Eberhart v. Texas Co.

• Decision Date: 06 December 1929
• Docket Number: No. 5488.,5488.
• Citation: 36 F.2d 198
• Parties: EBERHART et al. v. TEXAS CO.
• Court: U.S. Court of Appeals — Fifth Circuit

36 F.2d 198 (1929)

EBERHART et al. v. TEXAS CO.

No. 5488.

Circuit Court of Appeals, Fifth Circuit.

December 6, 1929.

Lamar C. Rucker and Abit Nix, both of Athens, Ga. (Erwin, Erwin & Nix, of Athens, Ga., on the brief), for appellants.

I. S. Hopkins, of Atlanta, Ga. (Slaton & Hopkins, of Atlanta, Ga., on the brief), for appellee.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

This is an appeal from a judgment dismissing on motion a bill seeking specific performance of a sale of real estate. The bill as amended, together with the exhibits, substantially shows the following allegations as to the material facts most favorable to appellants: Appellants own certain real estate in the city of Athens, Ga., and offered it for sale to appellee, through Andrew C. Erwin, a real estate broker. In the course of the negotiations Erwin executed a document, which, omitting the description of the property, is as follows:

"Georgia, Clarke County.

"For and in consideration of Five (5.00) Dollars in hand paid, receipt of which is hereby acknowledged, we hereby give Andrew C. Erwin, an option for thirty days to sell as our agent for the sum of Fifty-Three Thousand Seven Hundred Fifty and no/100 ($53,750.00) Dollars net to us, all of the following described property located in the City of Athens, Clarke County, Georgia.

"Forty feet of the second described property on Washington St. is vacant with exception of a vulcanizing shop in rear. If said Erwin can sell the properties for Fifty Thousand Dollars cash, allowing us to retain said vacant lot and vulcanizing shop, within the period of this option, we agree to pay said Erwin a commission of Twenty-Five Hundred ($2,500.00) Dollars.

"In event of a sale as outlined above, we agree to pay all liens of every description against said properties and make good warrantee title in fee simple to the purchasers of said properties. These options to expire at midnight March 25th, 1927.

"This 25th day of February, 1927. "Lamar E. Scott. "By W. S. Eberhart. "W. S. Eberhart."

Thereafter F. T. Manley, sales manager of appellee, with an office at Houston, Tex., and J. S. Jones, district sales manager for the Atlanta district, visited Athens, and had a meeting with Eberhart, one of appellants, in the office of Erwin. The writing above set out, designated as Exhibit A, was shown to Jones and Manley, and they agreed to purchase the property described therein for the Texas Company for the gross sum of $55,000. Erwin, Manley, and Jones are alleged to be agents of appellee, with authority to purchase the property. Manley and Jones secured the title deeds to the property, and sent them to Atlanta to be...