McMahon v. Kirby

• Decision Date: 24 October 1923
• Docket Number: (No. 6644.)
• Citation: 256 S.W. 622
• Parties: McMAHON v. KIRBY.
• Court: Texas Court of Appeals

256 S.W. 622

McMAHON v. KIRBY.

(No. 6644.)

Court of Civil Appeals of Texas. Austin.

October 24, 1923.

Rehearing Denied November 28, 1923.

Appeal from District Court, Travis County; George Calhoun, Judge.

Action by W. B. McMahon against R. H. Kirby. Judgment for defendant, and plaintiff appeals. Affirmed.

Warren & Conn and Gavin Ulmer, all of Houston, for appellant.

White, Wilcox & Graves, of Austin, for appellee.

Statement.

BLAIR, J.

Appellant sued appellee for the recovery of an alleged brokerage commission due him for procuring purchasers ready, willing, and able to buy two tracts of timber land owned by appellee in Orange and Newton counties, under an alleged contract to pay 5 per cent. commission on the sale price thereof. Appellant's theory of recovery was based upon an alleged contract between himself and appellee, by the terms of which appellant agreed to take prospective purchasers of the timber lands to inspect it and to inform them that other purchasers were bidding, and that the highest bidder would get the timber lands — the purpose being to encourage competition in order that a better price might be obtained for the timber lands, the said bids to be made to appellee not later than a certain date named, and that appellee agreed to accept the bidder who offered the best price, or gave the highest bid, and that appellee agreed to sell for all cash, or part cash upon terms of deferred payment acceptable to him, and to execute a quitclaim deed, allowing five years in which to cut the timber. For his services in procuring the competitive bidders appellant was to receive a commission of 5 per cent. on the sale price of the timber lands listed with him.

The facts pleaded by appellant, upon which he claimed a commission based upon the contract, were that, in pursuance to the agreement, he showed or caused W. J. Saunders, R. S. Barber, A. M. H. Stark, and S. B. Conn to inspect the timber lands in Newton county; that appellee agreed to accept the bid of S. B. Conn for $44,000, of which part was to be paid in cash and the balance on time payments, and to execute his quitclaim deed allowing five years in which to cut the timber, but that appellee subsequently accepted the bid of W. J. Saunders instead of Conn, without the consent of appellant, and that later, because of some disagreement with Saunders, appellee again instructed appellant to resume negotiations with Conn, who agreed to purchase the timber on the Newton county land for the sum of $45,000, and that appellee agreed to execute a warranty deed to Conn conveying said timber land, and that, although appellant procured Conn, a purchaser who was ready, able, and willing to purchase the timber land in Newton county upon the agreed terms of appellee, appellee refused to convey the same by warranty deed as agreed, and still refuses to do so.

The facts alleged as to the Orange county timber lands are that the appellant showed the same to R. S. Barber, who offered to pay appellee $15,000 cash therefor, and, although appellee had agreed to accept the highest responsible bidder, and although Barber was ready, willing, and able to pay the amount bid, appellee refused to accept his bid, and still refuses to accept the same. And it is further alleged that $15,000 was a fair and reasonable price for the Orange county timber lands. Wherefore appellant contends that he is entitled to a 5 per cent. commission on $60,000, the combined sale price of the two tracts of land, aggregating the sum of $3,000 alleged to be due him as a commission.

Appellee answered by general demurrer and general denial, as well as by special exception, and further denied specifically that he at any time agreed to convey the lands or any part thereof by warranty deed to any one, or authorized appellant to inform purchasers that he had so agreed to warrant the title, but at all times had advised all purchasers that he would not warrant the title, and had so instructed appellant at all times, and further specifically pleaded that he did agree to sell Conn the Newton County timber for a cash consideration of $45,000, and that he agreed to execute a quitclaim deed thereto, allowing five years in which to cut the timber, and, further, that, in accordance with such an agreement, he did execute and tender to S. B. Conn a quitclaim deed conveying the title to the Newton county land, allowing 5 years in which to cut the timber, which deed Conn refused to accept, or to pay or tender appellee the purchase price agreed upon. Wherefore he alleged that appellant was not entitled to recover a commission based thereon.

The trial was had upon the issues as joined by the pleadings before the court, a jury being waived, and the court after hearing the evidence, rendered judgment for appellee. The trial court was not requested to file specific findings of fact and conclusions of law, and did not do so, but the judgment rendered merely recites "that the law and the facts are with the defendant."

Findings of fact.

An examination of the statement of facts filed herein discloses that appellant proved substantially the facts alleged in his pleadings, and that appellee proved substantially the facts alleged in his answer to appellant's pleadings, and that upon this conflicting testimony the trial court found for appellee. We find that the judgment of the trial court, although based upon conflicting testimony, is sufficiently supported by the evidence.

Opinion.

Appellant presents 11 propositions of law, based upon his various assignments of error and bills of exception, by which he seeks a reversal of this case. Propositions Nos. 3, 4, 5, 6, 7, and 8 merely set forth general propositions of law applicable to real estate brokers, and assume that appellant has conclusively proved the facts necessary to entitle him to recover under the law asserted. For instance, proposition 3 asserts that, in an action by an agent for compensation for negotiating a sale, where the services were performed under a contract stipulating that the compensation was to be a percentage out of the proceeds of the sale, the court should find for the agent where the sale did not go through because of the principal's refusal to comply with the terms of the contract of sale as outlined by himself.

The fourth proposition asserts that, in an action by an agent for compensation for the sale of property under an agreement that no price should be set, but that the property should be sold to the highest bidder under a competitive bidding plan, bids to be received within a certain specified time, the agent having found and brought to the principal such highest bidder, who was ready, able, and willing to purchase the property upon the principal's terms, where no sale is effected because of the failure of the principal to comply with the terms, the agent is entitled to his compensation.

The fifth proposition asserts that in an action by an agent for compensation for negotiating the sale of property where the buyer meets all conditions precedent, and the principal refuses to convey, the court should hold that the agent had earned his commission.

The sixth proposition asserts that, where an agent is authorized to procure a sale, in order to earn his commission he need only prove that he procured a buyer who was ready, able, and willing to buy on the terms fixed, and that the contract failed because of the failure of the owner to comply with the contract as made.

Propositions 7 and 8 assert similar general propositions of law, and we do not deem it necessary to recite them here. As general propositions we do not differ with the principles of law asserted by appellant; but, since each one assumes that the appellant had conclusively proved such state of facts to exist, they therefore resolve themselves into the one question of the sufficiency of the...