D. C. Hall Transport, Inc. v. Hard

• Decision Date: 23 February 1962
• Docket Number: No. 16299,16299
• Citation: 355 S.W.2d 257
• Parties: D. C. HALL TRANSPORT, INC., et al., Appellants, v. J. L. HARD, Appellee
• Court: Texas Court of Appeals

Page 257

355 S.W.2d 257

D. C. HALL TRANSPORT, INC., et al., Appellants, v. J. L. HARD, Appellee

No. 16299.

Court of Civil Appeals of Texas, Fort Worth.

Feb. 23, 1962.

Rehearing Denied March 23, 1962.

Rawlings, Sayers, Scurlock & Eidson, and Nelson Scurlock, Fort Worth, for appellants.

Barwise, Magoffin & Carrigan, Tilley, Hyder & Law and Thos. H. Law, Fort Worth, for appellee.

RENFRO, Justice.

Plaintiff Hard brought suit against D. C. Hall and D. C. Hall Transport, Inc., for commission of $75,000 for procuring a buyer for certain motor freight properties.

The jury was asked: 'Do you find from a preponderance of the evidence that defendant, D. C. Hall, agreed to pay plaintiff, J. L. Hard, a 5% commission if plaintiff would procure a buyer, upon terms satisfactory to defendant, for the Hall Motor Freight Lines properties, which are the subject of this law suit? Answer 'yes' or 'no'.' The jury answered in the affirmative. In answer to issue two the jury found that Hard procured a buyer. The jury found $10,000 to be a reasonable attorney's fee.

No exceptions were taken to the charge and no other issues were requested or submitted.

In a motion for judgment notwithstanding the verdict, defendants contended they were entitled to judgment as a matter of law because the sale involved real estate and capital stock, and that plaintiff was not a licensed real estate broker or salesman and was not licensed under the Securities Act.

The court sustained defendants' motion and rendered judgment for defendants.

On appeal we reversed the trial court's judgment and rendered judgment for the plaintiff. Hard v. Hall, Tex.Civ.App., 318 S.W.2d 108.

The Supreme Court in Hall v. Hard, Tex., 335 S.W.2d 584, said:

'Plaintiff's cause of action was based upon one ground of recovery, to wit: the contract to pay him a commission for procuring a purchaser for the Hall properties. One of the elements of this ground of recovery, under the facts as they developed upon the trial, was whether or not the terminal leases were a part of such Hall properties. This question presents a fact issue. There being no request for a jury issue on this question, and therefore no jury finding, it was for the trial court to make a finding on this issue, upon proper request. Rule 279, Franki's Vernon's Annotated Rules of Civil Procedure. This court has no power to make findings of fact, but the trial court does possess such power. * * * The record in this case raised a fact issue as to whether or not the sale of the Hall properties consisted in part of the sale of securities as defined in the Securities Act. No issue was submitted nor requested on which a finding could have been made by the jury on this question. * * * The trial court should also make a finding as to this issue, upon proper request. Based upon the trial court's findings upon this issue, and upon the issue as to real estate being involved in the sale of the Hall properties, the Court will enter its judgment. * * *' The Court concluded: 'We therefore must remand the cause to the trial court with instructions to proceed with the disposition of the cause under Rule 279 just as though no judgment non obstante veredicto had been entered. Rodriguez v. Higgingbotham-Bailey-Logan Co., Tex.Civ.App.1943, 172 S.W.2d 991, wr. ref.; Id., 138 Tex. 476, 160 S.W.2d 234.'

On September 15, 1960, the parties argued their respective motions for findings of fact. No evidence was offered by either party. On January 31, 1961, the court made the following findings: '1. I find that the employment contract entered into between the defendant Hall and the plaintiff Hard did not contemplate nor include the sale of real estate. 2. I find that the employment contract entered into between the defendant Hall and the plaintiff Hard did not contemplate nor include the sale of securities.'

On March 31, 1961, the above findings were incorporated in the court's judgment wherein it rendered judgment for plaintiff for $85,000, to bear interest from the date of the original judgment non obstante.

This appeal is from the 1961 judgment.

In their brief defendants urge that:

'1. Since it appeared from the pleadings and the verdict that the plaintiff was a real estate broker as defined by the statute, was not licensed, and was endeavoring to recover for having obtained a listing and then find a purchaser of the 'Hall Motor Freight Lines properties,' a business enterprise, the court was required to enter a judgment on the verdict for the defendants, and it erred in failing and refusing to do so.

'2. The trial court erred in failing to render judgment for defendants because plaintiff is seeking to recover a commission for an act set out in Tex.Civ.Stat., Art. 6573a, Sec. 4(1)(k) (Vernon Supp.1956), having to do with the sale of business enterprises, without pleading and proving that he was licensed as a broker or saleman as required by Sec. 19 of the same statute.

'4. Since the plaintiff failed to plead and prove that he was licensed as a real estate broker, it was error for the trial court to award the plaintiff a commission of five percent of the consideration paid for the sale of the Hall properties, described in the contract dated October 29, 1955, which, as determined by the Supreme Court, included the terminal leases.

'5. Since the evidence is undisputed that the sale of the Hall properties, described in the contract dated October 29, 1955, was for one consideration which was not divisible and that such properties included certain real estate, namely, the terminal leases, it was error for the trial court to award plaintiff a commission of five percent of the entire amount.

'6. Since ...