426 S.W.2d 955 | Tex. App. | 1968
H. B. Owen sued Ray Hendricks for a realtor’s commission. The contract wherein Hendricks was alleged to have agreed to pay Owen a commission was contained in two letters which were attached to plaintiff’s petition. Omitting some immaterial parts, plaintiff’s exhibit A was as follows:
“October 7, 1965
Mr. Ray Hendricks,
Roscoe, Texas.
Dear Mr. Hendricks:
I wrote you earlier pertaining to your 960 acres in Dallam County. Also, talked with you on the phone about the possibility of selling the place for you.
There is a party I wish to talk with about the place, but thought that perhaps you should be contacted before going ahead. If you will sell the place, would you advise me by return letter, stating, price, terms and allotments. Did I understand that you were guaranteeing the water ?
Will you do some trading on this place ?
Have been thinking that I would get down to see you before now, but have been trying to get some ranch deals working.
Enclosed self-addressed, stamped envelope is for your convenience.
Very truly yours,
s/ H. B. Owen
H. B. Owen.”
Plaintiff’s exhibit B was as follows:
“October 11, 1965
H. B. Owen,
Box 658,
Canyon, Texas.
Mr. Owen;
The 960 acres in Dallam County is for sale. The price is $225.00 per acre net to me. If you sell the place, you will need to add your commission on top of this.
I can take a large down payment at this time and would require as much down as possible.
The allotment status is 100% milo.
*957 I will not guarantee water, but the place has good water on two sides of it and I feel that water is a certainty.
I will not do any trading.
Sincerely,
Ray Hendricks
RAY HENDRICKS.”
The defendant filed a motion for summary judgment based upon Section 28 of Article 6573a which provides that no action shall be brought for such a commission unless the agreement, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith. The defendant alleged, as plaintiff’s petition showed, that the instruments upon which the suit was based were said two letters. It was likewise shown, and undisputed, that the only writing signed by the defendant was said letter written by him to Owen Defendant contended that said letters were insufficient, as a matter of law, to authorize plaintiff’s suit because (a) the description of the defendant’s land was insufficient to comply with said statutory requirements and (b) said letters did not contain an agreement of Hendricks to pay Owen a commission. The defendant’s affidavit attached to his motion for a summary judgment was to the effect that plaintiff’s exhibit B, defendant’s letter to Owen, was the only writing which he had ever signed and delivered to the plaintiff. The plaintiff filed an answer to defendant’s motion for a summary judgment to the effect that Hendricks executed plaintiff’s exhibit B; that he owned only one tract of land in Dallam County, “Texas,” consisting of 960 acres; that defendant’s letter was a reply to Owen’s letter, and that together they constituted a contract in writing for the sale of defendant’s 960 acres of land in Dallam County, Texas; that they stated a price of $225.00 per acre net to the defendant, “fixing the commission of H. B. Owen and under such agreement he is entitled to a reasonable commission for sale of the 960 acres of land in Dallam County, Texas.” (Emphasis ours.) He further asserted that said letters constituted a contract fixing plaintiff’s right to a commission. Said pleading was sworn to by Owen’s counsel. The defendant excepted to the affidavit of plaintiff’s counsel opposing defendant’s motion for a summary judgment because it was not shown to have been made upon the personal knowledge of the affiant, and it did not affirmatively show the competence of the affiant to testify to the facts stated therein, as required by Texas R.C.P. 166-A, Section (e). The court granted the defendant’s motion for a summary judgment, rendered judgment for the defendant, and plaintiff has appealed.
Appellant’s points are that the court erred in holding that (1) the description of the land was insufficient to meet the requirements of Section 28 of Article 6573a and that (2) the alleged agreement to pay a commission was likewise insufficient. Appellant contends that ⅛ letter and Hendrick’s reply constituted a sufficient description of the land and a sufficient agreement to pay a realtor’s commission within the meaning of said statute. Appellant argues that such an agreement may be embodied in a series of letters that contain an offer and acceptance, provided they are signed by the respective parties. He says that an examination of the letters reveals a sufficient description of the land and sufficient promise of defendant to pay a commission and, further, that extrinsic evidence was admissible to show that “your 960 acres in Dallam County”, was the only land owned by defendant in Dallam County, Texas, and that therefore a summary judgment for defendant was not justified. The quoted description is taken from appellant’s letter not from the letter signed by appellee. He cites Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222, 223, wherein it was held that such a description, by reason of the use of such words as “my property” or “my land” is sufficient when it is shown by extrinsic evidence that the party to be charged and who has signed the contract owns only one tract of land answering the description therein. With reference to the
Appellant’s letter to appellee, plaintiff’s exhibit A, makes no reference to a realtor’s commission. Appellee’s letter places a price on the land of $225.00 per acre “net to me.” He then says that if appellant sells the land he will need to “add your commission on top of this.” Appellee does not agree to pay appellant a commission. There is no agreement as to the amount of a commission. These things are required to be shown by a writing signed by the defendant. Buratti & Montandon v. Tennant, 147 Tex. 536, 218 S.W. 2d 842, 9 A.L.R.2d 742-753; City of Abilene v. Sayles, Tex.Com.App., 295 S.W. 578, 579; McConnell v. Columbia Co., Tex. Civ.App., 326 S.W.2d 20, 23, (ref. n. r. e.) ; Arnold v. Wilson, D.C., 107 F.Supp. 961; Couser v. C. & M. Produce Co., Tex.Civ.App., 174 S.W.2d 984 (writ ref.) But, appellant says he is entitled to a reasonable commission and, further, that the law permits him to prove by parol what is a reasonable commission. Appellee did not agree to pay a commission. Unquestionably, the writings sued on do not show an agreement as to the amount of commission, nor is the amount shown by reference to an existing writing. Under our Supreme Court’s holding in Buratti & Montandon v. Tennant, 147 Tex. 536, 218 S.W.2d 842 parol evidence of what is a reasonable, or the usual, commission is not admissible. See also 9 A.L.R.2d 750-753.
We are forced to the conclusion that the alleged contract does not comply with the statutory requirements as to a description of the land or a promise to pay a realtor’s commission or the amount thereof. The court correctly rendered judgment for the defendant. The judgment is affirmed.