Curlee v. Phelps

• Decision Date: 24 May 1922
• Docket Number: (No. 1975.)
• Citation: Curlee v. Phelps, 242 S.W. 517 (Tex. App. 1922)
• Parties: CURLEE v. PHELPS.
• Court: Texas Court of Appeals

242 S.W. 517

CURLEE v. PHELPS.

(No. 1975.)

Court of Civil Appeals of Texas. Amarillo.

May 24, 1922.

Rehearing Denied June 21, 1922.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Action by Albert Phelps against W. S. Curlee. From judgment for plaintiff, defendant appeals. Affirmed.

Bullington, Boone, Humphrey & Hoffman, of Wichita Falls, for appellant.

Fitzgerald & Hatchitt, of Wichita Falls, for appellee.

HUFF, C. J.

This action was brought by Phelps against Curlee, for commission due him as a broker in procuring purchasers in the person of H. E. Johnson and J. M. Finch, of a certain oil lease on 25 acres of land. It is alleged that appellant, Curlee, listed with appellee 25 acres of oil land off the south end of a 37½-acre tract of land, to sell for the price of $500 per acre, agreeing to pay appellee all over $500 per acre as a commission for his services; that he found purchasers at the price of $600 per acre; that appellant entered into a written contract with the purchasers at said price, who placed in escrow with the contract the sum of $3,000 as part of the consideration and to to be forfeited in case of a failure to comply with the terms and conditions of the contract. It is further alleged, for some reason unknown to him, appellant entered into a subsequent agreement with the purchasers, abrogating the original contract and giving an option for the consideration of $4,000 on said property, and that the purchasers did not take the lease; that the appellant refused to pay appellee the commission due, although requested so to do. The appellant answered by general denial and specially that the contract entered into between appellant and the purchaser was not a sufficient memorandum of writing to take it out of the statute of frauds, and for said reason that contract was void, and further pleaded that, if the original contract was sufficient, that at the special instance and request and by the inducement of the appellee an optional contract was entered into in lieu of the original binding contract, and for that reason the appellant is not liable. The appellee answered by supplemental petition, not believed necessary to be set out. The case was submitted to the jury upon issues, but only on the issues whether appellee caused appellant, after making the contract of sale with the purchasers, to enter into an option contract with appellant wherein they, by contract, were to give 15 days' extension with an option to take the lease or not as the purchasers should elect, or whether the appellees knew of such option contract or assented to or agreed thereto, or knowing the facts acquiesced in or consented thereto. The jury answered all the issues in favor of the appellee and each of said issues in the negative. The court rendered judgment upon the findings for appellee in the sum of $2,500.

The evidence sufficiently established that appellant Curlee listed with appellee Phelps the south 25 acres off of the 37½-acre strip adjoining on the west the 100 acres off the east end of block 53, J. A. Kemp subdivision, Wichita Valley lands, and that he also listed the east 50 acres out of the same block. The 25 acres was listed and designated on the map at the time of the listing by Curlee, which was pointed out by him as the land the appellee was authorized to sell. The particular land is designated on the following sketch, which was used in listing and in selling it: NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The appellant listed the land with appellee at $500 net to Curlee, and any amount above that price appellee was to have as a commission for his services. The appellee procured Finch and Johnson as purchasers, at $600 per acre. In making the deal, the purchasers bought the land with reference to the map or sketch above set out. The appellee took, or caused to be taken, the purchasers to the office of appellant, and introduced them as purchasers who agreed to take the 25 acres at $600 per acre. The purchasers were shown the subdivision of the land as marked on the map by Curlee, and, after they saw its location and found out the rentals, they decided to take it, and Curlee, the appellant, drew up the contract. Curlee showed the purchasers how the block was platted from the map; that he owned the entire block, the 100 acres on the east, and that, out of the 50 acres west of the 100 acres, 12½ acres had been sold, leaving 37½ acres in the west 50-acre tract, which ran the entire length of the block, north and south. One of the purchasers made a rough sketch of the land while testifying, substantially as the above sketch. Curlee wrote the contract and also executed at the same time an assignment and placed it with the contract in escrow, as called for in the contract. The assignment at the trial was shown to have been lost or destroyed, but one of the purchasers stated the description of the land he believed was about the same as in the contract. The purchasers were ready and willing to take the land at the price and on the terms at which the appellee was authorized to sell. The appellant accepted the purchasers as satisfactory and drew the contract and fixed the terms and gave the description of the land and himself placed it in the contract drawn by him. The appellee had nothing to do with the drawing of the contract, but only took the purchasers to the appellant to make a contract satisfactory to him. The contract stipulates:

"That the first party (Curlee) agrees to sell, transfer and assign unto the said second parties (H. E. Johnson and J. M. Finch) an oil and gas lease out of block 53, J. A. Kemp Wichita Valley lands, and being more particularly described as follows: Twenty-five (25) acres off the south end of a 37½-acre tract, adjoining the east 100 acres on the west, out of block 53."

The recited consideration was $15,000, to be paid upon receipt of abstract of title to the land. A deposit as a forfeit of $3,000 to show good faith pending examination of abstract. The $3,000 to be a part of the purchase-money price and to be returned should title be defective. The abstract was to be furnished within 10 days; 6 days were allowed for examination. The contract and assignment were to be deposited in the bank with the $3,000, with the understanding that the bank turn over to the purchasers the attached assignment upon the payment of the remaining $12,000. After the execution of this contract, the purchasers asked for further time. The appellant granted them 15 days further time and drew up an option contract. The consideration for such extension was $1,000. The contract of sale was changed to an option, leaving it to the election of the purchasers to take the land or not, as they should choose. As found by the jury, the appellee did not cause such change, did not know thereof or assent or acquiesce in the change from a sale to an option. The appellant introduced a surveyor, who testified the description in the contract is very vague and indefinite; without some explanation he could not find the particular piece of land contracted to be conveyed by the description in the contract. The witness stated by varying the dimensions a little the 37½ acres of land adjoining the east 100 acres could be made or put into an indefinite number of positions. This witness also drew or assented to the drawing of several different figures: An oblong or elongated rectangle extending east and west from the west line of the 100 acres, figures resembling trapezium or trapezoid, etc. On cross-examination the witness stated he could take the description as contained in the contract and locate block 53 of J. A. Kemp Wichita Valley land; that he could locate the 100 acres on the east end of the block; that, if he had the map and the description marked off before him, he could go and find it; that such would be additional information; that it would not be hard to find if he had the map. Examining a map like the sketch above set out he testified that he could locate the 25 acres like that which would be out of block 53. It would be 25 acres off of the south end of the 37½-acre tract which adjoined the east 100 acres of block 53 on the west.

The appellant seeks to reverse this case upon two propositions: (1) That there was no binding contract entered into, as the land was so indefinitely and vaguely described as it could not be identified and that it referred to no data from which a definite description could be obtained. (2) The court erred in refusing to submit an issue to the jury requiring them to find whether the description of the land in the contract was sufficient for a competent surveyor to find the same without taking into consideration outside matters not mentioned in the contract.

We do not believe the right of the broker to recover under the facts of this case depends upon a contract between the owner and purchasers being so drawn that it is enforceable under the statute of frauds. The broker found purchasers ready, able, and willing to take the land at the price and upon the terms acceptable to the owner. The broker did not assume to make a binding enforceable contract; that duty the owner...