Haddaway v. Smith

• Decision Date: 04 November 1925
• Docket Number: (No. 2533.)
• Citation: 277 S.W. 728
• Parties: HADDAWAY v. SMITH et al.
• Court: Texas Court of Appeals

277 S.W. 728

HADDAWAY v. SMITH et al.

(No. 2533.)

Court of Civil Appeals of Texas. Amarillo.

November 4, 1925.

Rehearing Denied December 2, 1925.

Appeal from District Court, Lubbock County; Parke N. Dalton, Special Judge.

Action by Morton J. Smith and others against Rochester Haddaway. Judgment for plaintiffs, and defendant appeals. Affirmed.

See, also, 256 S. W. 965.

Robt. A. Sowder and Vickers & Campbell, all of Lubbock, for appellant.

G. E. Lockhart, of Lubbock, for appellees.

JACKSON, J.

This suit was instituted in the district court of Lubbock county by Morton J. Smith, J. H. Moore, and Frank Vaughn, plaintiffs, against Rochester Haddaway, defendant.

Frank Vaughn died before the trial of the case, and his heirs were substituted as parties to the suit, and will, for the purpose of this opinion, be considered as original plaintiffs.

Plaintiffs allege that in 1920 defendant owned and listed with them, as real estate brokers, several tracts of land situated in Bailey county, Tex., and agreed to pay them 7½ per cent. commission for the sales made by them, or for the procuring of purchasers ready, willing, and able to buy upon the terms and conditions of the listing contract.

Acting under their employment by the defendant, they sold labor No. 2 to C. L. Goodnight; No. 3 to W. B. Buford; No. 1 to W. L. Oliver; No. 5 to Morton J. Smith; and No. 4 to G. C. Lawrence. That each of said purchasers were ready, willing, and able to purchase his respective labor of land, and entered into a separate written contract with the defendant for the purchase thereof, and paid the first installment of the purchase price. That the second installment was payable January 1, 1921, at Fort. Worth, Tex., on which date appellant was to execute a deed to each purchaser and retain a vendor's lien to secure the payment of the balance of the purchase money, for which vendor's lien notes would be executed. That about December 10, 1920, after the contracts had been executed, and the first installments of the purchase money had been paid, an agreement was made and entered into between the defendant and the purchasers by the terms of which the defendant agreed to come to Lubbock, Tex., on January 1, 1921; receive the second installments of the purchase price at Lubbock, Tex.; and consummate said contract at said town instead of at Fort Worth, Tex. That the defendant, by his fraudulent agreement, induced the purchasers not to go to Fort Worth to close the deals as stipulated in the original contract, with the fraudulent purpose and intention of forfeiting the sale contracts and defrauding the purchasers out of the money paid in the first installments, and with the fraudulent purpose and intention of defeating plaintiffs out of the commission which they had earned. That, because of the misrepresentations, fraud, and deceit of the defendant upon which the purchasers relied and acted, they did not go to Fort Worth on January 1, 1921, and consummate the purchase of their respective tracts of land, but would have done so but for the fraud and misrepresentations of defendant, which they believed and relied upon. That appellant did not, as he had agreed and represented he would do, come to Lubbock on January 1, 1921, and receive the payment of the second installments and consummate the deals, but declared said contract forfeited, and refused to pay plaintiffs any commission on said sales.

Defendant answered by general demurrer, general denial, and pleaded there was no consideration for the alleged change of the contract, and that at all times he was ready, able, and willing to close any sales made by the plaintiffs, which fact he communicated to the purchasers and the plaintiffs, but they failed and refused to close the deals at the time specified, and at all times thereafter; that his contract with plaintiffs for the payment of commissions expressly stipulated that, unless the purchasers completed the contracts by paying the second installment on January 1, 1921, no commission would be earned by, or due to, the plaintiffs, and that none of the purchasers made the second payment on January 1, 1921, or at any other time, and none of the purchasers were willing to do so; that within a few days after the 1st day of January, 1921, he and the plaintiffs and said purchasers agreed that the contracts should be closed, and he came to Lubbock, Tex., to close the contracts, believing that on his arrival the deals would be consummated, notwithstanding all the rights of the purchasers and the plaintiffs had lapsed by their failure to close the contracts as written, and that by reason of the agreements to close the deals, if defendant would come to Lubbock, the purchasers and plaintiffs waived any right they may have had to have the contracts performed at Lubbock, because they knew that he insisted that the contracts were performable at Fort Worth, and the plaintiffs are estopped to claim any compensation whatever; that on January 1, 1921, the plaintiffs ceased to represent defendant, but began representing the purchasers, to the injury of defendant, and advising said purchasers not to close the contracts, and endeavored to secure changes in said contracts, by reason of which they are not entitled to any compensation.

The defendant further answered that he arrived at Lubbock about January 10, 1921, and offered to close the contracts, but the purchasers and the plaintiffs refused to do so, and that, on account of the bad faith of plaintiffs in refusing to aid in closing the contracts and in advising the purchasers not to close such contracts, the plaintiffs breached their contract of employment, and are not entitled to any recovery; that he paid the plaintiffs the sum of $922.30 as commission on the contracts at the time they were made, for all of which he prayed to be discharged.

In response to special issues submitted by the court in his main charge, the jury found that the defendant represented to plaintiffs and W. B. Buford, W. L. Oliver, G. C. Lawrence, and C. L. Goodnight that he would come to Lubbock, Tex., on January 1, 1921, and there accept payment on the contracts and deliver deeds; that the above-named parties believed and relied on such representations of the defendant; that each of said parties was ready, willing, and able to close his contract at Lubbock, Tex., on the 1st day of January, 1921.

At the request of defendant the court submitted special issues, in response to which the jury found that defendant was not ready, willing, and able to close the contracts with said parties on or prior to January 11, 1921, or within a reasonable time thereafter; and that he did not in good faith indicate his willingness to do so; that none of the plaintiffs, prior to January 11th, advised or requested the purchasers not to go ahead and consummate their contracts of purchase with the defendant; and that the defendant was not prevented from closing with such purchasers by reason of any advice or action on the part of plaintiffs.

In response to a special issue requested by the plaintiffs, the jury found that the purchasers, Smith, Buford, Oliver, Lawrence, and Goodnight would have closed the contracts on the 1st of January and paid the second installment of the purchase money and executed the notes, if the defendant had been in Lubbock on that day to close said contracts.

Upon these findings the court rendered judgment in favor of the plaintiffs for the sum of $1,423.84, with interest at 6 per cent. per annum from January 1, 1921. From this judgment in favor of plaintiffs, hereinafter called appellees, the defendant, hereinafter called app...