Opinion
7 Div. 970.
November 28, 1918.
Appeal from Circuit Court, Clay County; Hugh D. Merrill, Judge.
Riddle Riddle, of Talladega, for appellant.
Cornelius Lackey, of Ashland, for appellee.
When a broker is employed to find a purchaser for his principal's property on specified terms, he is entitled to his commissions when he produces to his principal a person who is able, ready, and willing to buy on such terms. Handley v. Shaffer, 177 Ala. 636, 654, 59 So. 286.
It is not enough that he finds such a person, but he must notify his principal of that fact. A complaint which does not allege the consummation of the sale must allege such notification. Penter v. Staight, 1 Wn. 365, 25 P. 469; 19 Cyc. 275.
The fifth and ninth counts of the complaint were defective in this particular, as pointed out by the eleventh ground of demurrer.
A broker's employment in this behalf does not, in the absence of a stipulation to that effect, render the principal liable for commissions to the broker in case of a sale by the principal to any customer who was not procured by the broker, provided, of course, the principal's sale was consummated before performance by the broker. Smith v. Sharpe, 162 Ala. 433, 50 So. 381, 136 Am. St. Rep. 52; Cook v. Forst, 116 Ala. 395, 22 So. 540.
The sixth count of the complaint does not show that plaintiff found a purchaser for defendant's land, nor any exclusive right in himself to do so; hence the allegation that defendant, pending plaintiff's employment, sold the land to his own customer, without plaintiff's knowledge or consent, is not sufficient to show a cause of action.
The demurrers to these several counts were properly sustained. It appears, however, that plaintiff had the full benefit of these counts under counts 8 and 10.
Conceding, without deciding, that counts 5 and 6, as first amended, were not subject to the demurrers interposed, and that the trial court erred in so holding, yet it is clear that these rulings were without prejudice, since these counts were afterwards amended again by the addition of matter which did not change the causes of action declared on, and placed no additional burden of proof on plaintiff.
Moreover, the instructions given to the jury show that the decisive issue of fact submitted to them was whether defendant agreed to pay plaintiff his commissions in the event of a sale by defendant himself. The appeal being upon the record proper, without a bill of exceptions, it is not made to appear that plaintiff was injured by any of the rulings complained of, even if any of them were erroneous.
The assignment of error relating to count 6 1/2, added by amendment, is not argued in such a way as to entitle it to consideration, and must be treated as waived.
No prejudicial error appearing, the judgment appealed from must be affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.