Denman v. Hall

• Decision Date: 09 November 1945
• Docket Number: No. 14727.,14727.
• Citation: 191 S.W.2d 74
• Parties: DENMAN v. HALL.
• Court: Texas Court of Appeals

Page 74

191 S.W.2d 74

DENMAN v. HALL.

No. 14727.

Court of Civil Appeals of Texas. Fort Worth.

November 9, 1945.

Rehearing Denied January 4, 1946.

Appeal from Tarrant County Court; David McGee, Judge.

Action by Roy T. Denman, doing business as the Fort Worth Real Estate Exchange, against Jack Hall for a commission as a real estate broker. From an adverse judgment, plaintiff appeals.

Judgment affirmed.

Simon & Simon, of Fort Worth, for appellant.

Sam Billingsley, of Fort Worth, for appellee.

SPEER, Justice.

This is an appeal by Roy T. Denman, doing business as Fort Worth Real Estate Exchange, from an adverse judgment in the County Court at Law No. 1, wherein he sued Jack Hall to recover $350 as commission as a licensed real estate broker for the sale of real estate owned by Hall.

Denman was the sole owner of the business conducted by the Fort Worth Real Estate Exchange, he perfected this appeal in his own name and will be referred to as appellant, and Jack Hall, defendant below, will be referred to as appellee.

At all times involved in this controversy, appellant was engaged in selling real estate for others, receiving a brokerage or commission for making sales. He sued on the exclusive listing contract with appellee which provided on its face for a price of $7,000 cash for his property and an agreement to pay 5% commission on the sale price; appellee was to furnish an abstract of title and convey the property by warranty deed. That appellant found a purchaser ready, able and willing to pay the price as provided in the listing contract. Because of the limited and conditional listing of the property with appellant contended for by appellee, as disclosed by the record, appellee declined to let the deal go through.

Appellee answered by general denial and specially that he called appellant on the telephone and advised him that he would list with appellant his property for sale provided by the terms of any contract of sale that appellant should make, the appellee should have the right to lease the garage apartment and space for a car in the garage at a price agreeable to him and any prospective purchaser. That thereafter one Gilbert Dalton, as agent and representative of appellant, came to the appellee at the latter's place of business to procure the written listing of said property as was the custom of appellant. That before signing the written listing contract and contemporaneously therewith, appellee told Dalton that he was signing the instrument, but under no conditions should such listing contract be effective unless the appellant should make known to and arrange with any prospective purchaser that he, the appellee, should lease the garage apartment and car space at a price to be agreed upon, until such time as the appellee could build a new home under regulations permitting him to purchase materials. That the said Dalton well understood the conditions under which appellee was willing to list his property for sale. That appellee told Dalton to inform appellant of said conditional listing when he returned to the office, and if not satisfactory to appellant, then Dalton should call appellee on the telephone and so advise him. That unless appellant assented to such condition, then the written listing contract should not become effective. Allegations were made in the answer that appellant found a proposed buyer of the property at the price at which it was listed, but said buyer was unwilling to lease to appellee said apartment and garage according to the conditional listing of the property by appellee with appellant. He alleged that because of said conditional listing and a failure upon the part of appellant to find a buyer ready, able, and willing to purchase upon the conditions under which the listing contract was made, no contract or listing ever went into effect with appellant and he was therefore not entitled to recover brokerage for having made a sale not in keeping with the conditions and terms of the actual listing.

Trial was had to the court without a jury and judgment was entered that plaintiff (the appellant) take nothing. Hence, this appeal.

At the request of appellant the court filed findings of fact and conclusions of law. The substance of these findings, deemed by us decisive of this appeal, is:

(1) The exclusive listing contract executed by appellee to appellant was delivered to appellants' employee, Dalton, upon condition that the same was to be effective only in the event the appellee could negotiate for and obtain a lease upon the garage apartment, and that said exclusive listing contract was not to become effective except upon the condition made at the time of the execution and delivery of the listing contract.

