179 S.W.2d 810 | Tex. App. | 1944
Appellee John Gilbert sued appellants, Enfield Realty Home Building Company and E. B. Thomas, for services rendered in procuring a purchaser of their real property, alleging that appellants agreed to pay him the reasonable value of such services and expenses. The jury found that appellants knew appellee expected a commission on the sale at the time the deed to the property was executed and delivered; and that the reasonable value of appellee's services in procuring the sale was $367.50. Judgment was accordingly rendered for appellee; hence this appeal.
The contention made by appellants is that the contract testified to by appellee was oral or implied, and therefore in violation of Sec. 22 of Art. 6573a, Vernon's Ann.Civ.Sts., which requires that a contract for the payment of the commission of a real estate broker shall be in writing. The record fails to show that appellants invoked the statute as a defense during the trial either by pleadings or proper objection to the evidence of the contract as being in violation of the statute.
Appellee did not allege whether the agreement was oral or in writing. Appellants filed no answer to the suit of appellee until after the evidence was all in and after appellee had moved for judgment nihil dicit, which motion was overruled; and over objection appellants were allowed to file a general denial. At no time did appellants specifically plead as a defense that the contract relied upon by appellee was oral and therefore in violation of the provision of Sec. 22 of Art. 6573a. The first time such specific contention was called to the attention of the court was when appellants filed their motion for judgment non obstante veredicto and their motion for a new trial.
Sec. 22 of Art. 6573a is but an extension of the statute of frauds to contracts for the payment of a real estate broker's commission; and as a defense the statute must be specifically pleaded. Landis v. W. H. Fuqua, Inc., Tex. Civ. App.
Appellants cite the holding in the Goen and Nichols cases, supra, that Sec. 22 of Art. 6573a is but an extension of the statute of frauds to contracts for the payment of commissions of real estate brokers, and seek to apply the rule of prior decisions arising under the statute of frauds, to the effect that a defendant may invoke the statute as a defense by specific objection to evidence of the contract within the statute, even though his only pleading is a general denial, citing, among others, the cases of Central Nat. Bank of San Angelo v. Cox, Tex. Civ. App.
Appeals from other phases or portions of the judgment have been abandoned, and the judgment of the trial court is affirmed in all things.
Affirmed.