Shannon v. Lee

McCLELLAN, J. Action by a real estate agent (appellee) against the owner (appellant) for commissions in respect of sale of lands in Winston county, Ala. On February 4, 1909, the folloAving written contract Avas executed by appellant: “This agreement, made betAveen J. S. Shannon and J. P. Lee, witnesseth: (1) Shannon owns and controls 7,000 to 10,000 acres timberland in Winston county, Alabama. He authorizes and empowers Lee to make sale of same, at $5 per acre, fee simple, except 1,100 to 1,200, and upon sale will [466] pay Lee commission óf 50 cents per acre. (2) Shannon agrees, if necessary and desirable, to become interested in purchase or sale to extent of one-half. He further agrees to grant easy terms of settlement, one-half cash being paid down. (3) Shannon binds himself to deliver warranty deed, Avith good title, if sale effected; and, further, if any trade be made within 12 months with parties brought to him by Lee, to protect said Lee in his commission.” There are, in a presently important sense, tAVO phases of the engagement imported in this instrument: First, if Lee made a sale at $5 per acre, his commissions should be 50 cents per acre; second, if any trade for the sale of the lands was made Avithin 12 months Avith parties brought to Shannon by Lee, then Lee was to be protected in his commissions. Evidently the latter stipulation contemplated “any trade” that might result from negotiations by Shannon, and not participated in by Lee — a matter of less effort on Lee’s part than would be naturally the case if he (Lee) effected a sale at the specified price per acre provided in the former (first) phase of the engagement. The latter phase presents the significant omission to specify the price per acre in effecting a sale “Avith parties brought to him (Shannon) by Lee,” and also an equally significant omission to stipulate for the same commissions Avhich were assured to Lee if he effected a sale at the specified price of $5 per acre.. Under the latter phase of the contract, Lee was constituted, for a period of 12 months, a real estate broker in the strict sense of the term, viz.: “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.”— [467] Handley v. Shaffer, 177 Ala. 636, 59 South. 286, 290, 291. There being no contention by the plaintiff that he “made a sale” of the lands, or any part of them, under the first phase of the contract, his right to recover must find support, if at all, under the strictly brokerage provision of the instrument. According to the evidence, the major meritorious issues were of fact, and were these: (a) Whether, within 12 months from the date of the contract, Lee “brought” to Shannon a party or parties with whom Shannon made a trade for the lands in Winston county; (b) whether Lee legally abandoned the undertaking (19 Cvc. p. 221) ; (c) if not, and if Lee brought such party or parties to Shannon there being no rate of commission specified, what was a reasonable compensation for the services rendered by Lee in bringing such party or parties to Shannon? The evidence on all these issues was in conflict; the court, without a jury, resolving them in favor of the plaintiff. The first count of the complaint purports to declare upon a liability traceable alone to the first phase of the contract. Demurrer thereto was overruled. That ruling is now assigned for error. There was, as appears from the entire evidence set out in the bill no possible support for this count. After amendment, the (complaint contained, besides count 1, count B, and three common counts. If justified by the evidence, and if the other counts were sufficient, „ which is clear, the finding of the court will be attributed to the counts other than 1. So, if it be assumed (not decided) there was error in the ruling on the demurrer to the first count, it was harmless to the defendant.' There was evidence tending to support plaintiff’s theory that he “brought” H. C. Howell to defendant; that, latter, Howell presented or interposed others [468] in the matter of the sale and purchase of, approximately, 5,000 acres of defendant’s land; that a corporation, of 'which Howell and defendant were among the stockholders, was formed; that through that corporation the quantity of land indicated was sold; that the pi’ice of $3.50 per acre was fixed by mutual agreement of Shannon and the purchasing organization; that Howell participated in the negotiations and arrangement of the dealing and corporate organization. Whether these tendencies of the evidence, opposed as they were by other evidence, were to be credited, was a matter for the judgment of the court, sitting without a jury. On the other hand, the evidence for defendant, to the effect that Lee abandoned his part of the engagement, was countered by his evidence, as was the case, also, with respect to Lee’s acceptance of a final, full elimination of Howell after Lee had brought Howell to Shannon — an act of introduction upon which both are agreed. Errors are assigned as upon upwards of 30 rulings on the admission and rejection of evidence. All those urged in brief have been carefully considered, and no prejudicial error appears as to them. Many of the insistences for error arise out of a misapprehension of the legal effect of the stated second phase of the contract. All evidence, all circumstances, touching the conduct and acts of Lee, and of Shannon, Howell, Piersoll, and others related thereto, in reference to the lands mentioned in the contract, were admissible upon the issues of fact before stated. The organization of the corporation, the investigation, by an attorney, of the titles to the lands proffered by Shannon, and the payment therefor, Avere inquiries of immediate bearing on the issues in the case. Upon the issues — -(c) before stated — the court finds no evidence tending in any degree to support a conclu [469] sion even approximating that fixed by the judgment of the city court. There is evidence tending to show what would have been or was a reasonable compensation for a sale of these lands; but, as has been indicated, there ivas no pretense that plaintiff effected a sale of the lands. In this state of the proof, the court erred in adjudging any particular sum as compensation for the strictly brokerage service rendered (if that is so found) by the plaintiff under the contract here relied on. The writer entertains serious doubt of the soundness of this conclusion, but yields his view to that of the majority.' For this error, the judgment is reversed, and the cause is remanded. Reversed and remanded. All the Justices concur.