Marr-Piper Co. v. Bullis

• Decision Date: 11 January 1928
• Docket Number: (No. 861-4951.)
• Citation: 1 S.W.2d 572
• Parties: MARR-PIPER CO. v. BULLIS et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

1 S.W.2d 572

MARR-PIPER CO. v. BULLIS et al.^*

(No. 861-4951.)

Commission of Appeals of Texas, Section B.

January 11, 1928.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by the Marr-Piper Company against Josephine W. Bullis and another, in which the named defendant sought judgment over against defendant Frank Alderete. Judgment for plaintiff and for defendant Bullis against defendant Alderete was reversed and rendered in favor of Bullis and remanded as to Alderete by the Court of Civil Appeals (296 S. W. 624), and plaintiff and defendant Alderete bring error. Judgment of Court of Civil Appeals reversed, and that of trial court affirmed.

John T. Hill, of El Paso, for plaintiffs in error.

John B. Howard, James R. Harper, and Goggin, Hunter & Brown, all of El Paso, and Guy S. McFarland, of San Antonio, for defendants in error.

SPEER, J.

This suit was instituted by Marr-Piper Company, a copartnership engaged in business as real estate brokers, against Mrs. Josephine W. Bullis and Frank G. Alderete, to recover commissions upon a sale of real estate belonging to Mrs. Bullis in the city of El Paso. Mrs. Bullis was sued upon an implied contract to pay such commissions, and the defendant Alderete, who was the purchaser of the property, was sued upon his agreement with Mrs. Bullis at the purchase that he would pay any commissions that would be due. Mrs. Bullis also sought judgment over against Alderete upon his promise to protect her. The plaintiffs recovered according to their prayer, and Mrs. Bullis likewise recovered over against Alderete. The Court of Civil Appeals reversed the judgment and rendered judgment in favor of Mrs. Bullis, but remanded the cause as to the defendant Alderete. 296 S. W. 624. Writs of error have been granted both to Marr-Piper Company and Alderete.

The judgment of the Court of Civil Appeals as to Mrs. Bullis was predicated upon its conclusion that there was "no evidence in the record establishing an acceptance on the part of Mrs. Bullis of the offer of appellee to sell her property for a commission, and in fact the evidence indicates, if anything, her unwillingness to do so." The evidence bearing upon the issue of implied contract is made up, for the most part, of correspondence between the parties, and is set out by the Court of Civil Appeals as follows:

                              "El Paso, Tex., March 31, 1925
                

"Mrs. Josephine W. Bullis, 627 Pierce St., San Antonio, Tex. — Dear Madam: We have a party with whom we have been figuring for several months, on a location for a picture show on South El Paso street.

"We have put up to him the property now occupied by Davis Bros., where they operated the old Bijou Theater. He states, however, that this is too far up on El Paso street and on the wrong side of the street for a picture show.

"We also mentioned to him your 63 and a fraction feet in the 300 block on South El Paso street, and he asked us to find out whether or not you would consider putting up a building on this property for him. He is willing to take a five or ten year lease and we believe the man to be financially responsible.

"We think you have good outside walls on this property and that it would not be such a very expensive operation to tear down the interior and rebuild.

"We, of course, do not know whether you are financially in position to build, or whether or not you would consider same for any other reason.

"We thought we would put the matter to you in this way for your consideration, and if you feel like going into the matter further, we could find out what it would cost and then base the rent on an income basis, considering the value of the real estate plus the cost of the improvements.

"We would be glad to hear from you considering this.

                     "Yours very truly,          P. D. Rice."
                               "San Antonio, Tex., April 5, 1925
                

"Marr-Piper Company — Dear Sirs: Yours of March 31st received, and contents noted, and in reply will say that it would not be a bad idea to do as you suggest if it would not cost too much, and if it would pay sufficient for the outlay.

"You might figure what it would cost, and let me know, 7 per cent. is certain and safe. I may consider if the proposition is attractive enough. Thanking you kindly,

                    "Yours truly,          Josephine W. Bullis."
                                "El Paso, Tex., April 8, 1925
                

"Mrs. Josephine W. Bullis, 627 Pierce Ave., San Antonio, Tex. — Dear Mrs. Bullis: We have your favor of April 5th, and we are going to have some sketches made of the building necessary and ascertain the approximate cost so as to be able to advise you of the amount necessary to be expended.

"The people with whom we are figuring on this building might be interested in buying this property and building, and on building, provided they can get the property at a reasonable value. If you would be interested in making a sale rather than spending the money necessary to put up the building, we would be glad if you would let us know what price you would take for same, and the terms you would require, including 5 per cent. commission to us, in case of consummation of the sale. Yours very truly, Rental Department, Marr-Piper Company, by P. D. Rice."

                                                 "April 15, 1925
                

"Mrs. Josephine W. Bullis, 627 Pierce Ave., San Antonio, Tex. — Dear Mrs. Bullis: Further in connection with our correspondence regarding the erection of a moving picture show on your South El Paso street property, we have had several contractors give us an approximate figure covering the cost of this property, and find that it would entail an expenditure of approximately $30,000.

"We are figuring with Frank G. Alderete who is now operating a picture show called the Eureka Theater on the corner of El Paso and Second streets. We are offered a lease for five or ten years by this man, and we believe him to be thoroughly responsible, on the basis of $500 per month. We think that we should have more than $500 for the second five-year lease.

"Mr. Alderete is going to East Texas the latter part of this month, and he would like to know if it would be agreeable for him to call on you and discuss the question of the erection of this building and a lease to him on a basis that would be profitable to you. At the same time he may take up the question of the purchase of this real estate in line with our letter of April 8th.

"We would be glad if you would advise us on receipt of this letter, whether you care to deal direct with Mr. Alderete on either of these propositions and have him call on you as above suggested, or whether you prefer for us to handle all of the negotiations. Yours very truly, Rental Department, Marr-Piper Company, by ____."

                             "San Antonio, Tex., April, 19, 1925
                

"Marr-Piper Company — Dear Sirs: Yours of the 15th read, and I am wondering if the erection of a moving picture building on South El Paso street would take all the frontage I own there. You, as my agent, could tell me what property is selling for a foot on either side of me, and in that way give me some idea of the value in case I wanted to sell. I have several deals I am trying to get through, but it will be a few months or more before they will materialize. I know what my husband paid for the said property some fourteen years ago; they should have improved since then, but now I am unable to say how they are. With taxes and insurance, I doubt if it would pay to erect such a building and make it pay at that rent.

                    "Yours truly,       Josephine W. Bullis."
                              "El Paso, Tex., April 21, 1925
                

"Mrs. Josephine W. Bullis, 627 Pierce Ave., San Antonio, Tex. — Dear Mrs. Bullis: We have your letter of the...