Brigham v. Cason

• Decision Date: 16 April 1921
• Docket Number: (No. 9605.)
• Citation: 233 S.W. 530
• Parties: BRIGHAM v. CASON.
• Court: Texas Court of Appeals

233 S.W. 530

BRIGHAM v. CASON.

(No. 9605.)

Court of Civil Appeals of Texas. Fort Worth.

April 16, 1921.

Appeal from Cooke County Court; H. S. Holman, Judge.

Action by M. T. Brigham against S. B. Cason. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Webb & Cantrell, of Sherman, for appellant.

J. T. Adams, of Gainesville, for appellee.

BUCK, J.

This is a suit by M. T. Brigham, appellant here, a real estate broker, for $400 commission for finding a purchaser for a 160-acre tract of land in Cooke county, under a contract with S. B. Cason. January 3, 1920, Cason listed 160 acres of land with plaintiff below, at $50 an acre, agreeing to pay 5 per cent. commission on the selling price. Plaintiff understood to and did find within the 30 days a purchaser, to wit, C. F. Pelphrey, who was ready, willing, and able to purchase said land on the terms mentioned. The land was the homestead of Mr. and Mrs. S. B. Cason, and when Mr. Cason went home after listing the land for sale with Brigham, he told his wife what he had done, and she refused to sell, and told him to go back to Brigham and tell him that she would not sell, and withdraw the land from the market. Cason, the next morning, did this, saying that he was willing to sell at the price mentioned, that he thought it was more than the land was worth, but that his wife was not willing. Brigham would not agree to the withdrawal of Cason from his written contract, and that day saw Pelphrey, who agreed to take the land at the price and upon the terms specified. Upon a demand by Brigham upon Cason to come in with his wife and close the deal, and his failure so to do, this suit was filed.

Defendant pleaded that he was a married man, and the property offered for sale was the homestead of himself and wife, and that his wife had refused to sell, and that in consequence thereof, and in compliance with his wife's request, he went to plaintiff and, before the contract of sale was made between said plaintiff and Pelphrey, told him of his wife's refusal, and withdrew the land from the market.

Plaintiff tendered a special exception to this plea, and complaint is made of the failure of the court to sustain the same, in the first assignment of error. In the charge the court instructed the jury as follows:

"If you find that the defendant, S. B. Cason, was a married man, and that the land in controversy was the homestead of the defendant and his wife, and was occupied by them as such, and that these facts were known to plaintiff at the time he made such sale, if any, and that the wife of defendant refused to join in such sale, and execute a deed to the purchaser of said land, and that defendant was ready and willing to carry out his part of said contract of sale, and that the failure of his wife to execute said deed of conveyance was not participated in by defendant, and that these facts were known to plaintiff, then plaintiff cannot recover, and you will find for defendant."

Appellant has an assignment directed to the giving of this charge. We will discuss these two assignments together.

A broker employed to procure a purchaser who produced a purchaser ready, willing, and able to buy on obtaining a good title has earned his commission, though the owner contracting to sell is unable to convey good title. O'Reilly v. Cryer, 175 S. W. 773; McGowan v. Eubank, 177 S. W. 512; Slade & Bassett v. Crum, 193 S. W. 723; Hamburger & Dreyling v. Thomas, 103 Tex. 280, 126 S. W. 561; Gibson v. Gray, 17 Tex. Civ. App. 646, 43 S. W. 922.

That a husband who employs a broker to find a purchaser for a homestead cannot escape payment of commission on the ground that the wife refused to sign the deed is likewise supported by ample authority. Krebs v. Popp, 42 Tex. Civ. App. 346, 94 S. W. 115, by this court; Brewer v. Wall, 23 Tex. 585, 76 Am. Dec. 76; Cross v. Everts, 28 Tex. 524; Goff v. Jones, 70 Tex. 572, 8 S. W. 525, 8 Am. St. Rep. 619; Young v. Ruhwedel, 119 Mo. App. 231, 96 S. W. 228; Curry v. Whitmore, 110 Mo. App. 204, 84 S. W. 1131; McCray & Son v. Pfost, 118 Mo. App. 672, 94 S. W. 998. Hence we conclude that the defense included in the quoted paragraph of the court's charge was not a proper one, and that reversible error was committed in submitting it.

It is urged that the evidence shows that the buyer wanted defendant to submit an abstract showing title, and that according to the written agreement defendant did not agree to furnish an abstract. Perhaps a...