Ryan v. Long, 11648.

• Decision Date: 19 October 1944
• Docket Number: No. 11648.,11648.
• Parties: RYAN v. LONG.
• Court: Texas Court of Appeals

Page 473

183 S.W.2d 473

RYAN v. LONG.

No. 11648.

Court of Civil Appeals of Texas. Galveston.

October 19, 1944.

Appeal from County Court at Law, Harris County; William M. Holland, Judge.

Action by Floyd E. Ryan, doing business as Ryan Realty Company, against C. H. Long for breach of a contract listing realty with plaintiff for sale. Judgment for defendant, and plaintiff appeals.

Reversed and rendered.

Floyd E. Ryan and S. F. Hill, both of Houston, for appellant.

No attorney on appeal for appellee.

GRAVES, Justice.

This appeal is from a judgment of the county court at law of Harris County, sitting without a jury, denying the appellant any recovery in his suit against the appellee for $175 damages for the breach of a written contract between them, wherein the appellant had undertaken to sell the appellee's homestead for him at a price of "$600.00 net to the owner, overage."

In this court only the appellant has appeared or briefed the cause on the appeal, the appellee's attorney in the court below having advised this court's clerk that, in so far as he was advised, there would be no brief filed in behalf of the appellee herein. At any rate, none has been filed.

It appears from the record, a statement of facts having been brought up therewith as a part thereof, that the facts heard below were entirely undisputed, and, in so far as material, were as follows:

This suit was originally filed in the justice court by appellant against appellee for damages in the sum of $175, "for damages for breach of a contract listing property for sale." It was duly appealed to the county court at law, where judgment was rendered in favor of the appellee.

The cause of action was based upon a written contract made by appellee, listing certain property for sale with appellant at a price of "$600.00 net to the owner for his equity." The appellant obtained a purchaser ready, able, and willing to buy the equity at $775 and to assume the payment of the incumbrance of $3500, whereupon the appellee refused to convey the property. He pleaded in defense that it was the homestead of his family, and that his wife had not signed the agreement to sell it.

It is conceded that the property was such homestead, and that the wife did not join in the contract declared upon.

Mr. E. D. Johnson, a witness for appellant, testified: "Mr. Long asked me if I could sell his place, he said he would like to list it with me as he wanted to sell it right away." Mr. Long then signed an agreement authorizing appellant "to sell the property at a price of $600, net to me, no commission, Overage." "The agreement with Mr. Long was that he was to get $600 for his equity, and anything over that was to be my commission, or the company's commission." "I explained to Mr. Long that the commission would be $175, and he agreed to take $600, and I told him the commission would be $175." "The sale price was around a total of $4000."

"I sold his equity to Mr. A. P. Randall for $775, cash, and he was to take up the notes and payments against the property." "The F. H. A. approved Mr. Randall. Mr. Long said he could not come to town. Mr. Webb asked me to meet him out at Mr. Long's house, and he had all of the papers ready for Mr. and Mrs. Long to sign. Mr. Randall met me at Mr. Long's house to have the papers signed."

Mr. C. H. Long, the appellee, was a witness upon the trial of the case, and he did not deny any of the foregoing statements. Substantially all that he testified was: "I am married and have lived on that property for three years. I didn't sign the papers, (deeds, etc.), because I didn't find another...