Gilmer v. Graham

• Decision Date: 13 March 1930
• Docket Number: No. 2387.,2387.
• Citation: 26 S.W.2d 687
• Parties: GILMER v. GRAHAM.
• Court: Texas Court of Appeals

26 S.W.2d 687

GILMER v. GRAHAM.

No. 2387.

Court of Civil Appeals of Texas. El Paso.

March 13, 1930.

Rehearing Denied April 18, 1930.

Appeal from District Court, Brewster County; C. R. Sutton, Judge.

Action by O. H. Graham against J. W. Gilmer. Judgment for plaintiff, and defendant appeals.

Affirmed.

John Perkins, of Alpine, and Reed Cozart and Morriss & Morriss, all of San Antonio, for appellant.

Fuller, Leaverton & Owens, of Alpine, for appellee.

PELPHREY, C. J.

Appellee instituted this suit in the district court of Brewster county against appellant, seeking to recover a commission on the sale of more than 100,000 acres of land in Brewster county.

Appellee alleged that appellant approached him requesting his services in purchasing a large ranch; that he at that time, having listed with him the property which appellant later bought, advised appellant that said land could be bought at a price of $2.50 per acre net to the owner, and that any commission must be collected from the purchaser; that he gave to appellee a description of the land and the names of the owners, as well as other details concerning the land; that the property was owned by the Commonwealth Bank & Trust Company of San Antonio, Tex., and the J. O. Terrell estate, of which Mattie S. Terrell was independent executrix; that appellant, after acquiring such information, purchased the property from the owners; that he was the efficient and procuring cause of said purchase by appellant; that the services rendered to appellant were at the request of appellant and under a contract, both oral, express, and implied, whereby the appellant agreed and promised to pay therefor a reasonable compensation, to wit, 5 per cent. of the total consideration paid for the property; that by reason of the above facts appellant became bound to appellee in the sum of $15,523.80 with interest; that said sum is past due and unpaid, and payment thereof has been and is refused by appellant to appellee's loss in the sum of $20,000; that appellant is indebted to appellee in the sum of $15,523.80 as commission for procuring for appellant a seller of the land purchased by appellant, and that he is entitled by the fact that such debt is due and unpaid to an equitable lien on the property (same being fully described in the petition); that, in the alternative and in the event that it be found and held that appellee is not entitled to such commission, appellant represented to appellee that he had clients who were interested in the purchase of a large tract of land, and that the lands and price would be agreeable to his clients, and that he thought a sale of the lands could be consummated through their joint efforts; that, thereupon, he and appellant entered into an oral contract whereby the lands were to be sold to appellant's clients in accordance with the listing held by appellee, a commission to be collected from the purchaser and divided one-half to appellee and one-half to appellant; that appellant fraudulently and falsely represented, in Brewster county, Tex., that he had clients who would make such purchase; that he (appellee) relied upon such representations and was induced by such false representations to make the contract alleged; that such representations were false and were known to be false by appellant when he made them; that appellee could have sold said lands at the listed price plus a 5 per cent. commission, and would have done so had not his partner, appellant, violated his agreement with appellee and bought for himself; that appellant is bound to account to appellee for both the commission and any profits made on the deal; that the consideration paid for the land was $310,476.03; that while he and appellant were partners in the brokerage business, in so far as the sale of the particular land was concerned, yet, because of the fraud and misrepresentation of appellant and the purchase of the land by appellant for himself, he (appellant) cannot in good conscience recover any commission for the sale and purchase of the land, thereby entitling appellee to the whole commission; that he (appellee) was the efficient and procuring cause of the purchase by appellant and furnished, at the request of appellant, the information which induced appellant to purchase; that appellant understood and agreed that the purchaser of the land would pay the commission, and agreed and promised to pay appellee a reasonable commission for procuring for him a seller for said lands ready, able and willing to sell; that by reason of appellant being the purchaser of the land, and the further reason of the brokerage partnership agreement together with the obligation of appellant to appellee, which has not been paid, appellee has and holds an equitable lien on the land to secure the payment of the commission; that he (appellee) is entitled not only to the establishment but to a foreclosure of such lien in satisfaction of his debt.

Appellee then prayed for an accounting, for judgment for $15,523.80, together with interest, and the establishment and foreclosure of his lien.

In the alternative, he prayed for a judgment for one-half of the commission, or $7,761.90, with interest from the date of purchase by appellant, and foreclosure of his lien on the land for that amount.

Appellant filed his plea of privilege to be sued in Edwards county.

Appellee in due time filed his controverting affidavit alleging appellant to be a resident of Brewster county; that the venue was properly placed in Brewster county because the suit is one arising out of a trespass and fraud perpetrated upon appellee by appellant in Brewster county; and that, the suit being one for the establishment and foreclosure of a lien upon land in Brewster county, the venue was properly placed in said county.

The controverting plea was filed August 17, 1929, and the hearing set for the 29th day of August.

On said date appellant filed his motion to have the issues on his plea of privilege tried prior to and separate from the trial on the merits. This motion was overruled by the court, and appellant answered by general demurrer, various special exceptions, general denial, and a verified plea denying the partnership alleged in appellee's petition. Appellant filed a trial amendment specially denying that appellee was the efficient and procuring cause of the purchase by appellant; alleging that prior to the time that appellee first told him that he had the lands listed, he had knowledge of the fact that said lands were being offered for sale by the owners, that such information had come to him from A. N. Welch and Walker Ragsdale, both of Edwards county, and that he became interested in the purchase of the land by reason of such information; further specially denying that appellee had authority from the owners of the land to sell and deliver same upon sale; that appellee was able to or did furnish to defendant, a seller for said lands, who was ready, able, and willing to sell said lands to defendant, alleging that after appellant had shown the lands to A. G., E. E., and Will A. Morris, appellee informed appellant and A. G. and E. E. Morris that said lands were at that time under option to another person, and that he could not deliver said lands to them; denying that he purchased the lands through appellee, and that appellee was the procuring and efficient cause of his so purchasing same, but alleging that he acquired the land by virtue of the purchase of an option theretofore given by the owners to C. B. Wardlow, and that appellee was in no way the procuring cause or rendered any service to appellant in securing same; further denying that he acquired the lands at the price of $2.50 per acre net to the owner as alleged by appellee, but that he paid the sum of $310,476.03...