Embrey v. W. L. Ligon & Co.

• Decision Date: 02 January 1929
• Docket Number: (No. 936-5039.)
• Citation: Embrey v. W. L. Ligon & Co., 12 S.W.2d 106, 118 Tex. 124 (Tex. 1929)
• Parties: EMBREY v. W. L. LIGON & CO.
• Court: Texas Supreme Court

Page 106

12 S.W.2d 106

EMBREY v. W. L. LIGON & CO.

(No. 936-5039.)

Commission of Appeals of Texas, Section B.

January 2, 1929.

Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.

Suit by W. L. Ligon & Co. against H. M. Embrey. Judgment for plaintiff, and defendant appeals to the Court of Civil Appeals, which certified a question. Question answered.

Bryan, Stone, Wade & Agerton, of Fort Worth, for appellant.

R. E. Rouer, Gillis A. Johnson, and R. B. Young, Jr., all of Fort Worth, for appellees.

SHORT, P. J.

The following is a certified question from the honorable Court of Civil Appeals of the Second District:

"On October 1, 1924, H. M. Embrey, who was the owner of 86 acres of land in Tarrant County, consisting of two tracts out of different surveys, listed the same for sale with the partnership firm of W. L. Ligon & Company, who were engaged as real estate brokers in the city of Fort Worth. The price at which the land was listed was $100 an acre. The usual and customary commission to a broker for procuring a purchaser was 5% of the selling price, and there was an implied agreement on the part of Embrey to pay a commission at that rate. The brokers made repeated efforts to find a purchaser for the land with no prospect of success until the middle of October, 1925, when John Champ, an employee of the firm, brought the property to the attention of G. W. Haltom, a merchant residing in Fort Worth. Haltom refused to purchase at the price of $100 an acre, but offered to buy at $75 an acre. D. P. Brown, one of the members of the firm, reported this offer to Embrey, who declined it. A few days later Champ again saw Haltom, who raised his offer to $80 an acre, and that offer was likewise declined by Embrey when it was reported to him. Champ renewed his efforts to sell to Haltom without success, his negotiations with Haltom in an effort to make the sale continuing for about ten days or two weeks and ending about the first of November, 1925. The brokers made no further effort to sell to Haltom, and all their negotiations with him with respect to a sale ceased on or about November 1, 1925. When those negotiations came to naught, Haltom dismissed from his mind the matter of purchase of the property until on or about May 4, 1926, when he entered into direct negotiations with Embrey for the purchase of the land and succeeded in purchasing it for $97.50 an acre. When W. L. Ligon & Company heard of the sale, they instituted this suit against Embrey to recover a commission of 5% on the price so realized, and from a judgment in their favor Embrey has prosecuted this appeal.

"Plaintiffs' suit was based upon the allegation that on or about the first day of November, 1925, they did `procure for the defendant a purchaser for said land and premises in the person of G. W. Haltom, of Fort Worth, Texas; that they conveyed the name of said prospective purchaser to said defendant; that the said G. W. Haltom was ready, willing and able to purchase said land and premises and that the said sale to the said G. W. Haltom was actually made and effected and a proper deed was duly executed, delivered and accepted in consummation of said sale for a total consideration of Eight Thousand and Three Hundred Ninety-five Dollars ($8,395.00) and that said sale was finally consummated as the proximate result of the efforts of the plaintiffs on or about the 4th day of May, 1926.

"In answer to special issues, the jury found that plaintiffs were the efficient and procuring cause of the sale to Haltom; that at the time Embrey listed the property with the plaintiffs he impliedly agreed to pay plaintiffs a commission of 5% in the event they should bring about the sale of the property. The jury further found that subsequently to November 1, 1925, and prior to May 4, 1926, plaintiffs did not abandon their efforts to sell the property for the defendant. It may be noted here that this was not a finding that plaintiffs did not abandon their efforts to sell to Haltom. Upon those findings, and others not necessary to be mentioned, judgment was rendered in favor of plaintiffs for $419.75, from which Embrey has appealed.

"The facts recited above were all proven by uncontroverted testimony. G. W. Haltom also testified without contradiction that his only reason for offering first $75 and later $80 an acre for the land when it was presented to him by Champ was that he owned two other tracts adjoining the Embrey land and he wanted to close up a lane between the Embrey land and one of his tracts. He further testified that when Champ told him that Embrey's land could not be purchased for less than $100 an acre, he told Champ that he would not pay that price. He further testified that later when he decided to fence his two tracts and when he discovered that he would have to build a fence around the Embrey land, he went to see Embrey to apologize to him about closing up his land. `I got that matter straightened out with him, then I said, "Mr. Embrey, if you want to sell that land—" He said, "I am not particular about selling it but I would sell." I asked him how much did he want for it and Embrey said, "I wouldn't take less than $100 for it!" I told him that was too much. We argued about twenty minutes pro and con and then I told him, "if you sell the place for $100 you will have to pay a commission on it and wouldn't you take $95 for it?" He said, "No, I don't care anything about selling it." I told him all right and started to leave. Mr. Embrey then told me, "I will split that difference with you and make it $97.50." I told him that I would let him know the next day. I called him up the next day over the telephone and argued the matter with him again but didn't have any luck and so I told him that I would just take the place at $97.50.

"The testimony of Embrey relative to the conversation between him and Haltom on May 4, 1926, was substantially to the same effect as that given by Haltom, with the exception that Embrey went more into details and recited more of the conversation, his testimony detailing repeated statements by him to Haltom that he did not care to sell the property at all, and repeated efforts of Haltom to induce Embrey to reduce the price of the property to $95 an acre, and Embrey's final agreement to sell for $97.50 an acre. Embrey further testified that in that conversation Haltom said `remember we have no commission man, there is no real estate man involved in this, and why not get down and trade right.' In reply to that statement the witness said, `Well, I have never thought much about it.' Relative to that conversation, Embrey further testified as follows:

"`He said, "there is no commission in this, we have got no real estate men involved in it, why not get down and trade right, we don't have to pay any commission." I then said, "all right, Mr. Haltom, if there is no commission to come out, and you want to buy it and will make it all cash, I will take $97.50. He said, "I will let you know tomorrow, I will let you know in the morning." I waited the next day until about four o'clock and he called me and says, "Embrey, how about that farm, I believe I will take it."'

"W. L. Ligon, one of the plaintiffs, testified in part as follows:

"`Yes, I know our firm tried to sell Embrey's place in 1925. Mr. Embrey was in our place quite often but the only conversation I remember now was on the first of last January, 1926. Mr. Embrey came in to get us to write an affidavit for him and before he went out he said, "Brownie, when are you going to sell my farm?" Brown said, "if Haltom don't take it I will snag a customer pretty soon on it." Before this, in the year 1925, Mr. Embrey had been to our office quite often and had borrowed money from me on some vacant lots and I had had other business dealings with him. Yes, Brown was trying to sell these farms. He tried to sell it to anybody that came in there looking for a small farm.'

"Brown, referred to by Ligon, was one of the members of plaintiffs' firm, but he testified that he never at any time offered the property to Haltom, and that Champ, an employee of the firm, was the only representative of the firm who had any communication with Haltom.

"Champ testified, in effect, that his efforts to sell the property to Haltom ceased on or about November 1, 1925, and that thereafter he made no further effort to induce Haltom to buy the property.

"The proof further showed that plaintiffs first brought to Haltom's attention the matter of the sale of Embrey's land, and that up to the time of the sale plaintiffs still kept upon their books the...