Chapman v. Witherspoon

• Decision Date: 10 February 1917
• Docket Number: (No. 7670.)
• Parties: CHAPMAN v. WITHERSPOON.
• Court: Texas Court of Appeals

192 S.W. 281

CHAPMAN v. WITHERSPOON.

(No. 7670.)

Court of Civil Appeals of Texas. Dallas.

February 10, 1917.

Appeal from Ellis County Court; W. M. Tidwell, Judge.

Action by W. A. Witherspoon against O. H. Chapman. Judgment for plaintiff, and defendant appeals. Affirmed.

Supple & Harding, of Waxahachie, for appellant. Farrar & McRae, of Waxahachie, for appellee.

RASBURY, J.

Appellee sued appellant upon an oral contract to pay $350, and recovered verdict and judgment, from which this appeal is prosecuted.

At the inception of the trial the sufficiency of appellee's pleading was drawn in question by general demurrer, which the court overruled, and which on this appeal is assigned as error. As a consequence it is necessary to recite the substance of the facts alleged in appellee's petition. Omitting formalities, they are these: At the time of making the oral agreement sued on appellee was employed by appellant, a real estate broker, at an agreed monthly salary, on condition that appellee, who was personally also buying and selling lands, should on all lands bought or sold on his personal account pay appellant a brokerage or commission of 2½ per cent. While said agreement was in force appellee agreed with one S. B. Witherspoon to exchange 147 acres of land in Coleman county owned by appellee for about 131 acres of land in Ellis county owned by said S. B. Witherspoon; appellee in the exchange to assume an outstanding debt against the Ellis county lands of about $7,000, secured by the vendor's lien and owned by appellant. When about to consummate the exchange appellant demanded a commission of $500 on the land to be conveyed to appellee and a commission of 2½ per cent. on that to be conveyed by him. Appellee conceded appellant's right to a commission on the sale contemplated by appellee to Witherspoon, but denied it on the sale contemplated by Witherspoon to appellee. Appellant then declared he would prevent consummation of the exchange unless he received the sums claimed; whereupon, the exchange being advantageous to appellee, and after considerable negotiations, it was mutually agreed between appellee and appellant that the exchange should be consummated; appellee to execute his notes in lieu of those existing against the S. B. Witherspoon land, including therein the additional sum of $500, on condition appellant would pay appellee $350 when said notes were paid. New notes were so executed. Appellant, before maturity of the notes, sold same to another, and appellee paid to such purchaser the amount thereof. After payment suit was brought to recover the $350. Such are the facts alleged in appellee's petition as constituting his cause of action and against which the general demurrer was leveled.

While it is not necessary to a disposition of the issue arising on the court's action in overruling the demurrer to state the facts alleged in appellant's answer, we do so in order that appellant's theory of the controversy may in other respects be intelligently comprehended. They are in substance these: Appellee was employed by appellant in his brokerage business at a stipulated salary on condition that appellee would pay appellant a commission of 2½ per cent. on all land sold personally by appellee while so employed as well as a similar commission on all lands purchased by appellee and listed with appellant for sale if the owner did not pay same. S. B. Witherspoon's lands which he exchanged for appellee's lands were listed with appellant for sale on a commission of 5 per cent. When the exchange was about to be consummated S. B. Witherspoon refused to make the exchange if he was expected to pay a commission. Based on the value placed on their lands by appellee and Witherspoon, appellant was entitled to receive from appellee $238.87, and from Witherspoon $654.06, or a total commission of $892.93. In such connection it was necessary to advance $5,000 in cash and carry about $7,772 in long-term notes, in order to consummate said exchange which appellee was wholly unable to do. Appellant was able and willing to advance the money and carry the notes, but was unwilling to waive his commissions. Appellee considering the exchange profitable continued negotiations with appellant, who finally agreed to waive all commissions, save $500, and to advance the money and carry the notes, in consideration of which appellee agreed to pay appellant said commission of $500. Thereupon the exchange was consummated, and said $500 included in the notes given by appellee in payment of Witherspoon's lands. Subsequent to all the foregoing appellee quit appellant's service when a complete settlement of their affairs was had, no claim being made by appellee in reference to the $350 sued for. Before appellant sold appellee's notes he discussed the sale with appellee, who then made no claim for the $350, only requesting appellant to arrange with the purchaser for appellee to take up the notes before maturity, which was done. Such were the facts alleged by appellee as constituting the arrangement finally made.

The first contention is that the court erred in overruling appellant's general demurrer directed against appellee's petition. The proposition asserted is that, the contract alleged being oral, and the effect of it being to vary the terms of a written contract (the notes described in the petition), no cause of action was disclosed by the petition in the absence of any allegations of fraud, accident, or mistake. Many cases are cited by appellant which sustain the well-settled general rule that the terms and provisions of a written contract which will include promissory notes may not be varied by proof of oral contemporaneous or other agreements, of which Lanius v. Shuber, 77 Tex. 25, 13 S. W. 614, is typical. The rule invoked is so elementary that we refrain from a discussion of it, since to do so would be but to reiterate it. But it does not follow, in our opinion, from the allegations of appellee's petition that proof of the oral contract under which he sought to recover $350 would in every legal sense vary the terms of the notes given in payment of the land and appellant's commission. The demurrer is a general one, the effect of which is to declare that the facts stated in the petition, though true, do not entitle plaintiff to any relief on any theory from the court. If upon a fair, reasonable construction, giving to all ambiguities the reasonable interpretation most favorable to the pleading, there appear in it sufficient facts to show a legal right in the plaintiff, the demurrer should be overruled. Townes' Pleading, 530. By such rule it is our duty to determine, not that the pleading may not be construed to contemplate proof of an oral contract which would vary the notes, but that it does on other grounds show a legal right in appellee to recover. The substance of the facts shown to constitute the oral contract is that there was a difference between appellee and appellant concerning the payment of a...