Miers v. Brouse
| Decision Date | 30 June 1954 |
| Docket Number | No. A-4406,A-4406 |
| Citation | 153 Tex. 511,271 S.W.2d 419 |
| Parties | MIERS v. BROUSE. |
| Court | Texas Supreme Court |
A. C. Scurlock, Dallas, for petitioner.
Townsend & Townsend, Dallas, for respondent.
Petitioner filed this suit against respondent on September 20, 1950, alleging that prior thereto the parties were acting as partners or engaged in a joint venture. The business of the alleged partnership involved the development and sale of certain lands situated in Dallas County, Texas. Petitioner alleged that the partnership began in 1943; that pursuant to contract and agreement with certain landowners, petitioner and respondent began improving the land, subdividing it into lots and entering into sales contracts with third parties as purchasers. Petitioner alleged that as the result of such activities many sales were made and that the sum of $2,073.72 was in the possession of the respondent; that petitioner was and is the owner of such sum; that it was agreed that all funds were to be held by respondent as trustee for the benefit of petitioner and respondent and the landowners; that the landowners were to receive 60% of all profits resulting from sales, and the petitioner and respondent were to receive 40% of the profits; that the respondent failed to pay over to petitioner his share of the profits realized from the sale of the lots.
Petitioner and respondent agree that purchasers of lots had paid to respondent the sum of $1,511.50 to be used by the partners in graveling the streets 'in front' of their respective lots, and that this sum of money had not been so expended; that the money was in the possession of respondent and should be refunded to the purchasers. On April 14, 1951, petitioner filed an application for the appointment of a receiver, and prayed for a temporary injunction restraining the respondent from disposing of any of the funds derived from the business of the partnership. The temporary injunction was granted on May 5, 1951. Petitioner's bond was filed and approved on May 9, 1951. The injunction was issued on May 28, 1951, and the respondent was delivered a true copy thereof by the Sheriff of Dallas County, Texas, on May 29, 1951.
On December 17, 1952, respondent filed a motion to dissolve the temporary injunction. The motion was overruled. The Court of Civil Appeals for the Fifth Supreme Judicial District of Texas has dissolved the injunction as to all monies claimed by petitioner, but modified the injunction 'to preserve the $1,511.50 for the purpose for which it was created, that is, it is to be used only for the purpose of graveling the streets in front of the property sold.' For full statement of the pleadings and evidence see the opinion, 261 S.W.2d 734, 739.
This case involves the construction of Article 6573a, Vernon's Annotated Civil Statutes of Texas, known as the 'Real Estate Dealers License Act'. The opinion of the Court of Civil Appeals recites the provisions of the statute involved, and the respective contentions of the parties. Petitioner and respondent were licensed real estate dealers when they entered into the partnership agreement. Petitioner renewed his license each year and was a duly licensed real estate dealer until December 31, 1946. Respondent contends that the failure of petitioner to renew his license automatically dissolved the partnership, and a suit to recover subsequently accruing commissions could not be maintained without proof of license. The Court of Civil Appeals has sustained this contention and dissolved the injunction, holding that petitioner was not entitled to maintain the suit '* * * without both alleging and proving that he was a duly licensed dealer or salesman at the time the cause of action arose. * * *' In reaching its conclusion the Court necessarily held that petitioner's entire cause of action did not arise until after December 31, 1946. With this holding we do not agree. The record reveals that at least a part of the cause of action arose at a time when petitioner was a duly licensed real estate dealer under Article 6573a, supra. We hold that petitioner, although he now stands without a license, has the legal right to maintain a cause of action for all claims against respondent which arose by virtue of sales of lots made by the partnership prior to December 31, 1946. When petitioner...
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...will not suffer a right to be without a remedy. Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801, 807 (1956); Miers v. Brouse, 153 Tex. 511, 271 S.W.2d 419, 421 (1954) ("The first maxim of equity is that it will not suffer a right to be without a remedy. As Lord Holt early said: 'If the pl......
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...Chapter" in Uniform Commercial Code); 1.308(a) ("Performance or Acceptance Under Reservation of Rights"). 22. See Miers v. Brouse., 153 Tex. 511, 271 S.W.2d 419, 421 (1954) ("The first maxim of equity is that it will not suffer a right to be without a remedy. As Lord Holt early said: `If th......
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Parvin v. Dean
...necessity have a means to vindicate and maintain it * * *. It is a vain thing to imagine a right without a remedy." Miers v. Brouse, 153 Tex. 511, 271 S.W.2d 419, 421 (1954) (quoting Lord Holt). See also Chandler, 294 S.W.2d at 807 (where, on the premise that equity will not suffer a right ......
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NEW LEFT ED. PROJ. v. BOARD OF REGENTS OF U. OF TEX. SYS.
...law, a temporary injunction "can not be the basis of res judicata since it is only an interlocutory order * * *." Miers v. Brouse, 153 Tex. 511, 516, 271 S.W.2d 419, 421 (1954). Thus there is no fullfaith-and-credit issue presented in this case which might justify a holding of res judicata.......