Dyer v. Winston

• Court: Texas Court of Appeals
• Writing for the Court: Garrett
• Citation: Dyer v. Winston, 77 S.W. 227 (Tex. App. 1903)
• Decision Date: 05 November 1903
• Parties: DYER et al. v. WINSTON.

77 S.W. 227

DYER et al. v. WINSTON.

Court of Civil Appeals of Texas.

November 5, 1903.

Appeal from Ft. Bend County Court; William Masterson, Judge.

Action by S. J. Winston against Isabella M. T. Dyer and another. From a judgment for plaintiff, defendants appeal. Reversed.

Spencer C. Russell, for appellants. L. M. Williamson, for appellee.

GARRETT, C. J.

This action was brought by S. J. Winston against I. M. T. Dyer and R. F. Dyer to recover the sum of $530 alleged to be due the plaintiff as a commission for the sale of 1,060 acres of land. Judgment was rendered in favor of R. F. Dyer on demurrer, and there is no appeal from that judgment. I. M. T. Dyer was sued both individually and in her capacity as executrix of J. E. Dyer, deceased. The plaintiff alleged in his petition that he had entered into a contract in writing with the defendant, who acted by her agent, R. F. Dyer, individually and as executrix of J. E. Dyer, deceased, by which she agreed to pay him the sum of $530 for the sale within a reasonable time of the land described in Exhibit A attached to the petition, for the sum of $10 an acre, either by purchase himself or sale to other parties. The contract attached as Exhibit A, omitting date line and signatures, was as follows: "This contract entered into this the 6th day of September, 1902, between S. J. Winston and Mrs. I. M. T. Dyer, that said Winston contracts to purchase from Mrs. Dyer a tract of land in Fort Bend county, Texas, known as the Triangle or Cut Off Pasture, now leased and occupied by F. I. Booth, for other parties, and when the sale is completed Mrs. Dyer is to pay to said Winston $530.00, five hundred and thirty dollars." It was entered into on September 6, 1902, and was signed: "Mrs. I. M. T. Dyer, Individually and as Executrix of Will of J. E. Dyer, Deceased. By R. F. Dyer, Agent." It was not signed by the plaintiff. It was further alleged that afterwards, on November 8, 1902, the plaintiff and the defendant entered into a contract in writing for the sale of the land to the plaintiff, which said written contract was marked "Exhibit B," and attached to the petition. It appeared therefrom that the plaintiff undertook to pay the defendant $10 an acre for the land, which was fully described by metes and bounds, if within 30 days she furnished a good title, for which the plaintiff had deposited a forfeit of $500; and that the defendant obligated herself to convey the land to the plaintiff, or to any one whom he might direct. The plaintiff averred that he had fully complied with said contract of purchase and sale by procuring Davis & George to take the land, and that the defendant had executed to them a deed therefor in compliance with said contract. There were further allegations that the said R. F. Dyer had authority to act as the agent of the defendant, and that the defendant was liable for the commission sued for. Demurrers to the petition were overruled by the court, and, after a motion for continuance had been overruled, there was a trial to a jury, which resulted in a verdict and judgment in favor of the plaintiff.

It was shown by the evidence that R. F. Dyer, assuming to act as the agent of the defendant, made the agreement with the plaintiff attached to the petition as Exhibit A, and that he concluded with the plaintiff the agreement for purchase and sale, which, by the advice of counsel, was signed by the defendant in person. The defendant was not aware of the previous agreement expressed by Exhibit A when she signed the contract to sell the land to plaintiff. She had told R. F. Dyer to find a purchaser for the land if he could, but had given him no express authority to pay a commission to any one to find a purchaser or to purchase or sell the same. It appeared from the evidence that R. F. Dyer is the son of the defendant, and had represented her generally in many business transactions, especially in dealing with cattle, but that he had never represented her in the sale of land. Evidence was admitted, over the objection of the defendant, of declarations on the part of R. F. Dyer that he was the agent of the defendant in making the agreement, and of general reputation as to such agency.

We do not think that there...