Landis v. W. H. Fuqua, Inc.

• Decision Date: 12 January 1942
• Docket Number: No. 5376.,5376.
• Citation: 159 S.W.2d 228
• Parties: LANDIS et al. v. W. H. FUQUA, Inc.
• Court: Texas Court of Appeals

159 S.W.2d 228

LANDIS et al. v. W. H. FUQUA, Inc.

No. 5376.

Court of Civil Appeals of Texas. Amarillo.

January 12, 1942.

Rehearing Denied March 2, 1942.

Appeal from District Court, Potter County; W. E. Gee, Judge.

Suit by Thomas Landis and another against W. H. Fuqua, Incorporated, to recover commission alleged to be due plaintiffs for services they rendered to defendant under an oral contract by the terms of which defendant employed plaintiffs and agreed to pay them for the sale of two ranches. From a judgment dismissing the action, following sustaining of defendant's demurrer to the petition and refusal of plaintiffs to amend, the plaintiffs appeal.

Affirmed.

James O. Cade, of Lubbock, for appellants.

Underwood, Johnson, Dooley & Wilson, of Amarillo, for appellee.

JACKSON, Chief Justice.

This suit was instituted by the appellants, Thomas L. Landis and the Southern States Loan Company, a corporation, to recover the sum of $3,000 as commission alleged to be due appellants for services they rendered to appellee under an oral contract made in 1940 by the terms of which appellee employed appellants and agreed to pay them for the sale of two ranches fully described in their petition.

Appellants alleged they procured purchasers ready, willing and able to buy and who did buy from appellee said two ranches for the consideration and on the terms and conditions contained in the listing contract.

Appellants' alleged cause of action is sufficiently stated in the following language:

"Plaintiffs say further that the statutory requirement that their contract of listing of such lands be in writing was specifically waived by the defendant when said defendant accepted the benefits of their labor and efforts to procure purchasers for said lands by selling said lands to Sidney Atkinson and W. B. Stevenson; and that all the things required of them under said oral contract of listing of said lands have been fully performed by plaintiffs; and that said lands have been actually sold and conveyed by the defendant to the prospective purchasers procured by these plaintiffs; by reason of all of which the oral contract or contracts of listing above referred to have become executed contracts and consequently the statutory provision requiring such contracts to be in writing has no application.

"Pleading in the alternative, plaintiffs say that if they be mistaken in their contention that they had a valid listing of said properties or either of them, then, in that event, said plaintiffs were employed on a quantum meruit basis by defendant for the showing of said lands to prospective purchasers, that plaintiffs performed the services for which they were so employed and that the reasonable, customary, usual and fair compensation for such services in showing such lands and seeking out prospective purchasers therefor is $3,000.00."

In answer to appellants' petition, appellee filed and presented general exceptions in which it urged that since the agreement upon which the suit was based was conceded to be oral, appellants could not recover thereon because the Real Estate Dealers License Act requires that in order to maintain an action for the recovery of any commission for the sale of real estate the promise or agreement upon which such action is brought or some memorandum thereof shall be in writing and signed by the parties sought to be bound thereby.

The demurrers urged by appellee were sustained by the trial court. The appellants refused to amend. The case was dismissed and this action of the court is before us for review.

The appellants challenge as error the judgment of the court in holding that they could not maintain their suit on account of the Real Estate Dealers License Act, since the contract in this case has been executed; that they alleged the appellee had accepted the benefits of appellants' services, conveyed the two ranches to the purchasers they procured for the consideration and on the terms required in the listing contract; that such allegations must be accepted as true and therefore the appellee waived the statute and is estopped to plead the provisions thereof relied on as a defense to the oral contract, but, if they are not entitled to recover on the express oral contract, then they are entitled to recover on a quantum meruit for the reasonable value of their services.

The statute of frauds, article 3995, Vernon's Annotated Civil Statutes, so far as applicable to this controversy, reads as follows:

"No action shall be brought in any court in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized:

* * * * * *

"4. Upon any contract for the sale of real estate or the lease thereof for a longer term than one year."

Section 22 of the Real Estate Dealers License Act, General Laws, Forty-Sixth Legislature, page 576, Vernon's Ann.Civ. Art. 6573a, is as follows: "No action shall be brought in any court in this State for the recovery of any commission for the sale or purchase of real estate unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereto lawfully authorized."

In Cargill et al. v. Kountze et al., 86 Tex. 386, 22 S.W. 1015, 25 S.W. 13, 15, 24 L.R.A. 183, 40 Am.St.Rep. 853, Judge Gaines, speaking for the Supreme Court, says: "When the legislature re-enacts a statute which has been construed by the courts, the presumption is that it intended that the new enactment should receive the same construction as the old."

In Priddy v. Green et al., Tex. Civ.App., 220 S.W. 243, 253, it is held: "Contracts within the statute of frauds are not void or illegal, the enforcement of which is only suspended until the provisions of the statute are satisfied. Browne on Statute of Frauds, § 115a; Robb v. [San Antonio St.] Railway, 82 Tex. 392, 18 S.W. 707; Bringhurst v. Texas Co., 39 Tex.Civ.App. 500, 87 S.W. 893; Edwards v. Old Settlers' [Ass'n, Tex.Civ. App.], 166 S.W. 423. * * * The statute of frauds do not apply where the oral contract is executed. Central Land Co. v. Weems, 73 Tex. 252, 11 S.W. 270."

See also Pou v. Dominion Oil Co., Tex. Com.App., 265 S.W. 886.

The appellants' contention is that the statute of frauds was passed to prevent fraud and perjury and that the policy of the law is that such laws should never be given effect when the enforcement thereof would perpetrate a fraud. They urge with much force and plausibility that under the admitted facts and under these authorities they are entitled to recover because they were suing on an executed contract or, in the alternative, on their plea of quantum meruit.

What we have stated makes manifest the fact that this suit is controlled solely by the interpretation and effect given to Section 22 of the Real Estate Dealers License Act, supra. Appellee contends that this statute must be limited by the court in its construction to mean only what it says. The legal proposition here considered, so far as the authorities presented by the attorneys and so far as we have been able to find, is one of first impression. However there are...