Assumpsit.

Appeal from Mobile Circuit Court.

Heard before Hon. Samuel B. Browne.

Action by Ignatius Green against P. F. Brady. From a judgment, for defendant, plaintiff appeals.

This was an action in assumpsit to recover commission for the sale of real estate. The first count was for work and labor done; the second, for services rendered in the sale of certain property in Tuscaloosa; and the third, damages for the breach of an agreement in reference to the sale of property. The defense interposed was that the sale was made independent of Green, the plaintiff, and at- a personal visit made by the purchasers to the owner of the property, Mrs. Brady. The suit was against the husband. The evidence tended to show that Green had the sale of the property, but not the exclusive sale, and that the purchase for which commission was claimed was made through another than Green. One of the purchasers, Leland, was permitted to testify, over the objection of the plaintiff, that he saw Mrs. Brady immediately after arriving at Mobile, the place of her residence, and that he had a conversation with her about the purchase, in which conversation he stated to her that Green had attempted to sell him the property at a profit over and above the price which she asked. He was also permitted by the court to testify as to all the conversation he had with her in reference to the sale of the property.

The court refused to plaintiff the following charges: “‘(1) The plaintiff is entitled to a verdict for such an amount of damages as you believe from the evidence he has sustained by reason of defendant’s breach of contract. (2) I charge you, gentlemen of the jury, if you believe the evidence in this case, you must find a verdict for the plaintiff for such an amount as you believe he has sustained as damages for defendant’s breach of contract to sell plaintiff’s property.”

The court gave the following charges for the defendant: “(1) If the jury believe from the evidence in this case that Green resided in the city of Tuscaloosa, where the property was situated, while his principal resided in the city of Mobile, at a distance from the property, such agency carried with it the duties exacted by law from fiduciary relations. The agent is not permitted to traffic with the subject-matter of his agency without the consent of his principal, so as to reap any profit for himself. (2) When an agent undertakes to manage a particular matter for another, he impliedly undertakes not to manage for himself. It is contrary to well-established principles of law to permit an agent to purchase an interest in property, when he has any duty developed upon him inconsistent with the character of a purchaser.”

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