De Briere v. Yeend Bros. Realty Co. , 204 Ala. 647 ( 1920 )

The appellee, a real estate agent, entered into an agreement with appellant on October 22, 1918. The contract was, by its terms, made to expire in 60 days after its date. A major stipulation was that the agent was authorized, as sole agent, "to sell" certain described of appellant's real estate, on specified terms, for a specified commission, etc. The 60-day limitation expired on December 22, 1918. On February 6, 1919, this writing was given by A. Robinton to appellee, appellant signing his own name to the acceptance indorsed thereon:

"Yeend Bros. Realty Co., Inc. This will authorize you to offer for me $5,000.00, five thousand dollars, for the property No. 554 Conti street on the north side between Cedar and Warren streets, payment as follows: 1/2 cash and the balance to be carried with a mortgage payable $100.00 month with interest at 8% per annum added to each note, title to be made satisfactory to my attorney to be free from all incumbrances:

"[Signed] A. Robinton.

"Witness: Thomas A. Yeend.

"I will accept the above proposition.

"[Signed] Chas. De Briere, Jr.

"Witness: Thos. A. Yeend."

Robinton declined to complete the transaction, asserting a qualifying agreement between him and appellee. Appellee demanded of appellant that he proceed, or allow the appellee to use his name, to enforce and effectuate the rights of appellant against Robinton. Appellant refused to do either; and appellee sued appellant, declaring, in assumpsit, through the common counts. Plaintiff was given judgment for an amount equal to the commission measured by the rate stipulated in the writing of October 22, 1918. The trial below and its discussion by both parties on this review appears to proceed upon the theory that the writing of October 22, 1918, was effective on, or was extended to, February 6, 1919, notwithstanding the expiration of the 60 days fixed as the period of its life. The review here is undertaken upon that as an established fact.

The contract of October 22, 1918, stipulated for a sale of the particular property, on terms specified therein. The authority given and the obligation to be incurred by the landowner under the contract of October 22, 1918, did not depend upon a completed disposition of the property. That feature of the agreement was satisfied when the written "contract or memorandum," binding both seller and purchaser, was efficiently signed by Robinton and appellant. Rice v. Mayo,107 Mass. 550, 552; Lindley v. Keim, 54 N.J. Eq. 418, 423,34 A. 1073; 4 Words and Phrases (2d Ed.) pp. 516, 517. As between a landowner and a real estate broker, an agreement of the latter to sell the former's property usually means to negotiate for a sale by finding a purchaser ready, willing, and able to consummate the transaction. Author supra; Handley v. Shaffer, 177 Ala. 636, 651, 59 So. 286. The acceptance by the seller of the purchaser "dispenses with the necessity of showing that the purchaser was able, ready, and willing to buy, since acceptance is taken as a conclusive admission of that fact." Handley v. Shaffer, supra. This appellant unmistakably manifested in writing his acceptance of Robinton as the purchaser, upon the terms stipulated, thereby removing, in this action, any necessity for further inquiry with respect to the ability, willingness, or readiness of Robinton in the premises. In these circumstances, the plaintiff, appellee, was entitled to recover the compensation thus earned. Birmingham Land Co. v. Thompson, 86 Ala. 146, 150, 5 So. 473; Handley v. Shaffer, supra; Finney v. Newsom, 203 Ala. 191, 82 So. 441, 442.

There was conflict in the evidence touching the significance local usage or custom attached to a contract of this type, as well as with respect to all a broker should do to discharge his duty under such an engagement. Hence it cannot be affirmed that plaintiff (appellee) was remiss in the premises to the end that his right to recover under the common counts might be denied. Finney v. Newsom, 203 Ala. 191, 82 So. 441, 442, first column.

There was no ruling on the evidence that operated to prejudice the defendant's (appellant's) rights.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.