Brawner v. Cumbie

• Decision Date: 04 June 1924
• Docket Number: (No. 6766.)
• Citation: 264 S.W. 497
• Parties: BRAWNER v. CUMBIE et al.
• Court: Texas Court of Appeals

Page 497

264 S.W. 497

BRAWNER v. CUMBIE et al.

(No. 6766.)

Court of Civil Appeals of Texas. Austin.

June 4, 1924.

Rehearing Denied July 2, 1924.

Appeal from District Court, Brown County; J. O. Woodward, Judge.

Action by T. E. Brawner against R. R. Cumbie and others. From judgment of dismissal, plaintiff appeals. Reversed and remanded.

Wilkinson & McGaugh, of Brownwood, for appellant.

Beall, Beall & Beall, of Sweetwater, and Frank H. Sweet, of Brownwood, for appellees.

BLAIR, J.

Appellant instituted this suit against R. R., John, and Emmett Cumbie to recover a broker's commission and for damages. His petition, omitting formal parts, reads:

"That on or about November 15, 1922, plaintiff was engaged in the real estate business; that is to say, in the business of selling, exchanging, and leasing the real estate of the owners thereof for the usual and customary commissions paid for such service.

"That on and about said date the defendants herein were the owners of about 446 acres of land situated in Fisher county, Tex., being the land upon which said defendants John Cumbie and Emmett Cumbie then resided, and being all the land in said county then owned by defendants. That one T. C. Williams was the owner of about 885 acres of land situated about six miles west of the town of Mullin, in Mills county, being the land then operated by him as a farm and ranch under the name of the `Sleepy Hollow Stock Farm.'

"That on and about said date said land of T. C. Williams had been listed with this plaintiff for sale, or exchange for other land, and also for exchange in part and sale in part. That, while so having said land listed with him for sale or exchange, or for both sale and exchange, this plaintiff entered into negotiations with defendants for the exchange of their land for said land of T. C. Williams, so far as the value of their land would pay for, or offset, the value of the land of said T. C. Williams, and for sale to them of the land of said T. C. Williams to the extent that it was not paid for by the exchange therefor of defendant's said land. That immediately upon entering upon said negotiations with defendants they became interested in owning said land of T. C. Williams, and one of them, representing all of said defendants, visited and inspected the land of T. C. Williams, and upon his report to the others all of said defendants became so favorably impressed therewith and so anxious to acquire same by making an exchange of their land therefor to the extent that their land would pay therefor that they also employed this plaintiff to negotiate for them for such exchange, and aid them in making same, and thereupon agreed with and promised plaintiff to pay him 2½ per cent. of the estimated and agreed value of their land, as hereinafter given, for his efforts and services in aiding them to bring about and accomplish such exchange. That this plaintiff, relying upon defendants' asserted and apparent good faith in the matter and their agreement and promise to pay him the aforesaid commission of 2½ per cent., at defendants' solicitation and request, and at an expense to him of time and money, accompanied all of them to Mills county for a further inspection by them of the land of said T. C. Williams, and also, at their solicitation and request, and at a considerable expense to him of time and money, accompanied said T. C. Williams to Fisher county for an inspection by him, T. C. Williams, of defendants' land. That by this plaintiff's said efforts and services, and through and by virtue of said agency for both said defendants and T. C. Williams, they, the said defendants and T. C. Williams, were brought together, and they thereupon entered into a contract of substantially the following purport, and to the following effect, to wit: Defendants were to convey to T. C. Williams their land and assume the payment of an indebtedness against the lands of said T. C. Williams in the amount of $12,500, and T. C. Williams was to convey his lands to defendants and assume the payment of an indebtedness of about $4,300 against their land; also that T. C. Williams would pay one-half of the commission or compensation due plaintiff for his efforts and services in negotiating for and promoting said exchange of lands to the extent of the actual exchange, and defendants would pay the other one-half.

"That in the negotiations and contract for the exchange and sale of said lands, defendants' lands were estimated to be of the value of $35 per acre, and were in fact of that value, or of the aggregate value of $15,610; and the land of T. C. Williams was estimated to be of the value of $27.50 per acre, and were in fact of the value or of the aggregate value, of $24.337.50.

"That by the terms of this plaintiff's contract with said T. C. Williams the latter was to pay him, plaintiff, as commission for his services, 2½ per cent. of the value of any land contracted to be taken in exchange for his, T. C. Williams', land, and 5 per cent. of any money received or contracted to be paid, which terms were well known to defendants at the time they made their contract with said T C. Williams; also that it was distinctly agreed and understood by and between said defendants and T. C. Williams, at the time they made and entered into said contract of exchange and sale, that this plaintiff's commission or compensation for his efforts and services in negotiating for, and promoting said exchange, would be 2½ per cent. of the estimated and agreed value of the land of both of them together to the extent of such exchange—that is to say to the extent that the value of defendants' land was equal to, and would offset, the value of plaintiff's land, and that they would each pay one-half of said commission or compensation to the extent of such actual exchange. That by the word, `each,' in this connection, plaintiffs means defendants on the one hand and T. C. Williams on the other.

"That though defendants made and entered into the contracts above mentioned with this plaintiff and T. C. Williams, and expressly agreed with them, and each of them, to pay one-half of plaintiff's said commission or compensation to the extent of said exchange, they thereafter, though often requested, refused and still refuse to perform same or any part thereof, to plaintiff's damage hereinafter stated.

"That by reason and in consequence of the above facts defendants are indebted to plaintiff in the sum of $390.25 as commission or compensation directly due from them on the exchange value of their said land, which commission they expressly agreed to pay him, as aforesaid; and are also further indebted to him in damages in the sum of $829.17 as commissions contracted to be paid him by said T. C. Williams, of which contract defendants had full notice, as aforesaid, and which commissions said T. C. Williams would have been due him, and would have paid him but for the breach of said contract, of exchange and sale by defendants, as aforesaid."

To this petition the trial court sustained the following exception:

"That the allegations of said petition attempting to hold defendants for commission on the Williams' properties show no liability of defendants therefor."

Appellant refused to amend, and the suit was dismissed, because the amount in controversy, after sustaining the above exception, was below the jurisdiction of the district court. This appeal is from these rulings of the trial court.

Although the exception sustained is designated as a special exception, it is nothing more than a general demurrer or exception to that portion of the pleadings to which...