Bellis v. Hann & Kendall

• Decision Date: 03 May 1913
• Citation: Bellis v. Hann & Kendall, 157 S.W. 427 (Tex. App. 1913)
• Parties: BELLIS v. HANN & KENDALL.
• Court: Texas Court of Appeals

157 S.W. 427

BELLIS v. HANN & KENDALL.

Court of Civil Appeals of Texas. Dallas.

May 3, 1913.

Rehearing Denied May 31, 1913.

Appeal from Dallas County Court; W. F. Whitehurst, Judge.

Action by Hann & Kendall against E. A. Bellis. From a judgment for plaintiffs, defendant appeals. Affirmed.

Spence, Knight, Baker & Harris and Alex F. Weisburg, all of Dallas, for appellant. Dabney & Townsend, of Dallas, for appellees.

RASBURY, J.

Appellees sued in the court below, alleging that appellant had employed them to sell a house and lot in the city of Dallas and agreed to pay them certain commissions in the event they found a purchaser for the property, and that through their efforts the property was sold. Appellant answered the suit by general demurrer and general denial. Trial by jury resulted in verdict for appellees, followed by judgment of the court. From said proceeding this appeal is taken.

The undisputed facts in the case are, in substance, that the property of appellant, a residence in the city of Dallas, was placed in the hands of appellees and other agents to be sold; the appellant reserving the right to sell also. Appellees at all times knew that the property was listed with other agents and that appellant reserved the right to sell. The property was listed with appellees in June, 1909, at the gross price to appellant of $7,250. Appellees did their best to sell the property, and, among other things, advertised it for sale for five Sundays in a newspaper between June 20, 1909, and August 1, 1909, and for four consecutive days, beginning August 26, 1909. Julius Oppenheim was a frequent visitor at the office of appellees on matters of business, and, knowing that he and his sister were in the market for a home, appellees called his attention to appellant's property, and some time in June or July, of 1909, appellees induced them to inspect same. The Oppenheims were pleased with the appearance of the property and secured the keys and made an inspection in detail of the premises. A sale was not effected for the reason that the Oppenheims would not pay the price demanded. Appellees believed that they were interested, however, and on July 13, 1909, wrote appellant as follows: "Dear Sir: Some time ago we showed your house on Boulevard to Mr. A. F. Oppenheim and his sister, Miss Rose Oppenheim, who seemed at the time very well impressed with it. We have had the matter up with them since at different times and they are still interested but we have not yet been able to get them to finally close. It may be that they will take the matter up directly with you, or through another source, and should they do so, please be advised that they are customers of ours, and we are doing the best we can to handle them. We are making every effort to sell the property and while things are slow just now, we hope to be able to eventually report a sale to you. Yours very truly, Hann & Kendall." On the following day, July 14, 1909, appellant wrote appellees as follows: "Dear sir: Yours of the 13th to hand and note what you say in regard to Mr. Oppenheim. I have not heard from them at all and if I do I shall refer them back to you. You can rest assured of that. Am very much pleased at your taking the interest in selling the place that you are. By the way, Mr. Wertheim, the junk dealer, wrote me about the place early last spring. It might be you could interest him, being on the ground. Wishing you success in selling, I am, yours very truly, E. A. Bellis."

Appellees, through Lawrence Miller, a member of appellees' firm, continued to discuss the purchase of the premises with the Oppenheims until about September 14th, when Miller left the city on vacation. The record fails to show when the Oppenheims bought the property, but appellees ascertained that fact about October 7, 1909. The Oppenheims looked at many places prior to inspecting appellant's place, but did not examine any other place after being shown appellant's place; appellant's place being the only one they really liked. The only reason they did not buy the place through appellees was on account of the price. Miss Rose Oppenheim left Dallas in late August, returning in September, after an absence of perhaps one month. Shortly after her return she advertised for a house, and Mrs. Sharp, one of the other agents who had the premises of appellant for sale and which fact was known to appellees, after much negotiation with both appellant and the Oppenheims, concluded a sale of the property to the Oppenheims at the price of $6,650, many agents offering her the identical place, though appellees did not renew negotiations with Miss Oppenheim after her return in September. The Oppenheims offered Mrs. Sharp $6,500, which she submitted to appellant, who agreed to accept said amount net to him. Mrs. Sharp then induced the Oppenheims to raise their offer to $6,650, and the appellant to further reduce his price to $6,400, and on that basis the trade was closed; Mrs. Sharp receiving the difference between $6,650 and $6,400 as her fee. Before the transaction was concluded and while Mrs. Sharp was discussing the matter with appellant, she reported to him that the Oppenheims had advised her that appellees had been negotiating with them for the purchase of the same place but that all negotiations had been dropped. Appellant then stated that if the Oppenheims would make such a statement the deal might be concluded. A signed statement to such effect was made by Miss Oppenheim. The lowest price at which appellant aut...