Action by real estate agent or broker (appellee) to recover of the owner (vendor) commissions for services in reference to the sale of land. To state his case the plaintiff employed the common counts and two counts (5 and 6) declaring on a special contract. Since the plaintiff's recovery, if he was so entitled, may be referred to the common counts, either because he had fully performed the contract or on a quantum meruit, the action of the court in overruling the defendant's demurrers to counts 5 and 6 was in any event without prejudice to defendant. Kellar v. Jones, 196 Ala. 417, 420, 72 So. 89; Barnes v. Marshall, 193 Ala. 94, 69 So. 436. The theory of liability upon which plaintiff relied was that the defendant, owner, engaged the plaintiff to present a purchaser for a certain tract of land at the gross price of $35,000, "less 5 per cent. commission" to the plaintiff; $10,000 to be paid in cash, and the terms with respect to the balance either to be ordered to suit the defendant or to be divided into annually maturing installments. The plaintiff, by his own and his agent's (Morring's) activity, interested one Wood in the purchase of the land; Wood being willing to buy at the gross price, "to be paid," to quote the paper signed by Wood of date December 19, 1917, "as follows: $10,000.00 cash, a note for $2,000.00 due January 1, 1918; * * * four notes of $5,750.00 * * * each, to be dated January 1, 1918, and due respectively one, two, three and four years with interest payable annually" he paying to plaintiff and Morring $100 in cash, "as earnest money." The plaintiff and Morring having presented Wood to defendant as a purchaser, defendant subsequently made and effected a sale of the land to Wood upon terms different in some respects from those phases of the evidence tended to show were originally contemplated when plaintiff and defendant first engaged. The defendant asserted that he annulled plaintiff's authority to sell when it appeared that Wood was not able to meet the conditions upon which the sale might then be effected; that plaintiff, or his agent, Morring, later agreed to a sale to Wood that fixed the purchase price at $36,000 (instead of $35,000), this purchase price to be tolled by $500 yielded by plaintiff out of his compensation of 5 per cent. on $36,000 and $500 yielded by defendant, constituting, as thus appears, the price to be paid by Wood the same as that originally fixed for the land; and that plaintiff's compensation, commission — after the $500 was deducted from the aggregate of 5 per cent. on $36,000 viz., $1,800 — should be paid as the purchase price was paid by the vendee, Wood. The whole evidence put the defendant's contentions in dispute, made the issues of fact subjects for the consideration and determination of the jury, and removed the possibility of general affirmative instruction for the defendant, and, in the state of the evidence, excluded successful appeal, through motion for new trial, to a revision of the conclusion attained by the jury. The general legal principles applicable to cases of the character under review have been so often and recently reiterated in the following decisions that a citation of them will suffice, in lieu of an effort that would be but an act of unnecessary repetition: B'ham Land Co. v. Thompson, 86 Ala. 146, 5 So. 473; Smith v. Sharpe, 162 Ala. 433, 50 So. 381, 136 Am. St. Rep. 52; Kellar v. Jones, supra; Shannon v. Lee, 178 Ala. 463, 60 So. 99; Handley v. Shaffer, 177 Ala. 636, 59 So. 286 — among others cited therein.
The two questions propounded by the defendant to the witness Wood, seeking to elicit a recital by Wood of statements made to Wood by defendant, plaintiff not being present, were properly disallowed. The rights of plaintiff, under his asserted contract, could not have been prejudiced in any degree by statements made, out of his presence, by the defendant. The matter the examiner sought to bring out would have been hearsay, if not self-serving, in so far as plaintiff's rights were qualified or denied thereby.
Special charges 3, 4, and 5, given at the instance of the plaintiff, were well framed, according to the apt authority of Handley v. Shaffer, supra.
Pretermitting consideration of the soundness of the proposition asserted in special charge 1, refused to defendant, and in special charge 5, given at the instance of the defendant, it appears that the former was substantially covered by the latter, thereby averting, in any event, prejudicial error in refusing special charge 1.
There was no error committed in refusing *Page 193 defendant's special charge numbered 4. The evidence conclusively established a sale of the land, on partially modified terms, by defendant to Wood, within a very short time after Wood — the prospective purchaser — had been presented by plaintiff, which terms, according to the defendant's contention, fixed the purchase price to be actually paid by Wood at the same sum for which the defendant originally authorized plaintiff to sell the land. Unless the plaintiff agreed to the terms of the sale the defendant made with Wood — wherein a $500 commission discount was to be yielded by the plaintiff and, also, the payment of the commission should be made in proportion and as Wood paid the purchase price — the plaintiff had earned the commission originally stipulated, viz., 5 per cent. on $35,000, payable when the sale the defendant made was effected. B'ham Land Co. v. Thompson,86 Ala. 146, 149, 150, 5 So. 473. It is manifest that there was no such lapse of inactive time in the negotiations originated by plaintiff or disseveration of the continuity of the negotiations that culminated in the sale to Wood as would have justified defendant in effectually revoking plaintiff's authority under defendant's engagement with plaintiff wherefrom plaintiff's right to the stipulated commission of 5 per cent. could be or was annulled. Handley v. Shaffer, 177 Ala. 636,655, 59 So. 286. The consummation by the defendant of the sale to Wood — on the modified terms entering into it — effected conclusively to establish Wood's acceptance as a purchaser who was ready, willing, and able to buy. Handley v. Shaffer, 177 Ala. 636, 651, 652, 59 So. 686. The foregoing considerations justified the trial court in refusing to pass to the jury defendant's special requests for instructions set forth in assignments of error numbered 17 and 18.
The trial court properly declined to consider the affidavits of jurors whereby the verdict was sought to be impeached, thus leaving the first ground of the motion for new trial without support.
If, as is insisted for appellant, he was surprised that on the trial plaintiff's agent, Morring, should deny statements or agreements attributed to him by defendant's witnesses, his remedy was to invoke the court to stop the trial and continue the cause. He could not speculate. Brown v. Brown, 76 So. 912.1 The newly discovered matter described in the motion for new trial was not newly discovered evidence within the rule. Brown v. Brown, supra.
No error appearing, the judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.
1 200 Ala. 554.