Opinion
6 Div. 107.
March 17, 1932.
Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.
Edw. T. Rice, of Birmingham, for appellants.
The undisputed evidence shows that the total cash payment received by the appellants was $875.14 and the total commission was $500, the difference between which did not amount to the face of the note. On the undisputed evidence appellants were entitled to a judgment for deceit. Code 1923, §§ 5677, 7354; Moon v. Benton, 13 Ala. App. 473, 68 So. 589; Tuscaloosa v. Foster, 132 Ala. 393, 31 So. 587. By the preponderance of the evidence the note became null and void by agreement of the parties. This court should reverse and render on the undisputed evidence. Code 1923, § 6149; Montgomery L. T. Co. v. Woods, 194 Ala. 329, 70 So. 119.
Smyer, Smyer Bainbridge, of Birmingham, for appellee.
When a civil suit is tried by the court without a jury, the conclusion of the trial judge from evidence ore tenus will not be set aside on appeal unless plainly erroneous or manifestly wrong. Grant v. Henderson, 21 Ala. App. 285, 107 So. 724; Halle v. Brooks, 209 Ala. 486, 96 So. 341. Fraud is never to be presumed, and the party charging it must prove it by clear and convincing evidence. So. R. Co. v. Arnold, 162 Ala. 570, 50 So. 293; Stuart v. Holt, 198 Ala. 73, 73 So. 390; Moses v. Katzenberger, 84 Ala. 95, 4 So. 237; Corinth B. T. Co. v. Pride, 201 Ala. 683, 79 So. 255.
This is an action of assumpsit on a promissory note executed by the defendants to the plaintiff on June 14, 1927, and payable, on its face, on the 14th day of September, 1927, for $437.50.
The note was given as part payment for a commission to the plaintiff as a real estate broker or agent, earned in effecting the exchange of certain real estate between the defendants and the Drs. Sparks. It was, however, stipulated in the note that "this note to be paid when all or any piece of property traded has been sold and cash payment, less commission, has amounted to face of this note."
The pleas were the general issue, payment, release and discharge of the defendants from liability by mutual agreement of the parties and other consideration, and fraud and deceit practiced by the plaintiff on defendants in effecting the exchange of the property.
The trial was before the court, without the intervention of a jury, on documentary evidence and testimony given ore tenus, resulting in a judgment for plaintiff; hence this appeal.
It appears without dispute that part of the property received by the defendants in exchange from Drs. Sparks was sold to one Landers for $875.14, and that the defendants were not required to pay any commission on that sale. While the plaintiff testified in his own behalf that in the sale of some of the other property to Mazer no cash was to be paid in that transaction, and that he was paid a commission of $500 in that transaction, the testimony of the defendants goes to show that they received a check for $800 cash, net to them, and, in addition thereto, that the mortgage for $1,600 taken as part payment in the Mazer transaction was paid a few days thereafter, making a total of cash received by defendants from said property, $3,275.14.
Construing the stipulation in the note in the light of the circumstances surrounding the parties, its clear intent was to relieve the defendants from payment until they had received sufficient cash out of the property, over and above commissions expended by them in disposing of the property, to meet the note.
Our judgment, therefore, is that the evidence sustains the conclusion and judgment of the trial court.
The testimony as to whether or not there was a subsequent agreement as set up in the defendants' plea 4 1/2 is in conflict, and we are not able to affirm that the court erred in holding that defendants failed to meet the burden of proof on this issue. Hackett v. Cash, 196 Ala. 403, 72 So. 52. The same is true as to the plea setting up fraud and deceit.
The motion for a new trial and the rulings of the court thereon are not made a part of the bill of exceptions, and therefore cannot be considered. Code 1923, § 6088; Newell Contracting Co. v. Glenn, 214 Ala. 282, 107 So. 801.
Affirmed.
ANDERSON, C. J., and BOULDIN and KNIGHT, JJ., concur.