Brouse v. Miers

• Decision Date: 25 September 1953
• Docket Number: No. 14702,14702
• Citation: 261 S.W.2d 734
• Parties: BROUSE v. MIERS.
• Court: Texas Court of Appeals

Page 734

261 S.W.2d 734

BROUSE v. MIERS.

No. 14702.

Court of Civil Appeals of Texas, Dallas.

Sept. 25, 1953.

Rehearing Denied Oct. 23, 1953.

Townsend & Townsend, Dallas, for appellant.

A. C. Scurlock, Dallas, for appellee.

CRAMER, Justice.

This action was originally filed by Miers against Brouse and the Mercantile National Bank at Dallas, Miers asserting ownership of one-half of a fund on deposit with the Bank in the name of Brouse, together with certain rights under a partnership, joint adventure, or other joint relationship between them, and for an accounting. Prior to the order here appealed from, the trial court granted its temporary injunction enjoining Brouse from disposing of the fund involved. Miers filed a bond in the sum set by the trial court and the writ issued. A motion for summary judgment filed by Brouse was overruled August 6, 1951. On December 17, 1952 a motion to dissolve was filed, which was overruled March 3, 1953. This appeal has been duly perfected from that order.

On the hearing here involved Miers asserted the relationship between him and Brouse was created by certain written agreements and powers of attorney executed by landowners to Brouse, and thereafter by separate agreements between him and Brouse, based on said contracts with landowners and held by Brouse. Miers' claim was that by reason of the later agreement between himself and Brouse they were joint owners and/or partners as to each other, and that they each acquired an economic interest in said fund and in the lands covered by the Brouse contracts with the landowners.

The contracts between the several owners and Brouse, although varying in certain details, were, whether written or oral, substantially the same; one of them, typical of all, omitting formal parts, being as follows:

'After my conversation relative to my handling your West Dallas acreage, I had Myers and Noyes make a survey of same with a view toward cutting it up to the best advantage, and at the same time have a plat acceptable to the City Plan Commission. The attached map, accepted and approved, is the finished product.

'Tying in with Homestead Manor on the south, this tract will really be a continuation of same, making it easy to continue to sell to the same class of negroes that have bought and built in the immediately vicinity. Our plan is to so price the lots, they will average a little better than $200.00, and bring in a gross of over 20,000 dollars.

'We, as agents propose to pay the cost of engineering grading and graveling the streets, sell, collect and keep books on all sales out of our agreed commission of 40%.

'Lots will be sold for $5.00 down and $5.00 per month, on contract, deed to be delivered only when 1/2 the principal has been paid. Either on unpaid balances or accrued, or included in the monthly payment, interest of 8% will be paid.

'The first monies paid in will go toward defraying the cost of engineering and grading, after which we will divide the receipts, each month 40 and 60 but until such time as the engineering and grading account has been reimbursed, we will draw for ourselves but 20%.

'We propose to keep a complete set of books, open to you at all times, render statement each first of the month, and make remittances to you not later than the 10th of each month until the entire addition has been successfully sold.

'To show you the interest already manifested-7 in all, negroes have either selected lots, and have given in money to hold until the sale begins, or have picked them out and asked that we come and get the money.

'While our terms are stated above, there will be many larger cash payments and some will be sold for all cash less 10%. Some of the lots selected and a deposit made, are on a tentative price of $225.00 plus 10% for graveling. So-we know it can be sold, as we have outlined to you and while it could not be sold in bulk for more than $300.00. Our way, if successful, will considerably more than double the amount,-maybe triple it.

'One thing more, it will be absolutely necessary for the person now occupying the property (to) vacate at the earliest possible moment, and while he remains, our salesmen must not be ordered off the premises, with a shot gun. I am sure this man can be handled in a business like manner, but until he understands,-from you-that the property is to be sub-divided, we cannot make much progress. If you gentlemen approve this letter, in its entirety, please signify your co-operation by signing and returning one copy to my office.

'If any change is desired, do not hesitate to discuss it, or write me your own views.'

