Appeal from District Court, Harris County; W. E. Monteith, Judge.
PLEASANTS, C. J.
This is a suit by appellee against appellant to recover commissions of 5 per cent. on the purchase price of land that appellants had, on October 1, 1925, listed with appellee, a firm of land agents, for sale.
The petition alleges, in substance:
That the land for the sale of which appellants agreed and promised to pay appellee a commission of 5 per cent. was owned by appellants, Elliott Cage and his wife, Roene Cage, the interest of Mrs. Cage in the property being her separate property, and that "being desirous of selling said land, defendants on the day and year aforesaid, placed and listed the same with plaintiff for sale, and employed plaintiff to procure a purchaser for said land at the price and upon the following terms and conditions, to-wit:
"The sum of fifteen hundred dollars ($1,500.00) per acre, or the aggregate sum of sixty-six thousand dollars ($66,000.00) to be paid in cash and by notes, and the assumption of outstanding purchase money notes executed by the defendants when they purchased said land, and upon such terms as were satisfactory to defendants.
"That at the time of so employing plaintiff, and placing and listing said lands with the plaintiff for sale as aforesaid, it was agreed and understood by and between plaintiff and defendants, that plaintiff should undertake to obtain a purchaser for the defendants, and bring about and cause a sale for defendants of said above described land and premises for said sum, payable upon such terms as defendants would accept in consideration of the sum of five per cent. (5%) commission to the plaintiffs on the full amount of the sale price of said land and premises, to be paid over to plaintiffs by the defendants at the time of making said sale, which the defendants agreed, promised and obligated themselves to pay to plaintiff for such services, and which said commission so agreed upon was the usual and customary commission prevailing in the City of Houston at the time, for like services."
It is further alleged that if plaintiff is mistaken in the allegations that both defendants listed the land with plaintiff and entered into the agreement for the payment of the 5 per cent. commission, such listing and contract was made by defendant Elliott Cage for himself and as agent of his wife, with full authority to represent her, and that subsequent to the making of the contract it was ratified and agreed to by Mrs. Cage, and that thereby she and her separate estate became bound for the payment of plaintiff's commission.
It is then alleged:
That in pursuance of this contract, appellee firm, after having advertised the land for sale and shown it to various prospective purchasers, on or about December 18, 1925, procured a purchaser for the land in the person of Mrs. Hattie O. Baldwin of Houston, Tex., at the price of $1,500 per acre, or the aggregate sum of $66,000, of which $11,000 was to be paid in cash and the remainder by assumption of vendor's lien notes on the land, and execution by the purchaser of three notes for the aggregate amount of $22,000 secured by a vendor's lien on the land, the contract of sale further providing that the land was to be surveyed by the seller and the aggregate price to be paid therefor should be determined by the amount obtained by multiplying the number of acres shown by the survey by the agreed price of $1,500 per acre.
"That said terms of sale were satisfactory to the defendants and said purchaser, and the defendants did approve and accept the said terms and conditions of said sale as aforesaid, and did on the 18th day of December, 1925, enter into a written contract with said purchaser, by the terms of which they bound and obligated themselves to accept said terms of sale and to convey said lands to the
purchaser upon said terms; that said purchaser was ready and willing and able to comply with said purchase and the terms thereof as aforesaid, and agreed to purchase the same upon said terms, conditioned only upon the approval of title to said lands, an abstract to which, showing a good record title in defendants, was to be by said defendants furnished to the purchaser for examination.
"That while defendants represented that they were the owners in fee simple of said land, that, in fact, the defendant Roene Cage owned the fee simple title to said lands, or the greater portion thereof, in her own right, and as a part of her separate estate, and that the listing and contract with the plaintiff to procure a purchaser for said land upon the terms and conditions as hereinabove alleged, was in relation to and for the benefit of the separate estate of the defendant Roene Cage, and had said sale been consummated by the defendants to purchaser, as aforesaid, same would have benefitted and enhanced the value of the separate estate of the defendant Roene Cage in a sum equal to the difference in the selling price so agreed upon, as aforesaid, and the purchase price paid by said defendants for said land, aggregating the sum approximately of twenty-two thousand dollars ($22,000.00)."
It is also alleged in the petition:
That by the terms of the contract of sale the purchaser was to be allowed 30 days after the delivery of the abstract of title to examine the abstract, or have same examined, and to consummate the purchase, or if any valid objections to the title were found, to notify the sellers of such objections, and the sellers were then to have 30 days after delivery of written notice of the objections to cure or remove same. That the abstract was furnished and was examined by the purchaser and valid objections found to the title of which the defendants were duly notified.
"That while the written contract of sale so executed by defendants and the purchaser allowed defendants thirty days from the date said objections were pointed out and furnished to them, within which to cure the same, it became and was inconvenient and impracticable for defendants to correct said title by removing said objections within the time allowed by the terms of said contract, but defendants promised and agreed to cure said objections, and continued thereafter for a period of some six months after the expiration of the time allowed by the contract, which defendants should have to correct the objections made to the title, to deal and negotiate with the purchaser, her attorney, and the plaintiff, looking and undertaking, and promising to clear and remove said objections, and because of which promises, dealings and negotiations during said period of time, the defendant abrogated and waived the provision of said contract, allowing them only thirty days after receiving said written objections within which to cure the same and pass the title, and thereby promised, bound and obligated themselves during said period of six months to correct and cure said objections. * * *
"Plaintiff further alleges that said objections to the title so pointed out were such that defendants could have easily removed and cured and corrected said objections during the period of time they were dealing with and promising said purchaser so to do, in one of the ways suggested by the purchaser, or in some other way satisfactory to said purchaser, but plaintiff alleges that said defendants failed and refused to cure said title or to correct said objections, and refused to exercise any diligence so to do which, if they had done, said objections could have been cured, and the title accepted within the time said negotiations continued, but defendants desired, because of the advanced and enhanced value of said land, to refuse to make said sale, and arbitrarily declined to make said corrections, which they could have done, and consummated said sale.
"Whereby the defendants then and there became liable and promised to pay the plaintiff the sum of 5% commission at Fifteen Hundred Dollars ($1,500.00) per acre for the actual number of acres contained in said premises as would have been revealed by said survey, which defendants likewise failed to have made, but which plaintiff alleges to be 43.53 acres, aggregating the total sum of Thirty-Three Hundred Dollars ($3,300.00), which said sum was equivalent to 5% of the total sale price, and was a reasonable charge for such services, same being the usual and customary charge for like services, prevailing in the City of Houston."
The defendant Elliott Cage answered by general demurrer and general denial, and specially denied that he made any contract for his codefendant, or that he had any authority from her to make the contract declared upon by plaintiff. He further specially pleaded:
"That plaintiff was informed and knew at all times prior to the date of the contract set out in said petition, that this defendant had no interest in the land described. That he informed plaintiff at the time of listing said property with him and again before agreeing upon and signing the contract, that no commission would be paid him unless an actual sale of the property was made in which the owners received the cash consideration and notes were executed and delivered. And that if for any reason the purchaser did not accept the property, no commission would be paid. That except for this understanding with plaintiff, neither this defendant nor defendant Roene Cage would have signed said contract.
"That before entering into said contract this plaintiff was informed as to the ownership of said property and knew of the interest of his children in said property.
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