Reiser v. Jennings

• Decision Date: 01 July 1940
• Docket Number: No. 5180.,5180.
• Citation: 143 S.W.2d 99
• Parties: REISER v. JENNINGS.
• Court: Texas Court of Appeals

Page 99

143 S.W.2d 99

REISER v. JENNINGS.

No. 5180.

Court of Civil Appeals of Texas. Amarillo.

July 1, 1940.

Rehearing Denied September 9, 1940.

Appeal from District Court, Parmer County; Reese Tatum, Judge.

Suit by C. C. Jennings against E. J. Reiser for alleged breach of contract for the conveyance of land from the defendant through his purported agent to the plaintiff. From a judgment for plaintiff, the defendant appeals.

Reversed and remanded.

W. H. Russell, of Hereford, for appellant.

Aldridge & Aldridge, of Farwell, for appellee.

FOLLEY, Justice.

This suit was filed by the appellee, C. C. Jennings, against the appellant, E. J. Reiser, to recover damages for the alleged breach of a contract made by Charley Lunsford, purportedly as the agent of the appellant. This contract was for the conveyance of 320 acres of land in Parmer County, Texas, from the appellant through his purported agent to the appellee. In a trial before a jury judgment was rendered for the appellee in the sum of $1,645.79.

The appellant attacks the judgment upon various grounds, the principal of which are: (1) That the court should have sustained his general demurrer to appellee's petition; (2) that the court should have given a peremptory instruction in his favor; and (3) that the court should have permitted him to file a trial amendment denying the agency of Lunsford.

On April 11, 1939, Reiser was the owner of the 320 acres of land in Parmer County against which there was an indebtedness of about $4,000 secured by a lien. On this date Reiser listed the land for sale with Lunsford, who carried on a real estate business at Friona, Texas, under the name of "Real Estate & Livestock Exchange". The written instrument under which the listing was made was as follows:

                  "Real Estate & Livestock Exchange
                        "Chas. Lunsford, Prop
                          "Friona, Texas. 4/11—1939
                

"I hereby list the following property for sale or trade with Real Estate & Livestock Exchange of Friona, Texas, 320 acres, Sec. No. East 1/2 of Sec. 13, located 18 miles in N W. direction from the town of Friona, Tex in Parmer Co., County. Above listed property is improved as follows: 320 acres cultivated ____ acres in grass. Well and windmill, mill, no water mill, water ____, house ____, rooms ____, barn ____, sheds and out buildings ____, price $18.50 per acre ____, cash balance ____. I will pay 5% commission on sale or 2½% commission on exchange of property on delivery of title unless otherwise agreed. Not on loan. Remarks: This place has 224 acres of wheat, all goes with it at this price up till June 1, 1939. I am also listing this land for oil and gas lease. I want $400.00 Dollars for the 320 acres oil lease, with 50cts. rental per acre lease. I am not to pay any commission on oil lease.

                                   "Signed E. J. Reiser
                "Witnesses
                  "M. L. Phippin
                  "Chas. Lunsford"
                

On May 27, 1939, Lunsford, purporting to act as agent for Reiser, entered into a written contract with the appellee Jennings whereby the appellant through his purported agent agreed to sell, and the appellee to purchase, the 320 acres of land at the price of $18.50 per acre, the appellee agreeing to assume the indebtedness against the land and to pay the balance in cash upon the delivery of the deed conveying the land to him. This contract further provided that Reiser would furnish an abstract of title which Jennings would have ten days to examine and report objections, and in the event title should not be merchantable Reiser would have six months in which to cure the objections. It was also stipulated that Jennings would receive the wheat crop growing on the land; that he would be entitled to immediate possession thereof; that in the event the transaction had not been completed at the time the wheat was harvested the net proceeds of the sale of such wheat should be placed in escrow in the Security State Bank of Farwell, Texas, pending the completion of the transaction; and that when finally completed Jennings should be entitled to the wheat or the proceeds thereof. It was further stipulated that Jennings had placed $500 in escrow in the bank to be applied as part of the purchase price of the land when the transaction was completed and to be delivered to Reiser as liquidated damages in the event the sale was not completed due to the default of Jennings. This instrument was signed by Jennings and by Lunsford, the latter purportedly as the agent of Reiser.

