Mower v. Shannon

Assumpsit. 1. Appeal and Error; Review; Fmding of Court; Presumption.— AVliere a cause is tried by the court without the intervention of a jury, the finding of the court has the same presumption of verity as that accorded to a verdict of the jury. 2. New Trial; Grounds; Excessive Verdict. — Although the cause is tried by the court without intervention of the jury, a new trial should be awarded where there is no evidence supporting a recovery in anything like the amount awarded as damages by the court.

Appear from Birmingham City Court. Heard before Hon. C. C. Nesmith. Action by J. S. Shannon against Calvin R. Motver to recover broker’s commission for the sale of real estate. There Avas judgment for plaintiff in the sum of $9,500, and the court having declined to set aside the verdict and grant a new trial, defendant appeals. Diligence on the part of the principal is not required to be exercised to discover bad faith in the agent, as the agent must show clean hands and the utmost good faith in order to recover against a principal. Adams v. Robinson, 65 Ala. 585. Shannon was either an agent to get contracts in his own name and that was all his duty, or he was a seller of land which he owned by virtue of owning contracts to purchase, and should not be paid for tax title that had never been made into an absolute fee simple title, unless in demanding his commission he told Moore that the contracts were founded on tax title, and Moore took them with such knowledge.' — Flinn v. Barbour, 64 Ala. 193; Thompson’s Case, 86 Ala. 150. An agent is liable to his principal for violating instructions. — 1 Cyc. 1071; 1 Parsons on Contracts, 92. Counsel contend that under the evidence the verdict was largely excessive and that although rendered by the court without the intervention of the jury, the same is manifestly erroneous, ánd the court should have awarded the'defendant a new trial. The court will not reverse the judgment of the court finding on the facts nor review the same unless it is manifestly and grossly erroneous. — Randall v. Wadsworth, 130 Ala. 633; Gobb v. Malone, 92 Ala. 630; Jones v. Tucker, 132 Ala. 305. The finding on the facts by the court has the same presumptive verity as the verdict of the jury, and will not be reviewed by an appellate court. — Milner v. State, 150 Ala. 95; Mayhall v. State, 146 Ala. 124; Ala. Mid. v. Brown, 129 Ala. 282; Central Ry. v. White, 56 South. 574. No diligence was exercised as to newly discovered evidence. — C. of Ga. v. Geopp, 153 Ala. 109.; McLeod v. Shelby Co., 108 Ala. 81; Koslcins v. Kite, 95 Ala. 284.