*1 282 facts,

being no statement of pass on the merits

points presented. must assume We

judgment of the trial court and the verdict supported by evidence. (Tex. Rodriguez, 514

Valdez S.W.2d

Civ.App. ref.); Antonio San Se

kaly Center, Inc., v. Hilton S.W.2d

(Tex.Civ.App. Cruz writ); Waco Corporation,

v. First Credit

(Tex.Civ.App. writ); San Antonio Bennett, (Tex.

Redman v.

Civ.App. writ). Tyler 1966,no of the trial court is af-

firmed.

Affirmed. REALTORS,

DOWD MORE COMPANY ux., Appellees.

Patrick McDONALD M. Appeals

Court of Civil (1st Dist.). Houston

March April *2 multiple listing, place a Multi- Walters, Houston, appel- erty, with for O. John property, and ple Listing lock box on the lants. property prospective cus- to showed for brief filed No property Appellees sold the tomers. Ap- during ninety day period. (90) EVANS, pellants demand for their commis- Justice. forthcoming, it was not sion and when by appellants, action Dowd brought suit for of contract. breach Realtors, damages re- Company More for sulting of an real from breach exclusive rendered “The Court below listing Defendants, Trial to the herein. Appellees contract. was below, nothing court without a a take and Plaintiffs appellees, notice, perfected rendered for the proper was have judg- defendants below. trial court’s Court.” appeal their to this Honorable ment is reversed and rendered. points Appellants’ first and second Appellants alleged they duly li- effect, trial complain, in of error censed real estate brokers ap- rendering judgment in court erred had entered into an exclusive real estate undisputed evidence pellees because the contract for sale of Mc- by appellees, of contract showed breach home; during period Donalds’ appellants im performance by rendering effect, contract remained in proof by appel- possible, and an absence of by making the contract not appellants could not or would lees that sale Appellants alleged third to contract, regardless of performed the have were entitled in to recover points of error are sus the breach. Both stipulat- the sum of based $1100.00 tained. ed commission of sales of the listed 6% price $18,500.00. petition Plaintiffs’ In Park plea upon contained an alternative W. 156 prayer

meruit for interest and attor- sell his to exclusive to ney’s fees. term of real estate broker and within the the contract had sold the brief, presented filed no Supreme person. The Texas oral challenged and have not had breached the con- that the owner held statements facts and the record in he was liable tract for which contained in Thus, ap- brief. contract, having established and that pellants’ original statements in their brief it willingness perform readiness accepted will be correct. Rule Tex- and that he was denied as Rules of Appellants’ Civil Procedure. of the own- perform the because case, statement of the as set forth their had established breach, the broker er’s original brief is as follows: un- damages which prima facie case to the have presumably would der the he “This is a suit for breach of contract it and that perform permitted earned jury. 4, 1971, tried without a On June to offer upon the owner Appellees, in was incumbent writing gave Appellants or could not proof that the broker would agency irrevocable and exclusive performed, regardless ninety to sell (90) days a home Street, breach. located 3723 Brookfield Hous-

