Farrar v. Holt

• Decision Date: 12 June 1915
• Docket Number: (No. 8222.)
• Citation: 178 S.W. 618
• Parties: FARRAR v. HOLT.
• Court: Texas Court of Appeals

178 S.W. 618

FARRAR v. HOLT.

(No. 8222.)

Court of Civil Appeals of Texas. Ft. Worth.

June 12, 1915.

Appeal from Erath County Court; A. B. Young, Judge.

Action by L. H. Holt against S. A. Farrar. From judgment for plaintiff, defendant appeals. Reversed and remanded.

J. B. Keith and R. L. Thompson, both of Stephenville, for appellant. Chandler & Pannill, of Stephenville, for appellee.

CONNER, C. J.

The appellee instituted this suit to recover commissions in the sum of $277.77, alleged to have been earned by him for procuring a purchaser of appellant's land. Appellee alleged, in substance, that appellant had listed his firm, consisting of 171 acres in Erath county, and agreed in writing that, if he should procure a purchaser, he (appellant) would pay to him, appellee, as commissions the said sum of $277.77. Appellee further alleged that a purchaser had been procured.

The appellant in answer to the petition pleaded, in substance, that the land for which the appellee was to negotiate a sale was the homestead of himself and wife and their community property, and that at the time the contract mentioned was made it was executed and delivered with the specific understanding that it should not become operative, valid, or binding as against appellant unless his wife should consent to and approve the contract; that it was not agreed that commissions were to be paid or received, or a remuneration of any kind given for services rendered in an effort to procure a sale, unless said sale was consummated on the approval of appellant's wife. It was further alleged that, without fault on the part of appellant, his wife refused to concur in the contract or agree to a contract of sale that had been procured by the appellee.

Appellee presented both general and special exceptions to the several clauses of defendant's answer setting up the special defense above indicated, all of which were sustained, and after the introduction of the evidence the court gave a peremptory instruction in appellee's favor.

There is no statement of facts, and the only question presented goes to the sufficiency of the special answer set up by the appellant. Appellee urges, in answer to appellant's assignment attacking the court's ruling upon the demurrers, that:

"A contract which is clear and complete and is upon its face absolute and executed and delivered cannot be varied by parol evidence showing that it was not to be binding except upon the happening of some event or contingency."

And that:

"A contract cannot be varied by parol evidence showing that the same was not to be binding except upon a condition subsequent."

It seems evident that the court below entertained the view of the law expressed in the above quotations, but in this we think the court erred. The rule invoked is held to apply in this state to deeds to land, or deeds of trust affecting lands, where the delivery of the instrument was made to a grantee, but not to cases of the execution and delivery of ordinary written instruments such as presented in the appellee's petition. See Holt v. Gordon, 174 S. W. 1097, by our Supreme Court. The distinction between the several lines of cases was clearly...