*1 PLAINS DEVELOPMENT COASTAL al., Appellants, et
CORPORATION MICREA, INC., Appellee. 7930.
No. Texas, Appeals of Civil Court Kee, Andrus, Beaumont. Angleton, L. B. Jack L. Pasadena, appellants. for 30, 1977. June Houston, Mercer, appellee. Jon July Denied Rehearing
STEPHENSON, Justice. damages an action for for breach This is by jury, judg- Trial was of contract. plaintiff rendered for was on the ver- will be referred to here as dict. in the trial court. they were Micrea, Inc.,
Plaintiff, defendants, Plains Development Corporation, et Coastal al., entered into a written contract dated 1970. Such contract showed de- were the owners of a certain 200- fendants County, tract of land in Brazoria acre agreed by map. to subdivide as shown it given option purchase was an Plaintiff to con- lots subdivision also program for the sale of the lots. duct sales Plaintiff was authorized to sell the lots on a pay- of sale basis. The cash down the sale of the lots was to ment for be if it by plaintiff did collected not exceed 20 and, selling price; if percent percent, to more than 20 the ex- amounted would be delivered to defendants. It cess the 20 percent was estimated would cover and, expenses plaintiff, if it did overhead not, pay defendants would the defi- then plaintiff, Defendants ciency monthly. solely responsible payment of sur- were engineering costs as well as the veying road construction and maintenance. cost of equally were to be divided The net defendants, after between all incurred in connec- payment including the development, with this tion land, per not to exceed $800 cost acre. determination primary question for is whether or not appeal *2 (j) prove it a licensed or allege to and was Procures assists
had in the procuring bring in order to and prospects, real estate broker of calculated to result in the this cause of action. Tex.Rev.Civ. sale, maintain exchange, leasing or rental of real (1969)(The Real Estate art. 6573a estate; StatAnn. Act) provided in Section at the
License (k) or Procures assists in procuring the of action arose as follows: time this cause properties of calculated to result in the bring or person company may or “No sale, exchange, leasing or rental of any action for the collection of any maintain enterprise, business sells, or exchanges, for the performance in this compensation rents, purchases, or any leases business any of acts set out subdi- State enterprise; without (1) vision of Section hereof (i) Subdivides real estate into two or proving alleging person and that the or parts or tracts which are to be brokerage performing the serv- company sold, leased, exchanged or rented to duly ices was a licensed real estate broker others, or for the purpose of erecting alleged at time the serv- or salesman buildings for residential or business commenced; duly ices were or a li- was sold, purposes leased, to be exchanged attorney-at-law exempt censed as or rented.” of provisions this Act Section 6.” by September 30, 1970, On the written con- (1) of that Act Subdivision Section 4 of was amended to tract increase the amount reads as follows: land from of 200 acres to 720 acres. On “(1) The term ‘Real Estate Broker’ that same date a bank loan was closed in who, include any person shall mean and $180,000, amount of plaintiff and both compensa- for another or others and for signed defendants Develop- note. or the intention the expec- tion with or in of property began agreed, as promise upon receiving tation or or plaintiff promotional conducted its activi- compensation: collecting ties, and defendants conducted survey- their (a) Sells, exchanges, purchases, rents ing, engineering and construction. Some estate; or real leases $200,000in land was sold contracts under sell, (b) to exchange, purchase, Offers payments the down by plain- retained estate; rent or lease real However, 1, 1970, on tiff. October when (c) Negotiates, or attempts offers or or expense submitted its plaintiff summary, agrees negotiate sale, exchange, to reflecting an $13,000 excess some in ex- purchase, rental or leasing real es- receipts, over penses paid. was not tate; building stopped, road later suit (d) attempts Lists or offers or or evidence filed. The shows that Jack was sale, real agrees to list estate for rent- Adler, president, a plaintiff’s was licensed trade; al, lease, exchange or throughout estate broker real (e) Appraises attempts or offers or or plaintiff such a license was issued to that estate; agrees appraise to real September Auctions, (f) attempts or offers or or findings: these Defend- jury made estate; agrees to auction real failing pay breached the contract ants sells or (g) Buys buy or offers or money; that expense suffered sell, options or otherwise deals in on loss of under the a estate; real $109,695; that amount defendants suf- or (h) attempts Collects offers or or plaintiff’s loss a result as fered the use agrees to collect rentals for judgment plaintiff In the acts. estate; real $109,695, tne plus stipulated amount of (i) or out Advertises holds himself as expense money mentioned above. buy- being engaged business renting study of selling, exchanging, or the record as a ing, From estate; whole, we have come to the that leasing real conclusion “ relation and defend- may between be the ‘Whatever rule other of a it seems jurisdictions, is that venture. Even to be well ants settled that, the decisions of our though paragraph it is last courts written when persons or more two associate partnership contract that neither a nor themselves together purpose carrying for the constituted, should be enterprise for prof- business their mutual recognized rule of is that the rela- law *3 well it, persons so the associated are jointly tionship is the them and what terms make severally responsible and for the debts they call themselves. Neece not what See in the conduct of such incurred business Co., 403, Realty 159 322 A.A.A. Tex. v. organ- unless such business association is (1959). 597, 600 S.W.2d as a limited or a partnership corpora- ized Keith, court, of this has written Justice providing our statute for tion under such opinions subject, excellent this Lane two or organizations, contracts specially with Phillips, (Tex.Civ.App.— 894 509 S.W.2d v. with whom the those association deals 1974, e.), writ ref'd and n. r. Ives Beaumont only the funds that and property the Watson, (Tex.Civ.App.— 930 521 S.W.2d v. ” shall be association held liable.’ 1975, e.). writ ref’d n. r. Refer- Beaumont joint fact that this was a The venture opinions to those two as is here made ence require- this transaction from the removes joint a to constitute ven- what takes to 4 and ment Sections 19 set out above. a before us creates rela- The contract ture. Clearly, under the Real Act, Estate License tionship partnership the nature a in in or does person company a not have to have prosecution of a trans- joint particular the selling license for his or its a own land. profit. necessary for The mutual action 1 of Section 4 crystal Subdivision makes it and community of interest a ingredients, a only that it is clear when the listed acts profits, the exist. As in both participation (a) (1) performed to are “for another above, in detail defendants stated that the others” required. or license is obligated to take of the survey- care were is Apparently, impres- a case of first construction, and mainte- engineering, ing, sion, and there are no other in cases Texas nance, promotion the and plaintiff, sale. involving joint a venture. position Our expense, of all includ- the deduction After construing is strengthened by this Act the land, profits of the the net ing the cost Legislature 6 fact'that included Section equally. to have been divided were (3) exempts in the Act which Subdivision an anyone acting attorney-in-fact as under par agreement between these is, attorney. It duly power executed a provides profits for the division of but ties therefore, not person only that obvious are no as to losses. We well makes mention may his without a license but can sell land agree general rule is for an that the aware to do attorney-in-fact an so. authorize also or partnership to constitute usual is not the transaction between This prof must share in the parties a real with estate broker a landowner agreement and the losses. before us its on a commis- agreement to sell land an provide not that will not does This is a transaction sion basis. losses, as entirely but is silent to share obliga- promises and party had mutual each losses. hold that would We out, and, end, carry to at tions been of the losses as have liable one-half equally. divided Plaintiff would be law, by reason of the fact that a matter of sue for a commission for real estate did not had agreement parties be under but for breach contract. Plaintiff sold quote from come adventurers. We stipulated its its Schmitt, 53, 115 274 Thompson S.W. v. Tex. damages breach contract. Section 19 554, (1925), quoting 560 Chief Justice Pleas- prohibit the bringing not of this cause does MacKay Telegraph-Cable ants Wells v. action. 1001, Co., (Tex.Civ.App.— 1006 239 S.W. 1922, writ), follows: as AFFIRMED. Galveston
819
KEITH, Justice, dissenting.
Refining Co.,
Oil &
475,
144 Tex.
191
716,
(1945). Here,
parties
S.W.2d
our
dissent.
respectfully
I
expressly disclaimed any such intention to
between the
page
On
six
contract
relationship.
form the
31,1970,
only
signa-
dated
parties,
The contract
this case
not
did
autho-
language
parties
ap-
and this
tures
party
any
rize either
liability
create
pear:
parties
third
which would have been bind-
agreed
expressly
“It is
understood
“The
ing
[joint
on the other.
rela-
venture]
performance by
respective
that
tionship being
partner-
nature
respective obligations
of their
un-
parties
ship, losses must be shared well as prof-
as
der
terms of this
shall not
contract
Cole,
its.” Brown
155 Tex.
partners
constitute the
as
in con-
(1956).
