Frances v. Foster
| Decision Date | 23 April 1924 |
| Docket Number | (No. 532-4010.) |
| Citation | 260 S.W. 1023 |
| Parties | FRANCES et al. v. FOSTER. |
| Court | Texas Supreme Court |
Action between A. C. Frances and others and W. L. Foster, wherein the former appeal. Question certified from Court of Civil Appeals. Question answered.
O. W. Fannin, of Midland, and Tom Garrard, of Austin, for appellants.
Hill, Neill & Hill, of San Angelo, for appellee.
The Court of Civil Appeals of the Third District, having failed to reach an agreement as to the proper disposition of this case, certified to this court the following question:
Where brokers of live stock who procure purchasers for such stock listed with them, whom the principal or seller accepts and enters into a valid and enforceable contract whereby he receives a part of the purchase price at the date of the contract, the balance to be paid on a future agreed date for the delivery of said stock, are the brokers precluded from a recovery of their commissions because of the fact that at the date of the delivery the purchasers are not financially able to pay for the property they had agreed to purchase?
"If the principal and the customer found by the broker enter into a valid contract, and the broker acts in good faith, the broker is not deprived of his right to a commission by the fact that the customer fails or is unable to carry out the contract, such as a contract of purchase or a contract of exchange." 9 C. J. 631.
This text is upheld by many decisions from various states cited in the notes to the text.
In the case of Keener v. Cleveland et al., 250 S. W. 151, Judge German, of the Commission of Appeals of Texas, used the following language:
"And where the seller accepts the purchaser tendered, it is not necessary to show that he was ready, willing, and able to buy,"
— and several cases are there cited to uphold said statement. The only exception to this rule seems to be where the purchaser was not able to perform, and that fact was known by the agent, but there is nothing in the case before us, either in the certified question nor in the opinion by the court, to disclose that the agent knew that the purchaser was not able to perform on the date that the contract was entered into, nor for that matter is there any positive evidence that shows that the purchaser was not able to perform on the date that he entered into the contract with the seller. The position is...
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Peters v. Coleman
...into an enforceable contract with him, the customer's readiness, ability and willingness to buy cannot be questioned. Frances v. Foster, 113 Tex. 521, 260 S.W. 1023; Jones v. Parker, Tex.Civ.App., 26 S.W.2d 742; Adams v. Brown, Tex.Civ.App., 25 S.W.2d 879; Wolfman & Katz v. Callahan, Tex.Ci......
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Del Andersen and Associates v. Jones, 4846
...into an enforceable contract with him, the customer's readiness, ability and willingness to buy cannot be questioned. Frances v. Foster, 113 Tex. 521, 260 S.W. 1023; Jones v. Parker, Tex.Civ.App., 26 S.W.2d 742; Adams v. Brown, Tex.Civ.App., 25 S.W.2d 879; Wolfman & Katz v. Callahan, Tex.Ci......
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FirstBank v. TZK Invs., LLC
...pet. granted). While courts have applied the rule in other contexts besides real estate brokerage agreement, see Frances v. Foster , 113 Tex. 521, 260 S.W. 1023, 1023–24 (1924) ; Keener , 250 S.W. at 151–52 ; Metal Structures Corp. v. Bigham , 347 S.W.2d 270, 273–74 (Tex. App.—Dallas 1961, ......
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Don Drum Real Estate Co. v. Hudson
...with him, the broker has earned his commission and the owner assumes the risk of the purchaser's nonperformance. Frances v. Foster, 113 Tex. 521, 260 S.W. 1023 (1924); McNeil v. McLain, 272 S.W.2d 573 (Tex.Civ.App., Fort Worth 1954, no writ). These cases did not involve sales upon condition......