Lewis v. Smith, 14805.
| Decision Date | 22 November 1946 |
| Docket Number | No. 14805.,14805. |
| Citation | 198 S.W.2d 598 |
| Parties | LEWIS v. SMITH et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Wichita County; Temple Shell, Judge.
Suit by H. F. Smith and T. E. Hill against J. M. Lewis to recover commissions or brokerage allegedly due plaintiffs under a written listing contract between them and defendant. From a judgment for plaintiffs, the defendant appeals.
Judgment affirmed.
Carrigan, Hoffman & Carrigan and Luther Hoffman, all of Wichita Falls, for appellant.
J. Walter Friberg, of Wichita Falls, for appellees.
Plaintiffs H. F. Smith and T. E. Hill sued defendant J. M. Lewis in a district court of Wichita County, Texas, to recover commissions or brokerage alleged to be due them under a written listing contract between them and defendant Lewis. The parties will bear the same designation here as in the trial court.
Plaintiffs alleged that they were licensed real estate brokers, and took from defendant a contract of listing, and agency in language as follows:
The reverse side of the contract contains data concerning location, incumbrances, certain furniture, and other matters not material to this appeal.
Plaintiffs alleged that pursuant to the contract they advertised the property and exhibited it to many prospective purchasers; that as a result of their efforts a Mr. Leverich inspected the property and afterwards purchased it from the defendant; that while plaintiffs did not actually close deal with Leverich, yet they found him and put him in communication with defendant who did close the deal, and that they were the procuring cause of the sale. The petition stated plaintiffs did not know the precise amount of the purchase price but alleged same to be $10,000.00 or more and sought 5% as a commission.
Defendant answered by general denial and certain special pleas. He denied specially that plaintiffs ever produced a purchaser ready, able and willing to buy. Further that defendant sold the property to Mr. Gorin by a contract dated February 14, 1946, and that thereafter Gorin sold to said Leverich, and that neither the transaction between defendant and Gorin nor between Gorin and Leverich was the result of any effort on the part of plaintiffs.
Defendant made a further special answer to the effect that prior to the time he made the contract of sale with Gorin he called T. E. Hill, one of the plaintiffs, and asked if any sale had been made, and being told that none had been made, he told Hill he had a chance to sell it to Gorin and asked if it would be all right to do so; that Hill told him to go ahead and sell. That because of said conversation, the said Hill, for himself and his coplaintiff, "Waived the right to sell the property and the right to a commission."
Plaintiffs filed a supplemental petition denying that they or either of them had waived their right to sell or their right to a commission. They further averred that the transaction between defendant and Gorin was not a bona fide deal other than a kind of a loan or advancement to defendant and that the only bona fide sale made by defendant was to Leverich; that all transactions between Gorin and defendant were subterfuges and an effort on the part of defendant to avoid payment of the commissions due the plaintiffs. Their prayer was amended so as to seek judgment for $550.
The nature of the pleadings set out along with the issues submitted naturally reflect the theory upon which the case was tried. We shall later refer to the testimony and the submitted issues. The jury verdict and judgment were favorable to plaintiffs. Defendant has appealed.
First point of error complains because the court refused defendant's requested peremptory instruction. Defendant did timely file such request, but the record does not disclose that it was ever called to the court's attention or acted upon by the court. It is obvious that such a requested instruction was not given but since the complaint is leveled at the action of the court in refusing same and there being no order by the court on it, the point is not properly before us. However we may add that if the court had entered an order refusing the requested issue there would have been no error shown, as we view this record.
Points Two and Six are briefed together and really present the controlling phase of this appeal. In substance they assert judgment should have been entered for defendant and not for plaintiffs because: If the contract should be construed to mean that plaintiffs had the exclusive right to sell the property they could not recover, since the jury found on competent evidence that plaintiffs did not produce a purchaser ready, able and willing to buy.
As we view the contract quoted above, it is plain and unambiguous and of course in such circumstances it was the duty of the court to construe it. Clearly, by its terms it did more than merely name plaintiffs as defendant's "exclusive agents" but plainly gave them "the exclusive right to sell said property" during the life of the contract. There is no contention made here that the contract had expired. Our courts, as well as those in other jurisdictions, make a distinction in liability for brokerage, between contracts for mere exclusive agencies and those which grant the exclusive right to sell. 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 the agent for brokerage under the contract. Bomar v. Munn, Tex.Civ. App., 158 S.W. 1186; Popplewell v. Buchanan, Tex.Civ.App., 204 S.W. 874, writ refused; French v. Love, Tex.Civ.App., 281 S.W. 301; Dallas Electric Supply Co. v. Branum Co., 143 Tex. 366, 185 S.W.2d 427. In other jurisdictions see annotations 64 A.L.R. page 396 et seq. under "Purchaser not produced."
Third point asserts error of the court in submitting to the jury the issue of whether or not plaintiffs waived their right to commissions. He argues that it was a question of law,...
To continue reading
Request your trial
-
Sipco Services Marine, Inc. v. Wyatt Field Service Co.
...merely held that the motion was waived because it was never presented and overruled. The same is true of Lewis v. Smith, 198 S.W.2d 598, 600 (Tex.Civ.App.--Fort Worth 1946, writ dism'd). Nevertheless, the rule created in Southwestern Materials has been repeatedly applied without being expla......
-
Longview Sav. & Loan Ass'n v. Nabours
...or which mislead another person to his prejudice into the honest belief that such a waiver was intended. Lewis v. Smith, 198 S.W.2d 598 (Tex.Civ.App.--Fort Worth 1946, writ dism'd); Miller v. Deahl, 239 S.W. 679 (Tex.Civ.App.--Amarillo 1922, writ ref'd); 60 Tex.Jur.2d Waiver § 9 The point i......
-
A. A. A. Realty Co. v. Neece
...* * *.' See, also, Sanderson v. Sanderson, 130 Tex. 264, 109 S.W.2d 744; Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222; Lewis v. Smith, Tex.Civ.App., 198 S.W.2d 598; Holmes v. Holik, Tex.Civ.App., 238 S.W.2d 260. Had appellant sold the property it would have earned The judgment is reverse......
-
Bell v. Dimmerling
... ... 723, 24 A.L.R. 1530; Boggess Realty ... Co. v. Miller, 227 Ky. 813, 14 S.W.2d 140; Smith v ... Preiss, 117 Minn. 392, 136 N.W. 7, Ann.Cas.1913D, 820; ... Martin Realty Co. v. Fletcher, 103 N.J.L. 294, 136 ... A. 498; Lewis v. Smith, Tex.Civ.App., 198 S.W.2d ... 598; 12 Corpus Juris Secundum, Brokers, § 94; 2 ... ...