Conklin v. Krakauer

• Decision Date: 15 May 1888
• Citation: 11 S.W. 117
• Parties: CONKLIN <I>v.</I> KRAKAUER.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

11 S.W. 117

CONKLINv.

KRAKAUER.¹

Supreme Court of Texas.

May 15, 1888.

Appeal from district court, El Paso county; T. A. FALVEY, Judge.

Action by Adolph Krakauer against Thomas A. Conklin. Judgment for plaintiff, and defendant appeals.

W. B. Brack and C. L. Stanton, for appellant. James P. Hague and W. M. Caldwell, for appellee.

STAYTON, C. J.

The appellee employed the appellant, as a real-estate broker, to sell certain lots which he claimed in the city of El Paso. The appellant succeeded in finding purchasers who were fully able to pay for the property, and with them the following written agreement was made: "December 11, 1882, received of J. H. Hampson and W. F. Moore the sum of five hundred dollars, respectively, two hundred and fifty dollars on account of purchase of lots seventy-two and seventy-three, block thirteen, as shown on Anson Mill's map of El Paso, Texas, one hundred and twenty feet on San Antonio street, and one hundred and seventy-three four-twelfths feet on Oregon street; the purchase money being twelve thousand dollars, — six thousand dollars cash, six thousand dollars on or before six months after date, without interest, J. H. Hampson's note. The balance of cash payment to be made on the delivery of the deed to said lots executed by A. Krakauer. [Signed] J. H. CONKLIN, Agent for A. Krakauer. Approved: A. KRAKAUER. J. H. HAMPSON. W. E. MOORE." Payment of the $500, recited in this instrument was made to Conklin, and he used $150 of this money under the directions of Krakauer and for his benefit. This action was brought to recover $345 of this money remaining in the hands of Conklin, and by way of reconvention he set up a claim for commissions for making a sale of the property. Krakauer tendered to Hampson and Moore a warranty deed to the lots, and they refused to accept it, and pay the balance of the purchase money, on the ground that the title of Krakauer was defective. In a suit between them, the agreement, before set out, was canceled, on the ground that Krakauer was not able to make good title. It was claimed by Krakauer in the court below that he was not liable to Conklin for commissions, unless he had obtained a purchaser for the lots who was willing to take them, and pay the stipulated price for such title as Krakauer had. He alleged such an agreement. As to the facts on which the implied agreement to pay commissions arose, Krakauer testified that he "met Conklin, and told him that he had bought the lots from Elizabeth Gillock, and had obtained a judgment for them against Lizzie Arnold, and that he was satisfied that his title was perfect, and that he was then ready to sell them; that he had not offered them before, but that he wanted Conklin to sell them for him; that Conklin was a real-estate dealer, and said he knew all about the Lizzie Arnold matter; that he had tried all over the country to find such a party, and never could hear of any such; that he had written letters, and advertised for and did not believe there was any such person." After this, Conklin having found Hampson and Moore, who desired to purchase the lots, they and Krakauer met at Conklin's office, when Krakauer "told them that he was satisfied his title was good, and that he then handed the judgment against Lizzie Arnold to Conklin to show to the purchasers," whereupon the purchasers "wanted to know about Lizzie Arnold, and Conklin said he had made inquiries for Lizzie Arnold, and could not find any such party." He further stated that before the agreement to sell was made he knew that the purchasers desired to build an...