The appellee alleged that the appellant did in writing, and verbally, make, constitute and designate the said Charley Lunsford as his agent to sell the land at an agreed and stipulated sum of $18.50 per acre; that said written contract and designation as above set out, which was copied in appellee's pleadings, was made with Charley Lunsford in the name of "Real Estate & Livestock Exchange" which was an assumed or firm name of Charley Lunsford; that concurrently with the execution and delivery of said instrument in writing Reiser did verbally authorize Lunsford to sell said land, to enter into contracts to sell it in behalf of Reiser as his agent at the sum of $18.50 per acre; that it was understood that the purchaser would assume the indebtedness against the land and pay the balance in cash upon delivery of the deed; that Lunsford was authorized to sell said land as agent for Reiser upon the terms aforesaid and was impliedly authorized to enter into contracts therefor and to do each and everything necessary to carry out the purpose of said agency in perfecting the sale; that Lunsford was authorized to sell the land at any time prior to June 1, 1939; that in pursuance to said contract and authorization Lunsford did on or about May 27, 1939, enter into a contract in writing with Jennings wherein Reiser, acting through such agent, did agree to sell and convey to Jennings the land at $18.50 per acre; and that said agent was authorized to make such sale and impliedly authorized to enter into such contract.

The appellant filed only a general demurrer and a general denial. The agency asserted by the appellee was not denied under oath. In this connection, however, the appellant asserts that under the appellee's pleading and under the evidence no sworn denial was necessary to defeat the recovery of the appellee.

We think the agency pleaded by the appellee, a resume of which is above set out, is susceptible of two distinct interpretations, one being that the agent Lunsford was expressly authorized by the appellant to execute the contract for the sale of the land, and the other that by virtue of the agent's authority to "sell" the land it impliedly followed that he was also authorized to enter into a contract therefor on behalf of his principal.

Under the construction placed upon section 8 of article 2010, R.C.S. of 1925, with reference to sworn denials of instruments executed by a party or by his authority upon which a suit is predicated, in the absence of a sworn denial the authority of the agent need not be proved and is not an issuable fact when the same is expressly asserted in the pleadings of the party relying thereon. Hunt et al. v. Siemers, 22 Tex.Civ.App. 94, 53 S.W. 387, writ denied; National Guaranty Fire Ins. Co. v. King, Tex.Civ.App., 24 S.W.2d 501, writ refused. In the instant case, however, the authority of the agent to execute the sale contract is not expressly, at least not clearly, asserted by the appellee, but on the contrary, the pleading is strongly susceptible of the construction that such power is necessarily implied under the general allegation of the power to "sell".

In 12 C.J.S., Brokers, 63, § 20, on the significance of the authority given an agent to "sell" real estate, we find this general rule: "Some courts have taken the view that where a broker is employed `to sell' property power is given to make a binding contract of sale. Most courts, however, sustain the view that the use of the words `for sale,' `to sell,' and the like, in a broker's contract of employment, amount to nothing more than an employment to find a purchaser and to present him to the owner or to conduct negotiations with him, and does not of itself give the broker any authority to make a binding contract of sale on behalf of the owner."

The great weight of the authority seems inclined to the view expressed in the above quotation to the effect that the power to "sell" does not authorize an agent to enter into a binding contract of sale but amounts to no more than employment to find a purchaser. This rule seems to have been adopted by the courts of this jurisdiction. Donnan v. Adams, 30 Tex.Civ.App. 615, 71 S.W. 580, writ denied, and authorities therein cited and discussed; Collins et al. v. Durward et al., 4 Tex.Civ.App. 339, 23 S.W. 561; Hennessee et al. v. Johnson et al., 13 Tex.Civ.App. 530; 36 S.W. 774; Berry v. Harnage et al., 39 Tex. 638; La Beaume et al. v. Smith, Albin & Peay, Tex. Civ.App., 247 S.W. 623; J. B. Watkins Land Mortgage Company v. Campbell et al., 100 Tex. 542, 101 S.W. 1078.

In Eisenhower v. Brown, 4 S.W.2d 627, 628, in discussing the above rule, Justice Smith of the San Antonio Court of Civil Appeals said: "The general rule more generally accepted seems to be that unless the power thereto is clearly given by the terms of his contract of employment, a broker has no authority to enter into a contract of sale of land binding upon his principal; that `the ordinary authority of a real estate broker employed to sell real estate is merely to find a purchaser who is ready, able, and willing to enter into a contract on the terms specified by, or acceptable to, the principal, and in the absence of such special authorization he has no authority to enter into a contract of sale, or to sell and convey, binding upon the owner.' 9 C.J. 526, § 28. Mr. Mechem, in his work on Agency, states the general rule to be, that `authority to sell real estate must ordinarily be conferred in clear and direct language; for, although there are cases...