The only theory upon which the plaintiff could be entitled to a commission for negotiating a sale of the property was under the second instrument executed by Ball for Mrs. Ball and Mrs. Hays to the Macke Real Estate Investment Company, which was brought about by him, and which expressly provided that he was to receive $200 of the commission of 5 per cent., the other part to go to the Macke Company, as there was no pretense that he had sold the property or earned a commission under the first authority of sale. The sale having been brought about by the plaintiff and his compensation of $200 having been provided for, he was entitled to same, and, having nothing further to perform in the premises, could maintain an action upon the common counts for same, and was in no sense responsible for the subsequent release or cancellation of same, not having assented thereto or ratified the same.
The agreement as executed by Ball did not show upon its face that the same was made by him solely as the agent of his wife and Mrs. Hays. It is not signed by them personally or by Ball as agent but by him for them, and from aught appearing upon the face of same he was not acting solely and entirely as agent. If, however, the proof disclosed that he was acting only as their agent, the suit could have been maintained only against them, if the proof also showed that he had authority to bind them in the transaction, but there was evidence from which it could be inferred that he was not authorized to make the sale, and, if he failed to disclose his authority or exceeded same, he was answerable to the plaintiff personally. It is suggested, however, by appellee's counsel, citing certain cases from Maine, Massachusetts, and Illinois, that the only remedy the plaintiff would have against Ball for acting as agent without authority is an action on the case for deceit. There seems to be some confusion of authority as to when the plaintiff is confined to an action of tort or may maintain assumpsit against the purported agent (16 Enc. of Pl. and Pr. 906), but our court is committed to the rule that, if the contract shows a prima facie liability on the part of the agent, and he fails to show that it was made solely for another and with authority to do so, he may be sued in contract (Lazarus v. Shearer, 2 Ala. 718; Briel v. Exchange Nat. Bank, 172 Ala. 475, 55 So. 808).
The trial court erred in giving the general charge for the defendant, and the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
SAYRE, GARDNER, and MILLER, JJ., concur. *Page 620
On Rehearing.