Ingram Realty Co. v. Brown , 208 Ala. 455 ( 1922 )

The contract upon which plaintiff seeks to recover is not one merely for the production to defendant of a purchaser for her property on stipulated terms, as to which plaintiff's undertaking was fully discharged when the purchaser signed the executory agreement here exhibited.

On the contrary, defendant's obligation was to pay an agreed sum to plaintiff for "negotiating this deal," and it was a part of, and manifestly dependent upon, the terms of the executory agreement between the parties in chief for the exchange of their respective properties.

Conceding that if, without just cause, defendant had refused to carry out the executory agreement, she would have been liable for plaintiff's commission, yet it is entirely clear that she cannot be placed in such default unless it is made to appear that Steele, the other party in chief to the contract, had performed his obligations in the premises, and was able, ready, and willing to complete the transaction according to its terms.

There is nothing in the evidence that in any way tends to show that Steele ever executed and deposited with the designated depositary a warranty deed to his property, to be held in trust, and contingently delivered to defendant, as he was required to do within 10 days from the date of the executory agreement.

Again, it appears without dispute that Steele made objections to defendant's title, which, so far as appears, may have been utterly unfounded and capricious, and which do not appear to have ever been satisfied or withdrawn. The evidence therefore fails to show an essential element of plaintiff's case, viz. Steele's willingness to accept defendant's title; it not appearing that defendant was in fault with respect thereto.

In view of the considerations above stated, it cannot be affirmed that defendant was bound to execute the agreement on her part, since the default of one party to a contract is not available as a basis for legal liability unless the other party was ready and able to perform, and was not in material default himself. Moss v. King, 186 Ala. 475, 65 So. 180.

We, of course, do not overlook the fact that this is a suit by an agent for compensation, and not a suit by one of the parties in chief for damages for the other party's failure to perform. But we think it is clear that, so far as this case is concerned, the principles that govern default and determine liability are substantially the same.

Plaintiff having failed to make out a case of liability on the part of defendant, and defendant being entitled to the general affirmative charge, if requested, it is not necessary to consider the rulings of the trial court relating to matters of defense merely, since in no event was plaintiff entitled to recover under the evidence before the court.

Let the judgment be affirmed.

Affirmed.

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