him-this application being made by letter, after having spoken to defendant about the matter-defendant put the lots in plaintiffs' hands for sale; that, in response to a letter asking him to state his terms and prices on the lots, defendant wrote to plaintiffs, saying that he inclosed in the letter a plat upon which he had placed the lots, and the prices of each lot. On this plat the corner lots were priced at $3,000, and the lot designated as “Lot 7" was fixed at $1,100. It was also shown that in answer to a letter to him by plaintiffs, telling him of the sale of one of his lots, defendant replied that he wanted the lots sold on the conditions that there was to be no store or church erected thereon, and that no negroes, except as domestic servants, were to live thereon. It was also shown that after receiving a letter from plaintiffs, telling him that they had sold one of the corner lots for $3,000, and on learning that it was the lot upon which one Sharpe lived, defendant telegraphed plaintiffs withdrawing the Sharpe lot from the market, and wrote them on the same day, telling them of such withdrawal, and that he had written them that he would not sell the Sharpe lot for less than $3,250. Plaintiffs answered this letter, saying that they would withdraw the Sharpe lot from the market, but denying that they had ever received a letter directing them not to sell the lot reported to be sold, for less than $3,250, and also denying a knowledge of the conditions to be placed in defendant's deed. Wilson testified that when this last-mentioned letter was written they did not know which was the Sharpe lot, and did not know it was the lot they had reported to defendant as sold to Mrs. Mayberry. Defendant was asked by his counsel whether or not in the conversation with plaintiff in the hotel in Birmingham, before the first letter was written, he (defendant) informed Wilson that all sales to be made by plaintiffs were to be subject to defendant's confirmation. This question was excluded. Defendant was then asked whether or not, in the conversation referred to, he informed Wilson of the conditions he would insert in his deeds. This was also excluded. Defendant was then asked whether or not, in the conversation above referred to, anything was said about commissions. This was also excluded. Defendant then offered to prove "that there was but one conversation between the plaintiffs and the defendant prior to the letter of February 6th, which was the beginning of the correspondence; that in that. conversation the defendant told the plaintiff Wilson that all sales of property to be made by their firm would be subject to his (defendant's) confirmation; that the defendant informed Wilson of the conditions he would insert in his deeds for the property; and that he and said Wilson agreed on the compensation to be paid the plaintiffs in case they made the sales of the property;" but the court refused the evidence. Defendant testified that he had priced the Sharpe lot at $3,250; while there was evidence in behalf of plaintiffs that they had never received such a letter, and that they had never heard of any conditions upon the sale of the property until they received the letter in answer to the one written by them to defendant announcing the sale of the lot; and that they had never heard that all sales were to be held subject to defendant's confirmation. There was also evidence tending to show what were the commissions allowed by custom for the sale of property.

Plaintiffs thereupon asked the court to give the following charges to the jury, which the court gave at plaintiffs' request, and defendant assigns for error: "(1) If the jury believe from the evidence that defendant placed the sale of certain real estate in the hands of plaintiffs for sale, the law implies a promise on his part to pay them a fair and reasonable compensation for their work in negotiating such sales, if sales were in fact negotiated, unless some term of the contract fixed the price to be paid for the services. (2) If the evidence shows that there was a custom in Birmingham regulating commissions where net prices were to be realized, and Sayre knew of this custom, and the evidence shows that the contract was made with reference to the custom, then the commissions on the lot 7 may be fixed under such custom, unless there

was a contract varying the commissions from the custom." "(4) If the evidence shows that the plat in evidence accompanied the defendant's letter, and was referred to therein, the prices named on the lots were the minimum prices that plaintiffs were authorized to sell for. For making sales of these lots plaintiffs were entitled to compensation to be taken out of the prices named that might be realized by such sales. (5) The amount of compensation to be paid for services in making sale of lot last above named would be a fair and reasonable compensation, and not an amount equal to the amount of excess over and above the price named, unless from the evidence in the case the jury find that the parties intended and understood that plaintiffs should receive all excess as their compensation. (6) What the parties intended and understood must be gathered from the evidence; and if there is evidence of conduct on their part that refers to that contract, you can look to that conduct, with the balance of the testimony in the case, in ascertaining the intention and understanding."

