French v. Love

• Court: Texas Court of Appeals
• Writing for the Court: Blair
• Citation: French v. Love, 281 S.W. 301 (Tex. App. 1926)
• Decision Date: 10 February 1926
• Docket Number: (No. 6926.)
• Parties: FRENCH v. LOVE et al.

281 S.W. 301

FRENCH v. LOVE et al.

(No. 6926.)

Court of Civil Appeals of Texas. Austin.

February 10, 1926.

Rehearing Denied March 3, 1926.

Appeal from Navarro County Court; A. P. Mays, Judge.

Action by W. F. Love against Mrs. Pearl French, in which defendant impleaded J. O. Burke by filing cross-action against him. From a judgment for the plaintiff on his cause of action and for Burke in cross-action, defendant appeals. Affirmed as to plaintiff's cause of action. Reversed and remanded as to cross-action.

Callicutt & Upchurch, of Corsicana, for appellant.

Richard Mays, of Corsicana, for appellee Love.

BLAIR, J.

This appeal is from an instructed verdict and judgment thereon in the suit of appellee, W. F. Love, against appellant, Mrs. Pearl French, for a 5 per cent. commission on $16,000, or for $800, with interest at 6 per cent. from February 3, 1923, which he alleged to be due him under a written exclusive agency contract by appellant, from which we quote the following material portion:

"Price $16,000.00, terms 1/3 cash at 8 per cent. interest. It is agreed and understood that the said W. F. Love shall receive 5 per cent. of the price at which said property may be sold while in their hands, no matter by whom sale is effected, and that the said W. F. Love, in consideration of his services rendered in advertising the above-described property, shall have the right to close a sale on the foregoing terms at any time until the said property shall be formally withdrawn from his agency, which withdrawal shall not be made prior to the 3d day of February, 1923, * * * and the said W. F. Love shall have the right to effect and to close a sale at any time prior to the 3d day of February, 1923. * * * Commission due when sale is completed, and payable in said W. F. Love office, Corsicana, Tex. The said W. F. Love agrees to advertise said property without cost to me."

The contract was dated November 3, 1922, and appellee alleged that he took charge of the property with a view of making the sale, advertised it for sale, and otherwise set about to find a purchaser; that he found a purchaser in the person of J. O. Burke, who agreed to and did buy the property at the price stated in the contract; and that appellant executed and delivered to him a deed conveying the property. He further alleged that after he negotiated with Burke, and while the sale was being negotiated by him with Burke, appellant, without lawful right to do so, and without appellee's knowledge, undertook to and did complete the sale of the property to Burke during the period of his agency contract; whereby she became legally and justly liable to him under the contract for 5 per cent. commission on $16,000, with interest at 6 per cent. from the date of the sale to Burke. Appellant's sole defense to this suit was as follows:

"That prior to placing her property in plaintiff's hands for sale, this defendant had already talked with said J. O. Burke as a prospective purchaser, and that defendant had the right, even during the life of whatever contract she had with plaintiff, to sell said property through and by her own efforts, as was agreed upon and explained to her by the plaintiff at the time, that it was understood between plaintiff and defendant that the exclusive right of sale given to plaintiff was only as to other real estate agents and did not in any way apply to defendant or prevent her from selling the property to any purchaser she might find, and this was represented to defendant by plaintiff as the meaning of said contract, and defendant signed the contract with this express understanding. Defendant says that the plaintiff had nothing to do with procuring said J. O. Burke as a purchaser of said property, but that she, herself, made her own trade with said Burke, and not upon the terms which she authorized plaintiff to make a sale, and that plaintiff had nothing to do with the sale to said Burke, nor with procuring him as a purchaser of this defendant's property."

