Allison v. Fuller-Smith & Co.

BRICKEN, P. J. The contract upon which plaintiff sues, as declared in counts 3 and 4, is one of brokerage only. A real estate broker, strictly speaking, is but a middleman, whose office it is to, bring the principals together, with the understanding that they are to negotiate with each other, and trade upon such terms as may be mutually satisfactory. Handley et al. v. Schaffer, 177 Ala. 636, 59 So. 286; Stout v. Thornhill, 16 Ala. App. 480, 79 So. 154. If it should be conceded that counts 3 and 4 are defective for failing to aver “a performance of the contract by plaintiff pursuant to or in accordance with its terms or some equivalent thereto,” such as, “that the purchaser procured was accepted by the defendant,” such defect is unavailing to appellant, for the reason that the demurrer interposed to these counts did not point out this defect and the counts were not subject to the grounds of demurrer assigned thereto, which were properly overruled. Code 1907, § 5340; Alabama Power Co. v. Holmes, 16 Ala. App. 633, 80 So. 736. We have in the Code not only an abolition of general demurrers and a substitute of special demurrers, but we have in addition an express prohibition of the malting or allowing of any objection not stated in the demurrer. (Italics ours.) The object of the Legislature was to prevent surprise and to protect parties frpm injury in consequence of errors in pleading not made known until the time for amendment had passed. Henley v. Bush, 33 Ala. 642; Chewning v. Knight, 16 Ala. App. 357, 77 So. 967; Denson v. Caddell, 201 Ala. 194, 77 So. 720. For all that appears from the averments of the defendant’s special plea 2, to which demurrers were sustained, the revocation sought to be’ set up as a defense to plaintiff’s action was after the plaintiff had performed its contract and found a purchaser. If this was true, the revocation could not defeat plaintiff’s action for— “courts are not disposed to allow brokers undertaking in process of accomplishment to be defeated by any fraud or inequitable conduct on the part of the principal, whereby the principal would profit by the broker’s services, and at the same time evade a just liability to make due compensation.” Daijcey v. Baker, 206 Ala. 238, 89 So. 590. Moreover, this plea undertook to answer count 4 as well as count 3, and count 4 contained the averment: j “And said defendants, for the purpose and intent of depriving the plaintiff of its right to compensation for said services, notified the plaintiff that said property had been taken off the market, and thereafter consummated said sale with the purchaser so found by the plaintiff.” The demurrers were properly sustained to this plea. If the plaintiff found the purchaser for the property of the defendants at all, under the evidence, there can be no question but that the finding of such purchaser was in pursuance of the contract between the parties and on the principles declared in Dancey v. Baker, 209 Ala. 684, 89 So. 590; Stout v. Thornhill, 16 Ala. App. 480, 79 So. 154; Handley et al. v. Schaffer, supra. Charge 1 given as requested by the plain- • tiff was free from error. Charges 1, 2, 4, 5, and 6 require a finding “for the defendants,” under specified counts of the complaint. Charges in this form have been repeatedly condemned. Bessemer Liquor Co. v. Tillman, 139 Ala. 462, 36 So. 40; Dorsey v. State, 134 Ala. 553, 33 So. 350; Goldstein v. Leake, 138 Ala. 573, 36 So. 458. *219 The case, on the evidence, was properly submitted to tbe jury, and the' affirmative •charge was refused without error. Charge 3 refused to the defendants required that the jury “must be satisfied by a preponderance of the evidence.'” This charge requires too high degree of proof. Southern Railway Co. v. Riddle, 126 Ala. 244, 28 So. 422; Moore v. Heineke, 119 Ala. 627, 24 So. 374; Torrey v. Burney, 113 Ala. 496, 21 So. 348. It was bad for the further reason that it assumed that defendants fixed -a price and terms of Bale; on this question the evidence was in dispute. It also ignores question of bad faith on part of defendants in interrupting the negotiations between defendants and Lee. Daneey v. Baker, supra. Charge 7 assumes that defendants fixed a price and terms of sale, and was properly refused. The defendants could not revoke the authority of the broker, and avoid liability after services under the contract had been performed. Charge 8 was therefore properly refused. Second charge 8 was well refused for the reason that it is argumentative, and invasive of the province of the jury; it assumes that the defendants fixed' a price. On this question the evidence was in dispute. One of the contentions of the defendants was that the contract was not made with the defendants, but was made with W. E. Allison alone, hence one of the issues is whether or 'not there was a contract as averred in the complaint. Another contention made by the appellants was that the plaintiff had dealt in bad faith in not informing them of the purchaser, while the plaintiff asserted that the .defendants in bad faith undertook to withdraw the property from the market, solely for the purpose of defeating plaintiff’s right to the commission under the contract. In view of these issues, the evidence brought out during the examination of the witness Smith at to what length of time he had been making an effort to find the purchaser, his dealings with Lee, and conversations about the sale of the property, and his efforts to find a purchaser in other persons, and his conversation with Joe Allison about the property, the price thereof, and whether or not Allison approached Smith about the sale of the property, was pertinent evidence. Daneey v. Baker, supra. The statement of witness Allison, excluded by the court on motion of the plaintiff, “that he took it out of plaintiff’s hands,” was purely a conclusion of the witness. Moreover, the witness testified fully as to what took place between him and Smith in respect thereto. No ruling on the motion for new trial is shown, and for this reason the assignments of error predicated on the motion for a new trial are without merit. Code 1907, § 2846, as amended by Acts 1915, p. 722; Britton v. State, 15 Ala. App. 584, 74 So. 721; Hines v. McMillan, 17 Ala. App. 509, 87 So. 696; Elliot v. Davis, 16 Ala. App. 647, 81 So. 139. There is no error in the record. Affirmed.