Dallas Joint Stock Land Bank v. Colbert

• Decision Date: 31 March 1939
• Docket Number: No. 1887.,1887.
• Citation: 127 S.W.2d 1004
• Parties: DALLAS JOINT STOCK LAND BANK v. COLBERT.
• Court: Texas Court of Appeals

127 S.W.2d 1004

DALLAS JOINT STOCK LAND BANK v. COLBERT.

No. 1887.

Court of Civil Appeals of Texas. Eastland.

March 31, 1939.

Rehearing Denied April 28, 1939.

Appeal from District Court, Jones County; W. R. Chapman, Judge.

Action by T. R. Colbert against the Dallas Joint Stock Land Bank to recover compensation for services allegedly rendered in procuring a purchaser for a tract of land. From a judgment for plaintiff, defendant appeals.

Reversed and rendered.

McCombs & Andress, of Dallas, for appellant on the merits.

Lawther, Cramer, Perry & Johnson, of Dallas, for appellant on rehearing.

Scarborough & Ely, of Abilene, for appellee.

FUNDERBURK, Justice.

T. R. Colbert brought this suit against the Dallas Joint Stock Land Bank to recover compensation for services alleged to have been rendered by plaintiff for the defendant in procuring a purchaser for a large tract of land situated in Jones and Haskell Counties, known as the Colbert ranch.

Plaintiff alleged that defendant "acting by and through G. D. Gay, its vice-president, employed the plaintiff herein to act as an agent to sell said land, and agreed to pay plaintiff five per cent for his services in securing a purchaser for said land." In the alternative it was alleged that if defendant did not agree to pay plaintiff a stipulated commission of five per cent for the sale of said property that nevertheless defendant did employ plaintiff to sell said property and did employ plaintiff to procure a purchaser therefor, and the defendant did agree to pay plaintiff a commission for the sale of said property and that the usual, reasonable and customary commission for the services of real estate agents in procuring a sale of land in vicinity of the above described land is and was five per cent on the amount for which said land was sold. It was then further alleged, applicable alike to all the preceding, that "the plaintiff acting upon said agreement and employment, procured a purchaser for the sale of said property, to-wit, G. C. Carothers and Hardy Grissom, who did buy said land at a stipulated price of $56,819.00 and that the commission due this plaintiff by virtue of his services in procuring a purchaser for the sale of said land is $28,409.50 [2,840.95?] together with six per cent interest from and after July 1, 1933." (Italics ours)

Paragraph IV of plaintiff's petition is as follows: "Plaintiff further says that the said Carothers was joined in the purchase of said land by Hardy Grissom. Plaintiff represents that he was the procuring cause of the sale of said property. That before the sale was made, the defendant, acting through its president, one Ferguson, consulted and advised with the plaintiff herein as to the sale of said land, and that the agreement for plaintiff's employment was known by the defendant and its president, and that the defendant, with full knowledge of the agreement and employment of the plaintiff herein by said G. D. Gay, acting for the defendant, accepted the fruits of the plaintiff's efforts and that the defendant, with full knowledge of the facts, accepted the purchaser procured by plaintiff knowing that said purchaser had been procured by said plaintiff, knowing that plaintiff was in the real estate business, and knowing that plaintiff was claiming a commission, and with such knowledge sold the land to Carothers and Grissom, and by reason thereof became liable to pay this plaintiff a reasonable commission for his services rendered, and this plaintiff alleges that the reasonable amount of the services rendered was five per cent of the entire sale." Upon the contingency that the court should determine "that he is not entitled to a commission on the part sold Grissom" plaintiff alleged: "that he is entitled to recover commission on the part sold to Carothers, and that the plaintiff is entitled, and the defendant is bound to pay plaintiff, five per cent on the one half interest sold to Carothers, which commission amounted to $1,420.25, same being five per cent of the consideration received by the defendant from said Carothers, and plaintiff alleges that he is entitled to six per cent interest on said amount from and after the first of July, 1933, until the date of payment. Plaintiff further alleges that the reasonable value of plaintiff's services, which services were accepted by the defendant, and the reasonable commission for the sale made was at least five per cent on the amount paid the defendant and agreed to be paid the defendant by Carothers, which is the sum of $28,409.50 [$2,840.95?] and that by reason of all the facts and circumstances herein alleged, the defendant is obligated to pay to this plaintiff the said sum of $1,420.25, together with six per cent interest thereon from and after the first day of July, 1933."

