Maloney v. Strain, 4099
| Citation | 410 S.W.2d 650 |
| Decision Date | 14 October 1966 |
| Docket Number | No. 4099,4099 |
| Parties | V. J. MALONEY et ux., Appellants, v. Robert H. STRAIN, Jr., Appellee. . Eastland |
| Court | Texas Court of Appeals |
Sam Cleveland, Dist. Atty., Stephenville, for appellants.
Thomas J. Newton, Mineral Wells, for appellee.
Robert H. Strain, Jr., a licensed real estate broker, brought suit against V. J. Maloney and wife for real estate commissions in the amount of $300.00. The Maloneys answered alleging that plaintiff did not have a written contract listing their property for sale and agreeing to pay a commission, as required by law, at the time he found a purchaser and at the time a contract of sale was entered into between defendants and such purported purchaser. The case was tried before the court without a jury and judgment was rendered in favor of plaintiff for $175.00, with interest. The Maloneys have appealed from the judgment. Strain has also appealed, asserting that he was entitled to a judgment for $300.00 as provided in the contracts for sale of the property.
Article 6573a, Sec. 28, Vernon's Ann.Tex.Civ.St. provides 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 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 thereunder lawfully authorized.'
The record shows that Robert H. Strain, Jr., was at all times material a licensed real estate agent. He entered into two contracts in writing with V. J. Maloney and wife to sell their property on a 5% Commission basis. The first of these contracts was executed on July 10, 1963 and the second on November 26, 1963. Both of said contracts provided for a listing of the Maloney property for a period of ninety days and further that any person Strain might interest in the purchase of said property should be considered Strain's customer for a period of six months after termination of the listing. No prospective purchaser was secured by Strain during the time stated in the contracts. From time to time thereafter, however, the Maloneys urged Strain to continue his efforts to sell their property. On March 3, 1964, the Maloneys sent a postcard to Strain stating 'Hope we have a call soon.' Strain testified that sometime after March 1, 1964, he first contacted Leslie Cox and interested him in the purchase of the Maloney property. Thereafter on about September 1, 1964, Strain brought Mr. Maloney and Mr. Cox together in regard to the matter. On September 13, 1965, the Maloneys executed a sales contract with Leslie Cox, the prospective purchaser secured by Strain in which the Maloneys agreed to sell and Cox agreed to purchase the land for $6,000.00. This contract contained a provision that sellers would furnish abstract showing good title and that the sellers would pay the Strain Agency a commission equal to 5% Of the stated purchase price for services in connection with the sale, 'said commission to be paid out of the first monies received upon closing.' Title objections were made by Cox's attorney and the Maloneys sought to cure such objections. On November 18, 1965, the Maloneys had not furnished one of the title instruments required, and at a meeting between the Maloneys, Mr. Strain and Mr. Cox, the sales contract was torn up. The record shows, however, that at the time the contract of sale was torn up the Maloneys had in their possession an affidavit which would have cleared the final objection to the title. The record further shows that neither Strain nor Cox knew that such affidavit was in the possession of the Maloneys at the time the contract was torn up. They testified that had they known of the existence of the affidavit they would not have torn up the contract. The attorney representing Cox testified that if such affidavit had been submitted to him he would have approved it as removing his last objection to the title. Mr. Cox testified that if he had known that the title objection had been met by securing such affidavit he would have been willing to accept a deed to the land and pay the agreed price of $6,000.00 for the land.
Appellants, V. J. Maloney and wife, urge two points contending that the court erred in rendering judgment for Strain for any amount (1) because at the time of the finding of the purchaser by Strain he did not have a written contract with appellants then in effect listing the property for sale and (2) because at the time of the entering into the contract of sale and purchase between the Maloneys and purchaser Cox, the written contract of listing between the Maloneys and Strain had expired more than a year prior thereto, and Cox was not then a customer of Strain. These points are overruled.
The Maloneys are correct in the contention that the written contracts of July 10th and November 26, 1963, listing the property for sale with Strain had expired and were of no further force and effect. Strain was not entitled to recover under and by virtue of these contracts. The record, however, shows subsequent dealings between the parties whereby Strain at the instance of the Maloneys continued his effort to make a sale, and procured Leslie Cox, a prospective purchaser of the property. It is undisputed that on September 13, 1965, the Maloneys, by reason of the efforts of Strain, entered into a written contract with Cox for the sale and purchase of the property for $6,000.00. One of the provisions of the contract of sale was that the Maloneys were to pay to Strain a commission of 5% Of the purchase price. This written contract was signed by the Maloneys. It is held that such a contract of purchase and sale which provides that the seller shall pay a stated commission to the real estate agent is sufficient to comply with Sec. 28 of Article 6573a. Bridwell v. Sandefur, 341 S.W.2d 710 (Tex.Civ.App.1960, writ dismissed). It is further held that a real estate agent so employed to sell is entitled to compensation for his services when he procures a purchaser who is able, ready and willing to purchase the property at the price and upon the terms authorized. 12 C.J.S. Brokers § 85 page 187; Kendrick v. Boon, 254 S.W.2d 1016 (Tex.Civ.App.1953, ref. n.r.e.); Golden...
To continue reading
Request your trial
-
Texas Optometry Bd. v. Lee Vision Center, Inc.
...S.W.2d 609 (1960); Citizens National Bank of Lubbock v. Maxey, 461 S.W.2d 138 (Tex.Civ.App.--Amarillo 1970, writ ref. n.r.e.); Maloney v. Strain, 410 S.W.2d 650 (Tex.Civ.App.--Eastland 1966, no writ); Security Insurance Co. v. Pioneer Casualty Co., 449 S.W.2d 158 (Tex.Civ.App.--Houston (1st......
-
King v. Tubb
...Austin 1974, no writ); Flagg Realtors, Inc. v. Harvel, 509 S.W.2d 885 (Tex.Civ.App. Amarillo 1974, writ ref'd n. r. e.); Maloney v. Strain, 410 S.W.2d 650 (Tex.Civ.App. Eastland 1966, no This is not to say that an appellee must perfect a separate appeal in order to present cross-points on a......
-
Dorbandt v. Bailey
...motion for a new trial, or in any manner apprise the court of their dissatisfaction therewith. The cross-point is overruled. Maloney v. Strain, 410 S.W.2d 650, 654 (Tex.Civ.App., Eastland, 1966, n.w.h.); Security Insurance Company v . Pioneer Casualty Company, 449 S.W.2d 158, 160 (Tex.Civ.A......
-
Ortiz v. O. J. Beck & Sons, Inc.
...(Tex.Civ.App. Tyler 1974, writ ref'd n.r.e.); Dorbandt v. Bailey, 453 S.W.2d 205 (Tex.Civ.App. Tyler 1970, writ ref'd n.r.e.); Maloney v. Strain, 410 S.W.2d 650 (Tex.Civ.App. Eastland 1966, no writ); Security Insurance Co. v. Pioneer Casualty Co., 449 S.W.2d 158 (Tex.Civ.App. Houston (1st D......