Gaut v. Dunlap

• Decision Date: 18 October 1916
• Docket Number: (No. 1028.)
• Citation: Gaut v. Dunlap, 188 S.W. 1020 (Tex. App. 1916)
• Parties: GAUT v. DUNLAP et al.
• Court: Texas Court of Appeals

188 S.W. 1020

GAUT v. DUNLAP et al.

(No. 1028.)

Court of Civil Appeals of Texas. Amarillo.

October 18, 1916.

Appeal from Deaf Smith County Court; Jas. A. Hughes, Judge.

Action by J. R. Gaut against Eli Dunlap and another. From a judgment for defendants, plaintiff appeals. Reversed, and cause remanded.

W. H. Russell, of Hereford, for appellant. Knight & Slaton, of Hereford, for appellees.

HALL, J.

Appellant Gaut sued appellees Eli Dunlap and W. L. Brodie to recover $250, alleged to be due him as commissions for negotiating an exchange of property between appellees and one Walter Cheek. From a judgment for appellees this appeal is prosecuted.

The refusal of the court to direct a verdict for appellant is first assigned as error. It is first contended under this assignment that the following proposition is applicable and should control the disposition of the case:

"Where a real estate broker is employed to procure an exchange of real property, and he produces a person with whom his principal is satisfied, and such person and principal enter into an enforceable written contract for the exchange of their respective properties, upon terms mutually satisfactory, the broker has earned his commission."

The contract upon which the suit is based is in substance that, whereas, Dunlap and Brodie are the owners of a store building, a stock of general merchandise and fixtures, to the amount of $8,000, and a residence at Umbarger, Tex., and are desirous of exchanging the same for a certain half section of land owned by Cheek near Jester, Okl., and valued at $16,000, it was agreed that Dunlap and Brodie should convey to Cheek the real estate situated in Umbarger, free from incumbrance, except $2,500, evidenced by two vendor's lien notes bearing 8 per cent. interest, and that Cheek should convey to Dunlap and Brodie the half section in Oklahoma, free from incumbrance, except $3,000 due a loan company; that, should the stock of merchandise and fixtures invoice less than $8,000, the amount should be deducted from the amount of the notes thereinafter mentioned; but, in case the invoice price of the merchandise should exceed $8,000, such excess should be paid to Dunlap and Brodie out of the regular daily sales of said merchandise until the full amount is satisfied.

Paragraph 2 of the contract is:

"Each party hereto shall, within ten days from date hereof, deliver to the other party hereto an abstract of title, showing a clear, merchantable title to the land by him to be conveyed hereunder, save and except as to the incumbrances herein referred to."

Paragraph 3 is:

"The said exchange of real estate shall be completed by execution and delivery of a good and sufficient warranty deed in accordance with the terms of this contract on or before the hour of noon on the first day of January, 1916."

Paragraph 6:

"Said deeds shall be placed in escrow with the First State Bank & Trust Company of Hereford, Texas, and they are authorized to deliver same to the receiving parties herein provided."

The contract contains, among other things, the following stipulation:

"When this deal is closed the first party will owe J. R. Gaut $250.00 commission."

If the last-quoted provision in the contract is to govern the rights of the parties the proposition urged under this assignment cannot be sustained. Paragraph 3, supra, states clearly that the deal shall be completed by the execution and delivery of good and sufficient deeds on or before the hour of noon of January 1, 1916. No deeds were ever executed or delivered, and under the plain language of the contract appellant cannot claim his commissions unless Dunlap and Brodie have, by their own wrong, prevented its consummation; and this seems to be the construction placed upon it by appellant himself, who stated at the time the contract was signed in Umbarger, on December 18th, that he hoped the deal would be closed that day as he wanted his commissions for Christmas money.

It is clear from the record that none of the parties to the contract understood that the execution of the contract itself had the effect of closing the deal or entitled appellant to the commission. If such had been the meaning of the contract and the understanding of the parties, appellant would have been entitled to the $250 when the contract was executed. If the words "when this deal is closed" had not been used, the appellant's proposition would apply. It can have no application here, however, because the contract itself fixes the time for payment. A "deal" has been defined to be "an arrangement to attain a desired result by a combination of interested parties." Ball v. Davenport, 170 Iowa, 33, ...