Radford v. McNeny, 1664 - 6802.

• Decision Date: 28 April 1937
• Docket Number: No. 1664 - 6802.,1664 - 6802.
• Citation: 104 S.W.2d 472
• Parties: RADFORD v. McNENY et al.
• Court: Texas Supreme Court

104 S.W.2d 472

RADFORD v. McNENY et al.

No. 1664 - 6802.

Commission of Appeals of Texas, Section B.

April 28, 1937.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Suit by F. F. McNeny and another against J. M. Radford. Judgment for defendant was reversed by the Court of Civil Appeals [70 S.W.(2d) 824], and defendant brings error.

Judgment of the Court of Civil Appeals reversed and the judgment of the trial court affirmed.

W. E. Lessing, Ben L. Cox, and Cox & Hayden, all of Abilene, for plaintiff in error.

Touchstone, Wight, Gormley & Price and Philip L. Kelton, all of Dallas, for defendants in error.

MARTIN, Commissioner.

The parties litigant will carry here their trial court designation.

Plaintiffs sued defendant for breach of a contract to pay them a brokerage commission. Judgment was entered for defendant upon a peremptory instruction. The Court of Civil Appeals reversed this judgment. McNeny et al. v. Radford, 70 S.W. (2d) 824, 827. The Supreme Court granted a writ of error upon the assignment questioning the validity of the contract sued upon because too indefinite and uncertain to be made the basis of a cause of action. The contract is set out in haec verba in plaintiff's petition, the material portions of which are:

"That for valuable consideration, said plaintiffs entered into the following written agreement with the defendant, J. M. Radford, on or about November 19th, 1928, relative to the leasing of premises belonging to the defendant, located on the northwest corner of Pine and Third Streets in Abilene, Texas, on the terms and for the consideration expressed in said contract, which is as follows:

"McNeny & McNeny

"Realtors

"Chain Store Leasing

"* * * City of Abilene, Texas, Population 30,000 Trade Territory 500,000 Street and No. Northwest Corner Pine & Third Sts. Term 30 yrs. Lease Begins Upon completion of building Lease Price $13,000 gross 10 yrs; $14,000 gross 10 yrs; $15,000 gross 10 yrs. Size of Building 50 × 140 feet Size of Lot 50 × 140 feet No. of Stories Alley Yes. Size of Basement None Size of 2nd Floor As specified Name of Tenants, Rentals Paid, Expiration Dates: Property at present is a vacant lot. Taxes _______ Insurance Premiums _______. Owner's Allowance for Improvements Owner to construct building with first and second floors as to specifications of chain. Condition of Building no building. Estimated Remodeling Costs New building Ceiling Heights: Basement _______ 1st Floor _______ Other Floors _______ Columns: (Location and Distance Between) As specified Location of Elevator As specified Location of Stairway As specified No. of Stores one Character of Front As specified Party Walls no Brick Walls Yes Street Level flush Heating System: (Kind) gas Heat Furnished _______ Sale Price _______ Cash Payment _______ Balance _______ Owner J. M. Radford Phone _______ Owner's Address _______ Radford Grocery Co., Abilene, Texas."

"`McNeny & McNeny, Realtors

"`Gentlemen: In consideration of the services to be rendered by you, I hereby give you the exclusive agency for the lease of my property, above described for a period of sixty days from this date and thereafter until withdrawn on the terms indicated herein. And upon making said lease on such terms, or such others as I may accept, I agree to pay you a commission of 2% of the total consideration named in the lease. "`Witness (Signed) H. N. Harrision (Signed) J. M. Radford'

"Subsequently the lease price was changed by said Radford from the amount above set out to $12,000.00 gross 10 years; $13,000.00 gross 10 years; and $14,000.00 gross 10 years. That pursuant to said contract, McNeny & McNeny undertook and, on or about April 1st, 1929, did secure a tenant, in accordance with the terms of said contract above set out. That the tenant secured was Isaac Silver & Bro. Company, and this company was ready, able and willing to perform its portion of the lease contract, and Radford was so advised, but for some reason unknown to McNeny & McNeny, J. M. Radford failed and refused to carry out his portion of the lease contract.

"2.

"As provided in the agreement above set out, said Radford had agreed to pay to the plaintiffs two (2%) per cent, commission of the total consideration named in the lease, amounting to seven thousand eight hundred ($7,800.00) dollars.

"3.

"That the plaintiffs have performed their portion of the contract but the defendant has failed and refused to perform his contract, to the damage of the plaintiffs in the sum of $7,800.00."

It will be noted that plaintiffs elected to stand alone upon a breach of this contract as written, without even an explanatory averment. There is no allegation that a lease was made on terms...