(2) The appellant did obtain a purchaser ready, willing, and able to purchase at the price named but said purchaser failed and refused to recognize the condition under which said exclusive listing contract was delivered.

(3) The purchaser refused to purchase the property unless he could obtain possession of the entire premises.

(4) Appellee refused to sell and convey the property described in the exclusive listing contract because the condition upon which said contract was delivered was not recognized by appellant, nor complied with by his purchaser.

(5) That the appellee proved all of the material allegations of his answer to appellant's petition.

By a supplemental finding of fact the court found: (a) That there was corroborating evidence to that of the appellee which to the court shows that the exclusive listing contract was conditionally delivered to appellant by his employee Dalton, and that Dalton admitted that the condition claimed by appellee was discussed with him before the execution of the listing contract, but that Dalton denied that the exclusive listing contract was to be effective only upon such condition. (b) That the exclusive listing contract by appellee to appellant was obtained upon the representation of appellants' agent, Dalton, that the same was not to become effective as a binding contract except upon the conditions outlined by the appellee to the effect that he was to have a lease upon the garage apartment from any prospective purchaser; otherwise, such listing was not to become effective. (c) That the prospective purchaser and his wife had knowledge of the conditions made by appellee to the listing of his property with appellant prior to the time the purchaser agreed with appellant to buy the property. (d) That the failure of appellant and the prospective purchaser to comply with the condition under which the exclusive listing contract was executed and delivered caused the said contract never to take effect or to become a binding obligation upon the appellee until the happening of the event or condition named by appellee was agreed to be carried out by the purchaser. The court concluded as a matter of law:

1. That appellee, in seeking to enforce the condition upon which the listing contract should become effective, did not seek to vary or contradict the terms of the written contract.

2. The contract was reduced to writing and delivered conditionally and not to take effect except upon the happening of a certain event agreed to by the parties and when the condition did not happen the contract did not become a binding obligation.

3. Because of the fiduciary relationship between appellee and appellant as his agent, the strictest integrity and fairest dealing is required of the agent to his principal and his failure to recognize the condition under which the exclusive agency contract sued upon was delivered precludes appellant from a recovery.

Appellant relied upon two points of error for reversal. They are in substance: (1) Error of the court in failing to render judgment for appellant, because he asserts that appellant found a purchaser of the property ready, able, and willing to buy at the agreed price of $7,000; and (2) error of the court in admitting testimony as to the oral understanding made prior to or contemporaneously with the delivery of the written listing contract, which oral understanding was to the effect that any proposed purchaser should be required to negotiate a lease of the garage apartment to appellee.

We think a determination of the second point is decisive of the first. This for the reason, if the court properly admitted evidence of the oral understanding claimed by appellee to the effect that he was only giving to appellant the exclusive listing for ninety days on the condition that appellant would only sell to a purchaser who would obligate himself to lease the garage apartment to appellee, and appellant did not observe that condition, then appellant had no listing since the purported written instrument of listing never went into effect; it would follow that there was no error in failing to enter judgment for appellant as complained of in his first point.

It must be conceded that the written contract of exclusive listing appears upon its face to be complete within itself, and if it was ever delivered in such manner as to make it effective as per its terms, the appellant fully performed it and earned his brokerage.

As we view the situation before us, evidence of the contemporaneous oral conditions placed upon the delivery of the written listing, limited the effect of the language contained therein to the conditions upon which it was delivered, and rendered the oral understanding of the conditions admissible in evidence.

Appellant relies upon the well-recognized rule that parol evidence was not admissible to vary or contradict the terms of the written instrument; citing 17 Tex.Jur. 793, Sec. 352, and page 791 of the same text. Appellant relies upon many other cited cases to support his contentions, which cases were decided and applied to the rule under our Statutes of Frauds.

That rule laid down in those cases when applied to the facts involved cannot be successfully denied. But the controlling question before us...