Hamburger & Dreyling v. Thomas

• Decision Date: 30 March 1910
• Citation: 126 S.W. 561
• Parties: HAMBURGER & DREYLING v. THOMAS.
• Court: Texas Supreme Court

Page 561

126 S.W. 561

HAMBURGER & DREYLING v. THOMAS.

Supreme Court of Texas.

March 30, 1910.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by W. W. Thomas against Hamburger & Dreyling. From a judgment of the Court of Civil Appeals (118 S. W. 770), affirming a judgment for plaintiff, defendants bring error. Affirmed.

J. W. Lockett, for plaintiffs in error. S. H. Brashear, for defendant in error.

WILLIAMS, J.

The nature of this case and its facts are fully stated in the opinion of the Court of Civil Appeals. 118 S. W. 770. In the writing evidencing the employment of defendant in error (hereafter called plaintiff) by plaintiffs in error (hereafter called defendants) to sell the described land, they agreed, among other things, that if he would sell the property they would furnish "an abstract of title up to date of sale and clear title to purchaser," and that plaintiff should receive for his services "whatever sum in excess of $12,000 he may sell the property for out of the first payment made by purchaser." The plaintiff entered into negotiations with James A. Baker, as a result of which the latter decided to buy the land, if satisfied with the title, for the cash price of $13,500, and was able and willing to buy at that price. It is made plain that he would have bought, but for the fact that an examination made in good faith of the evidences of title produced by defendants did not satisfy him of its soundness. So it appears that the sale negotiated by plaintiff was defeated solely by the failure of defendants to make good their stipulation to furnish a clear title to the purchaser. When these simple facts, established by the verdict of the jury, are disentangled from the contentions in which the case has been enveloped, there is no difficulty in seeing that the plaintiff had done all he was required by the contract to do towards the completion of the sale, in short, had rendered the service he was employed to render, and that the sale was defeated through the fault of the defendants. It ought to require no argument or authority to establish his right to the compensation, but the following establish the principle controlling: Holden v. Stacks, 159 Mass. 503, 34 N. E. 1069, 38 Am. St. Rep. 451; Reed v. Light, 170 Ind. 550, 85 N. E. 9; Carter v. Simpson, 130 Ill. App. 328; Vaughan v. McCarthy, 59 Minn. 199, 60 N. W. 1075; Buckingham v. Harris, 10 Colo. 459, 15 Pac. 817; Finnerty v. Fritz, 5 Colo. 178; Parker v. Walker, 86 Tenn. 566, 569, 8 S. W. 391.

The chief ground of defense is the fact that the writing copied in the opinion of the Court of Civil Appeals, which was executed by the defendants and Baker, did not bind the latter to take the property, but left to him the alternative, even if he should approve the title, either to take it or to forfeit the $1,000 deposited. There would be more force in this if the title had proved satisfactory, and Baker had exercised his right to recede...