Scarborough v. Payne, 11641.
| Citation | 198 S.W.2d 917 |
| Decision Date | 27 November 1946 |
| Docket Number | No. 11641.,11641. |
| Parties | SCARBOROUGH v. PAYNE et al. |
| Court | Texas Court of Appeals |
Appeal from Thirty-seventh District Court, Bexar County; John F. Onion, Judge.
Suit by Houston M. Scarborough against Eleanor C. Payne and her husband to recover a broker's commission earned by plaintiff in procuring for named defendant a contract for the sale of a residence owned by her. From a judgment for defendants, plaintiff appeals.
Reversed and rendered.
Mueller & Mueller and J. Daffan Caldwell, all of San Antonio, for appellant.
Moursund, Ball, Moursund & Bergstrom, of San Antonio, for appellees.
This action was brought by appellant, Scarborough, against appellees, Eleanor C. Payne and her husband, J. B. Payne, to recover a broker's commission admittedly earned by Scarborough in procuring for Mrs. Payne a contract for the sale of a residence owned by her and situated in San Antonio, Texas. In a trial to the court without a jury judgment was rendered denying any recovery to Scarborough, who has appealed. The trial judge supported his judgment by full findings of fact and conclusions of law.
It is conceded that the residence involved constituted the homestead of Mrs. Payne and her husband and that it was a part of the separate estate of Mrs. Payne. Scarborough had notice of these facts when he entered into the contract sought to be enforced in this action.
It is conceded that Mrs. Payne in a listing agreement executed by her husband and herself gave Scarborough an exclusive listing of the property for sale at the price of $22,500; that Scarborough procured a purchaser ready, able and willing to pay this price in cash for the property, and that the proposed purchaser and Mrs. Payne and her husband executed an earnest money contract for the sale and purchase of the property at the price listed. But it is further conceded that after the deal was agreed to by all the parties and after the execution of the earnest money contract of sale and purchase, Mrs. Payne refused to proceed further in the transaction or to pay Scarborough any part of the agreed and earned commission. Scarborough then brought this suit for $1,125, conceded to be the amount he had earned in procuring the contract of purchase and sale. The trial court denied any recovery to Scarborough upon the conclusion of law that because the property involved was a part of the separate estate of Mrs. Payne and was the homestead of the latter and her husband, and no necessity was shown to exist for Eleanor C. Payne to sell the property, she could not be required to convey the property or pay any commission earned by appellant in procuring the purchaser therefor, notwithstanding it was clearly earned by appellant under a contract executed by appellant and appellees.
The case of Williams v. Doan, Tex.Civ. App., 209 S.W. 761, by the Galveston Court of Civil Appeals, is relied upon as authority for a reversal of the judgment.
The trial judge was of the opinion that the present case was distinguishable from the Doan case upon the facts as evidenced by his fifth conclusion of law, which reads as follows:
In the Doan case it was held that a married woman was liable for the payment of a real estate broker's commission upon an executed agreement whereunder the broker had procured a purchaser for the separate property of the wife. However, it also appeared that the wife had by proper deed consummated the transaction and conveyed the property to the purchaser. In this case the wife did not convey the property to the prospective purchaser procured by the appellant.
In Collett v. Harris, Tex.Civ.App., 229 S.W. 885, the Beaumont Court of Civil Appeals held that a married woman was not liable for damages upon the breach of an executory contract to convey land which was her separate property. From the report of the case, it appears that Harris, the plaintiff in the trial court, sought a recovery of $530 as damages for breach of the executory contract of sale, and an additional $100 as a real estate broker's commission. The opinion seemingly deals primarily with the asserted right to damages against the married woman by reason of the breach of the executory contract of sale. Although a suit for a broker's commission is an entirely separate and different cause of action from a suit for the breach of an executory contract of sale, we find no separate discussion of the two causes of action in Collett v. Harris. Seemingly the two causes of action are treated as being of a similar nature. This view is strengthened by the criticisms of the Doan case contained in the opinion.
As we view the contract involved here, it has been fully performed on the part of the appellant. He has completed that which he agreed to do, namely, procure a purchaser, ready, willing and able to buy the property at the listed price. Mrs. Payne simply hired appellant to perform certain services for her with reference to her separate property. The services which she contracted for have been fully performed, regardless of whether or not Mrs. Payne ever executes a conveyance of the property. It is true that the contract sued on here was made in contemplation of a sale of the property, but conceivably so might a contract to repair or paint a house, plant trees or shrubs be likewise made in contemplation of sale. Yet it would hardly be contended that under our present married women's statutes a wife would not...
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