The agreements between Brouse and Miers were all substantially the same, one of them, omitting names of landowners and formal parts, being as follows:

'This memo of agreement made this 26th day of April, 1943 by and between H. W. Brouse of Dallas, Texas, first party, and H. W. Miers of Dallas, Texas, second party,

'Witnesseth: That, whereas, first party has entered into a contract with * * * of Dallas, Texas, to plat, do engineering work, grade and gravel streets on a small tract of land in West Dallas, tying in with what is known as 'Homestead Manor' on the South and act as Exclusive Sales agent for said acreage or lots when said plat is filed; to pay cost of engineering, map or plat, grading and graveling of streets and all expenses connected with the sale of said lots; to collect all cash payments and installments made and to be made on lots sold; Keep books of accounts and after paying engineers, grading and graveling costs, to divide the profits on a basis of forty per cent (40%) to H. W. Brouse and sixty per cent (60%) to * * *; and Whereas, Harris W. Miers, second party, has associated himself with H. W. Brouse, first party, to carry out said contract with * * *, and agrees to give his time necessary to accomplish the purposes of said contract and to cooperate with H. W. Brouse in said sales and turn in all sales contracts and money collected, to H. W. Brouse, who shall keep acrroct books of account, to be subject to the inspection of said Miers at reasonable times and after payment of all costs and expenses incident to carrying out said contract, to receive from H. W. Brouse one-half of the net profits from and through said contract with * * *, as, only and when received in cash collected, and after the payment of all costs, expenses accrued hereunder.

'Therefore, for and in consideration of the premises and mutual agreements herein contained I, H. W. Brouse, agree and do assign a one-half interest in said * * * contract, to H. W. Miers and I, Harris W. Miers, do hereby accept such assignment and do hereby assume one-half of all burdens and obligations imposed on H. W. Brouse in said contract with * * *, hereby agreeing to pay one-half of costs of carrying out said contract and one-half the losses, if any, sustained by H. W. Brouse thereunder and to do and perform the things required of me hereunder.

'Neither party shall receive any compensation pensation for services performed by him hereunder. * * *.'

Material here the record shows Miers did not allege that he secured a real estate dealer's or salesman's license and that Miers and Brouse by stipulation agreed that Miers had been a licensed dealer a short time before their present arrangement and the entry into the contracts here involved, but that Miers was not such a licensed dealer or salesman at the time of the entry into the arrangements here involved, or at any time during such relationship.

Miers contended that because he operated under powers of attorney from the original fee owners of the land he came within certain of the exceptions set out in Art. 6573a, Vernon's Ann.Civ.St.

Brouse based his defense on the ground that the contracts involved were conditional contracts between himself and the landowners which imposed obligations upon each party for which he was to be paid a real estate dealer's commission within the terms of Art. 6573a, supra; and that his subcontracts with Miers did not bring Miers within the exceptions provided in such Article; that since Miers did not have a license under the Act, he (Brouse) would, if he shared a commission with Miers, violate the Act and subject himself under section 21 thereof not only to the cancellation of his license, but to the criminal penalties not to exceed a $500 fine, or confinement in the county jail not to exceed six months, or both such fine and imprisonment.

Brouse's points on this appeal in substance assert error in the overruling of his motion to dissolve the temporary injunction (1) because Miers sued to recover one-half of the commission paid to Brouse under contracts for the sale of real estate without alleging that he had at the time a license as a real estate dealer or salesman under Art. 6573a, V.A.C.S.; (2) because Miers' pleading does not show a cause of action against Brouse since this is a suit to recover one-half of the commissions on a sale of real estate by Brouse and Miers and no allegation is made by Miers that he had a license at the time under Art. 6573a, supra; (3) because the undisputed evidence shows Miers did not come under any of the exceptions in section 3 of Art. 6573a; but does show (a) he did not have a license required by Art. 6573a, (b) or a license under Art. 600a, V.A.C.S., the Securities Act, (c) has never been a licensed attorney, (d) he has not been a licensed real estate dealer or salesman since Dec. 31, 1946, (e) Miers' cause of action, if any, arose since June 1950, and (f) that Miers is not and was not the owner or one of the owners of the property involved. (4) In overruling Brouse's motion to dissolve the temporary injunction the court adjudicated the prime issue in the main suit and held one-half of the commission paid Brouse was owned by Miers. (5) Because the temporary injunction accomplishe dthe main purpose of the suit; and (6) because the issues here involved are res adjudicata.

Appellee's...