Neigut v. McFadden, 4905

• Decision Date: 04 March 1953
• Docket Number: No. 4905,4905
• Parties: NEIGUT v. McFADDEN.
• Court: Texas Court of Appeals

Page 864

257 S.W.2d 864

NEIGUT v. McFADDEN.

No. 4905.

Court of Civil Appeals of Texas, El Paso.

March 4, 1953.

Rehearing Denied April 1, 1953.

Gilbert T. Adams, Beaumont, for appellant.

Jones, Hardie, Grambling & Howell, El Paso, for appellee.

PRICE, Chief Justice.

This is an appeal from a judgment of the District Court of El Paso County, 41st Judicial District, in favor of David L. McFadden, hereinafter styled defendant, against William A. Neigut, hereinafter styled plaintiff. The judgment was that the plaintiff take nothing as against the defendant. The plaintiff's cause of action was founded on an alleged written agreement signed by the defendant, which was as follows:

'I will pay five per cent commission on sale of Food Mart stores and Texas Wholesale Company, fixtures at book value, inventory at cost, good will to be $200,000.00.

'All over $200,000.00 for (good will) will be on a fifty-fifty basis with Mr. Neigut. / s/ D. L. McFadden.'

Plaintiff averred in substance that before the revocation thereof he procured a purchaser for the property and negotiated the sale thereof to said purchaser, said purchaser being satisfactory to defendant. It is further averred that a sale was consummated through the efforts of plaintiff and that plaintiff by virtue of the premises was entitled to the sum of $100,000; that the purchaser procured by plaintiff was J. Spencer Weed; that said customer agreed to pay $300,000 for good will; later defendant consummated the deal with said Weed for $1,275,109.85, which included the $300,000 aforesaid. Plaintiff sought judgment for the sum of $125,864.86. Plaintiff pled further, supplementally, that after he had produced and tendered to defendant a customer ready, able and willing to buy the property on the terms indicated in the listing, that defendant dealt with the said customer and closed the transaction on terms satisfactory to himself, and that defendant was thereby estopped to deny that plaintiff was the procuring cause of the sale consummated; that from the time the negotiations were initiated by plaintiff with said customer, same were never broken off, and that plaintiff was the procuring cause of the sale consummated.

Defendant answered by general denial and lengthy special denials. Thereafter defendant filed a motion for a summary judgment, alleging in substance that under the depositions and affidavits on file and the pleadings of the parties that it was shown conclusively that there was no genuine issue as to any material fact, and that the defendant was entitled to judgment denying the plaintiff any recovery from plaintiff's suit as a matter of law. It was prayed by the defendant that the motion be set down for hearing. In accordance with the prayer of the defendant the motion was set for hearing on the 17th day of December, 1951.

Plaintiff replied to defendant's motion for summary judgment, and on the 9th day of January, 1952, the court sustained the defendant's motion for summary judgment and decreed that plaintiff take nothing as against the defendant. The judgment recites the filing of the motion and of a supplemental motion, and reply to the affidavit of plaintiff; the submission to the court of the deposition of plaintiff taken on written interrogatories and also the deposition of plaintiff taken on oral interrogatories, and the deposition of defendant taken on oral interrogatories; the affidavit of defendant; the affidavit of Robert H. Hoy; the affidavit of J. Spencer Weed; the introduction in evidence of certain exhibits marked and identified in connection with the hearing; the affidavit of Thornton Hardie; copies of certain leases attached to his affidavit; the motion and supplemental motion for judgment by the defendant.

