Holmes v. Holik

• Decision Date: 22 February 1951
• Docket Number: No. 12269,12269
• Citation: Holmes v. Holik, 238 S.W.2d 260 (Tex. Ct. App. 1951)
• Parties: HOLMES v. HOLIK.
• Court: Texas Civil Court of Appeals

Page 260

238 S.W.2d 260

HOLMES v. HOLIK.

No. 12269.

Court of Civil Appeals of Texas, Galveston.

Feb. 22, 1951.

Rehearing Denied March 15, 1951.

H. F. Thurow, of Houston, for appellant.

Gerald S. Gordon, of Houston, for appellee.

MONTEITH, Chief Justice.

Appellant, O. W. Holmes, d/b/a O. W. Holmes Realty Company, brought this action in the County Court at Law of Harris County for recovery from appellee, John Holik, Jr., of the sum of $650.00, alleged to be due him under a written contract of listing as a 5% brokerage fee for the sale of appellee's property.

The instrument sued on, referred to by the parties as a listing contract, is a card containing printed words with blanks to be filled in by the parties. The printed portion contains appellant's name-indicating that the card was prepared for appellant's use. Some of the blank spaces in the listing card are filled in, including the price at which the property was listed as $13,000. The owner's name is written in the blank space left for that purpose and a brief description of the property listed for sale is shown, in the space designated for that purpose on the card, as a 'drive-inn' located in the Channelview Area on a lot 100 X 190. The card contract contains this language:

'I hereby authorize and appoint you exclusive rights for 120 days on property as described for sale at a new price of $_____, all over is our commission or $13,000 at a 5% commission to be paid out of first payment made on said property. I agree to furnish complete abstract/title policy and make proper conveyance at my expense. At any time within this period I take property off the market I agree to pay O. W. Holmes Realty Company 5% commission.'

On the reverse side of the card are blanks to be filled in which recite that John Holik, Jr., is the owner of the property, giving his phone number, and the date of the contract as May 31, 1949.

In a trial before the court judgment was rendered that appellant take nothing by his suit. No findings of fact or conclusions of law were requested by the parties or filed by the trial court.

The case was submitted to the court upon an agreed statement of facts, under Rule 263, Texas Rules of Civil Procedure. The stipulations provide that at all times pertinent to the appeal appellant was a duly licensed and acting real estate dealer in Harris County, Texas, and that appellee had given appellant a written sales agreement to sell real estate belonging to appellee; and had been ready, able and willing to perform the duties called for in the listing. It stipulates that appellee had conveyed the property to other parties and that he did not notify appellant or secure his consent to a withdrawal of such listing; that the property was sold to N. Mooman and his wife; that appellant was not the procuring cause of the sale and that no commission has been paid to appellant.

Under his first point of error, appellant complains of the trial court's action in interpreting said listing contract to be a mere listing for sale, rather than an exclusive right to sell.

Appellant relies for reversal on the case of Lewis v. Smith et al., Tex.Civ.App., 198 S.W.2d 598, 599, application for writ of error dismissed, in which the facts are similar in all material respects to those in the instant case. In that case the contract relied on was also claimed to be a mere listing contract. It appointed the real estate broker the exclusive agent to sell the property at a stated price for a stated period of time and provided that '* * * in case of sale of said property during said time I promise to pay you a commission of 5% of sale price.'

While the wording of the contract relied on in the instant case is not well chosen, the contract does more, we think, than merely name appellant as appellee's exclusive agent. By its terms the contract plainly gave appellant the 'exclusive right' to sell said property during the life of the contract. It had not expired at the time appellee conveyed the property to N. Mooman.

In the case of Lewis v. Smith, supra, it is held that there is a distinction in liability for brokerage, between contracts for mere exclusive agencies and those which grant the exclusive 'right' to sell property. It is there held that 'When the contract merely grants an 'exclusive agency' to another, the principal or owner may sell his own property (to one not produced by the agent) without liability to the agent for commissions, but when, as in this case, the contract grants exclusive agency and 'the exclusive right to sell' along with a promise to pay the commission in case of a sale being made, the owner may not sell to any person, during the life of the contract, whether produced by the agent or not, without incurring liability to...