Caneer v. Martin

• Decision Date: 12 April 1951
• Docket Number: No. 2944,2944
• Parties: CANEER et al. v. MARTIN.
• Court: Texas Court of Appeals

Page 828

238 S.W.2d 828

CANEER et al. v. MARTIN.

No. 2944.

Court of Civil Appeals of Texas, Waco.

April 12, 1951.

Rehearing Denied May 3, 1951.

Wm. Andress, Jr., Dallas, for appellant.

Bryan & Sims, Hillsboro, for appellee.

HALE, Justice.

Appellee, a licensed real estate dealer, sued appellants, Mrs. Laura Caneer and husband, for a commission under the terms of a written contract providing for the exchange of certain properties with Mrs. Loucile Bruce and husband. Appellants answered the suit with a plea of coverture on behalf of Mrs. Caneer and a general denial. The case was tried before the court below without a jury and resulted in judgment for appellee.

At the request of appellants the trial judge filed findings of fact and conclusions of law. The findings were based upon written documents and the undisputed testimony of appellee and Mrs. Bruce, they being the only witnesses who testified at the trial. The findings and evidence show that after considerable negotiations a written contract was entered into on July 13, 1948, between appellants and Mrs. Bruce and husband, whereby the parties mutually agreed to an exchange of the properties therein described. This contract provided, among other things, that the value of the property which each party was to convey to the other was $17,200; that appellants had deposited with appellee, as agent, their warranty deed no be held by him in escrow 'until the transaction is completed, and agreed to pay him a commission of $430.00'; that appellee had represented both parties in negotiating the contract of exchange and each party would pay to him a commission of $430 for his services 'when this transaction is closed'; and that 'this transaction shall be closed on or before September 1, 1948, or as soon thereafter as possible.' The contract contained detailed provisions with respect to the obligation of each party to furnish a complete abstract of title covering the properties to be conveyed, the time within which objections thereto might be raised and cured by the respective parties, et cetera.

After the parties had proceeded for some time in accordance with the provisions of the contract, appellants repudiated the same and caused their attorney to notify appellee and the Bruces in writing, on August 10, 1948, that Mrs. Caneer would not convey to the Bruces the property described in the contract dated July 13, 1948 and that she could not be forced to do so because such property was the separate estate of Mrs. Caneer and constituted the homestead of appellants. The record does not indicate that appellants ever gave any reason or excuse for their refusal to comply with the terms of their contract other than the assertion that they could not be forced to do so. Mrs. Bruce testified without dispute that she and her husband were ready, able and willing to close the trade and she and appellee each testified at length as to what each did in attempting to consummate the transaction in accordance with the terms of the contract. The trial court found in effect that appellee and the Bruces did all that was required of them in their efforts to consummate the agreed exchange of properties and that the transaction was not closed because appellants refused to comply with the contract. The court concluded that appellants were liable to appellee for a sum equal to his entire commission in the amount of $860 and rendered judgment accordingly.

Under the first, second and third points in their brief, appellants say the judgment should be reversed and rendered in their favor because (1) the exchange of properties contemplated in the contract between the parties was never consummated, (2) the contract related to homestead property and consequently it was not subject to specific performance, and (3) appellee failed to prove at the trial that the Bruces had good title to the property they had agreed to convey to appellants. Their fourth and last point is as follows: 'When the appellee, not licensed to practice law, has personally drawn a complicated exchange contract between two other parties, and the conveyances therein required, he cannot recover commission as a beneficiary under such contract, because he is practicing law without a license and prohibited from deriving any benefit therefrom.' We cannot agree with any of the contentions thus asserted by appellants for reasons which we shall note briefly.

The exchange contract was written by appellee and was signed by him, as well as by appellants and the Bruces. Construing the contract from its four corners, as it is our duty to do, we do not think it was the intention of the parties that the consummation fo the contract was a condition precedent to the obligation of either party to compensate appellee for the agreed value of his services in negotiating and helping to close the transaction. On the contrary, it appears to us that the provision for the payment...