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Defendant also assigns for error the refusal of the court to give the following charges: (1) If the jury believe from the evidence that plaintiffs found purchasers for the lots mentioned, unless the jury find that the purchasers were bound by a contract in writing to take the lots, the plaintiffs would not be entitled to recover commissions for such sales. (2) That although defendant placed the property in the hands of plaintiffs for sale, and the plaintiffs secured a purchaser or purchasers, the plaintiffs would not be entitled to commissions until a bargain and sale is made by a contract which was mutually binding on vendor and vendee. (3) That if the jury believe from the evidence that Sayre wrote to the plaintiffs fixing the price of the Judge Sharpe lot at $3,250, and mailed the letter to plaintiffs, defendant had a right to assume that plaintiffs received the letter, defendant would not be liable for commissions on the sale of that lot, if the lot was sold for less than $3,250, before defendant knew or had reason to believe that plaintiffs never had received his letter of instructions. (4) That if, after informing defendant of the sale of the Sharpe lot, the plaintiffs received the letter and telegram of defendant refusing to carry out the trade for the lot, and then consented to withdraw the Sharpe lot from the market, then this would amount to a rescission in regard to the sale of this lot, and plaintiffs would not be entitled to recover commissions for the sale of this lot. (5) That if the jury believe from the evidence that the Judge Sharpe lot was contracted to be sold to Mrs. Mayberry, and that Mrs. Mayberry was a married woman, then the defendant had a right to refuse to carry out the contract made by his agents with a married woman, who was not liable on her contract to purchase."

In the argument of the case by the defendant's counsel before the jury, the counsel insisted that Ingram, one of the plaintiffs, had not testified in the case, and that his absence was not accounted for, and that it was not shown that he (Ingram) had not received the letter which the defendant claimed to have written to the plaintiff, raising the price of the Sharpe lot. After the jury had retired, they returned into court, and asked the court whether the fact that Wilson had testified that "we [meaning plaintiffs] never received the letter," would be evidence that plaintiff Ingram never received it. The court answered that it would be such evidence; and this defendant assigns for error. There was verdict and judgment for plaintiffs, and defendant appeals.

Tompkins, London & Troy, for appellant. Roquemore, White & Long, for appellees.

SOMERVILLE, J. A broker who is employed to sell property on commission earns his compensation when he has been the efficient agent in procuring a satisfactory purchaser who is able, ready, and willing to buy the property on the terms fixed by the owner; and if the sale is not consuminated, by reason of

the owner's fault, this fact is no bar to the recovery of commissions. Chambers v. Seay, 73 Ala. 372; Henderson v. Vincent, 84 Ala. 99, 4 South. Rep. 180; Vinton v. Baldwin, 45 Amer. Rep. 447; McClave v. Paine, 10 Amer. Rep. 431. If an unsatisfactory purchaser is found,-one who is not able or ready or willing to accept and perform the proffered terms, the owner may refuse to accept him, and is under no liability to pay the broker for his services. The theory of the law is that, when the broker has brought the minds of the buyer and seller to an agreement upon all the terms of sale, and the buyer is able, ready, and willing to buy, this is a constructive consummation of the sale, so far as the broker is concerned, because he has done all that he was required to do. If he has negotiated to sell the property to a minor, or a lunatic, or a feme covert, or other person who is legally incapacitated to bind himself to perform the terms required, the owner may refuse to accept the proffered purchaser, and incurs no obligation to pay commissions for the service of procuring such a buyer. The complaint was defective in failing to aver that the purchasers alleged to have been found by the plaintiffs were able, ready, and willing to carry out the alleged sale, or else to aver facts showing a waiver by defendant of these requisites. The demurrer based on this defect should have been sustained, and the court erred in not doing so. The sale of one of the lots owned by appellant is shown to have been contracted to be made to a married woman,-one Mrs. Mayberry. The terms of the sale provided for a cash payment of one-half of the purchase money, and the remainder to be paid in 12 months. A feme covert, in this state, being at that time incapable of binding herself personally for the payment of the purchase money, the appellant could properly have objected to Mrs. Mayberry as an unsatisfactory purchaser. But if he knew her status, and did not object for that reason, or declined to consummate the sale on other specified grounds, this objection must be construed to have been waived by him.

