Elmen v. Winfield, 9524.

• Decision Date: 27 February 1935
• Docket Number: No. 9524.,9524.
• Citation: 80 S.W.2d 343
• Parties: ELMEN v. WINFIELD.
• Court: Texas Court of Appeals

Page 343

80 S.W.2d 343

ELMEN v. WINFIELD.

No. 9524.

Court of Civil Appeals of Texas. San Antonio.

February 27, 1935.

Rehearings Denied March 27, 1935.

Appeal from District Court, Jim Wells County; Hood Boone, Judge.

Action by C. A. Elmen against C. F. Winfield. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Robert R. Mullen, Jr., of Alice, Seabury, Taylor & Wagner, of Brownsville, and J. O. Prentiss, of San Benito, for appellant.

Perkins & Floyd, of Alice, for appellee.

MURRAY, Justice.

Appellant, C. A. Elmen, a real estate broker, doing business under the trade-name of Elmen Land Company, instituted this suit against appellee, C. F. Winfield, seeking to recover the sum of $3,922 as a real estate brokerage commission alleged to be due to him for his services in securing Harry L. Murray as a purchaser for 1,000 acres of land located in Hidalgo county and belonging to appellee.

The facts are as follows: On November 1, 1930, appellee, Winfield, listed his 1,000 acres of land with appellant, Elmen, as a real estate broker, and in said listing contract agreed to pay appellant a commission of any sum in excess of $25 per acre for which appellant might be able to sell the land. On December 11, 1930, Elmen wrote Winfield, the owner of the land, telling him that he had located a man who might be interested in purchasing the land. He represented that this prospective purchaser was the leader of a syndicate that was being organized in Houston, Tex., among doctors, lawyers, school teachers, and clerks, for the purpose of developing unirrigated lands in the Rio Grande Valley, where Winfield's land was located, by planting grape vines thereon. This prospective purchaser was Harry L. Murray. Appellant further stated to appellee that this prospective purchaser did not wish to make any down payment on the land, but desired to use what money he had and the money he was getting in from the sale of stock in his syndicate, known as the Happy Income Home Owners' Association, for the purpose of developing and improving the land. Appellant suggested to appellee that, if he was interested in making this kind of a deal, he would introduce him to the prospective purchaser. In this communication of December 11th appellant inclosed a statement by the Happy Income Home Owners' Association which set out in detail their proposition for the purchase of appellee's land. Appellee stated that he understood this proposition was coming from Murray. In response to this proposition, appellee went to Houston and was there introduced by Elmen to the prospective purchaser, Murray, and at once began negotiations with Murray for the purchase of the land. These negotiations ultimately led to Murray's purchase of the land. The deal was closed by appellee executing a warranty deed, dated February 10, 1931, conveying the 1,000 acres of land to Murray, reciting a total consideration of $31,158, evidenced by six vendor's lien notes of even date with the deed, each being for the principal sum of $5,193, payable to the order of C. F. Winfield on the 1st day of April in the years 1935, 1936, 1937, 1938, 1939, and 1940, respectively, and bearing interest at the rate of 7 per cent. per annum. Murray executed a deed of trust also securing the payment of these six vendor's lien notes, in which deed of trust it was provided that Murray should pay the taxes on the land for the year 1931 and all subsequent years.

After the execution of these instruments, appellee wrote appellant a letter acknowledging that appellant was entitled to a real estate commission in the sum of $3,922 to be paid on a pro rata basis, if, as, and when the deferred payments represented by the vendor's lien notes were made to appellee. This letter was as follows:

                      "The Long-Bell Lumber Company
                           "Doucette, Texas, May 6, 1931
                "Mr. C. A. Elmen, West Building, Houston
                    Texas
                

"My dear Sir: Having reference to your letter of April 28th, my understanding of the trade with Mr. Harry L. Murray, of the Hidalgo County land in the sale handled by you, is that your interest in the vendor's lien notes given by Mr. Murray in connection with the purchase of the land, is $3922.00, and my interest in this same series of notes is $27,236.00; a total of $31,158.00, and that I am to pay to you as your commission on the sale, that amount of money in the ratio that your interest bears to my interest as shown in your interest of $3922.00 and my interest of $27,236.00, with interest on the notes in the same ratio, if, as, and when any payment on principal or interest on the notes is made by Mr. Murray, his assigns or successors. No commission is to be paid to you on the sale of the land other than above stated, and this to be paid only, if, as, and when payment has been made to me on the vendors lien notes.

"Hope Mr. Murray is meeting with success in his sales and that he will soon be able to start actual development of the land.

"Thanking you and with kind regards to you and Mr. Murray, I am

                    "Yours very truly
                                        "C. F. Winfield."
                

During the time that appellee and Murray were negotiating with reference to the sale of this land, appellant wrote appellee a letter stating, in substance, that Murray certainly was getting lots of people interested in his syndicate and that appellant was doing lots of work assisting Mr. Murray in this organization, and that he believed that the proposition would take a rapid start as soon as the land deal was closed.

There was evidence...