Armstrong v. O'Brien

• Decision Date: 08 March 1892
• Citation: 19 S.W. 268
• Parties: ARMSTRONG <I>et al.</I> v. O'BRIEN.
• Court: Texas Supreme Court

Page 268

19 S.W. 268

ARMSTRONG et al. v. O'BRIEN.

Supreme Court of Texas.

March 8, 1892.

Commissioners' decision. Section B. Appeal from district court, Jefferson county.

Action by George W. O'Brien against Andrew Armstrong and J. J. F. Gilliland, executors. Judgment for plaintiff. Defendants appeal. Reversed.

Greer & Greer, for appellants. Douglass & Laniel, for appellee.

GARRETT, P. J.

G. W. O'Brien brought this suit in his own right and as surviving partner of the firm of O'Brien & John, who were lawyers and land agents, against Andrew Armstrong and J. J. F. Gilliland, as independent executors of the will of James Armstrong, deceased, to recover commissions for the sale of lands belonging to said estate, made in behalf of said executors. Plaintiff averred that on or about December 31, 1879, "James Armstrong, deceased, * * * having by his last will and testament, previously made, appointed defendants executors thereof, and provided thereby that they should not be required to give bond, * * * and that no further action should be had in the probate court in the settlement of his estate than the probation and registration of his will and the filing of an inventory and appraisement of his estate. That on or about March 15, 1880, said will was duly admitted to probate, * * * and said Andrew Armstrong and J. J. F. Gilliland, defendants, duly qualified as such executors, * * * and took control and charge of the estate, * * * which was large, consisting of lands and other property. That it was further provided by said will * * * that defendants, as executors, were authorized and required to make sale of said lands and real estate of their testator for cash; and it was also provided that no tract thereof should be divided or sold in part, but in whole. And the plaintiff further states that, pending the administration by defendants of their said trust, as executors, to wit, on or about January 1, 1887, the defendants, as such executors, brought and delivered to the said firm of O'Brien & John, the title papers of all the lands of said estate, and placed the same, together with said lands, * * * in the hands of said firm, and then and there proposed, contracted, and agreed with said firm of O'Brien & John that the said firm should for defendants * * * negotiate and make sales of said lands, thereafter advertising the same, at the expense of said firm, for sale, and to sell the same, as soon as practicable, and without further limitation or reservation as to when they should be sold than that it was requested by defendants that said lands should be sold as early as practicable, in whole tracts, and for cash, as provided by said will, that they might settle up said estate, the price then being fixed by defendants as to that portion of said lands then known as the `Armstrong' and `Taylor' tracts — 5,245 acres, in Newton county — at $2 per acre. And defendants further contracted * * * with said firm * * * that said firm should have and receive * * * the usual and customary fees and commissions; * * * that defendants, after the death of said John, recognized and ratified said contract, and continued same with plaintiff, * * * to sell said lands, * * * save that defendants changed the price * * * for said lands to $3 per acre, instead of $2. Plaintiff then alleges sale of the Armstrong and Taylor surveys to C. Dart on June 1, 1889, for $15,735, being $3 per acre, and that on June 4, 1889, he notified defendants thereof * * * and demanded of them the execution of the deed therefor to the purchaser. Defendants declined to carry out said sale and execute said deed unless the purchaser would also take the Chas. S. Hunt survey * * * at the same price. Plaintiff then proceeds to allege another sale to Dart, on October 24, 1889, of the same surveys, for $17,046.25, and that defendants again failed and refused to carry out said sale." Defendants answered with a general demurrer, special exceptions, general denial, and a special answer, denying the authority of plaintiff to sell, and that the land had been sold in accordance with the terms of the executors. Trial was had May 20, 1891, and, the court having overruled the defendants' general demurrer and special exceptions, the case went to a jury, which returned a verdict in favor of the plaintiff for $1,704.62, with interest at the rate of 8 per cent. per annum for 1 year 10 months and 20 days, amounting to $257.59; total, $1,962.21. This is the second appeal. The first will be found reported in 79 Tex. 602, 15 S. W. Rep. 681.

