Opinion
6 Div. 324.
October 24, 1929. Rehearing Denied December 19, 1929.
Appeal from Circuit Court, Jefferson County, Bessemer Division; J. C. B. Gwin, Judge.
McEniry McEniry, of Bessemer, for appellant.
A broker entitled to the reasonable value of services rendered can recover under the common counts. Morrison v. Jackson, 17 Ala. App. 338, 85 So. 573. Defendants' only assigned reason for not completing the sale was the inability to secure the sister-in-law's signature, and all other objections are waived. Morgan v. Whatley, 205 Ala. 170, 87 So. 846; Sayre v. Wilson, 86 Ala. 151. 5 So. 157; Overton v. Harrison, 207 Ala. 590, 93 So. 564. The rule that the agent cannot become the purchaser is for the protection of the principal, and may be waived by him. Clay v. Cummins, 201 Ala. 34, 77 So. 328.
Huey Welch and W. G. Stone, all of Bessemer, for appellees.
No sale ever having been completed, and the commission not being due until it was completed, the plaintiff failed to make out his case; therefore, any error made on the trial was without injury. Smith v. Sharp R. E. Co., 200 Ala. 666, 77 So. 40; Bruce v. Drake, 195 Ala. 236, 70 So. 273; Crowe v. Trickey, 204 U.S. 228, 27 S.Ct. 275, 51 L.Ed. 454; Humphries v. Smith, 5 Ga. App. 340, 63 S.E. 248; Holton v. Job I. S. Co. (C. C. A.) 204 F. 947; Malone v. Dillard, 212 Ala. 361, 102 So. 705; Morrison v. Jackson, 17 Ala. App. 338, 85 So. 573; Sayre v. Wilson, 86 Ala. 151, 5 So. 157; Dancy v. Baker, 206 Ala. 236, 89 So. 590; 4 R. C. L. 313; 6 R. C. L. Supp. 250.
To authorize a recovery on the quantum meruit, under the common counts, it was incumbent on the plaintiff, not only to show services rendered at defendants' instance, but the reasonable value of such services; and to recover on the common counts for services rendered under a special contract fixing the price of the services, plaintiff must show that he has fully performed the contract, leaving nothing to be done except the payment of the price by the defendant. Jonas v. King, 81 Ala. 285, 1 So. 591.
The plaintiff, under the special contract, engaged to make and put through a sale of the property in the face of a stipulation that a guardian for the minors interested would have to be appointed and a contract of sale entered into by the guardian and the adults, which was to be reported to the probate court and confirmed; and when this was done the defendant engaged to pay the stipulated commission of $500. The evidence fails to show full performance of the contract by plaintiff; therefore the affirmative charge precluding a recovery on the common counts was properly given.
The contract of employment between the defendants and the Terry-Murrah Realty Company clearly contemplates that there should be a completed sale of the property as the condition upon which the commission was payable. In fact the engagement of the defendants to pay the commission was: "If a sale is made and put through as authorized by law," and contemplated that such sale would carry the interest of the minors, with the approval of the probate court, and it was essential to the finality and completeness of such contract that all the parties interested should be legally bound. Obermark v. Clark, 216 Ala. 564, 114 So. 135, 55 A.L.R. 1153.
In the absence of proof showing that, through the fraud or intermeddling of the defendants, the realty company was prevented from completing the sale, the plaintiff was not entitled to recover and the defendants were due the affirmative charge on the whole case, and if error was committed in respect to special charges given and refused, or in the rulings on the evidence, it was error without injury.
Affirmed.
SAYRE, THOMAS, and FOSTER, JJ., concur.