Cronin v. American Securities Co.

SIMPSON, J.- This action was brought by the appellant against the appellee. All of the counts of the complaint, except count 2, were withdrawn. A demurrer to count 2 was sustained by the court, and upon this ruling the plaintiff was allowed to take a nonsuit, “with leave to assign said adverse ruling by the couri for error on appeal.” Hence the only question for consideration is the action of the court in sustaining the demurrer to said second count of the complaint. It is not denied that the general principle is that an authority to sell land may be revoked at any time before sale, and that the owner will not thereby incur any obligation to the agent.—Chambers v. Seay, 73 Ala. 372. Appellant insists, however, that there were elements of contract in this case which differentiated it from the cases in which the courts have so held, and that, under the facts of this case, the plaintiff is entitled to recover the amount of commissions stipulated in the original agreement, as claimed in the second count of the complaint. In the case of Chambers v. Seay, supra, this court, admitting the proposition that where an agent’s authority is coupled with an interest it cannot be revoked, said: “To be irrevocable, it seems now well settled that the power conferred must create an interest in the thing itself, or in the property which is the subject of the power” — and held that an interest in the proceeds [538] of the sale did not constitute an interest in the property, saying further: “He had parted with no money, or other value, for the security of which the power of sale was conferred in the agreement. He had risked, in the venture of his agency, only his personal services and the expenses incidental to its execution. The undertaking to transport specimens of iron ore to England, and to advertise the lands there, may he embraced as a part of the ordinary expense to be incurred in the usual course of such employment. It is fair to presume that he risked this much in view of the large compensation to be reaped as commissions in the event of a successful sale” (page 378). The court goes on to intimate that, where an agent “has been prevented from effecting a sale by the interference of his principal,” he may recover the value of his labor and expense, in a proper form of action; or “where the sale of the property is ■ brought about by the advertisements or exertions of the broker or agent, etc.,” he may recover his commissions (page 379). In the case of Holland v. Howard Bros., 105 Ala. 538, 17 South. 35, the brokers were the procuring cause by which the purchaser was brought to the seller. In the case of Worthington v. McGarry, 149 Ala. 251, 42 South. 988, the broker agreed to procure certain options on lands and on the stock of a corporation, and did procure the options on the land, but claimed that he was prevented- from securing the option on the stock by the defendant. This court held that the plaintiff could not recover compensation under the contract, but held that, when the performance by the plaintiff was prevented by the defendant, “the plaintiff was relegated to a suit for damages for a breach of the contract, or one on quantum meruit for services actually performed,” and that “the plaintiff,” upon a proper count, and upon proof of the val [539] ue of his services in procuring the option as to the ore land, would have been entitled to recover; but it was error for the lower court to hold that under the written contract he was entitled to the price named therein for the obtaining of both options, when he only obtained one.” Further authorities on this subject are collated in the case Hutto v. Stough & Hornsby, 157 Ala. 47 South. 1031. In the case now under consideration there is no pretense of interest in the property ,within the meaning of the decisions. There is no claim that, but for the interference, that plaintiff would have closed the contract with the syndicate which he proposed to organize, and no allegation of the value of his services, or that they inured in any way to the advantage of the defendant, or tended in any manner to the consummation of the contract which the defendant made with another party. Said count claims distinctly, and only, the amount agreed to be paid under the contract, and does not show any facts tending to prove a compliance with the terms of the contract. Under said contract, as originally made, if it could be called a contract at all, the plaintiff was not under any legal obligation to do anything, but could have abandoned the project, at any time, without incurring any liability, thus showing that there were no mutual obligations to constitute a contract. That being the case, when the defendant notified the plaintiff to cease his efforts to form a syndicate and sell, it was acting entirely within its rights, and, as the plaintiff had no irrevocable rights under the authority to sell, there was no consideration to support the vague assurance that “he would be taken care of, just as if he had made'the sale.” There was no error in sustaining the demurrer to said count 2. [540] The judgment of the court is affirmed. Affirmed. Dowdell, C. J., and McClellan and Mayfield, JJ,. concur.