236 S.W. 514 | Tex. App. | 1921
Plaintiff, a real estate broker, sued defendant for a commission for effecting an exchange of lands between defendant and one Davis. He claimed a commission from defendant on the value of his equity, under an alleged contract to that effect, and also a commission on the value of the equity of Davis in his property because defendant wrongfully refused to carry out the trade, and caused the loss of the latter commission.
The only testimony given on the trial was that of plaintiff himself, and the introduction of the written contract which it was claimed was made between the parties. At the conclusion of the plaintiff's testimony, the court sustained defendant's motion for judgment; there being no jury. The judgment recites that the testimony was found by the court to be true, but that it was insufficient to warrant a judgment for plaintiff.
The following material facts are deducible from plaintiff's testimony:
That Estes and Davis both listed real estate with him for sale or exchange; that he brought them together; that after considerable negotiations they entered into a written contract comprising every essential requisite of a purchase and sale agreement, including the privilege of inspection of the Amarillo properties by Estes; that Estes, after returning home from his inspection trip and some further negotiations with Davis, finally authorized him to make the exchange with Davis in accordance with the terms outlined in the original contract, provided he would trade his equities on an even basis; that Burk communicated such proposition to Davis, who accepted the same; that thereafter Burk considered the trade closed, procured Davis' abstract, and submitted the same to Estes for examination; and that Estes refused to consummate the trade or to pay the plaintiff his commissions.
It is also insisted by plaintiff that we should find that Davis was ready, willing, and able at all times to perform his part of the contract. This finding we can make only in part, the evidence authorizing the *Page 515 conclusion that Davis was ready and willing to perform the contract, and to exchange his equity for that of defendant, but it was not shown that he was able to do so. The change in the original contract, effected by defendant's new proposition to exchange equities on an even basis, was material, and was never reduced to writing. This change added a new term to the contract, to the extent of relieving defendant from the execution and payment of $4,000 in vendor's lien notes against the property he was to receive in exchange.
It also seems that a broker may recover, not only the commission contracted to be paid by the defaulting party, but also the commission which he would otherwise have received from the opposite party, if both principals knew of the double representation. Hunter v. Lyons, supra.
From an inspection of the pleadings and the argument of plaintiff's counsel, it appears that plaintiff predicated his right to recover upon two theories: (a) That he had brought the parties together in an enforceable contract, capable of specific performance, and that defendant wrongfully refused to consummate the trade; (b) that whether the contract was an enforceable one or not, he should recover because he was the efficient and procuring cause of finding a purchaser for defendant's lands, ready, able, and willing to exchange on terms mutually satisfactory.
As to the first of these conditions, we think it is clear that plaintiff could not recover under his own testimony. The contract was not enforceable through specific performance because a material change and modification in the original written agreement had been introduced by agreement of the parties, and was never reduced to writing; therefore, under the statute of frauds, the contract could not be enforced; it being one for the conveyance of land. Moss v. Wren,
Upon the second condition which it is claimed entitled plaintiff to judgment, we hold that, notwithstanding no binding contract existed, plaintiff might still be entitled to his commissions, if he brought a purchaser who was willing and able to buy or exchange the property, but was prevented through the fault of defendant. Hamburger v. Thomas,
All assignments are overruled, and the judgment will be affirmed,
Affirmed.