Closner v. Gannaway

• Decision Date: 10 November 1932
• Docket Number: No. 9778.,9778.
• Citation: 55 S.W.2d 888
• Parties: CLOSNER v. GANNAWAY et ux.
• Court: Texas Court of Appeals

Page 888

55 S.W.2d 888

CLOSNER v. GANNAWAY et ux.

No. 9778.

Court of Civil Appeals of Texas. Galveston.

November 10, 1932.

Rehearing Denied December 15, 1932.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Action by J. J. Closner against L. A. Gannaway and wife. From a judgment for defendants, plaintiff appeals.

Affirmed.

Bryan, Cosby, Suhr & Bering and C. W. Bell, all of Houston, for appellant.

E. A. McDaniel, of McAllen, and Montgomery, Hall & Taylor, of Edinburg, for appellees.

GRAVES, J.

This is the second appeal in this litigation, the first one having gone to the San Antonio Court of Civil Appeals from the district court of Hidalgo county, the present one having come here from the district court of Harris county, where a change of venue had taken it from Hidalgo county subsequent to a reversal on that first appeal; as an examination of its opinion, reported in 32 S.W.(2d) at page 523, will disclose, the sole question determined by the San Antonio court was whether or not the trial court had erred in sustaining a general demurrer to a petition then presented by the appellant here, which, in legal effect, presented this single proposition of law: "Can a principal refuse to pay his broker a commission for procuring a lease when an agreement to execute the lease had been entered into and is not carried out because of the wrongful acts of the principal?" The appellate court held that in such an instance the principal could not escape liability to pay the commission by reason of his own wrongful acts, and that consequently the petition so presented had stated a good cause of action.

Following that reversal, however, the appellant filed what is termed "a supplemental amended petition," wherein he materially changed the legal effect of the cause of action declared upon, in that: Whereas, he formerly averred that the $10,000 surety company bond specified to be executed by the lessee he procured as appellees' broker had already been furnished and in all things accepted by them, this time he charged that the appellees had waived the requirement of the surety company bond and had accepted a personal one in lieu thereof. The case now, therefore, is decidedly different from what it was when passed upon by the San Antonio court; under the general demurrer, that court was required to take as true the former allegation that the specified surety company bond had in fact not only been given by the lessee but accepted by the appellees, whereas, the trial court in the present instance necessarily had to give the appellant an opportunity on the facts to prove his averment this time that the requirement of the surety company bond of the lessee to guarantee performance of his undertaking had been abrogated, and in lieu thereof that the parties had agreed upon a personal bond instead; accordingly, the trial court this time overruled the general demurrer to the present pleadings of the appellant, and on a holding that he had failed to prove this abrogation in a legally binding way upon the appellees, peremptorily instructed the jury in their favor. So that, the case now comes here upon a challenge of that action below.

Obviously, we think, under all the authorities, appellant's major insistence that the cited holding of the San Antonio court before constitutes the law of this case upon the present appeal and as such is binding upon this court cannot be sustained, since the legal issues presented in the two different trials were by no means identical. White, Smith & Baldwin v. Downs, 40 Tex. 225, 226; Frankland v. Cassaday, 62 Tex. 418; Cole v. Estell (Tex. Sup.) 6 S. W. 175; M., K. & T. Ry. Co. of Texas v. Redus, 55 Tex. Civ. App. 205, 118 S. W. 208; Barcus et al. v. J. I. Case Threshing Machine Co. (Tex. Civ. App.) 209 S. W. 205; Roberts v. Armstrong (Tex. Com. App.) 231 S. W. 371.

This calls for a determination of the further inquiry: Was the peremptory instruction —with consequent judgment for the appellees —error?

We conclude not, mainly upon these considerations: The two written contracts declared upon and introduced by the appellant himself, together with the uncontroverted evidence, seem to us to class the case, not as that of "a broker who has produced a lessee ready, able, and willing to lease, and with whom the principal contracts on terms satisfactory to himself, hence is entitled to his commission, though the lease is never actually made, due to the fault of the principal," but an instance of "where the commission is payable only in the event the contract of sale is completed, and the broker will be denied recovery, because he failed to show a performance, and that the failure was due solely to the fault of the principal." There is no trouble about the law, nor need for citations applying it, since the parties here mutually agree that each of these quoted rules is uniformly sustained.

The material portions of the written agreement to pay a commission, upon which appellant sued, are these:

"Whereas, J. J. Closner has acted as agent for Julia S. Gannaway and L. A. Gannaway in procuring for them a lease with Edinburg Amusement Company on Lots Seven (7), Eight (8), and Nine (9) in Block Number Two Hundred and Ninety-eight (298), of the town of Edinburg, Hidalgo County, Texas, a copy of an agreement for the execution of said lease being attached hereto and made a part hereof.

"And whereas, the said Julia S. Gannaway and L. A. Gannaway have agreed to pay J. J. Closner a commission for procuring said lease.

"Now, therefore, we, the said Julia S. Gannaway and L. A. Ganaway agree and obligate ourselves to pay to the said J. J. Closner for procuring said lease the sum of (amount fixed at a per cent. of the expected rentals), said commission...