Motion was here made to dismiss the petition for certiorari to the Court of Appeals on the one ground that the petition is not verified by the oath of the movants.
If the right to relief was dependent upon matter not appearing of record, in whatever *Page 520 form the application was made, a verification of it by oath of the applicant, or affidavit in support of it, making a prima facie case, would be essential. When the application is made to this court for the grant of the writ directed to an inferior court of record, because of matters necessarily of record, an authenticated transcript of the record renders unnecessary the verification by the oath of the applicant, or other affidavits to support it. The authenticated record is the sole evidence upon which the court acts. The motion to dismiss was therefore denied, see Ex parte Tower Mfg. Co., 103 Ala. 415, 15 So. 836, and certiorari granted under the provisions of Supreme Court Rule 44, as amended March 26, 1947.
The sole question presented for review is the action of the Court of Appeals in reversing the trial court for permitting one of the plaintiffs, John H. Roberts, to testify to a conversation with Ellis Clem on the day following the sale of certain real estate, for which plaintiffs paid the defendant a commission.
The reversal of the case by the Court of Appeals is based upon the theory that the conversation between Roberts and Clem was hearsay evidence. In my opinion, it was error to so hold.
Here, the plaintiffs sued defendant to recover a commission which they had paid him on the assumption that he had earned it by procuring Clem as a purchaser of their land. If defendant had not legally bound Clem to purchase, he was not entitled to his commission, unless Clem actually did purchase the land. Under the issues raised, plaintiffs were entitled to show that Clem refused to purchase when they tendered performance. The conversation between plaintiff and Clem was the refusal — the verbal act — and the conversation was not hearsay. The evidence of Roberts did not go to prove a mere declaration or statement of Ellis Clem, but to prove a material issue of fact in the case, viz., that Ellis Clem did not purchase the land in question. The evidence was not hearsay.
GOODWYN, J., concurs in this dissent.