Appellant offered to testify in support of these allegations that, at the time she executed the contract, it was mutually agreed and understood the language, "that the said W. F. Love shall receive 5 per cent. commission of the price at which said property may be sold while in their hands, no matter by whom sale is effected," should be construed to apply only to other real estate agents, and not to a sale made by her independently of the said Love and without his aid. The testimony was excluded upon the ground that its admission would vary the terms of the written contract in the particular mentioned. Without question the exclusion of this testimony was correct, for its admission would have varied the plain and unambiguous terms of the contract. The very purpose of the contract was to include other real estate agents and all persons "no matter by whom sale is effected." To construe this language so as not to apply to the owner would certainly vary the terms of the contract in this particular.

Appellant did not allege that the exclusive agency contract with appellee was ambiguous; nor that appellant was in any manner overreached; nor that she entered into the contract as a result of mistake, accident, or fraud; nor that it was improperly written; nor that her signature to the contract was other than genuine — her sole defense to it being that as written it was of doubtful meaning. It is too well settled in this state to require an elaborate discussion that the terms of a written contract cannot be varied by oral testimony, unless it is executed as the result of a mistake, accident, or fraud, and that it cannot be explained by oral testimony where the language is plain and unambiguous. The following authorities, cited by appellee, conclusively support the action of the trial court in excluding the oral testimony that the exclusive agency clause was not intended to apply to appellant. Bigham v. Bigham, 57 Tex. 238; White v. Hager, 248 S. W. 319, 112 Tex. 516; Belcher v. Mulhall, 57 Tex. 17; Self v. King, 28 Tex. 553; Milliken v. Callahan Co., 6 S. W. 681, 69 Tex. 205; Harper v. Improvement Co. (Tex. Com. App.) 228 S. W. 188; Eldora Oil Co. v. Thompson (Tex. Com. App.) 244 S. W. 505; Swift v. Roach (Tex. Civ. App.) 266 S. W. 846; Iowa Canning Co. v. Ainsa Co. (Tex. Civ. App.) 267 S. W. 540.

At the conclusion of the evidence, the court instructed a verdict for appellee, Love, in the sum of $800 and interest, upon the theory that he was given the exclusive right to sell the property under the terms of the contract, and that he was entitled to a commission on the sale made by appellant though made independently of appellee's aid; such sale having been made during the life of the agency contract.

We are of the opinion that the trial court correctly instructed a verdict for appellee, Love, against appellant, Mrs. French, for to do so was merely to carry out the contract as written between them. The law is well settled by the following authorities that, where a broker is given exclusive right to sell property and the property is sold during the time that right is in force, under the terms of the contract he is entitled to commission on the sale made, though made independently of his act. McFarland v. Lynch (Tex. Civ. App.) 159 S. W. 303; Stringfellow v. Powers, 23 S. W. 313, 4 Tex. Civ. App. 199; Blumenthal v. Bridges, 120 S. W. 974, 91 Ark. 212, 24 L. R. A. (N. S.) 279; Harrell v. Zimpleman, 17 S. W. 478, 66 Tex. 292; Sylvester v. Johnson, 75 S. W. 923, 110 Tenn. 392; Metcalf v. Kent, 73 N. W. 1037, 104 Iowa, 487; Gregory v. Bonney, 67 P. 1038, 135 Cal. 589; 19 Cyc. 264; Novakovich v. Trust Co., 117 S. W. 246, 89 Ark. 412; Kirshner v. Brown, 96 P. 848, 78 Kan. 531; Button Co. v. Hammon, 170 S. W. 1186, 161 Ky. 498; Ward v. Fletcher, 124 Mass. 224; Wright v. Beach, 46 N. W. 673, 82 Mich. 469; Sunflower Bank v. Pitts, 66 So. 810, 108 Miss. 380; Green v. Cole, 30 S. W. 135, 127 Mo. 587; Weeks v. Smith, 75 A. 773, 79 N. J. Law, 388; Moses v. Bierling, 31 N. Y. 462; Goldsmith v. Coxe, 61 S. E. 555, 80 S. C. 341; Brown v. Lapp (Ky.) 77 S. W. 194; Wanstrath Real Estate Co. v. Wenz, 170 S. W. 345, 185 Mo. App. 162; Mercantile Trust...