delivered the opinion of the Court.
In the county court at law of Travis County petitioners recovered judgment against respondents in the amount of $287.50 as a real estate commission. The case involves the construction of Article 6573a, Section 22, Vernon’s Texas Civil Statutes, and upon that ground this court’s jurisdiction attaches under Article 1821, Vernon’s Texas Civil Statutes, notwithstanding the case originated in the county court. The article under construction reads in part as follows:
“No action shall be brought in any court in this State for the recovery of any commission for the sale or purchase of real estate unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereto lawfully authorized.”
The contract upоn which petitioners base their suit was entered into between the sellers, respondents, and the purchaser. The only provision with respect to the payment of a broker’s commission is as follows:
“Shоuld the Purchaser fail to consummate this contract as specified for any reason, except title defects, Seller shall have*538 the right to retain said cash deposit as liquidated damages fоr the breach of this contract and shall pay to Agent therefrom the usual commission, or Seller may enforce specific performance of this contract.”
In the trial court judgment was rendеred for petitioners on findings by the jury that petitioner Montandon was acting as a duly authorized agent of respondents in the sale of the property; that respondents agreed to pay Montandоn as their agent a 5 per cent, commission upon the sale price thereof; and that respondents agreed to pay Montandon “the usual commission in Austin, Travis County, Texas.” These findings by the jury were bases upon parol testimony introduced upon the trial. The court of civil appeals held that testimony was inadmissible to establish that respondents agreed orally to pay petitioners a 5 per cent, commission for consummating a sale of the property.
The long-standing rule in this court is that the essential elements of a contract required to be in writing may never be supplied by parol. Jones v. Carver,
Spires v. Mann,
“Should the purchaser fail to consummate this contract as specified for any reason, except title defects, seller shall have the right to retain said cash deposits as liquidated damages for breach of this contract and shall pay to agent therefrom the sum of 50c per acre, or seller may enforce specific performance of this contract.”
The two contracts contain materially different provisions with respect to the methods for ascertaining the amount of the commission to be paid. In the Spires-Mann case the amount of the commission was clearly stated and could be definitely ascertained without resort to any character of parol testimony. The contract statеd the number of acres of land to be conveyed and provided that the commission should be 50c per acre; whereas, in the case under review no definite amount of commission was stated, but it was provided only that it should be “the usual commission.”
Over the objections of respondents, petitioners were permitted to introduce evidence as to “the usual commission in Austin, Travis County, Texas.” The testimony of petitioners’ witnesses did not reveal that any fixed or definite rules had been promulgated or published to guide in determining what commissions should be charged. Petitioners’ witnesses testified that when the value оf the property is less than $25,000.00, the usual commission is 5 per cent, of the sale price, that the amount to be paid in any case is determined by the agreement of the parties, as is also the question as to which party pays the commission. That evidence was inadmissible under the rule above noted.
A case in point by this court is City of Abilene v. Sayles (Com. App.),
“We think, in line with the aforesaid authorities by our court, that the Court of Civil Appeals in the case at bar is correct in stating that parol evidence is not admissible to show what was meant by the words ‘proposed maximum capacity.’ As stated by counsel for the city, the opening up of parol testimony of that character might develop conflicts in the testimony. And it certainly might add, by parol, to the оriginal intention as included in the written contract. It is well settled that you cannot add such parol intentions. You could only explain ambiguties. Consequently we do not think this clause should be affected, one wаy or the other, by parol testimony of the parties.”
However, the court in that case held the description was sufficient to support an action for specific performance, the grоund being that the proposed maximum capacity of Lake Abilene was shown by a written application and accompanying map filed by the city with the State Board of Water Engineers as requirеd by law. The papers when filed became public documents. Therefore, the meaning of “proposed maximum capacity of Lake Abilene” was a question of law which was read into the contract. The court held in that case that the intention of the parties in using the phrase, “proposed maximum capacity,” could not be established by parol evidence, but that the contract itself was sufficient, as a matter of law, to comply with the statute of frauds, since the meaning of that phrase was made certain by written documents of record.
The courts in other jurisdictions which havе extended their statutes of frauds so as to encompass suits by agents to recover commissions for the sale of real estate have decided the question as to whether or not the amount of commission may be proved by parol. In Zimmerman v. Zehender,
“The important feature — the amount of commission to be paid — is to be ascertained by parol testimony in regard to an understanding which may prove to be а misunderstanding, the exact thing which the statute was designed to prevent.”
In Forland v. Boyum,
Our conclusion is that the writing in the instant case is insufficient to comply with Article 6573a, Section 22, Vernon’s Civil Statutes. The judgment of the court of civil appeals is accordingly affirmed.
Opinion delivered March 23, 1949.
No motion for rehearing filed.