61 Tex. Civ. App. 580 | Tex. App. | 1910
Lead Opinion
— Appellants were the owners of a tract of 1,300 acres of land situated in Cooke County, Texas. The appellees were real estate brokers, with whom the land had been listed for sale. This suit is by appellees to recover commissions on three different sales made of different portions of this tract of land. A trial in the court below resulted in a judgment for the appellees for $568.00 as commissions on one sale of 568 acres made to D. L. Powers, and in favor of the appellants as to the other two claims.
With reference to the sale made to Powers, the evidence shows that through the efforts of the appellees the owners and the purchaser were brought together, and that they agreed upon the price and terms of payment, but that Powers, upon learning that about 35 acres' of the land had been rented to a tenant for the succeeding year, declined to complete the purchase. A majority of the court is of the opinion that the appellees were nevertheless entitled to their commissions of $1 per acre, the amount previously agreed upon, and that this portion of the judgment should be affirmed.
Appellees have filed a cross-assignment of error attacking that portion of the judgment denying a recovery for a sale made to J. A. Adams & Sons. As to this transaction the evidence shows the following facts: About December 3, 1906, appellees negotiated the sale of a portion of the 1,300 acres tract to J. A. Adams & Sons for $5,368.00, of which $500 was to be paid in cash and the remainder in ten equal annual installments. When the sale was consummated and the deed passed there was an agreement between the parties to this suit that appellees should wait for their commissions till the first note matured. There is some conflict in the testimony as to what the details of that agreement were. According to the testimony of the appellants, appellees agreed to take their commissions out of the first note when it was paid. This is disputed by the version given by the appellees, their contention being that they only agreed to wait until that note matured for their commissions. However this may be, we do not think the difference in the two versions is material as affecting the right of appellees to recover. It seems that when the first note did mature the Adams people were not able to pay it, and by an agreement entered into between them and the appellants, the latter took a conveyance of the land back and cancelled all the notes which had theretofore been given. Upon this being done appellees were clearly entitled to their commissions for having made the sale. That the first note might have been collected by an enforcement of the vendor’s lien retained is not disputed. That it was not so collected on account of -the election of the appellants to rescind the sale and resume ownership of the land is equally as certain. Appellants could not in this way defeat the claim of the appellees to commissions after having availed themselves of the services of the latter in bringing about a satisfactory sale of their land.
■The judgment of the County Court is therefore affirmed in part and reversed and rendered in part.
Rehearing
on motion for rehearing.
As .will be observed from the original opinion in this case, the affirmance of that portion of the judgment of the trial court awarding a recovery in favor of the appellees was not concurred in by all the members of this court. The writer was at that time inclined to hold that under the pleadings the evidence did not support the judgment. When the motion for rehearing was filed, and also one asking that the issue upon which the disagreement occurred be certified to the Supreme Court, the latter motion was granted. Since then the writer has, upon further investigation, reached the conclusion that he was in error and that the view taken by the majority was the correct one. This dissent having been withdrawn, the order granting the motion to certify will be set aside and that motion overruled. We will now discuss the motion for rehearing.
Only that feature of the motion will be noticed which relates to the affirmance of the judgment of the trial court, in which the appellees were given $568.00 as commissions for negotiating a sale of a tract of land to Powers. The contention here made is that the judgment is unsupported by the pleadings and the evidence. It is not claimed that there is any defect, fundamental or otherwise, in the statement of the cause of action, but that the testimony does not sustain the case made by the pleadings. The earnestness and ability with which counsel for appellants urge the propositions upon which they rely demand a' more extended discussion than was given in the original opinion.
