On Application for Rehearing. The general rule is thus stated in 22 Corpus Juris, 422, notes 8 and 9:
"An admission in testimony of a party is binding on him and dispenses with the necessity of proving the facts admitted."
See, also, 22 Corpus Juris, 421, note 98; Starke v. Kenan,11 Ala. 818; Tumlin v. Tumlin, 195 Ala. 457, 70 So. 254. In 26 R. C. L. 1067, notes 3 and 4, we find:
"There can, of course, be no question but that, where the facts are conceded or are undisputed, there is a plain case for the direction of a verdict, as there can be only a question of law involved."
The plaintiff here admits and concedes in his testimony the facts. He admits he was agent of the vendors, Abbe and Parish, and the vendee, at the same time in these transactions; that he concealed material facts from the vendors, and the vendors did not consent for him to act in such inconsistent capacity; the vendee was benefited and the vendors injured by his dual employment and relationship in the sales and purchases of the timber and lands. True, there may be slight evidence indicating plaintiff was not agent for the vendors in these transactions; but these admissions of the plaintiff in his testimony are binding on him. The plaintiff admits under oath that one vendor paid him $500 and the other paid him $300 as commissions for aiding them in selling their respective lands and timber to the defendant, and the defendant received the benefit of this $800. His own testimony shows he committed a fraud in these transactions against the vendors, which rendered the contracts on which the suit is based inoperative and void. and which would have justified the court in giving the general charge numbered 1, set out in the opinion. Green v. Southern State Lbr. Co., 163 Ala. 511, 50 So. 917; De Hart v. Johnson,201 Ala. 497, 78 So. 851, and authorities supra.
It is true the court, at the request of the defendant, gave this written charge numbered 12 to the jury:
"Gentlemen of the jury, the court charges you that, if Pankey acted for himself and not for his principal in any of his dealings under the contract on which he has sued, your verdict cannot be in his favor, unless you are reasonably satisfied from the evidence that he fully disclosed all the facts and circumstances of the transaction to Gray, and received Gray's ratification thereof."
This charge states the law in part according to the opinion of this court. It applies to one phase of the evidence. It was the duty of the plaintiff to fully disclose all of the facts and circumstances of the transactions to the defendant. If he failed to do so, or if he did, and the defendant failed to consent to his dual employment, then he could not recover. It was also the duty of the plaintiff to give the vendors to fully understand the situation and secure their consent to his dual employment; if he failed to do so, then he could not recover compensation from the defendant. Authorities supra.
This charge 12, requested by the defendant, which was given by the court, did not estop him from requesting the court to give written charges numbered 13 and 10. These charges read as follows:
"Gentlemen of the jury, the court charges you that, if Pankey agreed with Gray substantially to obtain the best possible terms of purchase for him and then, without Gray's full knowledge and consent, agreed with one or more of the vendors to represent their interests against Gray, the conflict in Pankey's duties made it impossible for him to show himself entitled to compensation from either Gray or the vendors.
"Gentlemen of the jury, you are instructed that a real estate agent, selling for both parties, can recover compensation from neither, unless he kept both parties at all times fully and candidly informed of his dual representation, and the burden of proof is on him, under *Page 544 such circumstances, to prove his entire good faith."
These charges were separately given by the court to the jury at the defendant's request. They are in full accord with the law as applicable to the issues and the testimony. Authorities supra.
The principle declared in Clinton Mining Co. v. Bradford,192 Ala. 576, 69 So. 4, headnote 5, has no application to this case. The plea in this case was:
"General issue, with leave to give in evidence any matter which, if well pleaded, would be admissible in defense of the action, to have effect as if so pleaded, and with leave to the plaintiff to give in evidence any matter which, if well pleaded, would be admissible in reply to such defensive matter, to have effect as if so pleaded."
There was no immaterial issue in this case. There was in Clinton Mining Co. v. Bradford, supra. The above charges (10, 12, and 13), requested by the defendant and given by the court, were in accord with the issues and the law as shown by this opinion, as it applied to the different phases of the evidence in the case.
The application for rehearing is overruled.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.