Del Andersen and Associates v. Jones, 4846

• Decision Date: 12 December 1975
• Docket Number: No. 4846,4846
• Citation: 531 S.W.2d 417
• Parties: DEL ANDERSEN & ASSOCIATES, Appellant, v. Joy JONES et vir., Charles Jones, Appellees.
• Court: Texas Court of Appeals

Page 417

531 S.W.2d 417

DEL ANDERSEN & ASSOCIATES, Appellant, v. Joy JONES et vir., Charles Jones, Appellees.

No. 4846.

Court of Civil Appeals of Texas Eastland.

Dec. 12, 1975.

Rehearing Denied Jan. 8, 1976.

Philip C. McGahey, Bagby, McGahey, Ross & Devore, Arlington, for appellant.

R. E. Schneider, Jr., Schneider & Schneider, George West, for appellees.

RALEIGH BROWN, Justice.

This is a summary judgment case. Del Andersen d/b/a Del Andersen & Associates sought a real estate commission for procuring a buyer for property owned by Joy Jones. Each party filed motions for summary judgment. The trial court granted Jones' motion denying recovery of a commission and denied Andersen's motion. Andersen appeals both rulings of the court.

Joy Jones, owner of the Deluxe Motel, Comanche, Texas, signed a listing agreement with Andersen which provided in part:

'OWNER agrees to pay DEL ANDERSEN & ASSOCIATES a commission equal to 6% Of the selling price in event that within the listing period:

(1) DEL ANDERSEN & ASSOCIATES procures a purchaser for said price; or,

(2) Said property is exchanged or sold by DEL ANDERSEN & ASSOCIATES or any other person excluding OWNER at a price acceptable to OWNER.'

It is established by the summary judgment proof that during the term of the written agreement, Andersen, a duly licensed real estate broker, produced a buyer who executed a real estate purchase contract with Joy Jones for the purchase of the motel according to the terms and conditions provided in the listing agreement. Joy Jones signed the contract without the joining of her husband, Charles, but refused to close the sale and transfer the motel. Andersen contends the buyer is ready, willing and able to consummate the transaction.

Joy Jones argues Andersen was not entitled to a commission because (1) he failed to comply with Section 28 of Article 6573a V.A.C.S., (2) the description in the listing agreement was legally insufficient, and (3) no enforceable contract of sale was procured between the buyer and herself.

It was said in West Realty & Investment Co. v. Hite, 283 S.W. 481, (Tex.Com.App.1926):

'. . . Generally, it will be conceded that, when a broker employed to sell property has found a purchaser who is ready, able, and willing to buy at the price and upon the terms specified in the broker's contract of employment, he has earned his commission, even though through some fault or inability of the owner the deal is never actually consummated. The rule extends even to those cases where the commission is to be payable only upon the consummation of the sale, if such consummation is prevented through the fault of the owner. The law will not permit the owner to deny to the broker his right to recover a commission where the broker himself has fully complied as far as possible, and where his only dereliction is produced entirely through the fault of the owner himself.'

See also Kendrick et ux. v. Boon et al., 254 S.W.2d 1016 (Tex.Civ.App.--San Antonio 1953, writ ref. n.r.e.); Henry v. Schweitzer, 435 S.W.2d 941 (Tex.Civ.App.--San Antonio 1969, writ ref. n.r.e.).

The court in Cooper v. Wildman, 528 S.W.2d 80 (Tex.Civ.App.--Corpus Christi 1975, no writ), said 'A duly licensed real estate broker, who is authorized to sell real property under a valid listing agreement, is entitled to the commission specified in the agreement when he produces a purchaser who is ready, willing and financially able to purchase the property at the cash price that the owner authorized the property to be offered for sale. This is but a rule of fairness and right. The owner cannot defeat the broker's right to the commission by refusing to consummate the sale. To allow the owner to refuse to complete the sale after a valid listing agreement has been signed by both the owner and the broker and a purchaser has been found by the broker who can and will pay the cash purchase price set out in the listing agreement, and yet deny to the broker the right to the commission specified in the agreement, is 'a proposition not to be countenanced'. Goodwin v. Gunter, 109 Tex. 56, 185 S.W. 295, 296 (195 S.W. 848) (Tex.Sup.1916); Stolaroff v. Campbell, 18 S.W.2d 838 (Tex.Civ.App.--El Paso 1929, no writ).'

The written listing agreement provided for payment of a commission upon (1) the procurement of a purchaser or (2) exchange or sale of property by Andersen or other persons excluding owner. In the instant case Andersen is entitled to his commission upon the procurement of a ready, willing and able purchaser even though there is no enforceable contract between the purchaser and Joy Jones.

