Foster v. Wagner, 5392
| Decision Date | 22 June 1960 |
| Docket Number | No. 5392,5392 |
| Citation | 337 S.W.2d 485 |
| Parties | Charles H. FOSTER et al., Appellants, v. Dennis S. WAGNER, Appellee. |
| Court | Texas Court of Appeals |
Mayfield, Broaddus & Goodman, El Paso, for appellants.
Edwards, Belk, Hunter & Kerr, El Paso, for appellee.
This suit was brought by appellee Dennis S. Wagner, a licensed real estate dealer, against appellants Charles H. Foster, Jack C. Dautrich, William A. Cardon, Jr., Ansel G. Brown, Joe Hanawalt, Dautrich Real Estate Company, a corporation, and Newster Company, a corporation.
The cause of action alleged by Wagner is for damages, (1) against Charles H. Foster for breach of a written listing agreement between Foster and Wagner, dated October 13, 1956; and, (2), against all defendants, including Foster and the Newster Company, for wrongfully inducing a breach of the contract.
On a trial to the jury, special issues were submitted solely upon questions of actual damages for breach of the contract; conspiracy, malice and exemplary damages, resulting in jury findings of $4,000 actual damages and $15,000 exemplary damages. Defendants' motions for judgment non obstants, to disregard the jury findings and for a new trial, were overruled. The trial court entered judgment in accordance with the jury findings, but made a specific finding that only Charles H. Foster was bound under the listing. All prerequisites to appeal have been complied with, and this case is properly before us.
Appellants have brought twenty-nine assignments of error, which have been grouped, for purposes of argument, into eight groups.
We believe, however, that the principal question presented by this appeal involves the legal construction of the listing agreement which was the basis of this suit. Since the listing agreements between Foster and Wagner is essential to a proper understanding of this case, it is set out in full below:
and in consideration of Dennis S. Wagner negotiating such option contract the said Leavell and Ponder agreed in writing on the same date that in the event they should hereafter construct any dwellings on any part of said land then the said Dennis S. Wagner shall be their exclusive sales agent at a commission of 3 1/2% of the gross sale price of all dwellings selling for less than $10,000.00 and 4% on all dwellings selling for $10,000.00 or more, and Leavell and Ponder agreed that in the event any of the land is sold to a builder or builders to construct dwellings thereon then such sales shall be conditioned that Dennis S. Wagner shall be the exclusive sales agent for such bilder. Said agreement provides that if the said Dennis S. Wagner is unable to secure a buyer after 60 days after any dwelling has been completed then Leavell and Ponder, or such builder or builders as the case may be, shall have the right to list such unsold dwelling or dwellings with another real estate agent or agents, together with the said Dennis S. Wagner, and in such event whichever agent makes the sale shall be entitled to the commission.
'As between C. H. Foster and Dennis S. Wagner it is agreed as follows:
'I.
'Dennis S. Wagner agrees to use diligence in securing purchasers for each and every residence erected by C. H. Foster or his assignee at such price and on such terms as C. H. Foster may place thereon, and Dennis S. Wagner agrees to pay for all advertising and promotional expenses.
'II.
'III.
'If Dennis S. Wagner is unable to secure a buyer within sixty days after any dwelling his been completed, the completion date to be the date of FHA Final Inspection, then Foster shall have the right to list such unsold dwelling, or dwellings with another real estate agent, together with the said Dennis S. Wagner and in such event whichever agent makes the sale will be entitled to the commission.
'IV.
'If Foster does not exercise the option to purchase any portion of said 40 acres or of the 70 acres, then as to the land not purchased this agreement shall be of no force of effect.
'V.
'If Foster exercises the option on all or any part of the land covered by this agreement and thereafter if such land, or any part thereof, is conveyed to another person or corporation then the terms of this agreement shall be binding upon such subsequent owner as to the land so conveyed.
'Executed this 13th day of October, A.D. 1956.
'/s/ Charles H. Foster
'/s/ Dennis S. Wagner'
The above instrument was acknowledged by both parties before a Notary Public in El Paso County, Texas, on October 22, 1956.)
Following the execution of the above contract, C. H. Leavell and Dan R. Ponder, by deed dated January 122, 1957, conveyed to the Newster Company, Inc. (alleged by appellee to be the alter ego of defendant Foster), a certain 41.39 acre tract of land out of Block 2 in Ascarate Grant, in El Paso County, Texas, being all of Tract 1A and a portion of Tract 1C in Block 2 of said Ascarate Grant, according to a survey thereof made by El Paso County for tax purposes. The land being more fully described by metes and bounds as containing 41.39 acres of land, more or less, but such deed failed to disclose how much of the land was located in Tract 1A and how much in tract 1C of said Block 2 of Ascarate Grant.
