C. W. Hahl & Co. v. Wickes

• Decision Date: 30 October 1906
• Citation: 97 S.W. 838
• Parties: C. W. HAHL & CO. v. WICKES.
• Court: Texas Court of Appeals

97 S.W. 838

C. W. HAHL & CO. v. WICKES.

Court of Civil Appeals of Texas.

October 30, 1906.

Rehearing Denied. November 28, 1906.

Appeal from District Court, Brazos County; J. C. Scott, Judge.

Action by C. W. Hahl & Company against E. S. Wickes. From a judgment in favor of defendant, plaintiff appeals. Reversed, and judgment rendered for appellant.

L. B. Moody, Robert Armstrong, and A. L. Jackson, for appellant. Doremus Butler, for appellee.

REESE, J.

C. W. Hahl & Co. sued E. S. Wickes for $2,500, alleged to be due them as commissions upon the sale of Wickes' plantation under a special contract whereby they were to receive as commissions all they could sell the land, teams, implements, and crop for in excess of $32,500. It was alleged that by Hahl & Co.'s procurement the plantation had been sold for $35,000, and that they were entitled to $2,500, as commission under their contract with Wickes. Upon trial before a jury, there was a verdict and judgment for defendant from which Hahl & Co. appeal.

It will only be necessary to notice the first assignment of error which, in the view we take of the evidence, is decisive of the case. This assignment is predicated upon the refusal of the court to instruct the jury to return a verdict for plaintiff for the amount sued for. There is no material conflict in the evidence, which establishes the following facts. Appellants were real estate agents living in Houston. Appellee lived at Bryan, and owned a plantation of 1,100 acres of land in Fort Bend county, about 16 miles from Houston. Previous to the year 1904 appellee placed this property in the hands of appellants for sale, and appellants had advertised the property for sale, and made efforts to sell it. In 1904 appellee authorized appellants to sell the land with the teams (except one pair of mules), farming implements, and crop then on the place for $32,500, net to him; appellants to have as their commissions all they could get in excess of that price. During the month of September, 1904, one J. T. Tarrt, one of appellants' agents in Illinois, brought some prospective land buyers to Texas, and among them I. W. Cook. Not being satisfied with the land shown him around Houston, but expressing a desire to buy rich land, appellants told Cook of appellee's plantation, and he agreed to go and look at it. Appellant C. W. Hahl then called up appellee at Bryan over the long distance telephone, and made arrangements with him to have his manager, T. W. Whatley, meet appellant Hahl, and Cook, and Tarrt at the railroad station, and take them over to the plantation. In this telephone conversation appellants also wanted to know if there had been any change in their authority to sell and the terms and conditions, etc., and was assured by appellee that there had been none. Appellant Hahl, his agent Tarrt, and Cook went to the plantation, Whatley, appellee's manager, meeting them at the train with a wagon. After showing Cook over the plantation, Hahl offered to sell it to him for $40,000 for the plantation alone, which Cook said was too high, and he declined to buy at that price. Hahl testified that he did not intend this as an ultimatum, but only as a "starter" and that he intended to come down in the price and would, to have effected a sale, sold the plantation, teams, implements, and crops for $35,000 or even $33,000, rather than miss a sale to Cook. This testimony is not contradicted, and there is no reason to doubt that it is true, from the circumstances disclosed by the evidence.

Whatley, appellee's manager, who also had been authorized to sell the property, for which appellee had agreed to give him a commission of $1,000, but which fact was not known to appellants, spoke to Hahl privately while they were all at the plantation, and told him the $40,000 was too high; Wickes was very anxious to sell and he thought Cook would give $35,000, which would be satisfactory to Wickes, to which Hahl replied that he would be able to make the sale for $40,000, and refused then to price the property at any less. The parties all stayed at the plantation that night, and the next morning all of them, including Whatley, went to Sugarland from which point Hahl was to return to Houston and Tarrt...