ton, Texas, $18,500.00. at a A percent

commission of Dowd (6%) appellants six was In this case the stipulated. Appellants proceeded to ad- essential facts established the More property, place recovery vertise their realtors entitle them a appellants were ad- sign yard, ‘For Sale’ list the contract. While to sell for a procuring cause of six mittedly not sale, undisputed property. had in- months list it is Too, expressed it contract and under the was itiated consideration was the effort had advertised purchaser. Though to find a sign yard, in the placed “For their Sale” *3 express promise Multiple List- no to exert efforts to listed the with purchaser, the evidence property to find shows ing and had shown the Service appellant dispute The that advertised prospective customers. contract groceries that he drive-in longer the pactum no nudum but on con- Mr. Falco answered the ad trary agreement was a bilateral appellant took Falco to see the unilaterally by revoke Mr. could not erty Nothing on further two occasions. party. second visit because was done the is, believe, principle clearly set This we appellees the from the withdrew Davis, forth McDonald v. 389 S.W.2d market, revoking appellant’s thus author- Houston, Dist., 1st (Tex.Civ.App., performance by appellant ity making speaking through 1965), wherein this court impossible. enforce- There resulted an 496, page Chief Bell said: at Justice appellant able contract the exclu- giving right sell for six months to the “This is for a commission suit not one property. Mechem, Agency, Law of damages is but one for for breach Edition, 2451, Second Secs. 2453 and by breach oc- 564, 2454; Park v. appellees curred when withdrew 156; Stacy, v. 103 Tex. S.W. Hancock This from the de- market. 219, 884; Holik, 125 S.W. Holmes v. prived appellant 260, Tex.Civ.App., 238 error perform. appellant’s theory dism.; Simpson Mooney v. Sherman J. recovery. Co., Tex.Civ.App., 42, & Son 223 S.W.2d hist.; Smith, no writ Lewis v. Tex.Civ. appellant depends is "Whether correct App., j.; 198 S.W.2d dism. w. o. on whether there was unilateral or bi- Wilson, Tex.Civ.App., Patton v. lateral is contract. This not a mere of- 184, ref., e.; W.2d McFarland by fer for six would appellees Lynch, Tex.Civ.App., 159 S.W. months make their exclusive hist.; Dimmerling, 149 Bell v. Ohio agent purchaser to look for a and if he St. 78 N.E.2d 49. produced purchaser within that time he appellant a If pay would commission. principal may “The of course revoke case, appellees re- such were could agent’s authority coupled where not any authority voke at time before interest, there is a but distinc- produced purchaser was his to revoke and his tion between is damages. be liable reason any at time before right to revoke. He undertaking merely is full revoke the authori- can produced if purchaser is will agent ty agent so the will lose This pay is a mere offer bring legal into authority principal that can be time before any revoked However, a third relations with acceptance. is, Acceptance within the it, he has he will be to revoke offer, terms of such an be made agent suffered liable for producing purchaser. No considera- wrongful reason revocation. purchaser until is pro- tion exists Where, here, is a con- bilateral is duced. Here the contract bilateral. tract, principal has no appellant by the terms of con- agent. prejudice of See voke agreed tract as a of the considera- cited; appellees’ ux. v. tion him exclu- authorities above Pickett 222; Bishop, 148 Tex. lants contend Cason, Tex.Civ.App., attorney’s Brigham entitled to fees. no writ hist. S.W. Appellees’ argument overlooks principal con- breaches the “Where the basic nature tract, he becomes liable in listing con question. This was an exclusive Where, here, is of a suit the ex tract and granting agent the exclusive property. Upon “right clusive to sell” the sell definite of time to to a property by a sale of the property, for breach of are expiration party before contract and not for the commission term, a suit for appellants’ remedy was promised agent if the He enti- sold. damages for breach of contract. West *4 profit tled to recover the reasonable Barnes, (Tex.Civ.App.— 351 S.W.2d 615 facie that made. Prima ; ref., Neece v. A. e.) Austin profit represented by is the amount Realty Company, A. A. stipulated Park Appellants’ suit was (1957). supra.” upon recovery of at the contract and no

torney’s fees was authorized. West Barnes, supra. above, appellants’ As stated com pensation under the exclusive real rehearing filed motions stipulated contract was to be 6% by appellees are overruled. pellants and $18,500.00, the listed or $1100.00. satisfactory In the absence of evidence appellants’ profits reasonable stipulated

a lesser commis sum than specified

sion the sum in the contract

prima facie of their evidence

Accordingly, of the trial

court is reversed and is rendered appellants in

for the the amount $1100.- HIGHTOWER, Individually per annum from and as 00 with interest at 6% Edward Hightower, of Lionel next friend September minor, foregoing In view of discussion point respect to claim INSURANCE MUTUAL MEMBERS upon unnecessary meruit is COMPANY, Appellee. disposition of this case. Appeals of of Civil for Rehearing On Motions Waco. April 12, 1973. parties

Both have filed motion for hearing. contend May 10, gave terms selling privilege erty and that by upon

party. Appellees base their specifies in the contract which

language paid is to be commission realtor’s property “whether sale of the Appel- anyone else.” owner or