Clements v. Withers

• Decision Date: 17 May 1968
• Docket Number: No. 4209,4209
• Parties: William P. CLEMENTS, Jr., et al., Appellants, v. John T. WITHERS, III, Appellee. . Eastland
• Court: Texas Court of Appeals

Page 198

429 S.W.2d 198

William P. CLEMENTS, Jr., et al., Appellants, v. John T. WITHERS, III, Appellee.

No. 4209.

Court of Civil Appeals of Texas.

Eastland.

May 17, 1968.

Rehearing Denied June 14, 1968.

Ritchie, Ritchie & Crosland, Rhodes S. Baker III, Dallas, for appellants.

Mattews, Payne, Pace Sands & Benners, Fred H. Benners, Dallas, for appellee.

ON MOTIONS FOR REHEARING AND REMITTITUR.

GRISSOM, Chief Justice.

We heretofore affirmed a judgment for actual damages in favor of John T. Withers, III, against William P. Clements, Jr., W. E. Perryman and Circle Ten Boy Scout Foundation for inducing Hall, a land owner, to breach his commission contract with Withers, a realtor, and sell his land directly to the Scout Foundation and thereby avoid payment of Withers' commission. We held that, even if Hall could defeat a suit by Withers for a commission by pleading the real estate dealers license act and the statute of frauds, because the land and commission were inadequately described in the written commission contract, nevertheless, appellants, who were found guilty of knowingly inducing a breach of that contract, could not plead the statutes as a defense, because they were strangers to the commission contract.

In appellants' motion for rehearing, they ably argue that we erred in so holding because they assumed Hall's obligation to Withers and thereby stepped into his shoes, wherefore, they are not strangers to the commission contract. The purchaser was the Scout Foundation. The sales contract, which was signed only by the Halls and the Scout Foundation, does contain this sentence: 'Purchasers agree to take care of any claim for real estate agent's commission which may be made by John Withers.' The deed, wherein the Halls were the grantors and the Scout Foundation the grantee, does contain this sentence: 'Grantees agree to take care of and hold Grantors harmless of any claim made by real estate agent, John Withers, for a commission claimed by him for the sale of the land herein conveyed.' If the agreements to protect Hall have the effect claimed by appellants, to-wit, remove the maker thereof from the category of a stranger to the commission contract and enables him to assert the statutes as a defense to his tortious act, it relieves only the Scout Foundation. The other appellants did not execute those agreements. The question is whether said agreements make the statutes available to the Scout Foundation as a defense to Withers' suit against appellants for damages for causing Hall to breach his commission contract with Withers. Certainly the other appellants are in no more favorable position than the Scout Foundation. We hold that it does not.

Appellants say the statute is available to 'representatives and privies' of a party to the commission contract. They cite Masterson v. Little, 75 Tex. 682, 13 S.W. 154; Sanborn v. Murphy, 86 Tex. 437, 25 S.W. 610, and other cases, but they appear to rely principally upon the Court of Civil Appeals' opinion in MacDonald v. Trammell, 351 S.W.2d 89. They say there was an assumption of liability similar to that of appellants here. Finally, appellants say it is established law that one who succeeds to title to realty is permitted to plead the statute of frauds to defeat the rights of a third person seeking to enforce a prior oral contract 'affecting title.' Mrs. Trammell's plea of privilege was sustained. It is true that the judgment was affirmed by the Court of Civil Appeals, (351 S.W.2d 89), on the ground that no cause of action exists against one who induces the breach of an agreement which can not be enforced when Sec. 28, of Article 6573a is pleaded as a defense by a person sought to be charged by that contract. The Supreme Court granted the realtor's application for a writ of error on the basis of a conflict between that decision and the holding in Yarber v. Iglehart, Tex.Civ.App., 264 S.W.2d 474 and Davis v. Freeman, Tex.Civ .App., 347 S.W.2d 650. The Supreme Court said the property and debt involved were those of the community and that no cause of action existed against a wife, Mrs. Trammell, for inducing her husband not to pay a commission, nor for conspiring to bring about that result. It said that, assuming that Redwine, the purchaser and resident defendant, was liable in damages for tortiously interfering with the performance of an unenforceable commission contract, it did not follow that there was a joint cause of action against Redwine and Mrs. Trammell. (The Supreme Court thus assumed that what we are here holding was the law.) It said that the law would not deny a wife the privilege of aiding her husband in matters affecting their common interest; that the courts had reached the correct 'result' and that result could rest on a ground other than a decision of the point of law asserted to be in conflict. It held that, since a decision of that point would not necessarily control disposition of the case, it did not have jurisdiction, wherefore, the order granting the writ was set aside and the application therefor dismissed for want of jurisdiction. The Supreme Court's decision does not support appellants' contention. It said that a wife was not liable for interfering with performance of her husband's oral contract to pay a commission for the sale of...