Nunn v. Townes

• Decision Date: 06 December 1893
• Citation: 23 S.W. 1117
• Parties: NUNN v. TOWNES et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

23 S.W. 1117

NUNN v. TOWNES et al.¹

Court of Civil Appeals of Texas.

December 6, 1893.

Appeal from district court, Uvalde county; T. M. Paschal, Judge.

Action by N. D. Townes and another against S. H. Nunn for broker's commissions. Judgment for plaintiffs. Defendant appeals. Reversed.

Clark, Fuller & Garner, for appellant. Ellis & Archer, for appellees.

FLY, J.

This suit was brought upon an express contract by appellees to enforce the collection of $750 commissions on a land sale alleged to have been made through the instrumentality of appellees for appellant. Appellant pleaded general denial, and alleged that, if there ever was a contract made by him to pay the commissions, it was abrogated by the execution by the parties of a written contract, which expired in a definite time, without appellees having procured a purchaser for the land. The case was tried before the court without a jury, and judgment was rendered in favor of appellees for the amount sued for. The judge filed his conclusions of fact as well as law. There is also a statement of facts, and we find the following conclusions of fact from the statement of facts: (1) On October 20, 1890, after the formation of the partnership of Townes & Collier, a written contract was entered into between N. D. Townes and S. H. Nunn, in which it was agreed that Townes should sell 1,900 acres of land, together with 1,000 cattle, 25 horses, and whatever jacks and jennets there might be on the land, for the net sum of $50,000, in consideration that the sale should be perfected within 30 days from the date of contract; and he should receive as commission all over the amount of $50,000 that he might receive for the property. It was also agreed that Nunn should have the right to sell, and, if he secured the purchaser, Townes should receive 1 per cent. of the amount that the property sold for. Townes and Collier were real-estate brokers. (2) Under this contract no sale was effected, and after its expiration appellant entered into no contract with the appellees to make sale of the land. (3) That appellees, in January, 1891, sent a man named Smythe to appellant, but no trade was made at this time; but some three weeks afterwards Smythe came back, and Nunn sold him one half interest in the land and stock for $25,000. (4) That, prior to the time that the half interest in the property was sold to Smythe, appellant went to appellee Collier, and told him that if he expected to get commissions he must look to Smythe for any commissions. (5) That after the written contract, herein mentioned, had expired by limitation, appellees tried to get appellant to make another contract with them, and he had refused to do it. (8) That there was no contract existing between appellant and appellees when the property was sold to Smythe by appellant. (9) That there was a verbal contract for the sale of the property between Townes and Nunn made in April, 1890, but no sale was made under it, and it was never in any manner revived after the written contract expired.

Conclusions of Law.

Appellees declared upon an express contract, and there is no plainer rule of law than that they must be held to...