Brackenridge v. Claridge

• Decision Date: 03 March 1898
• Citation: 44 S.W. 819
• Parties: BRACKENRIDGE v. CLARIDGE et al.
• Court: Texas Supreme Court

44 S.W. 819

BRACKENRIDGE v. CLARIDGE et al.

Supreme Court of Texas.

March 3, 1898.

Error to court of civil appeals of Fourth supreme judicial district.

Action by Claridge & Payne against George W. Brackenridge. Judgment for plaintiffs was affirmed by the court of civil appeals (42 S. W. 1005), and defendant brings error. Reversed.

Franklin & Cobbs, for plaintiff in error. Clamp & Harris, Dan Lewis, and J. O. Terrell, for defendants in error.

GAINES, C. J.

The defendants in error sued the plaintiff in error to recover commissions as real-estate brokers for procuring at plaintiff in error's instance a purchaser for a tract of land. They alleged, in substance, that Brackenridge entered into a contract with them, in which, at his instance, they undertook to make a sale of a large tract of land in consideration of his promise to pay them a commission of 5 per cent. upon the purchase money, and that they procured purchasers ready, willing, and able to buy the property, but that the purchase was not consummated on account of a defect in his title. There was evidence to show that the plaintiff in error employed Claridge to procure a sale of the land, and that Payne subsequently became the partner of Claridge, and actively participated in the negotiations for the attempted sale. Claridge, who made the contract with Brackenridge, in his testimony states the latter's promise in this language: "That is, that if they brought him a buyer for the land that would pay him his price for it, he would pay me a commission." Claridge also testified that, at the time of making the contract, Brackenridge represented that he was the owner of the land. Subsequently, Claridge found Messrs. Beney & Freeman, of the state of Iowa, who, in connection with him, examined the land, with a view of negotiating for its purchase. After the examination, Claridge introduced the proposed purchasers to Brackenridge. The depositions of Beney & Freeman were read in evidence upon the trial in behalf of the plaintiffs, and their purpose in seeking the interview with Brackenridge is very clearly disclosed in their testimony. Beney, among other things, testified as follows: "* * * I first met Col. Brackenridge, at San Antonio National Bank, on August ____, 1895. Was taken to the bank by Mr. Claridge, and there introduced, either by Mr. Claridge or L. N. Disney, of Houston. I went to the bank at the suggestion of Mr. Claridge, for the purpose of talking over with Col. Brackenridge the terms and conditions he would give us on an option of sixty days on the Lytle ranch, looking to a purchase of same if title proved good. Col. Brackenridge refused to give an option on Lytle ranch for longer than thirty days; and on August 2, 1895, we concluded to accept his offer of option of $3.75 per acre and privilege of thirty days in which to examine title. As to the agreement, it was principally oral. We received a receipt in writing from defendant for draft of one thousand dollars, specifying that draft was for option of thirty days on land deeded by sheriff of Medina county to G. W. Brackenridge. The receipt was returned to the San Antonio National Bank, August 31, 1895, on surrender of the one thousand dollars paid for option. As was stated in my answer to interrogatory sixth, the only writing was the receipt for the draft for one thousand dollars, stating that it was paid for option, and that nine thousand dollars additional was to be paid at the expiration of thirty days, and balance on or before five years. * * * Col. Brackenridge stated that the title to the Lytle land was vested in him, but said that the San Antonio National Bank was the direct owner of the lands, and signed the option receipt, `San Antonio National Bank, by G. W. Brackenridge, President.' * * * We expected to raise the money from our own resources." Freeman also testified: "I was introduced by either Mr. Claridge or Mr. Disney to Col. Brackenridge at the bank where we went, at the suggestion of Mr. Claridge, for the purpose of talking over the terms and conditions he would give us on an option of sixty days on the Lytle ranch, intending to purchase the same if title was good. Col. Brackenridge refused to give an option on Lytle ranch for a longer time than thirty days; and on August ____, 1895, we decided to accept his offer of option of $3.75 per acre and privilege of thirty days to look up title. The agreement was mainly oral. We received, in writing, from Col. Brackenridge, a receipt for draft of one thousand dollars, specifying that it was paid for option of thirty days on land deeded by sheriff of Medina county to George Brackenridge. This receipt, I suppose, was returned to the San Antonio National Bank by my partner, upon the surrender of the one thousand dollars paid for the option, and is now not under my control. The only writing was the receipt above mentioned. The contract was one thousand dollars cash on the option, and nine thousand dollars to be paid in thirty days, and balance on or before five years at six per cent. All parties understood it to be an oral agreement. Col. Brackenridge said, in his opinion, the title was good. There was no other writing in the trade, except the option receipt referred to. The agreement to purchase made on the lands was subject to examination of title; that, if title proved to be defective, the negotiations were to cease. I do not know of my own knowledge whether there was any other writing in the transaction or not, as I did not return to Texas with my partner on August 31, 1895. Col. Brackenridge stated that the title to the land rested in himself, but that the San Antonio National Bank was the direct owner of the land, and signed the option receipt as follows: `San Antonio National Bank, by Geo. W. Brackenridge, President.'"

It is evident that...