264 S.W. 129 | Tex. App. | 1924
"Nothing in this option contained shall in any manner or way modify or deprive the right of the grantor to have the proposed lease express all of the conditions, covenants and agreements that he believes are necessary and requisite to fully and adequately protect him in all of his rights, privileges, and benefits."
Bostick and Joseph also made an agreement that, if Bostick would procure parties who were ready, able, and willing to enter into the lease provided for in the option, Joseph would pay him a commission of $5,000, and the jury found in response to special issues submitted to them that Bostick procured and tendered such parties, but that Joseph, through his attorney, defeated the final consummation of the lease. Upon this finding the trial court rendered judgment in favor of Bostick against Joseph for $5,000, with interest from January 1, 1920, aggregating a total sum of $5,950. Joseph has appealed.
It appears from the evidence that Joseph and Bostick, and the proposed lessees met in the office of Joseph's attorney for the purpose of closing the proposed deal, but when Joseph's attorney prepared a written acceptance of the option he, added thereto the clause, "This contract is assignable to an assignee satisfactory to Sam A. Joseph." The proposed lessees, declining to sign the acceptance in that form, retired to the office of their own attorneys, and there had prepared and executed an unconditional acceptance of the option, which was delivered to Joseph. A day or two later, however, they advised Bostick that they had concluded not to go forward with the matter, as it "looked like a lawsuit." Subsequently Bostick called on Joseph for the promised commission, which was refused, and shortly thereafter *131 Joseph's attorney wrote Bostick, advising that after investigation he was prepared to draw a satisfactory lease, and Mr. Joseph "was ready to go forward and complete the deal along the lines of the option." Nothing further was done in the matter, however, and a few months later Bostick filed this suit for the stipulated commission.
Appellant takes the position that the option agreement was within itself incomplete and unenforceable as a contract; that the minds of the parties did not meet on the essentials of the final contract contemplated by the parties; that these essentials were to be subsequently agreed upon and incorporated in the final contract; that, as the latter contract was never agreed upon or executed Bostick did not earn his commission. We overrule this contention, for the controlling theory of the case takes a much simpler form than this.
The case is not a complicated one when stripped of its nonessentials. Joseph desired to lease his premises to others for a period of 99 years, on given terms and conditions. He employed Bostick to procure a lessee who would be ready, able, and willing to enter into and carry the lease on those terms and conditions. In pursuance of this employment Bostick found such parties, introduced them to Joseph, and brought about a meeting of the minds of lessor and lessee upon the terms and conditions stipulated in the option given Bostick. In this way the latter fully complied with his obligation to Joseph; there was nothing else for him to do, or that he was authorized to do under the terms of his employment. He had earned his commission as completely as if the parties had fully executed and entered upon the performance of the final lease contract, unless, indeed, he had subsequently by his own conduct defeated the consummation of the deal, which is not claimed.
But it is claimed by Joseph that as a matter of fact the final lease contract was not entered into, and therefore Bostick fell short of performance under his agreement. There is no merit in this contention, since the contract failed through no act of Bostick. On the other hand, it was defeated by Joseph himself, because of his insistence upon interpolating into the option a supplemental stipulation that such option or lease should not be assigned except to persons "satisfactory" to Joseph. This additional restriction was an innovation in the original contract, which provided for unconditional assignment, and, besides, it was obviously unreasonable in a 99-year lease, in which, because of its long tenure, the right to assign must remain unrestricted. It is sufficient that the minds of the parties met in agreement upon the essentials of the lease, and, as the failure of the parties to enter formally into the final contract was attributable to the capricious demand of Joseph, such failure will not be permitted to deprive Bostick of the right to his commission.
Appellant's first assignment of error is directed at the action of the court in overruling his general demurrer, and in the fifth and eighth assignments complaint is made of the overruling of special demurrers. We overrule these assignments, because in our opinion the petition was good as against these demurrers. Complaint is made in the eleventh, fourteenth, and fifteenth assignments of the refusal of the court to render judgment or peremptorily direct the jury to return a verdict for defendant below. These assignments are also without merit, and will be overruled. Both the pleadings and evidence were sufficient to take the case to the jury. In his twelfth and thirteenth assignments of error appellant complains of the submission of special issues 1 and 3, but we think the questions raised are multifarious, and the objections are without merit, since those issues were properly raised by the pleadings and evidence. This disposes of all the assignments urged on appeal.
It appears from the record that the trial court rendered judgment in favor of appellee for accrued interest on the amount Bostick was authorized to recover under the verdict of the jury. This was error. Interest in such cases is recoverable only as damages, and not as a matter of course, and, as such recovery was not authorized by the findings of the jury, the court was without authority to include it in the judgment. Railway v. Addison,
*132Reformed and affirmed.