Barbour v. Cantrell

THOMAS, J. This is an action in assumpsit, brought by E. F. Cantrell, appellee, against Ben F. Barbour, appellant. The subject-matter of the action-was the commission on the sale of certain insurance stock. The case was tried before a jury, and a verdict was returned for the amount claimed, and judgment was rendered accordingly. The plaintiff claimed that the defendant, Barbour, contracted orally with him, in May 1910, to sell the stock in question, said oral contract being confirmed by a letter of the same date, addressed to “Mr; Floyd and Walter Cantrell,” Floyd Cantrell being the plaintiff, and Walter Cantrell being his brother. The letter stated that the Cantrells were to secure Sufficient-cash money in the sale to pay the. commissions.; this not having been mentioned in the oral contract with plaintiff, so far as is shown by plaintiff’s testimony, which was evidently accepted by the jury. Furthermore a letter from defendant to plaintiff, written after plaintiff had made the sale, made no- reference to this, though admitting the sale by plaintiff and undertaking to arrange for the payment of the commission. This letter informed plaintiff that a third party, and not defendant, was plaintiff’s' debtor, which suggestion was promptly repudiated by plaintiff in a letter to defendant. (1) The defendant contended that the letter to Floyd and Walter Cantrell was the only contract made with the plaintiff and Walter Cantrell jointly, they being partners. This contention was denied by the plaintiff, and the question became one for the jury. (2) The defendant further contended that after the making of said contract, and prior to any sale of stock [158] by plaintiff, the defendant, together with Walter Cantrell and others, organized an investment company, a corporation, to which defendant transferred the insurance stock subscription held by him. The defendant offered to testify to the making of said transfer, but, it appearing that the contract of sale was in writing, the court properly sustained the objection to the proffered secondary evidence. (3, 4) The defendant offered to prove, by his own testimony, Walter Cantrell’s knowledge of the sale to the corporation of said stock subscription, but the court properly sustained the objection that said testimony was immaterial, and was the mere conclusion of the witness. Defendant testified that Floyd and Walter Cantrell were partners at the time the defendant’s contract was made with them, but this was denied by the plaintiff. Defendant was then asked if he did not tell Walter Cantrell, of the firm of Floyd and Walter Cantrell, that he had transferred the contract to sell the insurance stock to the investment company prior to- the sale of any stock by the plaintiff. The court properly sustained the objection that this was immaterial, and that there was no evidence before the court of defendant’s transfer to said investment company. (5) Defendant’s request for the general affirmative charge was properly refused. There was material conflict in the evidence. — Tobler v. Pioneer Mining Co., 166 Ala. 517, 52 South. 86. (6) The court «properly refused to give written charges requested by the defendant. The charges ignored material portions of the evidence, singled out and-gave undue prominence to particular phases of the testimony, and were likely to confuse the jury. — McVay [159] v. White, 158 Ala. 182, 48 South. 344; Birmingham Ry., Light & Water Power Co. v. Lee, 153 Ala. 386, 45 South. 164. (7) We have carefully considered the several assignments of error directed to the oral charge of the court, but discover no reversible error therein. The sale of his subscription contract by Barbour to the investment company, without notice or knowledge by the plaintiff, assuredly would not affect the contract between plaintiff and defendant. (8) The court’s instruction that plaintiff would have the right to recover although the sale by him was not for sufficient cash money to pay his commission, was without error, in the light of the evidence showing that Barbour knew of the sale, acquiesced in its terms, and admitted plaintiff’s right to his commission. Under the evidence adduced, Walter Cantrell’s knowledge of defendant’s sale to the investment company would not affect plaintiff’s right to a recovery. However, the testimony offered to prove said sale, as well as Walter Cantrell’s knowledge thereof, had been properly excluded. Affirmed. Anderson, C. J., and Mayfield and Somerville, JJ., concur.