247 S.W. 589 | Tex. App. | 1923
The contract between appellee and Lewis Bros. was in writing. It appeared on its face to have been "made and entered into this _____ day of April," the day in April and year being omitted. The contract between Lewis Bros. and the persons (to wit, Pendleton, Wilkerson, and Smith) who, at appellee's instance, agreed to purchase the theater, was also in writing. It was made and dated April 11, 1919. Over appellants' objection thereto on the ground, N. Lewis being dead, that such testimony was within the inhibition in article 3690, Vernon's Statutes, the trial court permitted appellee to testify that the contract between him and Lewis Bros. was made in April, 1919, about a week before April 11, 1919, the date of the contract between Lewis Bros. and Pendleton, Wilkerson and Smith. Appellants insist that the action of the court in admitting the testimony was error for which the judgment should be reversed. We do not think so. Said article of the statutes is as follows:
"In actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent."
The testimony in question may have been inhibited by the statute so far as it was against F. Lewis in his capacity as administrator, and so far as it was against the widow of N. Lewis as his heir, if she was his heir; but it was not inadmissible because of the statute so far as it was against F. Lewis in his individual capacity. Field v. Field,
The property which Lewis Bros. agreed to sell to the persons who at appellee's instance, as stated above, agreed to buy same, consisted, among other things, of a lease for a term of years on a building used in operating the theater, and the consummation of the sale agreed upon was conditioned on the consent of the owners of the building to the assignment of the lease by Lewis Bros. to said persons. By other terms of the contract of sale the purchasers were to pay Lewis Bros. $20,000 for the property. One-half of the amount was to be paid within 37 days from the date of the contract, and the remaining $10,000 later. The seller and the purchasers, respectively, were to (and did) place $1,000 in the hands of a stakeholder named, which was to be forfeited to the other party by the party who defaulted in the performance of his undertaking under the contract. "Said forfeit money," it was stipulated, "when so paid to either party shall then release all parties to this contract from further performance of the same and from the payment of any damages on account of this said contract or breach thereof."
The consent of the owner of the building to the proposed assignment of the lease was not obtained within the 37 days, but there was testimony which warranted findings that the parties to the contract of sale agreed upon an extension of the time within which such consent might be obtained; that such consent was obtained within the time as extended; that the prospective purchasers were then ready, able, and willing to consummate the purchase on the terms specified in the contract; and that the sale was not consummated because Lewis Bros. refused to consummate it. Notwithstanding the testimony referred to, appellants requested the court to instruct the jury to find in their favor. The court refused to do so, but instead instructed the jury to find in appellee's favor if they believed such testimony to be true. Appellants insist that the court erred hen he so instructed the jury. The insistence is on the ground that the instruction was not warranted by either the pleadings or the testimony. The asserted insufficiency of the pleadings is based on the failure of appellee to allege anything about the agreement between Lewis Bros. and the prospective purchasers to extend the time within which the sale was to be consummated; and the asserted insufficiency of the testimony is based mainly on the provision in the contract set out above.
In his petition appellee set up the contract between himself and Lewis Bros., alleged facts showing he had performed his undertaking, thereunder, and then alleged facts showing a breach by Lewis Bros. of their undertaking thereunder. We think those allegations were sufficient to entitle him, when established by testimony, to the relief he obtained, and that it was not necessary that he should have alleged anything about the agreement for an extension of time referred to.
The asserted insufficiency of the testimony is on the view, it seems, that it did not appear therefrom that the prospective purchasers procured by appellee were ready, able, and willing to take and pay for the property on terms satisfactory to Lewis Bros., but that the contrary appeared from the stipulation referred to; the effect of which, appellants insist, was to reserve to said purchasers a right not to take and pay for the property, but, instead, to forfeit the $1,000 placed by them with the stakeholder. It is argued that the case therefore was within the rule applied in Moss Roley v. Wren,
In Levy v. Duncan Realty Co. (Tex.Civ.App.)
"The authorities cited show that when a broker procures a purchaser ready, able, and willing to purchase the property upon the terms and conditions authorized by the owner, and the failure to consummate the transaction is the fault of the owner and not the fault of either the purchaser or broker, then the broker is entitled to his commission. And in such case it is no defense to say that the purchaser could not have been compelled to take the property. The answer to that assertion is that, while he may not have entered into such contract as would have entitled the owner to a judgment for specific performance, nevertheless, if in the broker's suit for commissions it is shown that the person referred to was ready, able, and willing, and therefore would have purchased the property, then the broker has earned his commission, because under such circumstances the property would have been sold had not the owner declined to consummate the sale."
The judgment is affirmed.