Albritton v. First Nat. Bank of Mexia

• Decision Date: 01 April 1905
• Citation: 86 S.W. 646
• Parties: ALBRITTON v. FIRST NAT. BANK OF MEXIA.
• Court: Texas Court of Appeals

86 S.W. 646

ALBRITTON v. FIRST NAT. BANK OF MEXIA.

Court of Civil Appeals of Texas.

April 1, 1905.

Appeal from Limestone County Court; James Kimbell, Judge.

Action by W. R. Albritton against the First National Bank of Mexia. Judgment for defendant. Plaintiff appeals. Reversed.

See 85 S. W. 1008.

Laurence Treadwell and A. B. Rennolds, for appellant. Harper & Harper, for appellee.

TALBOT, J.

Albritton sued appellee in the justice's court of Limestone county for $150 alleged to be due him on a contract for the sale of land. From an adverse judgment in the justice's court appellant appealed to the county court, where the cause was again tried, resulting in a verdict and judgment against him, and he has appealed to this court.

Appellant was employed through appellee's agent and attorney, J. O. Harper, as a broker to sell certain lands owned by appellee in Navarro county, Tex. It seems that appellant wrote to appellee in regard to the sale of the land, and his letter was by the bank turned over to Harper for an answer. October 29, 1902, Harper wrote to Albritton, the appellant, the terms upon which appellee would sell the land, and stating therein, "they to pay you $150 for making the trade." Appellant secured A. C. Williamson as purchaser of the land, and brought him and J. O. Harper, appellee's agent, together for the purpose of effecting a sale. The negotiations between appellant, Williamson, and Harper resulted in the execution by A. C. Williamson in his own right, and J. O. Harper in behalf of the appellee bank, of the following contract:

"Kerens, Texas, Nov. 15, 1902. The First National Bank of Mexia sells to A. C. Williamson 340½ acres of land at $16.00 per acre; $500.00 dollars cash; $500.00 first day of January, 1903; balance to be divided in five annual notes (payable January 1st, of each year), title to be passed on by A. C. Williamson's attorney. [Signed] A. C. Williamson, J. O. Harper, Attorney for Bank."

This instrument was drawn up by appellant in the presence of Williamson and Harper, and it appears by parol evidence in the record that Williamson insisted on the clause going in the contract that the title to the land should be passed on by his attorney, and refused to pay anything until that was done. There is uncontradicted testimony that Harper stated that the bank had a good and perfect title to the land, and that Williamson and Harper put in the hands of appellant $100 each under an agreement that, if Williamson's attorney pronounced appellee's title to the land good, he would pay the money as agreed, and take the land, and the bank would make the deed, and, if Williamson's attorney did not pass the title as good, both parties would take down their money.

We think it may be stated as settled law that where the owner of land holds himself out as having a good title, and engages a broker to sell the same, and the broker procures a purchaser of the land and brings the seller and purchaser together, and a definite and binding written contract is entered into between them to consummate the sale upon the terms and price demanded by the seller if the title is good, the broker is entitled to his commissions, although no sale be effected because of a defect in the title. The rule is founded upon the principle that in such case the broker has performed his obligation, "for, if the title is good, the principal may enforce the contract of sale; if bad, the failure to consummate the transaction is attributable to his own fault." Brackenridge v. Claridge & Payne, 91 Tex. 527, 44 S. W. 819, 43 L. R. A. 593; Conkling v. Krakauer, 70 Tex. 735, 11 S. W. 117; Parker v. Walker, 86 Tenn. 566, 8 S. W. 391, and cases cited therein. Appellee impliedly warranted the title to the land in question when it employed appellant to sell it, and the provision in the contract set out above, "title to be passed on by A. C. Williamson's attorney," does not materially alter the legal status of appellant and appellee respecting the transaction in question. Appellee asserted that its title to the land had been passed upon by one of the best lawyers in Limestone county, declared it was good, and relied upon its validity in the contract of sale effected through the efforts of appellant to Williamson. The testimony does not tend to show that appellant's right to compensation was made to depend upon...