Opinion
8 Div. 972.
April 12, 1928.
Appeal from Circuit Court, Colbert County; Chas. P. Almon, Judge.
A. H. Carmichael, of Tuscumbia, and Mitchell Hughston, of Florence, for appellee.
Telegrams passing between defendant and the attorney, who acted also as agent, were admissible. L. N. R. Co. v. Hill, 115 Ala. 334, 22 So. 163; M. M. R. Co. v. Yeates, 67 Ala. 164; Cotton v. State, 87 Ala. 75, 6 So. 396; Rowland v. Plummer, 50 Ala. 182; 10 Ency. Evid. 221, 236, 237, 239, 246, 326. Counsel discuss the other questions raised and treated, but without citing additional authorities.
The suit is for breach of contract for the payment of commissions to a real estate broker for the purchase of a tract of land for the defendant. The complaint sets forth quite fully the transaction made the basis of the action. It will be made a part of the statement of the case by the reporter.
The averments of the complaint sufficiently show a contract of employment between plaintiff and defendant on a commission basis; that commissions were to be figured on whatever purchase price was agreed upon; that the price named was to include the commissions, which were to be paid to the vendors and by them paid over to plaintiff, and that the "vendors consented to and agreed on such arrangement and payment." The expressions, "it was understood" and "further understood," in their context clearly import an agreement, a meeting of the minds, on the matters alleged.
Further averments disclose negotiations through plaintiff resulting in agreement between vendors and the purchaser as to price and terms, a full compliance with the conditions of such agreement by the vendors, and a refusal of defendant, without good cause, to close the transaction and make payment.
The complaint does not present the case of a vendor employing an agent to consummate a sale and to pay commissions out of the purchase money when paid. Here the purchaser is the payor for services rendered under contract with him, the vendor being made a trustee to receive the commissions and pass them on to plaintiff.
The telegram from plaintiff to defendant of January 29, 1926, set out in the complaint, indicates an interest on the part of plaintiff in requesting the defendant to name a given price and terms, but it does not purport to be an offer by the vendors through plaintiff as their agent. The telegram in response and bearing same date says: "Make offer, etc.," a direction to plaintiff to act for and on defendant's behalf in making the offer suggested by plaintiff. The telegram from plaintiff to defendant of January 30th, advises of acceptance of defendant's offer made through plaintiff.
The demurrer challenging the complaint for failure to show a contract of employment and performance thereof, on the part of plaintiff, and upon the further ground that the complaint is repugnant because the written transaction set forth contradicts the other allegations of the complaint were not well taken.
An attorney employed by a prospective purchaser to examine and pass upon title, to cause a survey made to ascertain acreage not subject to overflow, have map made, to work out other details of the transaction for an absent client, and finally to prepare or approve deeds and other documents to close the transaction, becomes an agent as well as attorney for his client. The relation calls for contact and negotiations with fellow agents and the vendor. In such case the employment and authority of the attorney, instructions given him, and his communications to his client in course of executing his duties and his final report, all constituting a part of the res gestæ of the transaction, are not privileged communications in a suit involving such transactions. 40 Cyc. p. 2374; 10 Ency. of Evidence, pp. 23B, 237D; L. N. R. R. Co. v. Hill, 115 Ala. 334, 22 So. 163.
Under these rules the telegrams passing between the defendant at Miami and his attorney, Mr. Andrews, at Sheffield, were properly admitted in evidence. The initial telegram of January 31st, directed Mr. Andrews to pass upon the property as well as titles and accept same if satisfactory.
The concluding telegram of February 21st, directed Mr. Andrews to notify the vendors the deal was off. All this correspondence looks to working out details in course of the agency committed to the attorney, and to communications with plaintiff as disclosed by telegrams to him.
The telegram of January 29th, plaintiff to defendant, was not rendered inadmissible because of variance in that the words "best buy" were copied into the complaint as "biggest buy."
The purpose of that clause was to boost the property as a good buy. This purpose is apparent from either form of expression, and the slight variance between pleading and proof was immaterial.
The question to defendant as a witness, made the basis of the 22d assignment of error, was properly disallowed. That a survey was made as requested and approved was already shown by the written telegrams in evidence.
So, also, the question made the basis of assignment of error No. 23 was disallowed without error. The matter there inquired about could only arise after the defendant went to Florida, from which time all communications were shown to be in writing and in evidence. The question really called for evidence in contradiction of the telegram of January 31st to Mr. Andrews. The later telegrams fully showed plaintiff's insistence upon delivery of documents to plaintiff for examination.
The evidence tends to show that after all details had been agreed upon, titles approved, papers drawn, and deed signed, acknowledged and approved by counsel, defendant refused to close the deal, assigning as a reason an objection by the vendors to sending all the papers to defendant by mail. In view of the suggestion of his attorney that the deed be sent with draft attached, the wording of defendant's telegram calling off the deal, and the evidence of witnesses, including defendant himself, we think the conclusion was fully warranted that defendant was demanding the deed, as well as other documents, be sent to him by mail for inspection. At least, the vendors were justified in so understanding his request.
This was, of course, an unbusiness-like demand. Objection thereto furnished no legal ground to call off the deal. On the same day defendant declared the deal off; he was notified by wire that all papers would be sent to him by messenger for inspection. Refusal of this offer was not justified. The evidence that the messenger was sent and the interview between him and defendant was properly admitted.
The chief issue of fact in the case was the existence of a contract of employment as averred in the complaint. The evidence in this regard was in direct conflict. Its solution was for the jury.
It is insisted there was error in refusing a new trial because the verdict was contrary to the weight of the evidence.
The silence of the telegrams touching commissions is not of moment, if, as plaintiff insists, the contract of employment was made and its terms agreed upon before defendant went to Florida. The telegrams were passed in carrying forward negotiations already begun.
In the initial telegram from defendant to plaintiff of January 29th, plaintiff is commissioned to purchase adjoining property in connection with this, and notice given that Joe Hermans would be entitled to half commissions on that deal. This is corroborative of plaintiff's version of the agreement as to commissions on this property.
Earnest insistence is made that the evidence does not show the vendors were informed that commissions were included in the price of $300 per acre finally agreed upon and consented thereto. If the other evidence in this regard is not clear, it is sufficiently clarified by the telegram of Mr. Andrews to defendant, February 9th, advising him that Mr. Mitchell, one of the vendors asked a cash payment to enable him to pay agents' commissions.
That plaintiff referred to the vendors as "my clients" in the later stages of the transaction, was a circumstance to be considered by the jury along with the whole evidence.
Services may be rendered for both parties in bringing them together on a deal of this sort, the commissions to be paid in a manner known and agreed to by all parties.
Under the presumption indulged in such cases, we cannot say the court erred in refusing to disturb the verdict of the jury.
Refused charge 6, if not misleading, was fully covered by other instructions. The writings disclosed the contract so far as conditions were to be met by the vendors, and without dispute they were complied with, save in the matter of sending the papers to defendant by mail. What we have written will suffice to show charges 7, 9 and 10 were refused without error. Affirmed.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.