Mabry v. Bailey & Howard

de GRAFFENRIED, J. — When a complaint is demurred to by a defendant, the allegations of the complaint are construed most strongly against the plaintiff. As the plaintiff prepared his complaint, he is presumed to have stated in his complaint with accuracy the facts authorizing a recovery of the defendant if the facts set up in the complaint are proven to the satisfaction of the jury. Of course, these observations are not applicable to many of the forms which our Code has prescribed for complaints in many forms of action. [386] There were four counts to the complaint in this case. The first three counts were common counts and were manifestly not subject to demurrer. The difficulty with count 4 (which the reporter will set out in full) is that every word in the count may be true, and at the same time the contract between the plaintiffs and the defendant may have been such that the plaintiffs were not entitled to recover. While, as a general proposition of law, it is true that, when an owner of real estate employs a real estate broker to sell such real estate, the real estate broker becomes entitled to at least reasonable compensation when through his services such real estate is sold (Minto v. Moore, 1 Ala. App. 556, 55 South. 542), nevertheless there is no provision of law which precludes a real estate owner, when he engages a real estate agent to undertake a sale of his property, from fixing in his contract with such agent the conditions upon which such agent is to receive compensation if a sale is effected through his services, or exactly what that compensation is to be. It may be that, in the contract, the plaintiffs agreed that the defendant should pay them nothing for their services except upon the happening of certain contingencies. Suppose, as an illustration, the contract between the plaintiffs and the defendant (and this supposition is authorized, for the count does not set up the contract or definitely inform us as to its terms, and this court does not know, and the trial court did not know, what the terms of the contract were) provides that the defendant reserves the right to sell, while acting in good faith towards the plaintiffs, the property to any person to whom the defendant may be introduced by the plaintiffs, for the sum of $1,000, and that the defendant is to pay the plaintiffs nothing unless they introduce him to a purchaser who is able and willing to pay, and who does in fact pay, more than [387] $1,000, in which event the plaintiffs are to receive as compensation all of the purchase money in excess of $1,000. Under the terms of such a contract the defendant might well have sold, if he acted in good faith, as averred in the fourth count of the complaint, to a purchaser found by the plaintiffs and brought to the defendant by the plaintiffs, for the sum of $1,000, “at a price which defendant was willing to take for same,” and at the same time the defendant would have had a legal right to “wholly fail and refuse to pay plaintiffs for their services,” although their reasonable value might have been, as averred in the complaint, the sum of $300. The above defects in the fourth count of the complaint •were specifically called to the attention of the plaintiffs and of the trial court by the defendant’s demurrer to the fourth count of the complaint. It is evident that, in our opinion, the trial court erred in overruling the defendant’s demurrer to said count, and under the rules of law established for our guidance the judgment of the court below, on account of the error pointed out, 'must be reversed, and the cause remanded for further proceedings in the court below. Reversed and remanded.