Buratti & Montandon v. Tennant

• Decision Date: 23 March 1949
• Docket Number: No. A-1997.,A-1997.
• Citation: 218 S.W.2d 842
• Parties: BURATTI & MONTANDON v. TENNANT et ux.
• Court: Texas Supreme Court

Page 842

218 S.W.2d 842

BURATTI & MONTANDON v. TENNANT et ux.

No. A-1997.

Supreme Court of Texas.

March 23, 1949.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by Chester Buratti and Harry Montandon (Buratti & Montandon), against Roy I. Tennant and his wife to recover a commission upon sale of realty. Judgment for plaintiff was reversed by Court of Civil Appeals, 215 S.W.2d 201, and plaintiff brings error.

Judgment of Court of Civil Appeals affirmed.

Jesse J. Bartlett and Alfred M. Scott, both of Austin, for petitioners.

Blair, Kendall & Randle, of Austin, for respondents.

HICKMAN, Chief Justice.

In the county court at law of Travvis County petitioners recovered judgment against respondents in the amount of $287.50 as a real estate commission. The case involves the construction of Article 6573a, Section 22, Vernon's Texas Civil Statutes, and upon that ground this court's jurisdiction attaches under Article 1821, Vernon's Texas Civil Statutes, notwithstanding the case originated in the county court. The article under construction reads in part as follows:

"No action shall be brought in any court in this State for the recovery of any commission for the sale or purchase of real estate unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereto lawfully authorized."

The contract upon which petitioners base their suit was entered into between the sellers, respondents, and the purchaser. The only provision with respect to the payment of a broker's commission is as follows:

"Should the Purchaser fail to consummate this contract as specified for any reason, except title defects, Seller shall have the right to retain said cash deposit as liquidated damages for the breach of this contract and shall pay to Agent therefrom the usual commission, or Seller may enforce specific performance of this contract."

In the trial court judgment was rendered for petitioners on findings by the jury that petitioner Montandon was acting as a duly authorized agent of respondents in the sale of the property; that respondents agreed to pay Montandon as their agent a 5 per cent. commission upon the sale price thereof; and that respondents agreed to pay Montandon "the usual commission in Austin, Travis County, Texas." These findings by the jury were based upon parol testimony introduced upon the trial. The court of civil appeals held that testimony was inadmissible to establish that respondents agreed orally to pay petitioners a 5 per cent. commission for consummating a sale of the property. Tex.Civ.App. 215 S.W.2d 201. We are in agreement with this construction of the statute.

The long-standing rule in this court is that the essential elements of a contract required to be in writing may never be supplied by parol. Jones v. Carver, 59 Tex. 293; Osborne v. Moore, 112 Tex. 361, 247 S.W. 498; Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150. A contrary rule would practically set at naught the statute of frauds. Discussing the particular statute under review here we stated in Denman v. Hall, 144 Tex. 633, 193 S.W.2d 515, 516, that "Its purpose, like that of other sections of the Statute of Frauds, is to prevent fraud arising from parol testimony as to the terms and conditions of such contracts." That purpose could not be served if evidence were admitted to establish that respondents agreed orally to pay petitioners a commission for effecting a consummated sale.

Spires v. Mann, Tex.Civ.App., 173 S.W. 2d 200, 205, writ refused, is relied upon by petitioners as an authority supporting the judgment of the trial court. The particular provision of the contract in that case with respect to the payment of a commission was similar to the provision of the contract in the instant case. It was:

"Should the purchaser fail to consummate this contract as specified for any reason, except title defects, seller shall have the right to retain said cash deposits as liquidated damages for the breach of this contract and shall pay to agent therefrom the sum of 50¢ per acre, or seller may enforce specific performance of this contract."

What the court held in the Spires-Mann case with respect to the covenant to pay a commission in the event of a consummated sale was not that parol evidence was admissible to prove such a covenant, but that the contract, when construed as a whole, contained that covenant by implication. Then applying the rule that implied covenants are as much a part of an instrument as if expressly stated therein, the court upheld the right of the agent to recover a commission. The court of civil appeals in the instant case did not agree with the holding in the Spires-Mann case that the contract evidenced an implied covenant to pay a commission for a consummated sale. We could not resolve that conflict without having before us full copies of the contracts in both cases. But it is not important that we do so because the controlling question for decision is, how much commission, if any, did the sellers impliedly obligate themselves to pay?

The two contracts contain materially different provisions with respect to the methods for ascertaining the amount of the commission to be paid. In the Spires-Mann case the amount of the...