Foster v. Wagner

• Decision Date: 15 March 1961
• Docket Number: No. 5392,5392
• Citation: 343 S.W.2d 914
• Parties: Charles H. FOSTER et al., Appellants, v. Dennis S. WAGNER, Appellee.
• Court: Texas Court of Appeals

Page 914

343 S.W.2d 914

Charles H. FOSTER et al., Appellants, v. Dennis S. WAGNER, Appellee.

No. 5392.

Court of Civil Appeals of Texas, El Paso.

March 15, 1961.

Rehearing Denied March 22, 1961.

Mayfield, Broaddus & Goodman, El Paso, for appellants.

Edwards, Belk, Hunter & Kerr, El Paso, for appellee.

LANGDON, Chief Justice.

This cause has previously been before this court. Since the essential facts of the case are fully set out in our original opinion, which is reported in 337 S.W.2d 485, there exists no necessity for again reciting then here.

On application, for writ of error the Supreme Court, by reason of our specific mention of only the first five points urged by appellants, and our failure to specifically pass upon their remaining twenty-four points, concluded that our former decision must have rested solely upon fundamental error which was the basis of appellants' first five points.

In the opinion by the Supreme Court reversing this cause, reported in 341 S.W.2d 887, 892, the court held that there was no predicate for appellants' (first five) points and, therefore, there was no basis upon which such points could have been considered and sustained by the Court of Civil Appeals--'unless they were considered by that court to present fundamental error.' It was held that none of the questions raised by such points fell within that narrow field which, in opinions by the Supreme Court, has been delineated as fundamental error. Thus, our former opinion, presumably resting on fundamental error, was held to be in conflict with other opinions by the Supreme Court. The judgment of this court was therefore reversed, and this case remanded to us for consideration of such points of error in appellants' brief as may be predicated upon proper assignments of error in their motion for new trial, or in their motion for judgment non obstante veredicto, or as may constitute fundamental error under decisions cited by the Supreme Court in its decision reversing this court.

In our original opinion, we pointed out that appellants' appeal was predicated upon twenty-nine points of error and, without discussing each of the twenty-nine points, we said we believed the principal question raised by the appeal involved the legal construction of the listing agreement which was the basis of the suit.

In view of the importance of the listing agreement to a proper understanding and disposition of this case, it is (omitting only formal parts thereof), set out in full below 'On May 7, 1954, C. H. Leavell and D. R. Ponder obtained an option to purchase

'All of Tract 4A, in Block 1 of the Ascarate Grant in El Paso County, Texas, according to the Resurvey thereof made by El Paso County for tax purposes, containing 1158.76 acres, more or less,

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 conditioned that Dennis S. Wagner shall be the exclusive sales agent for such builder. 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.

'The option on Tract 4A, Block 1, Ascarate Grant, has been assigned to Texas Homes, a corporation, and Texas Homes has this date entered into a contract with C. H. Foster granting him an option to purchase 70 acres of land for housing development, such option to be exercised within one year from date thereof. In consideration of C. H. Foster granting to Dennis S. Wagner the exclusive right to sell all of the houses constructed by him on said 70 acres, or any part thereof, and in addition the exclusive right to sell all houses constructed by C. H. Foster on 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 said Dennis S. Wagner agrees that the commission on the gross sale of each house shall be 3% instead of the 4% provided in said listing agreement with Ponder and Leavell and Dennis S. Wagner hereby releases the 70 acres from his original listing agreement with Ponder and Leavell. This release, however, shall not be effective unless and until C. H. Foster exercises the option to purchase said 70 acres, or if he purchases only a portion of same then the release shall apply only to the portion on which C. H. Foster actually exercises his option.

'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 assigness 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.

'Dennis S. Wagner shall be paid a commission of three per cent (3%) of the gross sale price of each and every residence when the sale of such residence is closed. Said commission shall be payable even though such residence is sold by another agent or is sold direct by the builder.

'III.

'If Dennis S. Wagner is unable to secure a buyer within sixty days after any dwelling has 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 or 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 suit was for damages for breach, and for conspiracy to induce a breach of contract to pay commissions to a real estate broker. It was not a suit for real estate commissions.

The case was tried to a jury and was submitted on special issues. The first two special issues, and the answers found thereto by the jury, are set out below:

'Question No. 1.

'What sum of money, if any, do you find from a preponderance of the evidence, if paid in cash now would reasonably compensate Plaintiff Dennis S. Wagner for the loss, if any, sustained by him when, by deed dated May 5, 1958, Defendant Newster Company, Inc. conveyed the land to Defendant Dautrich Real Estate Company without binding it to pay Plaintiff Wagner commissions?

'Answer: Answer by stating an amount if any.

'We Answer: $4,000

'Question No. 2.

'Do you find from a preponderance of the evidence that any of the Defendants having knowledge of the contract between Plaintiff Wagner and Defendant Foster participated in a conspiracy, as that term has been defined, with any of the other Defendants to induce Defendant Newster Company, Inc. to convey to Defendant Dautrich Real Estate Company the land covered by the deed dated the 5th day of May, 1958, without binding it to pay Plaintiff Wagner commissions?

'Answer: 'Yes' or 'No.'

'We answer: Yes.'

A contract is a promise or set of promises, for the breach of which the law gives a remedy, or the performance of which the law recognizes as a duty. Failure to do or to perform an act or thing neither expressly or impliedly promised, does not, in law, constitute a breach of contract.

In order to determine whether a breach of contract did or did not occur 'when by deed dated May 5, 1958, Defendant Newster Company, Inc. conveyed the land to Dautrich Real Estate Company without binding it to pay Wagner commissions', we must first ascertain, from the contract itself, whether a duty was imposed upon the defendant not to convey the land to another person or corporation without binding such person or corporation to pay commissions to Wagner.

From the manner in which the first two special issues were submitted, it is not clear whether the trial court considered that the contract was breached merely by virtue of the fact that the remaining lots were conveyed to a person or corporation who was not a 'builder', or whether it was due to defendants' failure to bind such 'subsequent owner' to pay Wagner commissions, or because the conveyance of such remaining lots made further performance of the contract on the part of the defendants, Foster and Newster Company, Inc., impossible.

In any event, the trial court, by its submission of Special Issue No. 1 and Special Issue No. 2, assumed, either as a matter of law or as an undisputed fact, that the contract was breached when defendant Newster Company conveyed the land to Dautrich Real Estate Company without binding it to pay commissions to Wagner. No issue was submitted to the jury inquiring whether there was, in fact, a breach of contract. The effect of the issues amounted to an instruction by the court that there was a breach of the contract, and asked the jury to find the amount of damages occasioned thereby, and to...