The prayer was for judgment "for commission, damages, costs of suit, and for all other and further relief to which he may be entitled at law and in equity."

Upon the trial, the issues were submitted to a jury. By the verdict it was found (1) That before the sale "G. D. Gay employed T. R. Colbert to sell the Colbert Ranch." (2) That "G. D. Gay told T. R. Colbert that he (Colbert) would be paid a commission to sell the ranch." (3) That "G. D. Gay had authority from defendant to employ plaintiff to procure a purchaser for the Colbert Ranch." (4) That "T. R. Colbert was the procuring cause of the sale of an undivided one half interest in the Colbert Ranch by the Dallas Joint Stock Land Bank to G. C. Carothers." (5) That "the president of the defendant bank, as such, knew of the efforts of plaintiff to procure a purchaser for said Colbert Ranch, prior to selling such property." (6) That "defendant bank, through its president, accepted the services of plaintiff in the sale of said ranch." (7) That "the usual and customary agent's commission for the sale of land in the neighborhood of Stamford, Texas, during the spring and summer of 1933 was 5%."

From the judgment rendered upon said verdict, the defendant has appealed.

On a former appeal of the case, this court reversed the judgment of the trial court and rendered judgment for defendant. Dallas Joint Stock Land Bank v. Colbert, Tex.Civ.App., 98 S.W.2d 239. That judgment, as well as the judgment of the court below, was reversed by the Supreme Court and the cause remanded to the district court for a new trial. Colbert v. Dallas Joint Stock Land Bank, 129 Tex. 235, 102 S.W.2d 1031.

It is important, in view of contentions made and questions arising upon this appeal, to understand the conclusions of this court and of the Supreme Court on the former appeal, and particularly the points of agreement and disagreement between them.

This court held that Gay, as assistant vice-president, was without implied authority to bind the defendant by a contract to pay commissions and that there was no evidence of his actual authority. That if, however, there was evidence of such actual authority sufficient to raise an issue, such issue not being submitted, was, by the failure of plaintiff to request its submission, waived. That there was no evidence of ratification of the contract or estoppel to deny liability upon the same—the evidence, if any, that plaintiff procured a purchaser for only a one half interest in the land not being any evidence of ratification. That even if issues of ratification or estoppel were raised by the evidence, they, not being submitted, were, by reason of the failure of the plaintiff to request their submission, waived. That evidence that plaintiff was the procuring cause of the sale of a one half interest in the land was not evidence of the performance of the contract alleged, which was to procure a purchaser for the entire interest. That no consideration should be given the question of the right of plaintiff to recover upon quantum meruit because plaintiff's petition alleged no such cause of action. That under said conclusions, the judgment should be reversed and judgment rendered for the defendant.

The Supreme Court, contrary to the views of this court, concluded that plaintiff's petition was sufficient to state a cause of action upon quantum meruit. That the evidence raised an issue of the acceptance by defendant of the services of plaintiff in procuring a purchaser of a one half interest in the land, which, not having been submitted or conclusively established by the evidence, nor impliedly found so as to support the judgment, was required to be determined by the jury, for which reason, with others, a remand of the case was ordered. The Supreme Court agreed with our conclusion that no right of recovery upon the alleged express contract was shown, since the services of plaintiff in procuring a purchaser of only a half interest in the land was not the performance required by the terms of the contract.

Based upon such history of the case upon the former appeal, the defendant contended in the trial court, and renews the contention here, in effect, that the cause of action on the alleged express contract was eliminated and that the allegation of same anew in plaintiff's Third Amended Original Petition, filed subsequently to the remand of the case, was subject to exception and should have been stricken out. The argument is advanced to the effect that application of the doctrine of "the law of the case" has such effect.

It may be that consistently with its opinion, the Supreme Court could have affirmed the judgment of this court insofar as it denied plaintiff any recovery on the express contract alleged, and have remanded the case as affecting only the cause of action for quantum meruit. However, that was not the nature of the court's action. All prior judgments were set aside and the case, therefore, stood on the docket of the trial court, the same as if it had never been tried. True, in the subsequent trial that court, and upon appeal this court, are bound by the Supreme Court's interpretation of the law; but there was no limitation imposed upon...