Noyes v. Kendrick

• Decision Date: 17 March 1927
• Docket Number: (No. 1973.)
• Citation: 293 S.W. 296
• Parties: NOYES v. KENDRICK.
• Court: Texas Court of Appeals

293 S.W. 296

NOYES v. KENDRICK.

(No. 1973.)

Court of Civil Appeals of Texas. El Paso.

March 17, 1927.

Appeal from Gaines County Court; T. O. Stark, Judge.

Action by J. J. Kendrick against E. L. Noyes. Judgment for plaintiff, and defendant appeals. Affirmed.

Philip Yonge, and Garland & Yonge, all of Lamesa, A. L. Duff, of Seminole, and E. L. Noyes, of Kansas City, Mo., for appellant.

N. R. Morgan, of Seminole, for appellee.

WALTHALL, J.

Appellee, a real estate dealer, brought this suit against appellant to recover the sum of $495.75, alleged to be due him as part of his commission on a sale of 661 acres of land in Gaines county.

Appellee alleges that appellant listed said land for sale with him at the net price of $6 per acre to appellant on stated terms; that appellee was to have as his compensation all over said $6 per acre net to appellant; that thereafter he negotiated the sale of said land and fully reported same to appellant, who accepted the sale contract by letter of date June 12th, instructed appellee to go ahead with the sale, which was done, and the sale closed and deed and notes delivered; that appellant paid appellee his commissions except the balance of $495.75, for which he sues.

Appellant answered by general denial, and pleaded accord and satisfaction.

The case was tried before the court without a jury resulting in a judgment in favor of appellee for the amount sued for. The parties having failed to agree upon a statement of facts, the trial judge made and filed a statement which he certified to be true and correct. The court made no findings of fact. The statement is lengthy, and consists largely of lengthy correspondence between the parties; appellant then living at Kansas City, Mo., and appellee living at Seagraves, Gaines county, Tex.

The instrument, called a listing contract, is dated February 2, 1924, and signed by appellant. It appoints appellee and Joe M. Warren, of Clarendon, Tex., appellant's agents to sell his lands. As to commissions, it states:

"All sales to be made subject to the state lien, the buyer or buyers to assume the state lien, and the price herein given is subject to the state lien and in addition to the state lien."

The terms are stated to be one-eleventh cash and the balance on time at 6 per cent. interest. It states: "I will pay you a commission of 5 per cent. out of the cash payment," and furnish an abstract.

The land involved here and listed, and the price, are stated to be: "Section 22, block C-35, $6 per acre, state lien $1.75 per acre." The listing contract terminated August 1, 1924.

On February 5, 1924, appellee wrote appellant, after making some statements as to the small commission, but apparently not otherwise material to the issues here, reading:

"I shall continue my best efforts now I have a known listing value of each contract, and hope to be able to report some new sales soon."

February 7, 1924, appellant wrote appellee as follows:

"If you can sell the land at a higher price than I have listed it with you, then you may receive the benefit of such increase price. But in making the deeds I do not want to state the consideration any more than I receive for the land, for the reason that the price named in my deeds will have influence in making settlement with the government as to the federal estate tax."

The sale contract of date June 7, 1924, of the land involved, without setting it out in full, contains the following provisions: The seller, appellant, represented by appellee, has sold to J. C. Darroch the two parcels of land involved here; that is, section 22, block C-35, containing 640 acres, and 21 acres part of section 29, block C-35. The consideration stated is $9 per acre. The purchaser assumes the amount due the state of $1.75 per acre. The purchaser to pay $2.50 per acre cash and execute ten notes of equal amounts for remainder of consideration after deducting amount to be paid the state, due and payable as stated, and bearing 7 per cent. interest; seller to furnish abstract. Purchaser accepts contract and pays $250, part payment held in escrow pending closing of sale; seller to have land surveyed and corners established and field notes incorporated in abstract.

