Aukerman v. Bremer

• Decision Date: 02 January 1919
• Docket Number: (No. 5978.)
• Citation: 209 S.W. 261
• Parties: AUKERMAN v. BREMER.
• Court: Texas Court of Appeals

209 S.W. 261

AUKERMAN v. BREMER.

(No. 5978.)

Court of Civil Appeals of Texas. Austin.

January 2, 1919.

On Rehearing, February 26, 1919.

Appeal from McLennan County Court; Jas. P. Alexander, Judge.

Action by O. L. Aukerman against George Bremer. Judgment for defendant, and plaintiff appeals. Affirmed.

E. C. Street, of Waco, for appellant.

John B. McNamara, of Waco, for appellee.

BRADY, J.

Appellant instituted this suit against appellee to recover commissions for making a sale of real estate for appellee. He alleged that on July 12, 1916, appellee listed with him 160 acres of land for sale, with the agreement that appellant should have the exclusive right to sell said land up to the 15th day of November, 1916; that he undertook to find, and did find, a purchaser for said property, one N. C. Boethel, which fact was known to appellee; that shortly after the 15th day of November, 1916, appellee sold said land to Boethel for the price of $7,000. Appellant averred that by reason of having found and procured said Boethel as a purchaser for the land, and by reason of the sale made by appellee to appellant's said customer, appellee became bound to pay appellant the reasonable value of his services, which were alleged to be 5 per cent., the usual and customary commission.

Appellee answered by general demurrer and general denial. The case was tried without a jury, and judgment was rendered for appellee, the defendant below.

The court below was requested by appellant, in writing, to file his findings of fact and conclusions of law within the time required by law, which the trial court, through oversight, failed to do. Appellant preserved a proper bill of exceptions, and presents this as one of his grounds for asking a reversal of this case. However, appellant did not rest upon his legal right to have the trial court file findings of fact and conclusions of law, as provided by statute, but has filed in this court a statement of facts which contains all the testimony introduced on the trial.

In his brief appellant concedes that the evidence in this case is practically undisputed, and expresses the belief that this court can act upon the statement of facts and determine the issues of this case from said statement, in which we concur.

Under these circumstances, we do not think the case should be reversed because of the mere failure of the trial court to file his findings and conclusions. Jacobs v. Nussbaum, 63 Tex. Civ. App. 520, 133 S. W. 484; Sutherland v. Kirkland, 134 S. W. 851.

In the other assignments of error appellant substantially presents the proposition that appellee is bound to pay him a commission for making the sale to Boethel, because the undisputed evidence shows that plaintiff was the procuring cause of the sale of the land by the appellee, and that he is entitled to such commission, notwithstanding the sale was not made until after the time limit had expired within which appellant was employed to sell the land, and he further claims that the said time limit was waived by appellee's having conveyed the property to a purchaser procured by appellant before the expiration of such time limit.

We believe the trial court might well have disposed of this case by sustaining a general demurrer to appellant's petition, because the same, in our opinion, states no cause of action. After averring the listing of the land for sale, appellant alleged that his exclusive right of selling the property was limited to the 15th day of November, 1916. It is true that he alleges that he undertook to find a purchaser, and did in fact find and interest one N. C. Boethel, which fact was known to appellee; but he alleges that the sale by appellee to Boethel was not made until after the time limit had expired, namely, after the 15th day of November. He did not allege any further facts which would show a liability on the part of appellee to him for commissions. There was no allegation that while the contract was in force he found a purchaser, ready, willing, and able to buy the land upon the terms of the owner. The gravamen of his claim seems to be that appellee was liable to him for his commissions merely because he had found and interested Boethel in the land, and because appellee sold the land directly to Boethel after the expiration of appellant's agency.

We do not think these averments sufficient to state a good cause of action; but the court below overruled the general demurrer, and appellee has not cross-assigned error thereon.

Even if appellant's proposition should be abstractly correct, we do not think it is sustained by the facts in this case. There is no controversy that appellee listed the land with appellant for sale, and that he named a price of $8,000, or $50 an acre, for the land. It is also undisputed that the agreement was that he was to pay appellant a commission of $250 if he sold the land for $8,000, or all over $50 an acre for which he might sell the land. It is also admitted that appellant, with the consent of appellee, listed the land at $52.50 per acre. There was a controversy over the time limit fixed in the contract, appellant contending that he was to have until November 15, 1916, in which to sell the land, and appellee insisting that the time limit was October 15, 1916. There was testimony tending to support either contention, but, in the light of all the facts, we deem this point practically immaterial.

A few days after the land was listed with appellant, Mr. Casey, who sometimes worked with appellant, learned of this land being listed, and undertook to interest Dr. Boethel in the same. It is undisputed that he went to see Dr. Boethel, took him over the land, and named the price at which the same was for sale by himself and appellant, namely, $52.50 per acre. On the same day appellee was advised by appellant that he and Mr. Casey were figuring with Dr. Boethel on the land. It is not disputed that Mr. Casey and appellant were unsuccessful in negotiating a sale with Dr. Boethel. Mr. Casey testified that Dr. Boethel said he would think about the trade, and several days later informed him that he was not interested in the trade. Mr. Casey testified that he did not have any further negotiations with Dr. Boethel in reference to the land, and it is not claimed by appellant that he or Casey did anything further to make the sale.

Appellant testified that in October he heard that Dr. Boethel had practically bought the land from appellee, and that he went to appellee and asked him this question: "Is your deal too near closed with the doctor for you to consider another man's bid for $1,000 more for the farm?" that appellee replied, "I don't know; I didn't put any forfeit in the bank;" that appellee indicated, however, that the deal was practically closed. According to appellant's testimony, nothing further occurred until November 26th, when he saw a notice in a Waco paper of the transfer of the land from appellee to Dr. Boethel.

Dr. Boethel testified that he did not have any conversation with appellant about this land until after he had made his trade with Mr. Bremer. which was about the beginning of December; that the deed was made and delivered to him the first week in December, and it was agreed by the parties that the deed was signed and acknowledged December 4, 1916, and filed for record January 3, 1917. Dr. Boethel further testified that he did have some negotiations with Mr. Casey about the land, and that he went over the trade with him, and looked at the land, but that he told him that he was not interested at the figure of $52.50 per acre. He denied that he ever talked to Mr. Aukerman, the appellant, about the land until after he had bought it from appellee, which was after November 15, 1916.

Dr. Boethel further testified that he first mentioned the matter of buying the land to appelle...