As stated in Schmidt v. Willmann, 235 S.W. 629 (Tex.Civ.App.--San Antonio 1921, no writ):

'. . . The ordinary land agent, seeking a purchaser, does not have the authority to make title to the land, but merely hunts for some one, and takes him to the landowner to buy the land. When he brings a person to the owner who is ready, willing and able to buy, it does not matter whether he got him there through a written or verbal promise; he is entitled to his commission. Obtaining such a purchaser has no connection whatever with the statute of frauds. James v. Fulcord, 5 Tex. 512, 55 Am.Dec. 743; Mead v. Randolph, 8 Tex. 191; Doggett v. Patterson, 18 Tex. 158.'

This court in McNeny v. Radford, 70 S.W.2d 824 (Tex.Civ.App.--Eastland 1934, 129 Tex. 568, 104 S.W.2d 472), at page 828, said:

'The law applicable is stated in 7 Tex.Jur. 450, § 58, as follows: 'Where the purchaser is shown to have been ready, able and willing to purchase on the owner's terms, the broker's right to commission is not defeated by the fact that no contract of sale was ever made, or, if made, was not binding on the parties, provided that it is through the fault of the broker's principal that the transaction was not consummated.' Hamburger & Dreyling v. Thomas, 103 Tex. 280, 126 S.W. 561.'

See also: Stolaroff v. Campbell, 18 S.W.2d 838 (Tex.Civ.App.--El Paso 1929, no writ); Sinclair v. Durham, 20 S.W.2d 1084 (Tex.Civ.App.--San Antonio 1929, no writ); 156 A.L.R. 602; Caneer et al. v. Martin, 238 S.W.2d 828 (Tex.Civ.App.--Waco 1951, writ dism.); Kendrick v. Boon, 254 S.W.2d 1016 (Tex.Civ.App.--San Antonio 1953, writ ref. n.r.e.); Henry v. Schweitzer, 435 S.W.2d 941 (Tex.Civ.App.--San Antonio 1968, writ ref. n.r.e.); and Clark v. Ingram, 445 S.W.2d 780 (Tex.Civ.App.--Dallas 1969, writ ref. n.r.e.).

The property was described in the listing agreement as Deluxe Motel, 1302 E. Central, Comanche, Comanche County, Texas. The agreement was signed by Joy Jones, 'owner'. In response to written interrogatories Mrs. Jones denied ownership of any other real property in Comanche County other than the Deluxe Motel.

The court in Pickett v. Bishop, 223 S.W.2d 222 (Tex.1949), said:

'The settled rule in this state is that such a description, by reason of the use in the memorandum or contract of such words as 'my property', 'my land', or 'owned by me', is sufficient when it is shown by extrinsic evidence that the party to be charged and who has signed the contract or memorandum owns a tract and only one tract of land answering the description in the memorandum. Ragsdale v. Mays, 65 Tex. 255; Morrison v. Dailey, Tex.Sup., 6 S.W. 426; Hermann v. Likens, 90 Tex. 448, 39 S.W. 282; Vinyard v. O'Connor, 90 Tex. 59, 36 S.W. 424; Taffinder v. Merrell, 95 Tex. 95, 65 S.W. 177, 93 Am.St.Rep. 814; Sanderson v. Sanderson, 130 Tex. 264, 267, 109 S.W.2d 744; Beaton v. Fussell, Tex.Civ.App., 166 S.W. 458; Spaulding v. Smith, Tex.Civ.App., 169 S.W. 627, application for writ of error refused; Ellett v. McMahan, Tex.Civ.App., 187 S.W.2d 253. The stated ownership of the property is in itself a matter of description which leads to the certain identification of the property and brings the description within the terms of the rule that 'the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty.' (Emphasis added.) Wilson v. Fisher, 144 Tex. 53, 56--57, 188 S.W.2d 150, 152.'

In considering whether there was sufficient compliance with the statute of frauds where a written listing agreement between a real estate agent and owner of property contained the street address of property, the designation 'owner' and a description of the house, the court in Parks v. Underwood, 280 S.W.2d 320 (Tex.Civ.App.--Dallas 1955, writ ref. n.r.e.), said:

'. . . The description must be set out with such definiteness that from the information given in the listing contract the property can be located with certainty.'

'. . . the written memorandum required by the statute as to the description of the property covered by the contract must by its written terms alone furnish definite information which will, by following such information to its source, identify the real estate listed with the agent with such definiteness that it may be distinguished from all other tracts of land, in other words the language used must refer to only one tract of land, clear as to location and boundaries.'

The description in the listing agreement between Andersen and Jones sufficiently complies with the statute of frauds.

The second paragraph of Section 28 of Article 6573a, V.A.C.S., states:

'At the time of the execution of any contract of sale of any real estate in this State, the Real Estate Salesman, Real Estate Broker, Real Estate Agent or Realtor shall advise the purchaser or purchasers, in writing, that such purchaser or purchasers should have the abstract covering the real estate which is the subject of the contract examined by an...