Hester v. Roberts

July 26, 1920. The opinion of the Court was delivered by The plaintiff sued defendant (1) upon an alleged contract, and (2) upon the value of his service, which she is alleged to have knowingly accepted at his hands. The verdict was for defendant. The Court set the verdict aside. Let the order thereto be reported. It cannot be sustained.

The plaintiff is in the business of selling real estate. The defendant owned a house and lot in Greenville. The same was conveyed by the defendant to Mrs. Pitts for $8,500. The plaintiff's contention is that he effected the sale, and he sues for his commissions thereabout. There is no testimony (1) that the defendant ever made a contract, express or implied, with the plaintiff to sell her house; and there is no testimony (2) that the defendant knew that the plaintiff was exerting himself thereabout, and that she accepted such service.

The only testimony which squints at the first assumption is that of the plaintiff, where he testified that he phoned to the Roberts house, and a daughter of the defendant answered him thus: "When I first telephoned there, Miss Roberts said she would ask her mother in regard to my handling the property, and then she came to the phone and said, `Mother says that it has been with Mr. Goldsmith, but we think that the time is out, and we want you to sell the place.'"

And again, on another occasion, the plaintiff phoned to the Roberts home, and a daughter answered him thus: "One girl answered the phone, and said, `Let me call my older sister;' and then the other sister came to the phone, and I told her about wanting to sell the property, if it was for sale, and she went back and talked to her mother, and said, `Mother says that we want to sell the place for $8,500. It has been listed, but we think that the time is out.' She said, `I will ask mother about the matter;' and, after she went and talked to her, she came back and said, `Mother says we *Page 413 will pay you for selling the place, because we are anxious to move to Alabama.'"

At the most, the answer of the daughters was hearsay, for there is no testimony that the daughters were authorized expressly or impliedly to speak for their mother, or that the mother ever ratified the daughters' action. There is no testimony which tends to prove that the defendant had knowledge of the plaintiff's activities thereabout and accepted them.

For such knowledge the plaintiff only cites the testimony of the defendant on cross-examination. It is this:

Cross-examination by Mr. Haynsworth: "I never heard of Mr. Hester until this sale of the furniture. I had never met him until after the place was sold. His name was never mentioned in connection with the sale. I was away when Mr. Hester went to these girls. Of course, it was described, and there was a letter when I came back from Mrs. Pitts, wanting to rent my house, and that she would take care of my furniture. Mrs. Pitts wrote and asked if Mr. Hester had anything to do with the selling of the property a few days after I got home. I was born and raised in Griffin, Ga. The girls were talking it over, and I got this letter from Mrs. Pitts, is the first time I heard Hester mentioned."

But in the same connection the witness testified as follows: "Mr. Roberts had left Greenville. I wrote him after I came home, and told him about the conversation Mr. Hester had with these girls. The girls told me, and I wrote to Mr. Roberts about the conversation, and Mr. Roberts wrote me back and said, `Don't have anything to do with Mr. Hester.'"

So far from going to show that the defendant was accepting the service of the plaintiff, the testimony tends to show the contrary. There is no doubt about the law; the case depends on the facts, and they are dead against the plaintiff.

The order below is reversed. *Page 414