Cofield v. McGraw & Garner

BROWN, P. J. On the principles announced in the following cases, the demurrers to the complaint were properly overruled: Stout v. Thornhill, 79 South. 154; 1 Birmingham L. & L. Co. v. Thompson, 86 Ala. 146, 5 South. 473; Handley v. Shaffer, 177 Ala. 636, 59 South. 286; Bailey v. Padgett, 195 Ala. 203, 70 South. 637; Barnes v. Marshall, 193 Ala. 94, 69 South. 437; Kellar v. Jones 6 Weeden, 196 Ala. 417, 72 South. 90. [1 -3] The fact that the defendant could not convey the lands he employed the plaintiffs to sell without the voluntary signature and assent of his wife certainly does .not avoid the defendant’s obligation to pay the plaintiffs for their services in procuring a purchaser for the land at defendant’s instance, and in accordance with the contract between the parties. The enforcement of this qbligation to pay in no way affects the defendant’s homestead rights by fastening a lien or incumbrance thereon. The defendant’s sixth plea was frivolous, and was properly stricken. Code 1907, § 5322. [4] The questions as to whether the defendant withdrew his proposition to sell the lands before the purchaser was procured, and as to whether the purchaser was acting in good faith and was ready, willing, and able to buy the lands, were of fact, and when the judgment of the trial court is accorded the weight of a verdict of a jury, we do not feel warranted in disturbing the finding made. Veid v. Roberts, 200 Ala. 576, 76 South. 934; Hatfield v. Riley, 199 Ala. 388, 74 South. 380; Hackett v. Cash, 196 Ala. 403, 72 South. 52. Affirmed. Footnotes [1] Post, p. 480.