In this appeal six points of error are urged by plaintiff. Each and all assail the action of the trial court in sustaining the defendant's motion for summary judgment. It is asserted in substance that the action of the court in this respect was error; first, because the evidence raised the issue that plaintiff was the procuring cause of the sale; second, because the evidence raised an issue that prior to the time defendant and buyer Weed went to the attorney to have the contract drawn they had a complete meeting of minds as to the sale; third, because the evidence raised an issue that plaintiff furnished in the person of Weed a purchaser ready, able and willing to purchase on the terms authorized by defendant, and that thereafter defendant took the negotiations in his own hands and concluded a sale to said purchaser in terms satisfactory to him; fourth, because defendant was estopped to deny that plaintiff was the procuring cause of the sale for the reason he excluded plaintiff from the negotiations; fifth, because an issue was raised by the evidence that defendant and Weed actually broke off the negotiations before the consummation of the sale, their minds having theretofore been together, plaintiff having been excluded from the negotiations and the sale having been consummated thereafter on the identical terms agreed upon by the parties; sixth, because the evidence raised an issue of fact as to whether plaintiff was the procuring cause of the sale in view of the acts and conduct of the seller, McFadden, and the purchaser, Weed, their refusal to continue further negotiations, their refusal to allow him to work out the alleged differences that allegedly arose in New York, the misleading conduct by defendant and the fact that the sale was finally made on terms originally proposed by McFadden and under the contract defendant had with plaintiff; that these facts, or alleged facts, raised an issue which should have been sent to the jury for determination.

Defendant urges two counterpoints, in substance as follows: First: That the undisputed and conclusive evidence upon the motion showed that plaintiff at no time while his listing was in effect produced a purchaser who was in the sense required by law to entitle a broker to commission, ready, able and willing to purchase the assets listed upon the terms specified by the defendant or upon terms satisfactory to defendant; that there was no purchase from defendant while said listing was in effect, that the failure of Weed to consummate the sale was not due to any fault of defendant; Second: That it was established on the hearing beyond dispute that in the spring and prior to May 1st, 1949, that plaintiff procured a prospective purchaser, J. Spencer Weed, for the assets listed by defendant; that a fair opportunity and adequate cooperation and assistance was given plaintiff by defendant in an effort to close the sale to Weed on terms as agreed on between McFadden and Neigut; the negotiations for such a sale came to an end about May 7, 1949 without any sale having been made and without any binding contract of sale having been entered into without legal fault on the part of defendant; that thereafter the listing with Neigut was terminated about May 8, 1949; that approximately eight months thereafter, in January 1950, Weed on his own initiative and through no effort by or intervention on behalf of plaintiff and without plaintiff having been connected with the transaction since the early part of May 1949, resumed negotiations with McFadden and finally on March 29, 1950, a written contract was signed between Food Mart, Inc., and a Delaware corporation in which Weed and a member of his family owned the common stock as purchaser, and defendant, Frank M. Harris, Robert H. Hoy as sellers and Mamie L. Wilchar as the holder of the legal title of Frank M. Harris in the partnership. This contract provided for the sale and purchase of assets on terms substantially different from those applicable in the original listing with plaintiff, and upon terms and considerations substantially different from those applicable in the original listing with plaintiff. It was conclusively shown under the facts as alleged and as proved by the uncontroverted evidence that as a matter of law plaintiff was not the procuring cause of the sale which was actually consummated and was therefore not entitled to a commission.

The procedure pursued by defendant was in substantial compliance with Texas Rules of Civil Procedure, rule 166-A as to summary judgments. Section (b) thereof provides:

'A party against whom a claim, counterclaim or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.'

Section (c):

'The motion shall be served at least ten days before the time specified for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'

Paragraph (e) provides as to affidavits supporting and opposing the motion. In the words of Rule 166-A

'The judgment sought shall be rendered forthwith if the pleadings, depositions and admissions on file, together with the affidavits, if any, show * * * there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'

A defendant moving for a summary judgment in order to prevail assumes the negative burden of showing as a matter of law that the plaintiff has no cause of action against him. In order to prevail when the motion is submitted it must be shown that no material fact or facts entitling plaintiff to recover remains as an issue. De la Garza v. Ryals, Tex.Civ.App., 239 S.W.2d 854, e. r.; Kaufman v. Blackman, Tex.Civ.App., 239 S.W.2d 422, e. r.; Lesikar v. Lesikar, Tex.Civ.App., 251 S.W.2d 555; Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88...