It was, in our judgment, competent to show by parol evidence a separate and distinct antecedent agreement as to what commissions should be charged for brokerage. The correspondence of the parties by which appellees were employed to make the sale does not cover the question of compensation. The appellant Sayre's letter of authority only fixes the price and terms of sale, being responsive in this particular to the letter of the appellees, Wilson & Ingram, dated February 6, 1886, which called for such terms. The contract of employment, as expressed in the correspondence, is not perfect and complete in itself, and shows on its face that it was not intended to regulate the subject of commissions, either expressly or by necessary implication. The case is one, therefore, where oral evidence is admissible to show a separate oral agreement collateral to the written contract, and not inconsistent with its terms, without infringing the rule excluding parol evidence of contemporaneous stipulations which contradict or vary the legal effect of written instruments. Huckabee v. Shepherd, 75 Ala. 342; Welz v. Rhodius, 44 Amer. Rep. 747; West v. Kelly, 19 Ala. 353; Hersom v. Henderson, 53 Amer. Dec. 185; 1 Steph. Dig. Ev. art. 90. But it would, however, be straining the principle too far, we think, to authorize oral proof of an anterior agreement that the property was to be sold subject to Sayre's approval or confirmation, and that the deeds were to contain certain peculiar and unusual conditions, restricting the use to which the property was to be devoted. The written contract of employment authorizes a sale of the lots at specified prices and terms. This, by necessary implication, means an unconditional sale, without extraordinary or unusual conditions, with a conveyance by the usual warranty deed. These matters are not collateral to the subject-matter or contract of sale, but are the very essence of it. There was no error in excluding this evidence. The letter of Sayre fixing the terms of sale expressly made reference to a plat which he inclosed to the appellees, and also to the prices for each lot, as marked on the plat. This made the plat a part of the letter, and the prices. v.5so.no.10-11

affixed a part of the contract, as fully as if incorporated in the body of the letter. Oliver v. Insurance Co., 82 Ala. 417, 2 South. Rep. 445.

If the evidence satisfactorily shows an agreement for a particular compensation by way of commissions, that would, of course, prevail. If not, then the plaintiffs would be entitled to recover, if at all, a fair and reasonable commission, subject to any limitations imposed by the terms of the contract. Established and customary charges for like services in the community would be competent evidence to prove what was fair and reasonable.

If Sayre authorized the sale of the Sharpe lot at $3,000, as shown by his letter introduced in evidence, and which seems to be without date, and this letter was received by the appellees, and under its authority they made a contract to sell the lot, their right to compensation would not be prejudiced by any letter which Sayre may have subsequently written and mailed to them increasing the price to be charged, provided the letter was never received by reason of miscarriage or otherwise. The authority to sell, having been conferred, could not be revoked by a lost letter, which never came to the possession or knowledge of the broker or agent. The testimony of Wilson that the firm never received this letter was competent to show that neither he nor his partner Wilson had received it. Whether satisfactory or sufficient to establish the fact, it was for the jury to say. This would depend upon circumstances, including an inquiry as to who generally controlled the correspondence, how and where the letters were kept, what search had been made for them among the firm correspondence, and other like considerations. If the plaintiffs agreed to withdraw the Sharpe lot from market at request of the defendant, after they had effected a sale of it, and they did this under a mistake of its identity, reasonably believing that Sayre's instruction to withdraw had reference to a different lot, this mistake would not operate to rescind the contract in regard to the sale of the Sharpe lot so as to prevent the plaintiff from recovering commissions for such sale, if they were otherwise entitled to them. The plea of the statute of frauds was no answer to the complaint. Admitting that the sale made by the brokers to the proposed purchasers, the Messrs. Mills and Mrs. Mayberry, was voidable under the statute of frauds, because not reduced to writing and signed by the party to be charged, that is not the contract here in suit; and these purchasers, moreover, have not attempted to avoid its performance, but evince a readiness to comply with its terms. That they possessed the power to avoid it would be immaterial to the plaintiffs' claim of compensation for bringing together the minds of the proposed seller and buyer, so long as no effort was made by them to avoid it. The demurrer to this plea was properly sustained. These principles will be sufficient to guide the court upon another trial. Reversed and remanded.