By a demurrer to the petition the questions are raised whether the executors had the right to employ an agent to sell the lands of the estate, and, if so, whether they could pay his commissions out of the funds belonging to the estate. It was said by Judge COLLARD in the opinion when this case was before the supreme court the first time: "The original petition and trial amendment set up the essential element of a good cause of action in this character of suit, — good, at least, upon general demurrer. The power of the executors to sell the land of the estate, and hence to make the contract with agents to sell, is not alleged as a distinct proposition, but we think with sufficient definiteness to be good on general demurrer." 79 Tex. 604, 15 S. W. Rep. 682. This virtually disposes of the questions. There does not appear to be any delegation of the power of the executors to sell the lands, but only an employment of the plaintiff as an agent to procure a purchaser at a price fixed by them; and the executors would be allowed all reasonable expenses necessarily incurred by them in the preservation, safe-keeping, and management of the estate, and all reasonable attorneys' fees that may be necessarily incurred by them in the course of the administration. Rev. St. art. 2192; 1 Perry, Trusts, §§ 404, 409.

On the trial plaintiff was permitted to read in evidence the various letters written by the defendant J. J. F. Gilliland, one of the executors, to the plaintiff and C. Dart and plaintiff's firm, O'Brien & John. Defendants objected that said letters were not written jointly, and could not bind the estate of Armstrong; and the action of the court in admitting them was calculated to impress the jury with the idea that Gilliland individually could bind the estate without his coexecutor. Article 1936, Rev. St., provides: "Should there be more than one executor or administrator of the same estate at the same time, the acts of one of them as such executor or administrator shall be as valid as if all had acted jointly." But this provision, however, does not apply to the conveyance of real estate, in which all who are acting must join. Article 1937. The statute meets the objection that they were not written jointly. We think the letters were admissible, also, on the general principles of evidence, as the admissions of a party affecting the matter under investigation.

Appellants requested the court to give the jury the following special instruction, which was refused: "The plaintiff having alleged in his petition that he, in pursuance with a contract made between the firm of O'Brien & John and defendants, sold the lands therein described to one C. Dart, I charge you that, if you find from the evidence that plaintiff, in pursuance with said contract, if you find there was one, did sell said lands, but that such sale was made to Lutcher & Moore and not to C. Dart, you will find for defendants." The refusal of the court to give this instruction is assigned as error, because the fact of the sale to Dart was a material and direct issue in the case as made by the pleadings and the evidence, which showed such sale was made to Lutcher & Moore, but on a credit, in violation of the will. It was shown by the evidence that Gilliland and Armstrong, as executors of James Armstrong, deceased, during the month of January, 1887, employed the firm of O'Brien & John, who were lawyers and land agents, to attend to the business of the estate, take charge of all matters, sell out the lands, and settle up the estate. There was no contract as to fees, but O'Brien & John were to have the usual fees. The papers were turned over to them, and the conditions of the sale were discussed, the will having provided that the land should be sold for cash and in whole tracts. Ten per cent. was the usual and customary amount of commissions paid for the sale of lands. Among the lands to be sold were the James Armstrong headright one league and labor, the James W. Taylor 640, and the C. S. Hunt 369-acre survey. After the death of John, which occurred in February, 1889, the employment continued with the plaintiff. A price was fixed on the lands by the executors, and the sales were to be made in accordance with the terms of the will. August 15, 1888, C. Dart wrote to A. S. John that correspondents wanted 200,000 acres of pine land, and inquired if he had any for sale, requesting plots of 10,000 to 20,000 acres for samples, and statement as to location, near stream or railroad, how many feet per acre, and the lowest price to him. John replied August 22, 1888, stating that he had for sale one league and labor and a 640-acre tract in Newton county, price $3 per acre, which was the price the executors had fixed on the land. August 29, 1888, Dart wrote for further information, and requested an option of 60 days on the land, stating that he could not guaranty a sale, but if he should try and work up a sale he wished to know positively what he could do. He obtained the price net to him at $3, and placed the lands to purchasers from him at $3.25 per acre, the 25 cents being intended for his commissions, and he expected O'Brien & John to get a commission from the sellers. He stated in a letter to O'Brien & John, dated December 31, 1888, in reply to theirs of December 19, 1888, asking: "What commission will you charge for these lands if sold by you, and what division of commissions, if any, will you make with us?"...