Air Conditioning, Inc. v. Harrison-Wilson-Pearson, HARRISON-WILSON-PEARSON
| Decision Date | 11 June 1952 |
| Docket Number | HARRISON-WILSON-PEARSON,No. 10052,10052 |
| Citation | 250 S.W.2d 274 |
| Parties | AIR CONDITIONING, Inc. et al. v. |
| Court | Texas Court of Appeals |
Hart, Brown & Sparks, Jack Sparks, and Jones, Herring & Jones, all of Austin, for appellants.
David L. Tisinger, Austin, for appellees.
This suit was instituted by appellees against appellants for a real estate commission. The trial was had with the aid of a jury, but after all parties had rested, the court withdrew the case from the jury and instructed a verdict for appellees, and entered judgment.
The appeal is before this Court on eleven points assigned as error in the disposition of the case by the trial court, and are to the effect that the written listings automatically terminated at 4:00 o'clock p. m. on March 8, 1949; that plaintiffs had no legally enforceable written memorandum at the time of the sale; that the court erred in failing to submit to the jury the issue of whether defendants had wrongfully terminated the employment of plaintiffs prior to the sale; in failing to submit the issue of whether plaintiffs had failed to use due diligence in prosecuting the sale of defendants' property; that it was error for the court to not submit the issue of whether defendants had given the plaintiffs a reasonable time in which to sell the property prior to the time employment was terminated; that there was a fact issue as to whether plaintiffs wrongfully refused to carry out defendants' instructions in prosecuting the sale which should have been submitted to the jury; that the writing listings were unilateral, not obligating the plaintiffs to take any action and were lacking in mutuality and are unenforceable; that there was no consideration given for the written listings and they are not binding on defendants if the plaintiffs agreed to use due diligence in attempting to sell the real property, such consideration failed; that it was error for the court to fail to submit to the jury the issue of whether F. F. Knight was the procuring cause of the sale to the Watermans; that the court was in error in failing to submit the issue of whether plaintiffs were the procuring cause of the sale to the Watermans; and finally that the court erred in holding that the written listings met the requirements of the Real Estate Dealers License Act, because the real property is not sufficiently described in the listings, or in some other instrument referred to therein.
The appellees counter with two points to the effect that the listing was continuous until the discharge, and then until plaintiffs had set the stage for the sale and that the writings were memoranda of the agreement; that the undisputed evidence showed that plaintiffs produced the prospect to whom the sale was made and that plaintiffs had not abandoned their efforts prior to being discharged, and that plaintiffs became the procuring cause as a matter of law, all other questions of wrongful termination, diligence, reasonable time, and refusal to obey instructions become immaterial.
We recognize that in reviewing the action of the trial court to determine whether it was proper to instruct a verdict that we view the evidence in the light most favorable to the losing party, and we shall indulge every inference that may be properly drawn from the evidence against the instruction, realizing that a peremptory charge is only warranted where the evidence is such that no other reasonable verdict can be rendered and that such charge is justified as a matter of law.
Kelly v. McKay, Tex.Sup., 233 S.W.2d 121, and cases cited therein.
The plaintiffs are real estate dealers, and prior to March 7, 1949, had a verbal listing to sell the real property belonging to defendants. On March 7, 1949, two written listings were given to plaintiffs by defendants authorizing a sale of the real property. Plaintiffs pleaded that subsequent to the execution of the listings they proceeded with due diligence to sell the property, but on March 11, 1949, their employment was wrongfully terminated by defendants and a short time thereafter the property was sold to the Watermans who the plaintiffs had interested in the property, and further alleged that they were the procuring cause of the sale and were entitled to be paid a commission.
'4 P.M. Austin, Texas, March 7, 1949
'To Harrison-Wilson-Pearson
'For and in consideration of One Dollar ($1.00) receipt of which is acknowledged, I, or we hereby give you exclusive right to make sale of the real property herein described as 128 ft. by 49 ft. at N.E. corner of intersection of West 15th & Guadalupe Sts., Austin, Texas, for the period of 24 hrs. from this date, for the price of $105,000.00 on the following terms: Cash, and you are hereby authorized to enter into contract with parties desiring to purchase said property, within this authority, such contract to be binding upon me or us.