HUDMON et al. v. Du Bose.

(Supreme Court of Alabama. December 12, 1888.)

WAREHOUSEMen-Delivery OF MORTGAGED GOODS-LIABILITY TO MORTGAGEES. Warehousemen who receive mortgaged goods for storage from the mortgagors, and thereafter deliver them to a third person on production of the warehouse receipt, are liable in trover to the mortgagee whose mortgages are recorded in another county, though they have no actual notice of his claim.

Appeal from circuit court, Lee county; J. M. CARMICHAEL, Judge. Trover by E. P. Du Bose against Hudmon Bros. & Co., for damages for alleged conversion of two bales of cotton. Defendants pleaded not guilty, and a special plea, averring that they received the cotton as warehousemen, for storage only, and delivered it up on production of their receipt, without notice of plaintiff's right or claim. The cotton was raised in Macon county during the year 1880, on lands cultivated by F. D. May and B. A. Roberts; and it was carried by one of them, in company with W. R. Chapman, on the

6th of November, 1880, to Opelika, in Lee county, and there stored in the warehouse of defendants, who gave a warehouse receipt for it, and delivered it a few days afterwards to some third person, whose name does not appear, upon his production of the receipt. Plaintiff claimed the cotton under two mortgages executed to him by said May and Roberts, which were read in evidence without objection. These mortgages were given for advances to make a crop on certain lands in Macon county; each being dated January 1, 1880, and conveying, with other personal property, the entire crop of cotton to be raised on said lands during that year. Each of said mortgages was duly recorded in Macon county in July, 1880, and the law-day of each was October 1, 1880. Plaintiff made inquiry at the different warehouses in Opelika, and was informed by defendants, after examining their books, that the cotton had been stored with them for a few days, and that they had delivered it to a person who had produced their receipt to Chapman; but they declined to state the name of that person. Defendants had no actual notice of plaintiff's right or claim to the cotton. Verdict and judgment for plaintiff, and defendants appeal.

A. & R. B. Barnes, for appellants. W. J. Samford, for appellee.

SOMERVILLE, J. In Lee v. Mathews, 10 Ala. 682, decided as far back as 1846, the rule was settled by this court, in accordance with the English authorities, that an agent who intermeddles with the goods of another is guilty of a conversion, if the same act of intermeddling by his principal would, under like circumstances, have rendered the latter liable in trover. It was said by ORMOND, J., that "every act of intermeddling with the goods of another is a conversion; and it is no answer to the true owner that the person so receiving the goods was ignorant of his title, or that he received them for the use or benefit of another. The same rule is reiterated in Perminter v. Kelly, 18 Ala. 716, (decided in 1851,) and is fully sustained by the weight of authority. Marks v. Robinson, 82 Ala. 69, 83, 2 South. Rep. 292. The only exception to this rule which our decisions have established is stated in Nelson v. Iverson, 17 Ala. 216, the authority of which is recognized in Marks v. Robinson, supra, (1887.) This exception is that the mere receiving of goods by one who restores them to his bailor, before notice that such bailor's possession was wrongful, is not a conversion.

Under the above principles, the appellants were clearly guilty of a conversion in receiving the appellee's cotton and shipping it on his order, unless they come within the exception announced in Nelson v. Iverson, supra. It is insisted in argument that such shipment is legally tantamount to restoring the cotton to the possession of the bailor. The rule, in our judgment, cannot be construed to go this far. The exception in question only embraces the act of restoring the thing bailed to the mere possession of the bailor,-a substantial restoration of the original status in quo of the property. It does not include a restoration of the bailor's dominion by an act the essential nature of which is in defiance of the true owner's title, or the probable consequence of which will be to put the property beyond his reach; and such is the act of conversion here imputed to the appellants. The rulings of the circuit court touching this point are, in our opinion, free from error. The registration of the appellee's mortgage on the cotton in controversy was constructive notice to the appellants of the existence of the mortgage, and as binding on them as actual notice would have been. Mayer v. Taylor, 69 Ala. 403; Heflin v. Slay, 78 Ala. 180; Marks v. Robinson, supra. The judgment is affirmed.