Nail v. Boothe

• Decision Date: 29 October 1924
• Docket Number: (No. 1669.)
• Citation: 265 S.W. 1051
• Parties: NAIL et al. v. BOOTHE et al.
• Court: Texas Court of Appeals

Page 1051

265 S.W. 1051

NAIL et al. v. BOOTHE et al.

(No. 1669.)

Court of Civil Appeals of Texas. El Paso.

October 29, 1924.

Appeal from El Paso County Court, at Law; J. M. Deaver, Judge.

Action by Viron J. Boothe and others against Walter Nail and another. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

Lea, McGrady, Thomason & Edwards, of El Paso, for appellants.

Jones, Hardie & Grambling, of El Paso, for appellees.

HIGGINS, J.

Appellees, real estate agents, sued appellants, Walter and Robert Nail, to recover a commission upon the sale of certain property to a Mrs. Shupe. The plaintiffs alleged that Robert Nail was the owner of the property; that Walter Nail represented to them that he was the owner of the property, listed it with plaintiffs, and agreed to pay them a commission, that Walter Nail was the agent of Robert Nail, and the latter through his said agent agreed to pay plaintiffs a commission for the sale of the property The plaintiffs recovered judgment against defendants jointly for $270. The evidence shows that the liability, if any, of Robert Nail, was that of an undisclosed principal, and the liability, if any, of Walter Nail, was that of an agent acting for such principal.

The case falls clearly within the rule announced in Heffron v. Pollard, 73 Tex. 100, 11 S. W. 165, 15 Am. St. Rep. 764, Pittsburg, etc., v. Roquemore (Tex. Civ. App.) 88 S. W. 449, and Veazie v. Beach Plumbing Co. (Tex. Civ. App.) 235 S. W. 695, which hold that the plaintiff cannot recover against both the agent and undisclosed principal, but must elect which he will sue. Neither the pleading nor the evidence will support the judgment upon the theory that Walter Nail became bound as a guarantor or surety for Robert Nail as suggested by appellees. The evidence simply shows a several liability upon the part of the appellants under the rule applying in the case of an agent for an undisclosed principal. Appellants' assignments upon this phase of the case are sustained.

At the time the property was listed with appellees by Walter Nail, the title was vested in J. H. McClenahan of Salt Lake City. Subsequent to the listing a deed was filed for record conveying the property from McClenahan to Robert Nail for a recited consideration of "ten dollars and other considerations."

The deed from Robert Nail to Mrs. Shupe recited a like consideration. Both deeds provided that the property was conveyed subject to certain specified incumbrances, but the payment thereof was not assumed by grantees. According to the defendants' theory, Robert Nail had intended purchasing the property, but on account of delay in obtaining the deed from McClenahan he decided not to acquire same, and so notified McClenahan's agent in El Paso. About that time, however, the deed came, and in order to avoid the delay incident to returning the deed to Salt Lake and obtaining one to Mrs. Shupe direct, the one to Robert Nail was filed for record and he conveyed to Mrs. Shupe. According to Robert Nail, the conveyance to him was filed without his knowledge or consent, but having been filed he conveyed to Mrs. Shupe upon request According to his theory, he acted as a mere...