Runck v. Dimmick

• Decision Date: 03 June 1908
• Citation: 111 S.W. 779
• Parties: RUNCK v. DIMMICK et al.
• Court: Texas Court of Appeals

111 S.W. 779

RUNCK v. DIMMICK et al.

Court of Civil Appeals of Texas.

June 3, 1908.

Rehearing Denied June 18, 1908.

Appeal from Nueces County Court; Walter F. Timon, Judge.

Action by John J. Runck against W. F. Dimmick and wife. From a judgment for defendants, plaintiff appeals. Affirmed.

F. H. Booth, for appellant. S. N. Dorsett and Jno. A. Pope, for appellees.

REESE, J.

This a suit by John J. Runck against W. F. Dimmick and wife to recover $400 alleged to be due under a contract on the part of Dimmick and wife to pay Runck 5 per cent. commission to sell their tract of land for $8,000. The case was tried without a jury, and judgment was for defendants, from which plaintiff appeals.

We find in the record what is certified to be a statement of facts and conclusions of law signed only by the county judge. In company with it and a part of it are the court's conclusions of law. As the court was requested to file conclusions of law and fact, we are somewhat at a loss to denominate this paper. No other statement of facts appear in the record. It was shown that appellees, Dimmick and wife, employed Runck to sell their small tract of land near Corpus Christi at the price of $8,000, and agreed to give him as commissions 5 per cent. of the purchase price. The only evidence to show that appellant had earned and was entitled to the commissions was a contract executed by appellees and one McWilliams, which was introduced in evidence by appellant and which was drawn up and witnessed by him. We copy from appellant's brief under his fourteenth assignment of error, as follows: "This agreement entered into by and between W. F. Dimmick and wife, as party of the first part, and W. J. McWilliams, as party of the second part, witnesseth as follows: Party of the first part, for the consideration of $8,000.00 as purchase price by the party of the second part, the payment to be as follows: $400.00 in hand paid to party of the first part (check) as earnest money and part payment and $3,600 cash within thirty days of above date, together with three notes of one of $1,200, due 1 year from above date, and the other two notes of $1,400 each, one due 2 years from above date, and third note 3 years from above date, all notes payable on or before date with interest at 8 per cent. payable annually. Party of first part agrees for the above considerations to convey and deliver, within thirty days of above date, 80 acres of land in Hoffman tract in sections G and L (now occupied by said first parties) together with clear title and abstract to date and with above property include implements and stock as per bill of sale attached to this contract, also purchaser of said property is to receive one-third of the present crop of cabbage to be marketed and delivered on market, also to give peaceable possession to above property upon the consummation of this deal within thirty days of above date. Party of second part agrees to comply with the above conditions within thirty days or forfeit earnest money. Both parties agree to comply with the above conditions and clear this transaction through the Corpus Christi National Bank of Corpus Christi, Texas." The $400 mentioned as earnest money was by a check deposited in the Corpus Christi National Bank. It was shown that there had been in fact no sale made.

The trial court found that the conclusion of law that the contract was nonenforceable against McWilliams, a mere option under which he had the right either to take the land or forfeit the earnest money, and that, therefore, appellant was not entitled to recover. In this we think there was no error. This is not a case where, after the parties have mutually stipulated the seller to sell and the buyer to take the land upon the terms agreed upon, it is further stipulated that a certain sum shall be paid by the buyer in case he fails to perform as a penalty for such failure; nor, indeed, a case where, after agreeing to buy,...