Patton v. Wilson, 11913.

• Decision Date: 09 February 1949
• Docket Number: No. 11913.,11913.
• Citation: Patton v. Wilson, 220 S.W.2d 184 (Tex. App. 1949)
• Parties: PATTON v. WILSON.
• Court: Texas Court of Appeals

220 S.W.2d 184

PATTON v. WILSON.

No. 11913.

Court of Civil Appeals of Texas. San Antonio.

February 9, 1949.

Rehearing Denied March 9, 1949.

Appeal from District Court, Ninety-Third District, Hidalgo County; W. R. Blalock, Judge.

Action by Mrs. W. P. Patton against H. L. Wilson to recover $2,500 as a real estate dealer's commission allegedly due under an exclusive listing contract. From a judgment for defendant, the plaintiff appeals.

Judgment affirmed.

Strickland, Ewers & Wilkins, of Mission, for appellant.

Greer, Cox & Patterson, of McAllen, for appellee.

MURRAY, Justice.

This suit was instituted by Mrs. W. P. Patton in the 93rd District Court of Hidalgo County, Texas, against H. L. Wilson, seeking to recover the sum of $2,500 as a real estate dealer's commission alleged to be due her under an exclusive listing contract. The case was submitted to the trial court upon an agreed statement of the case which reads as follows:

"Come now the plaintiff and defendant, through their respective attorneys, and agree and stipulate:

"I. That this cause may be submitted to the Court upon stipulation of fact as herein set out.

"II. That Plaintiff is a duly licensed real estate dealer and was at all times pertinent to this cause, and that plaintiff has had her disabilities removed for trading and mercantile purposes, and at all times pertinent to this cause, including the filing of this suit, is a person sui juris.

"III. That the defendant, in writing, gave plaintiff what is headed `Approved Listing Card — Listing Agreement,' according to the original attached hereto and made a part hereof.

"IV. That thereafter, on the 10th day of April, A.D. 1947, and within 15 days from the date of said listing, the said defendant sold said property through other agents at a price of $63,000.00.

"V. That plaintiff was not the procuring cause of the sale.

"VI. The approved listing card and listing agreement signed by Defendant is as follows:

"Approved Listing Card — Listing Agreement

                            "Date 3-29-47
                

"I hereby authorize and appoint Mrs. W. P. Patton of Pharr, Texas, my agent to Negotiate, Sell or purchase the property as follows, to-wit: South 30 acres of Lot 223, Hall-Fifield Subdivi.

"On Contract of sale of said property I agree to furnish a supplementary abstract, certified to date, showing good and merchantable Title or, a Title Insurance Policy; and to convey or cause to be conveyed, by General Warranty Deed, title to the premises described, free of all encumbrances except as shown below:

"My price is $65,000.00, Payable as follows: $30,000.00 Cash, Balance to Be Arranged

"I agree to pay you a commission of the total consideration $2500.00.

"This listing is exclusive for 15 days, and thereafter becomes _______

"Upon withdrawal of the listing I promise to give you immediate notice in writing.

                 "/s/ H. L. Wilson
                                          "Owners
                

"VII. The Commission sued for has not been paid in whole or in part."

The trial court, in a non-jury trial, rendered judgment that plaintiff take nothing, from which judgment Mrs. W. P. Patton has prosecuted this appeal.

We are of the opinion that the judgment of the trial court is correct. The "Approved Listing Card — Listing Agreement" is on its face a nudum pactum and unenforceable. It is not signed by appellant, Mrs. W. P. Patton. It does not obligate her to do anything. It is nothing more than an offer to pay her a commission if she should sell appellee's land for $65,000. It does give her an exclusive agency for fifteen days for this purpose. It does not even require her to file this listing card among her other listings. She is not obligated to advertise the property, to seek prospective buyers therefor, to show the property to such prospects, or to expend any time, money or effort in endeavoring to find a buyer for the property. Such an instrument is at most a unilateral contract and is not binding upon appellee and may be disregarded by him, unless and until appellant has produced a purchaser, ready, able and willing to purchase the property upon the terms stated, or until she has expended some time, money or effort in attempting to locate such a buyer.