On June 9, 1924, appellee mailed a copy of the sale contract to appellant with inclosed letter, which, omitting addresses, reads as follows:

"Dear Sir: I am glad to report to you a sale of [describing the two tracts of land]. Having others interested with me in this deal, I desire to avail myself of the option to sell these lands at a net price to you of $6 per acre in cash net, I to receive fifty cents per acre in cash and a credit to be arranged of approximately $495.75. This will entitle me to pay for abstract and pay for having the land surveyed as recited in contract, together with paying taxes accruing for the current year. You suggested that in selling the land on the net basis to you that the excess not be showed in the deed on account of the additional costs in your income reports; but in this instance it was not convenient to have it not shown, so I have secured you 7 per cent. instead of the 6 per cent. to reimburse you in this instance. * * * [Then reference to solvency of buyer not important.] I am willing to leave this credit with you as an open account for a while, and it may be that I will let you apply later on the purchase of a half section of your land out west of Seminole and in this case I infer that it would suit you quite well to make such adjustment and get your land turned into note-bearing interest."

June 12, 1924, appellant wrote appellee as follows:

"Yours of the 9th with contract of J. C. Darroch for sale of section 22, block C-35, and the south 21 acres of the east 221 acres of section 29, block C-35, duly (received) and considered. Total land to be sold 661 acres at $9, amounts to $5,948; state lien on said 661 acres, $1,127.17; cash payment of $2.50 per acre amounts to $1,652.50; amount to be deducted from purchase price by reason of state lien and cash payment $2,779.63, which amount, deducted from purchase price of $5,949, leaves $3,179.33 to be secured by ten notes and deed of trust; each note will be for $317.93, with interest at 7 per cent. per annum. I think the above figures are correct. Now if you should take east half of section 477, block G, at $6.50 per acre, the purchase price would be $2,080. If you were able to pay the expense of the sale and pay me the $2.50 per acre which Darroch is paying on the 661 acres then you would be entitled to a credit of $1,983, leaving only a balance due from you on the half section of $97. This is the way I understand your letter and contract. Perhaps you had better take a whole section instead of a half section, for the price I have put on my land is considerable lower than the price asked by other landowners. So I wrote before I think best to have the abstract work done by Mr. Duff. Go ahead with the sale, and write me and let me know if you understand the matter as I have stated in my letter."

June 16, 1924, appellee wrote appellant as follows:

"Concerning the commission adjustment in the last sale, a casual looking over of your figures seems to be allowing me an excess above what I would be entitled to under our prior understanding, but I will investigate and go into detail when I submit the instruments in that sale. I have desired to look up those outlying lands of yours, and I shall do that soon. If I conclude that I can handle any of it I will do so."

The sale to Darroch, after some delay, was closed. The $250 paid as earnest money was paid to appellee to apply on his commission and expenses of abstract, survey, etc.

Appellant testified on the trial, explaining what was meant in his letter of February 7, 1924, "If you can sell the land at a higher price than I have listed it with you, then you may receive the benefit of such increase price," to the effect that he was paying a commission of 5 per cent., that the larger the price the land sold for, the more appellee's commission would be.

Appellant read in evidence a letter he received from appellee of June 4, 1923, in which appellee solicited the agency to sell appellant's lands in Gaines county, and as to the commission. He wrote: "I would expect to be protected for a 5 per cent. commission on the bonus valuation of the land." Also a letter of June 2, 1924, from apepllant to appellee which reads in part:

"Under our agreement, I am to pay you 5 per cent. commission on the amount coming to me, after the amount due the state is deducted. That was your offer as to commission. And the contract I sent you some time ago provides that your compensation shall be 5 per cent. on amount coming to me."

Appellant read in evidence a copy of a letter he wrote appellee June 13, 1924. Said he wrote the letter himself, sealed it, and placed a 2-cent postage stamp on it, and mailed it, properly addressed and in a return envelope; letter was not returned to him.

Appellee denied that he ever received the letter. The letter read:

"Since writing to you yesterday, I have reread yours of the 9th, and the contract of agency I gave you last February; it being your only authority to act as my agent to sell my lands in your county. I note in your said letter you state, `I desire to avail myself of the option to sell these lands at a net price to you of $6 per acre bonus, you to receive the $2 per acre in cash net, and I am to receive 50 cents per acre in cash and a credit to be arranged of approximately $495.75.' You have no contract of that kind. I did give Mr. Warren a contract somewhat like that, but the contract expired May 1, 1924, and no sales were made under it, and Mr. Warren released me from said contract a long time before it expired. As I pay you a commission of 5 per cent. on the amount coming to me, it is your interest to sell for the best price you can. The larger the price, the more your commission will be. And it is your duty as my...