'In case sale is made of said property within the time specified at the above named price, or any other price that is acceptable to me or us, or after the expiration of said period if accepted by me or us, I, or we agree to execute to the purchaser a good and sufficient warranty deed to said property, and to furnish a complete abstract of title certified to date of said sale, prorate taxes and rents to date of transfer and pay for all other expenses customary in the transfer of property; and it is further agreed that you shall have and may retain from the proceeds of sale 3 per cent commission on the above named price, or any other price, that may be accepted by me or us.
'Witnesses:
'________
Signed John Broad Const. Co.
By John Broad
Signed Air Conditioning, Inc.
By Frederick Scott'
The other listing is in the same words as set out above except the price is '* * * $107,400.00 on following terms $97,500.00 cash and $10,000.00 second lien note * * *.'
The defendants denied the allegations in plaintiffs' petition and alleged that the written listings were effective for only twenty four hours and automatically terminated at the end of that time and that there was no enforceable written listing after the twenty-four hour period, and that the plaintiffs failed to prosecute the sale with due diligence, refusing to carry out defendants' specific instructions, and that the employment was rightfully terminated prior to the sale of the property. Defendants alleged that the written listings were not supported by a valid consideration or that such consideration had failed, and alternatively that the listings were unilateral, lacking in mutuality, and were insufficient in law to form the basis of any liability on the part of defendants, and that after the termination of plaintiffs' employment the real property was sold by another real estate agent and defendants paid the agreed commission to such agent.
It appears that defendants, who were contractors, acquired the property from a then owner in settlement of debts due them, and assumed an outstanding note, and desired to dispose of the property as quickly as they could, and listed the property with a number of agents including the plaintiffs. Dr. S. F. Waterman, his wife and son became interested in the property through the efforts of plaintiffs and plaintiffs showed it to them. The owners were asking $115,000 for the property. The Watermans applied to Knight, a loan broker, for a $70,000 loan.
On February 18, 1949, a conference was had between the plaintiffs, the defendants and the Watermans, and the Watermans asked the defendants if they would sell the property for $110,000, but no offer was made. On February 26, 1949, Mr. Knight informed the Watermans that he had a loan commitment of $60,000, which was the largest he could get. The Watermans offered $100,000 for the property, which was rejected by defendants, who a day or so later instructed the plaintiffs to make a counter offer to sell for $110,000, which offer the Watermans did not remember of having received.
The plaintiffs informed Knight that a sale could not be made to the Watermans. Knight requested the plaintiffs to withdraw and permit him to try to sell the property, to which the plaintiffs made no reply. Knight was able to secure an additional loan as a second lien for $10,000, which information was made known to all concerned.
On March 7, 1949, the defendants authorized the plaintiffs to sell the property for $107,500 within twenty-four hours and at the same time instructed the plaintiffs to sell the property for $105,000 if unable to sell for the larger amount within twenty-four hours, and to make known such offers to the Watermans, and the listing cards hereinabove set out were made up. The plaintiffs communicated the offer to sell for $107,500 to the Watermans but did not inform them of the lesser amount.
No further progress with the sale was made by plaintiffs and on March 11, 1949, the defendants notified plaintiffs not to further offer the property for sale by letter as follows:
'March 11, 1949.
'Mr. C. D. Wilson
Harrison-Wilson-Pearson
305 West Sixth Street
Austin, Texas
'Dear Mr. Wilson:
'This will confirm our telephone conversation of today in which I advised you that John Broad Construction Company and Air Conditioning, Inc. desire that, until we notify you otherwise, your firm no longer offer for sale their property located at the Northeast intersection of West Fifteenth and Guadalupe Streets in Austin, Texas, the same fronting approximately 49 feet on West Fifteenth Street and 128 feet on Guadalupe Street.
'If the present plans of the owners with reference to the property are hereafter changed and they desire to relist the property with you, I shall advise you promptly.
'Sincerely yours,
Herman Jones /s/'
On March 15, 1949, Knight, who had been trying to sell the property to the Watermans for three or four days prior thereto, procured a contract of purchase and sale between the defendants and the Watermans for $105,000 and a...
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Air Conditioning, Inc. v. Harrison-Wilson-Pearson
...of Civil Appeals has affirmed the judgment of the trial court, rendered on an instructed verdict in favor of the real estate dealers. 250 S.W.2d 274. The facts are set out in detail in the opinion of the Court of Civil Appeals, but will be summarized briefly here. Petitioners are contractor......