Air Conditioning, Inc. v. Harrison-Wilson-Pearson

• Decision Date: 03 December 1952
• Docket Number: HARRISON-WILSON-PEARSON,No. A-3774,A-3774
• Citation: 151 Tex. 635,253 S.W.2d 422
• Parties: AIR CONDITIONING, Inc. et al. v.
• Court: Texas Supreme Court

Page 422

253 S.W.2d 422

151 Tex. 635

AIR CONDITIONING, Inc. et al. v. HARRISON-WILSON-PEARSON.

No. A-3774.

Supreme Court of Texas.

Dec. 3, 1952.

Rehearing Denied Dec. 31, 1952.

Hart, Brown & Sparks and Jones, Herring & Jones, Austin, for petitioners.

David L. Tisinger, Austin, for respondents.

SHARP, Justice.

This is a suit instituted by Harrison-Wilson-Pearson, respondents, against Air Conditioning, Inc., et al., petitioners, for a real estate commission. The Austin Court 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 contractors, to whom the lot and building in question were transferred when the former owners were unable to pay for labor and materials furnished in the erection of the building. Wishing to dispose of the real estate promptly, petitioners listed it at $115,000 with several real estate agents, including respondents, about the middle of February, 1949. Respondents showed the property to Dr. S. F. Waterman, who expressed some interest in it. On February 18, 1949, a conference was held between petitioners, respondents, and Waterman, at which no offer was made, although Waterman inquired whether petitioners would take $110,000. On February 28, 1949, respondents transmitted to petitioners Waterman's offer of $100,000, which was rejected. On the same day petitioners instructed respondents to make a counteroffer of $110,000. Respondents did so, but no reply was made by Waterman. Respondents arranged a conference with Waterman on March 5, 1949, which he cancelled. Petitioners, who constantly expressed a desire to make a sale as quickly as possible, then instructed respondents to offer the property at $107,500, and if that would not be accepted within twenty-four hours, then to offer it at $105,000. At respondents' suggestion, petitioners executed written, exclusive twenty-four hour listings for these two offers, which were to be shown to Waterman in an effort to impress him that the property would not be available at that price indefinitely. These written listings were never shown to Waterman, but on March 8, 1949, respondents did communicate the $107,500 offer to him; which he took under consideration, but did not accept within twenty-four hours after it was made. Respondents never did make the offer of $105,000. There were no further dealings between respondents and Waterman.

Thoughout the whole course of these negotiations, up to March 8, 1949, Waterman was in frequent contact with Frank Knight, a loan broker. On February 26, 1949, Knight informed Waterman that he had secured a loan commitment for $60,000. Waterman requested Knight to keep the commitment open, and to see if he could get an additional loan. Knight had also been in touch with respondents, and, after they had expressed to him doubt that the property could be sold to Waterman, Knight said that he could effect the sale if respondents would withdraw; to which respondents made no definite reply. Knight notified petitioners that he had secured an additional $10,000 loan commitment for Waterman, and they in turn notified respondents, but they did not so inform Waterman.

On March 6 and 10, 1949, petitioners and respondents discussed the matter, the former expressing disappointment over the delay in making the sale. On March 11, 1949, petitioners notified respondents that they were withdrawing the property from sale, and on the same day petitioners asked Knight to attempt to sell the property to Waterman. Knight arranged a conference with Waterman, at which Knight informed him that the property was available for $105,000; that an additional loan of $10,000 was available; and that he would obtain tenants for the vacant second floor of the building if Waterman bought the property. On March 14, 1949, Knight again conferred with Waterman concerning taxes, income from the building, and other matters concerning the property, and on that day a contract of sale for $105,000 was executed.

Both the trial court and the Court of Civil Appeals held that, as a matter of law, the respondents were the procuring cause of the sale, and that there were no ultimate issues of fact for the jury.

Petitioners contend that they were entitled to an instructed verdict; or, in the alternative, that there were ultimate fact issues which should have been submitted to the jury. The principal points presented here are substantially as follows:

The Court of Civil Appeals erred in holding, as a matter of law,

(1) That respondents were the procuring cause of the sale of petitioners' land to the Watermans.

(2) That the ultimate issue of the rightfulness or wrongfulness of the termination of respondents' employment was immaterial.

(3) That the employment of respondents was wrongfully terminated by petitioners.

(4) That respondents were diligent in procuring the...