured by the broker. 19 Cyc. 264; 4 Am. & Eng. Ency. Law, 980; notes to Quist v. Goodfellow (Minn.) 9 Ann. Cas. 431, 8 L. R. A. (N. S.) 153; Lloyd v. Matthews, 51 N. Y. 124. Special circumstances may, however, impose upon the broker the duty of informing his principal that a person with whom the latter is negotiating is a customer sent by the broker, if such information is obviously necessary to enable his principal to protect himself against deception, imposition, and loss.” The special circumstances of this case .are that in the presence of the plaintiff and •one Byrd the defendant told the agent of the J. T. Horn Yeneer Company, the purchaser, that he would not sell the timber •except for $12,0i)0 net, and that said agent said that he would pay cash in that sum, :and pay Byrd’s commission, and this was accepted by the vendor. With such knowledge in his possession, it then became the duty of the plaintiff to assert his claim for additional commission out of said net purchase price. This he did not do. By his silence he permitted the owner, of the timber to sell the same with the belief that in arranging (with plaintiff’s knowledge) to pay a commission to Byrd, defendant was relieving himself from any commissions to be deducted from the $12,000 net price. There is a guilty or negligent silence that binds. Ivy v. Hood, 202 Ala. 121, 79 So. 587. This is not contrary to the rule that the agent should in all cases be entitled to payment of commissions honestly earned; yet it. is necessary that the owner of property be protected from an alleged agent of whose participation he had no notice. There was no error in giving charges 5 and 6, at defendant’s request, and in allowing testimony made the subject of assignments of error Nos. 10, 11, 12, and 13. Plaintiff, in giving his version of the contract, said that the defendant stated (as a part of their contract) “that if in the meantime he himself got a chance to sell the timber he would go ahead and sell it; that this was satisfactory to both of them and constituted the agreement.” •It is unnecessary to consider other questions, as it is clear plaintiff was not entitled to recover. The judgment of the circuit court is affirmed. Affirmed. ANDERSON, O. X, and SOMERVILLE and BOTJLDIN, XX, concur.