Maberry v. Julian
| Decision Date | 30 March 1972 |
| Docket Number | No. 17836,17836 |
| Citation | 479 S.W.2d 770 |
| Parties | Joe F. MABERRY, Appellant, v. John E. JULIAN and Julian Enterprises, Inc., a corporation, Appellees. |
| Court | Texas Court of Appeals |
Douglas J. Brooks, Law Offices of Christopher M. Weil, Dallas, for appellant.
John Fox Holt, Dallas, for appellees.
The appellant Joe F. Maberry sued the appellees John E. Julian and Julian Enterprises, Inc. for a real estate broker's commission. He appeals from a take-nothing summary judgment.
The facts are set forth rather fully in the opinion of the Court of Civil Appeals on a former appeal. See Maberry v. Julian, 456 S.W .2d 234 (Tex.Civ.App., Texarkana 1970, no writ), wherein the appellees' first summary judgment was reversed solely on the ground that there was no summary judgment evidence that the written contract of sale providing for the commission had been terminated.
The contract sued on is dated February 10, 1965. In it Julian agreed to sell and convey, and Southwest Industrial Properties, Inc. agreed to purchase, a tract of approximately 85 acres owned by Julian. A 'fly' or 'rider' attached to the contract contained a typewritten paragraph as follows:
The contract also contained a paragraph 13 which was printed except for the interlineation in writing of the words 'of $18,000.00' and which as thus amended provided:
Maberry made application to the City Planning Commission for the change in zoning desired by Southwest Industrial Properties, Inc. This was denied and the subsequent appeal to the City Council was withdrawn. Two days later, on July 21, 1965, Maberry wrote Julian a letter stating his understanding that the contract had been terminated A few days later Maberry returned to Southwest Industrial Properties, Inc. its check for the earnest money deposit of $25,000 with a letter stating 'I am sorry this didn't work out.'
The Texarkana Court of Civil Appeals held, on the former appeal, that the above quoted typed provision making the contract subject to the purchaser's obtaining a satisfactory change in the zoning, and giving the purchaser the option to terminate the contract otherwise, had 'a controlling influence in this appeal,' and that in effect a satisfactory change in the zoning, 'unless waived by Southwest Industrial Properties, Inc., was made a condition precedent to performance of the other terms of the contract.' The court then held that 'the crucial and determinative question in this appeal is: Does the record show as a matter of law that Southwest Industrial Properties Inc., exercised its option to terminate the contract with Julian dated February 10, 1965?'
After the reversal and remand by the Texarkana court, appellees took the oral deposition of Joe T. Fox, who testified that he was then and in 1965 the executive vice president of Southwest Industrial Properties, Inc.; that on or about July 29, 1965 he, on behalf of Southwest Industrial Properties, exercised the right not to purchase the property; that the contract dated February 10, 1965 was not consummated, but was abandoned; that he received his earnest money back and assumed that he had no other rights under the contract; that the contract of February 10, 1965 was terminated in pursuance of the typewritten provision therein; that he and Maberry talked about the matter before Maberry mailed his letter of July 21, 1965 and that that letter expressed the intention of Southwest Industrial Properties, Inc.
Appellees filed their second motion for summary judgment referring to Fox's deposition and attaching Fox's affidavit in which he swore that he had entered into the contract of February 10, 1965 because of the typewritten provision referred to above; that on July 13, 1965, the Planning Commission of the City of Carrollton denied the request for change of zoning; that Southwest Industrial Properties, Inc. exercised its option to terminate the contract because the zoning change was not obtained satisfactory to it as purchaser; that in October, 1967 John Julian entered into another contract with Southwest Industrial Properties, Inc. for the sale to it of the same property, but that Joe F. Maberry was not a party to this contract in any way and that the terms of the contract were entirely different from the terms of the contract of February 10, 1965.
John Julian's affidavit was also attached to the second motion for summary judgment, in which he swore the contract of February 10, 1965 was never consummated but was terminated, and that some two and a half years later he entered into a contract for the sale of the same property to Southwest Industrial Properties, Inc. on entirely different terms and conditions.
Also in evidence was the letter from appellant to John E. Julian dated July 21, 1965, in which appellant states that it is his 'understanding' that the contract had been terminated 'in accordance with the Special Conditions covering change in zoning,' and adding: 'If such is the case, this is to advise you that you owe us no commission.'
Within the next eight days appellant evidently became convinced that the contract had been actually terminated by Southwest Industrial Properties, for on July 29, 1965 he wrote the letter to Mr. Joe Fox returning the earnest money check for $25,000 and stating, 'I am sorry this didn't work out.' Appellant offered no opposing evidentiary data.
In the light of appellees' positive and undisputed testimony, we hold that they did show as a matter of law that the contract was terminated by Southwest Industrial Properties, Inc., and that the second motion for summary judgment was properly granted.
Appellant argues under his first three points of error on appeal that the language in paragraph 13 of the contract of February 10, 1965, that 'such commission shall irrevocably vest upon the execution of this...
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...supra; Lotspeich v. Chance Vought Aircraft, supra; Hall v. Fowler, 389 S.W.2d 730 (Tex.Civ.App., Dallas, 1965, n.w.h.); Maberry v. Julian, 479 S.W.2d 770, 775 Tex.Civ.App., Dallas, 1972, writ ref., n .r.e.); Rule 90, In our opinion the summary judgment proof establishes as a matter of law t......
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