Lane v. Davidson, 7504.

• Decision Date: 25 September 1930
• Docket Number: No. 7504.,7504.
• Citation: Lane v. Davidson, 31 S.W.2d 1094 (Tex. App. 1930)
• Parties: LANE v. DAVIDSON.
• Court: Texas Court of Appeals

Page 1094

31 S.W.2d 1094

LANE v.DAVIDSON.

No. 7504.

Court of Civil Appeals of Texas. Austin.

September 25, 1930.

Appeal from Coleman County Court; C. L. South, Judge.

Action by J. S. Davidson against J. T. Lane.From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Critz & Woodward, of Coleman, for appellant.

McCLENDON, C. J.

Appeal by Lane, defendant below, from a judgment upon a special issue verdict in favor of Davidson, plaintiff below, for $350 broker's commission on exchange of cafés.

The evidence is sufficient to support the following findings: Lane owned a café at Coleman, known as American Café.Davidson was a real estate broker, a fact well known to Lane.About June 1, 1929, Lane listed with Davidson the American Café for sale or trade at $8,500 cash.About June 15, 1929, Davidson presented to Bertrand, who owned a café at Cross Plains, Tex., the American Café property, proposing a trade between Bertrand and Lane.Negotiations followed, resulting in Davidson taking Lane to Cross Plains to inspect the café there, and terminating an agreement between Bertrand and Lane to make the trade on the basis of $8,500 for the American Café, $2,000 for the Cross Plains Café, and the difference in cash and deferred monthly payments.In the course of the negotiations, Lane asked Davidson what his commission would be, and was told $425, which was 5 per cent. of the price of the American Café.All of the terms were agreed upon, and Lane went to his attorney's office to have the papers drawn, but, when he returned, he declined to proceed with the trade; whereupon, on July 12, 1929, Davidson brought this suit against Lane, pleading both an express agreement and in the alternative facts which would entitle him to recover on quantum meruit.

Thereafter, in August, 1929, negotiations were resumed between Lane and Davidson looking towards completing the trade with Bertrand, who in the meantime had moved his café to Baird.Lane turned over the negotiations so far as he was concerned to his son-in-law Henderson, to whom he gave full authority to make whatever trade he saw fit.Under resumed negotiations, Davidson took Henderson to Baird and finally closed the trade between Lane and Bertrand on the basis of $8,500 for the American Café, $3,000 for the Baird Café, and the balance in cash and deferred monthly payments.The Baird Café valuation was raised to $3,000 because Bertrand had made improvements in the move to Baird and was therefore unwilling to trade on the original basis of $2,000.Just before the trade was finally closed, Henderson offered Davidson $125 as commission on the entire transaction which Davidson declined to accept, stating that he would demand his full commission on both transactions.The evidence was sufficient to show that the usual customary, and reasonable commission on trades of this character was 2½ per cent. paid by each owner on the trade value of the property, and 5 per cent. on the additional money consideration.Bertrand paid Davidson $75, or 2½ per cent. commission on the trade value of the Baird Café.

Davidson amended his pleadings, claiming 5 per cent. commission on each trade, and pleading, as before, an express contract and facts warranting recovery on quantum meruit.

The special issues submitted to the jury and their answers follow:

"1.Did...