Appellee contended in the trial court, as he does here, that the conveyance of the 41.39 acre tract of land to the Newster Company, Inc. was made pursuant to the exercise by Foster of his option, referred to in the listing agreement as 'the West 40 acres of Tract 1A, Block 2, of the Ascarate Grant, which 40 acres the said C. H. Foster also holds under option to purchase * * *'
The deed from Leavell and Ponder to the Newster Company was offered in evidence by appellee and admitted by the court to show the exercise by Foster of his option on the 40 acres mentioned in the listing agreement. Appellants' objection to the admission in evidence of this instrument, on the grounds 'that it is an attempt to explain and clarify the description of the property by extrinsic evidence which was not in existence at the time of the written listing contract upon which this action is founded * * *', was overruled.
The option on the 70 acres of land out of Tract 4A, in Block 1 of the Ascarate Grant was admittedly never exercised by defendant Foster; and, consequently, only the West 40 acres of Tract 1A, Block 2, of the Ascarate Grant, or, as shown by the above-mentioned deed, the 41.39 acres, more or less, being all of Tract 1A and a portion of Tract 1C, in Block 2 of Ascarate Grant, El Paso County, Texas, is involved here.
Appellee Wagner contends that under the terms of his listing agreement with Foster, he acquired the exclusive right to sell each and off of the houses and dwellings to be erected on said land for a commission on the gross sale of each house equal to three per cent of the gross sale value thereof; that, in addition, the defendant Foster became bound, in the event said land, or any part thereof, was conveyed to another person or corporation, to bind such subsequent owner to pay plaintiff Wagner commissions as provided in Foster's contract with Wagner. Appellee further contends that the defendant Foster breached his contract with Wagner by inducing the Newster Company, Inc. to convey the remaining land owned by it in Eastwood Heights, Section 2, to Dautrich Real Estate Company, without binding it (Dautrich Real Estate Company) to pay plaintiff Wagner commissions as provided in the listing agreement; that the named defendants conspired, and each of them conspired with each and all the other defendants, to defraud the plaintiff Dennis S. Wagner out of the commissions he was legally entitled to receive, and to induce the Newster Company, which was controlled by defendant Foster, to break said listing agreement by conveying the remaining land held by it to the Dautrich Company.
According to the testimony of the plaintiff Wagner, in November 1956, prior to the exercise by Foster of his option on the West 40 acres of Tract 1A and prior to the delivery of the deed from Leavell and Ponder to the Newster Company, Inc., dated January...
To continue reading
Request your trial
-
Swinnea v. Eri Consulting Engineers, Inc.
...avoid or change the tenor of the written instrument, nor will it support a finding of fact by the trial court. Foster v. Wagner, 337 S.W.2d 485, 492 (Tex.Civ.App.-El Paso 1960), rev'd on other grounds, 161 Tex. 333, 341 S.W.2d 887 (1960). Further, it cannot be made the basis of a finding of......
-
Fenslage v. Dawkins
...the conspiracy. Every circumstance that tends to illuminate the facts is a legitimate item of evidence. E. g., Foster v. Wagner, 337 S.W.2d 485, 493 (Tex.Civ.App.1960), rev'd on other grounds, 161 Tex. 333, 341 S.W.2d 887; Allison v. Simmons, 306 S.W.2d 206, 211 (Tex.Civ.App.1957). There wa......
-
Wagner v. Foster
...Mayfield, Broaddus, Goodman & MacAycal, El Paso, for respondent. PER CURIAM. The opinion of the Court of Civil Appeals is reported in 337 S.W.2d 485. The judgment of the Court of Civil Appeals is reversed and the case is remanded to that court for further proceedings. This action is taken p......
-
Rogers v. B & R Development, Inc.
...Company, 362 S.W.2d 895 (Austin Civ.App., 1962, no writ hist.); Dow Chemical Company v. Benton, 357 S.W.2d 565 (Tex.Sup., 1962); Foster v. Wagner, 337 S.W.2d 485 (El Paso Civ.App., 1960, reversed on other grounds, 161 Tex. 333, 341 S.W.2d Even if it is assumed that the act of Williams in re......