Succinctly stated, the cause of action as set forth in the petition and made by the evidence, is the breach of a contract to pay certain commissions for negotiating the sale of a tract of land. The original petition, after alleging the execution of the contract by which the plaintiffs were engaged for stipulated commissions to sell certain real estate, proceeds: “Plaintiffs on or about January 1, 1907, procured as a purchaser for said land, one D. L. Powers, who was then ready, willing and able to purchase the same and to pay the $1,000 cash, and to execute said notes for the deferred payments. . . . That although plaintiffs had so procured such purchaser for said land, D. L. Powers, who was ready, willing and able to purchase said land on said terms, that said defendants had so agreed with plaintiffs to sell the same, yet the said defendants thereafter, on said dates, refused to comply with their said agreement and to execute to said powers a deed of conveyance for said land and to receive from him the cash payment and the said notes for the deferred payments. Wherefore plaintiffs say that defendants promised and became liable to pay them as said commissions $568.00,” etc. After a general denial and other special averments, appellants answered as follows: “That it was not on account of any fault
There are two propositions embraced in the argument of counsel for appellants. The first is that the evidence upon which the judgment is founded does not correspond with the material averments of the petition. The second is that without reference to the variance between-the allegata and prolata, the undisputed evidence shows that the failure to complete the sale was not due to any cause for which the appellants were responsible, but, on the contrary, to the refusal of the customer, Powers, to accept the terms offered.
In support of the first proposition, attention is called to the fact that the petition alleges that the failure of the parties to consummate the sale was due to the refusal of the appellants to execute the deed and accept the purchase price, whereas the evidence shows that, it was
When dissected, the petition in this case states substantially the following: 1. The contract whereby the plaintiffs were engaged, at a stipulated commission, to sell the appellants’ land. 2. The performance of the service undertaken by the appellees. 3. The breach, that is, the failure of the appellants to pay the agreed commissions. 4. The damages. The objection on the ground of variance between the allegata and probata here made can apply, if at all, only to the portion of the petition embraced in the second of the above subdivisions. It may be true that having stated that they contracted to sell the land, the plaintiffs were required to also state that the sale had been made through their efforts, or that they had procured a purchaser who was ready, willing and able to purchase upon the terms proposed, and that the sale was not completed for some cause for which the appellants were responsible. The latter course was adopted. But it is claimed that the pleadings set out one dereliction on the part of the appellants as such cause, while “the proof shows another; that they alleged that the appellants refused to make the deed and accept the purchase price, and
But there is perhaps a stronger reason why this objection is not now tenable. It is a well established rule that the omissions in the pleadings of one party may be cured by the allegations of the other. Melton v. Beasley, 131 S. W., 674, and cases cited; Towns, Texas Plead., 373. In this instance the reason why the sale was not completed, the refusal of Powers to take the land because of inability to get possession of all of it upon the execution of the deed, is set up in the appellants’ answer. Whatever may have been the defect in the pleadings of the plaintiffs, the pleadings of both parties, taken as a whole, were amply sufficient to admit the proof and support the judgment rendered.
We come then to the next question, does the evidence show a right of recovery? In other words, did the appellees produce a customer in Powers, who was ready, willing, and able to take the land upon the terms proposed? The controversy upon this issue may be narrowed to the inquiry, what were the terms proposed ? No question is made of the willingness and ability of Powers to take the land at the price and upon the terms of payment demanded. But he was unwilling to take it burdened with a lease of a part of it for one j'ear. Generally when one purchases land, the acquisition of title carries with it complete dominion and the right of pedal possession within a reasonable time, and in the absence of some stipulation, or agreement, to the contrary, this is what every purchaser may regard as being embraced in a proposal to sell land. This right of immediate possession may be said to have been included in the general terms proposed by the appellants when they placed their land in the hands of the appellees for sale without any qualifications or restrictions. Powers had a right to expect as much when he accepted the offer to sell. His refusal to complete the sale upon being told that he could not get possession of the entire tract for a year did not make him any the less a customer ready, willing and able to purchase upon the terms implied in the general and unqualified offer to sell made by the appellants. The lease to Turner for one year, while not strictly a defect in the title of appellants, nor an interference with the constructive possession which a conveyance of the legal title would have vested in Powers, was nevertheless an estate for a term which had been carved out of that which Powers was to get, and to that extent detracted from the rights which he would have acquired by the deed. It is true that if the appellees undertook to sell the land with a knowledge of this situation, they would not be entitled to recover. In such an event it was their duty to disclose that fact to their prospective purchaser, and their failure to do so would have been
The motion is overruled.
Affirmed, in part and reversed and rendered in part.