Paul v. Prince

• Decision Date: 15 February 1921
• Docket Number: (No. 7968.)
• Citation: 228 S.W. 1102
• Parties: PAUL v. PRINCE.
• Court: Texas Court of Appeals

Page 1102

228 S.W. 1102

PAUL v. PRINCE.

(No. 7968.)

Court of Civil Appeals of Texas. Galveston.

February 15, 1921.

Rehearing Denied March 17, 1921.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Suit by Allen Paul against H. Prince. Judgment for defendant, and plaintiff appeals. Affirmed.

Presley K. Ewing and A. C. Allen, both of Houston, for appellant.

Louis, Campbell & Nicholson and W. A. Combs, all of Houston, for appellee.

GRAVES, J.

Paul, as a real estate broker, claiming that he had duly performed the specified services, in that he had sold the property as agreed, and that Prince had refused to pay the commission, sued the latter upon this written contract:

                              "Houston, Texas, July 5, 1919
                

"I agree to pay Allen Paul thirty-five hundred (3,500.00) dollars commission on the sale of lot 1, in block No. 44, in the city of Houston, this commission to be paid when deed is passed to said Allen Paul's purchaser, as commission for making the sale. [Signed] H. Prince."

The lot had on it what is known as the Lumberman's National Bank building. Plaintiff averred that he sold the property to Sakowitz Bros., a corporation, for $250,000, which sale the defendant accepted and ratified by making deed accordingly to the purchaser, whereby he became liable to plaintiff for the commission fixed in the contract declared upon.

In so far as is material here, the defendant answered with these two defenses:

(1) That the agreement for compensation was at first $2,500, but was increased to $3,500 under the false representation of the plaintiff (upon which defendant relied) that he had been compelled to engage assistant agency services towards financing the purchaser in order to enable it to buy, and that for this reason the compensation should not exceed $2,500.

(2) That the plaintiff was not entitled to recover the $2,500, or any amount, because, as alleged, he had, pending the transaction for the sale, and before its closing, without the knowledge of defendant, accepted employment from the purchaser corporation, Sakowitz Bros., and agreed with it to use his services to obtain the property at its price, to wit, $250,000, for a remuneration to be received by him, and which was afterwards paid to him.

In a supplemental pleading plaintiff vigorously denied these allegations of false representation and of disloyalty, but declared that, to use the language of his brief:

"After the sale transaction in question was closed, said purchaser gave him $2,500 for his services in an independent matter relating to the acquisition of certain leases by it, and wholly as a gratuity concerning the sale transaction in question, and without the slightest legal obligation on the purchaser's part in that respect."

The court tried the cause without a jury and rendered judgment denying the plaintiff any recovery; he appeals, attacking different features of the following findings of fact and the conclusions of law, filed by the court below at his request:

"Findings of Fact.

"A short time before July 5, 1919, defendant employed plaintiff to sell the property known as the Lumberman's National Bank building in Houston, for which service defendant agreed to pay plaintiff $2,500. After some negotiations with Sakowitz Bros., who had offered $250,000 for the property, and who afterwards bought the property, plaintiff submitted to them an offer to sell at $275,000, that being the sum then demanded by defendant, and Sakowitz Bros. reiterated to plaintiff their counter offer to pay $250,000, declaring that sum to be their ultimate offer.

"On the morning of the day during which the trade was closed, or the day prior to that, Mr. Levy, acting for Sakowitz Bros., told plaintiff to go back and see Mr. Prince again, and if he could buy the property at their (Sakowitz Bros.') price (at the price they had named), and aid them in securing a lease upon the adjoining property, that they would give him $2,500.

"Plaintiff had substituted the offer of $275,000 as defendant's ultimate selling price, and thereupon stated to Mr. Levy, who represented Sakowitz Bros., that he did not believe defendant would accept that sum. He did not further attempt to procure a better offer from the buyers, but at once went to defendant and submitted to him the proposition made by Mr. Levy. He called defendant's attention to the fact that the property was under a long term lease at low rental, and that taxes are high, and that it was bringing only negligible net revenue on the investment, and that the Levy offer was a good one, and defendant would not be able to get a better offer.

"He did not disclose to defendant the offer of Levy to pay him $2,500 to procure the purchase at $250,000, and defendant knew nothing of such offer until after the sale.

"Prince agreed to sell for $250,000, and a contract of sale was executed between him and Sakowitz Bros., and $10,000 earnest money paid to defendant by Mr. L. Sochat, who represented Sakowitz Bros.

"After Prince had agreed with plaintiff that he would sell to Sakowitz Bros. at $250,000, plaintiff then stated to defendant that there was another broker in the deal, who was getting financial assistance to the purchasers to enable them to close the deal, and that in order for the deal to go through it would be necessary for plaintiff to split or divide his commission with such other broker, and that the $2,500 which defendant had promised to pay plaintiff was too small to split, and that the defendant would have to add another $1,000 to the commission. Whereupon defendant, rather than see the deal fall through at that state of the proceeding, and relying upon such representations, agreed in writing to pay plaintiff $3,500 if the sale was made by him.

"There was no other broker in the deal with whom Paul had to or expected to divide his commission, and Paul's representations in that respect were untrue.

"A short time after the earnest contract was signed, Sakowitz Bros. paid plaintiff the $2,500 which they had promised him in the event they were able to purchase the property at their price.

"Plaintiff was the procuring cause of the sale. Sakowitz Bros. promised plaintiff $2,500 substantially to induce him to procure defendant to accept their terms, and plaintiff, knowing that purpose for which such offer was made, tacitly accepted same, and did not further urge them to raise their offer, and proceeded to secure from defendant the closing of the deal on their terms, and that as to such further service he was, after such offer was made to him as to the price to be paid, acting for the benefit of the purchasers.

"Conclusions of Law.

"The plaintiff cannot recover the additional $1,000 added to the agreed commission by defendant because of plaintiff's misrepresentations in reference thereto, and cannot recover the $2,500 first agreed on, for the reason that his duty to the defendant was to secure the highest possible price for the property and give to defendant the full benefit of his skill, ability, counsel, and advice. His acts in accepting the offer of the buyers, and in immediately securing the closing of the deal on terms dictated by...