Clark v. Ray

• Decision Date: 21 January 1930
• Docket Number: No. 10477.,10477.
• Citation: 25 S.W.2d 656
• Parties: CLARK v. RAY.
• Court: Texas Court of Appeals

25 S.W.2d 656

CLARK v. RAY.

No. 10477.

Court of Civil Appeals of Texas. Dallas.

January 21, 1930.

Rehearing Denied March 1, 1930.

Appeal from County Court at Law No. 1, Dallas County; Paine L. Bush, Judge.

Suit commenced in a justice court by A. B. Clark against S. W. Ray. Judgment was rendered against plaintiff in the justice court and again in the county court on appeal, and he appeals.

Reversed and rendered.

Burgess, Burgess, Chrestman & Brundidge and W. H. White, all of Dallas, for appellant.

Niblo & Dodd, of Dallas, for appellee.

VAUGHAN, J.

A. B. Clark, appellant, filed his suit in justice court, precinct No. 1, of Dallas county, against S. W. Ray, appellee, to recover the sum of $200, alleged to be due him by appellee as commission for procuring a purchaser of certain real estate owned by appellee. Appellant, by his oral pleadings, alleged: That on November 27, 1926, he was a real estate agent engaged in procuring purchasers and making sales of lands for others; that prior to said date appellee represented that he was the owner of lot No. 4 and the south half of lot No. 3 of Bronx Park addition to the city of Dallas; that appellee on said date listed said property with appellant for sale or trade upon terms which might be acceptable to appellee; that it was agreed between appellant and appellee that, if appellant procured a purchaser for said land, or some one to contract to trade for same, acceptable to appellee, he would pay appellant the sum of $200 at the time of making contract for the sale of said property or for the sale of same by trade, acceptable to him; that on said date appellant secured one R. E. Wylie of the county of Dallas, state of Texas, as a purchaser of said land and premises by trade, and appellee and said Wylie entered into a written contract for exchange of properties owned by them respectively, in which appellee sold and agreed to convey to said Wylie the above-described property, and said Wylie by trade sold and agreed to convey to appellee 152 acres of land in Kaufman county, Tex.; that in the making of said contract appellee, among other things, agreed, promised, and bound himself in writing to pay to appellant a commission of $200, which he had failed to pay, and for which appellant sued. Appellee answered by general demurrer and general denial. Judgment was rendered in said justice court against appellant, from which he duly appealed to the county court at law No. 1 of Dallas county, where appellant was again cast in said suit in a nonjury trial, and from which judgment, denying him the right to recover against appellee, he duly prosecuted his appeal to this court.

Following are all of the material facts found to have been established by the statement of facts filed in this cause:

Appellant was a real estate broker and had been engaged in that business for eight years. That some time prior to November 27, 1926, appellee talked with appellant about the sale of a lot which he owned in Bronx Park (the real estate described in his pleadings), and listed same with appellant for sale or trade. That soon thereafter appellant had a conversation with one R. E. Wylie, in which he was informed by said Wylie that he had a farm in Kaufman county, consisting of 152 acres, which he would sell or trade. That soon thereafter appellant informed appellee that the Wylie farm was for trade. That appellee inspected said 152 acres, and appellee and said Wylie met in appellant's office and executed a written contract, in which appellee and said Wylie each agreed to convey to the other their respective properties, described in said contract, and to pay appellant a commission of $200 each.

Of the terms and provisions of said contract, in so far as this appeal is concerned, it is only necessary to review the following:

"In the event title is not good and cannot be made good within a reasonable time, the purchase money is to be returned to the party depositing same upon cancellation and return of this contract, but the right to enforce specific performance hereof is retained at the option of either party hereto.

"When title objections have been cured, each party agrees to deliver a good and sufficient warranty deed properly conveying his property to the other and to pay the balance of each payment, if any, and to execute the notes and deeds of trust, if any, herein provided for.

"Should either party fail to consummate this contract as specified for any reason except title defects, the other party may retain the cash deposit as liquidated damages for said breach after paying the agent therefrom the usual commission or may enforce specific performance. Taxes for the current year, current rents, insurance and interest, if any, are to be prorated at the date of closing.

"First Party has deposited with A. B. Clark, Agent, the sum of $1.00, receipt of which is hereby acknowledged, and agrees to pay him a commission of $200.00.

"Second Party has deposited with A. B. Clark, Agent, the sum of $1.00, receipt of which is hereby acknowledged, and agrees to pay him a commission of $200.00.

"Both parties hereto have been represented in this transaction by A. B. Clark, as agent. They agree that said Agent...