Here the record does not show that appellant paid a consideration for this listing. The stipulation says it was given to her. It does not show that she has done one thing in an effort to find a buyer for the property.

In Restatement of the Law of Agency, § 449, p. 1059, we find the following statement: "In the ordinary listing of property with a real estate broker, the broker's promises to use his best efforts or other similarly indefinite promises are not, without other facts, sufficient to indicate that consideration has been given."

and the following illustration is given: "P lists Blackacre with A for sale, it being stated that A is to have `the exclusive agency for three months.' A pays nothing for this and makes no agreement to do more than to list Blackacre among the properties which he has for sale and to use the facilities of his office in effecting a sale. A week later the land is sold to T, who had been introduced to P by another broker. A is entitled to no commission."

In the instant case the agent did not even offer to use his best efforts or make any other similar indefinite promise.

In 4 R.C.L., § 56, p. 319, we find the following: "According to some decisions, if an agreement between an employer and a broker to pay the latter commissions in case a sale is made by either is unilateral in character and does not obligate the broker to do anything, then it is void for lack of mutuality and the broker can lay no claim to commissions where the transaction in question is effected without his aid."

In 8 Am.Jur., § 57, p. 1015, it is said: "It would seem, however, that to bind the owner, a contract must in fact have been in existence. That is, there must have been some consideration furnished on the part of the broker. Mere permission to the broker to sell property within a specified time, without any consideration or expenditure of time or money on his part, is a nudum pactum which may be revoked at any time."

We have not found any Texas cases which we regard as being in point, but we do find a number of cases from other jurisdictions in point. In Bell v. Dimmerling, 149 Ohio St. 165, 78 N.E.2d 49, 52, a suit involving somewhat similar facts as are here involved, we find the following language:

"With reference to the subject of `Unilateral Contracts,' it is stated in 9 Ohio Jurisprudence 239, Section 5, that `The contract does not come into existence until one party to it has done all that is necessary on his part; it is performance by one party which makes obligatory the promise of the other.'

"Conceding that at the time the `contract' was signed and accepted it was a mere nudum pactum, when plaintiff exerted her efforts to find a purchaser for the property, consideration was supplied, the promisor became bound by the commitments he had made and a contract came into existence, enforceable by the plaintiff."

This is a correct statement of the law. Where a listing contract is unilateral on its face it does not come into existence as a binding contract until the broker or real estate agent has performed, or at least partly performed, his duties under the agreement. In the case at bar there is not one word that indicates that appellant has done one thing in attempting to perform the agreement.

Another case in point is that of Garfunkel v. Byck, 28 Ga.App. 651, 113 S.E. 95, 96, wherein the Court held the following demurrer was properly sustained to plaintiffs' petition, to wit: "`(2) That said petition fails to set forth any cause of action against this defendant for that the contract declared upon and annexed to the petition is void for lack of mutuality and is unilateral, for that: (a) There is nothing in said contract making it obligatory upon the plaintiffs to make any effort to sell the property mentioned: (b) that while in said contract the defendant directs that the property shall be advertised, yet there is not by the contract any obligation upon the plaintiffs to so advertise the property; the advertising being discretionary with the plaintiffs.'"

In Kolb v. Bennett Land Co., 74 Miss. 567, 21 So. 233, 234, we find the following statement: "`This alone was no contract, for there was no mutuality of obligation. The plaintiff (the agent) did not, by this instrument, obligate himself to do anything, and therefore the other party was not bound;' and the court denied the agent any compensation whatever, even for expenses, and says further as to the agent: `He can recover nothing for what he did unless there was a complete contract, in which case, of course, he might have recovered damages for its breach.'"

Appellant has cited 10 Tex.Jur., § 92, p. 161, wherein it is stated that mutuality may result from an implied obligation on the part of one of the parties. We cannot find anything in the "Listing Card" herein involved which...