S.W.2d
A.L.R.2d 1011
nection
per-
therewith
neither is the
shows,
record
as recounted
formance of this
respec-
*4
majority opinion:
“[W]hen
[Mi-
parties
joint
tive
to be
considered
ven-
submitted its expense summary, re-
crea]
ture, but to the contrary
party
each
shall
flecting
$13,000
an excess of some
in ex-
responsible
performance
be solely
for the
receipts,
over
penses
paid.”
this was not
As
respective obligations
herein con-
businessman
every
realizes,
knows and
tracted to be
by
respec-
undertaken
each
have
you
when
in excess of re-
party.”
tive
But,
a loss.
ceipts, you
Micrea,
have
re-
Ordinarily, as said in Park
Corp.
Cities
v.
fusing
recognize
joint
venturer status
668,
Byrd,
(Tex.1976),
534
672
S.W.2d
losses as well as
are
where
to be
rule followed
courts is stated in this
shared,
$13,000.
sued for all of its loss—
language:
More,importantly,
permitted
this court has
agreement
“The
parties
is to be
recovery
against
its
entire sum
controlling
our
we
decision and
shall
again,
parties
defendant. Once
disa-
interpret
construe and
agreement
their
joint
concept
vowed the
venture
by their
pursuant
applicable
to the
law of con-
actions.
tracts.”
Regardless
perspective
which
Yet,
majority
explicit
the face of
—in
case, it
one views this
is clear that Micrea
language disavowing any intention to cre-
judgment
has
representing
com
joint
ate
despite
clear lan-
it
pensation which
would
claims it
have
guage refusing to share losses in the under-
land;
sale
earned from the
of defendant’s
taking
found
joint
that a
venture ex-
—has
and, admittedly, Micrea was not licensed
And, having
ists.
made
judicial
this
deter-
In
dissent, adopt
under the Act.
I
with
intention,
mination of
the court has created
approval
Stephenson’s language
Justice
negates
a vehicle which
applicability
Becker,
84,
v.
found Elrod
537
86
S.W.2d
Licensing
the Real Estate
Act to the deal-
(Tex.Civ.App.
writ ref’d
— Beaumont
ings
parties.
between the
join
I decline to
e.):
n. r.
this aberration.1
require
compliance
“Our courts
a strict
I note
only
misgivings
a few the
I have
with the terms
Real Estate Dealers
concerning
holding.
Whether or not
if a
License
salesman is to use
Act
relationship
venture is created
recovery
courts for
for his services. Hall
ordinarily depends upon
Hard,
the intention of the
v.
160 Tex.
See 934, 936 Growers, Inc., 542 S.W.2d Wheat 1976, writ), and no (Tex.Civ.App. — Amarillo cited. therein authorities case, majority as laid out concept on the ven- opinion, turns entity seems ture, a form of business escaped Act mention itself. to have But, opinion new law announced in the theo- contrary is to the
does violence the Act its ry behind administration. Amdur, “The Real Estate License See A. Elaboration, Synopsis, and Com- Act— 269, 276, ments,” seq. et S.Tex.L.J. (1971).
Indeed, majority opinion, as I read the is in the well-reasoned likely conflict with Kinder, Macphee 523 S.W.2d opinion (Tex.Civ.App. Antonio — San writ). *5 should of the trial court be judgment deny- rendered judgment here reversed ing plaintiff any recovery. Texas, Appellant,
The STATE McVICKER, Appellee. Parker 8010.
No. Texas, Appeals Court Civil Beaumont. 30, 1977. June Rehearing Denied
Wayne Paris, Austin, appellant. H. Houston, Henderson, appellee. Rex
STEPHENSON, Justice. appeal by is an a Grievance Commit- (plaintiff) of the State Bar of Texas
tee order of trial court suspending from an defendant, McVicker, practic- Parker period of ing for a six months. law