Baker v. Skipworth, 15282

• Decision Date: 30 November 1951
• Docket Number: No. 15282,15282
• Citation: Baker v. Skipworth, 244 S.W.2d 299 (Tex. Ct. App. 1951)
• Parties: BAKER v. SKIPWORTH.
• Court: Texas Civil Court of Appeals

Page 299

244 S.W.2d 299

BAKER v. SKIPWORTH.

No. 15282.

Court of Civil Appeals of Texas, Fort Worth.

Nov. 30, 1951.

Rehearing Denied Dec. 28, 1951.

Simon & Simon, of Fort Worth, for appellant.

Brewster, Pannell, Leeton & Dean, of Fort Worth, for appellee.

CULVER, Justice.

Appellant Paul E. Baker, a real estate broker, sued appellee J. T. Skipworth for real estate commission of $2,000, being 5% of the sale price which appellee received from the sale of his homestead. The trial judge, hearing the case without a jury, rendered judgment in favor of the appellee. The case is before us without any findings of fact and conclusions of law.

Appellant sued on a written contract, the pertinent portion being as follows: 'I hereby authorize and appoint Paul E. Baker as my exclusive agent for 90 days from this date to sell my property described below for the sum of $70,000 or such sum more or less as I may hereafter accept, and I hereby agree to pay Paul E. Baker a cash commission of 5% of said purchase price.' Before the expiration of the 90 days, appellee sold the porperty and appellant concedes that he was not the procuring cause of said sale and was in no way connected with it.

Appellant predicates his appeal upon six points which follow:

(1) 'Baker, by advertising and by showing the property, performed his part of the listing contract and the same was not unilateral and without consideration.

(2) 'The written contract did not violate the statute of frauds, Article 3995, nor the real estate dealers statute. Article 6573a (Vernon's Ann.Civ.St.)

(3) 'Inasmuch as Skipworth joined by his wife sold and conveyed the property, the fact that it was homestead did not relieve Skipworth of liability for the broker's commission.

(4) 'Baker having performed and being in the act of performance, the listing contract was not terminable by Skipworth.

(5) 'The testimony of Skipworth and his wife that prior to and contemporaneous with the signing of the written listing agreement, they reserved the right to sell to Anderton (denied by Baker) was inadmissible and of no probative force, being at variance with the terms of the written listing agreement.'

(6) Appellant says in substance that, while the contract expressly recited that an 'exclusive agency' was granted, nevertheless, inasmuch as the sellor orally reserved the right to sell to a certain party and did in fact sell to that party, this indicated that the parties intended that an 'exclusive right to sell' be conferred on the broker. Appellant complains that appellee did not plead or offer proof that the contract was, or was intended to be an 'exclusive agency' as...