Shaw v. Faires

• Decision Date: 28 March 1914
• Citation: Shaw v. Faires, 165 S.W. 501 (Tex. App. 1914)
• Parties: SHAW et al. v. FAIRES.
• Court: Texas Court of Appeals

165 S.W. 501

SHAW et al. v. FAIRES.

Court of Civil Appeals of Texas. Dallas.

March 28, 1914.

Appeal from Grayson County Court; J. Q. Adamson, Judge.

Action by Florence F. Shaw and another against Walter S. Faires, in which defendant filed a counterclaim. From a judgment for defendant on the counterclaim, plaintiffs appeal. Reformed and affirmed.

J. H. Randell, of Denison, for appellants. Wolfe, Wood & Haven, of Sherman, for appellee.

RASBURY, J.

Appellant Florence F. Shaw, joined pro forma by her husband, V. B. Shaw, sued appellee for a sum of money collected by him for appellant and alleged to have been by him wrongfully and fraudulently retained and converted to his own use.

Appellee, following certain preliminary matters which have no bearing upon the issues presented by this appeal, admitted the collection of the money and liability therefor, less certain amounts paid out on authority of appellant Florence F. Shaw and for her use and benefit. Appellee further asserted by way of counterclaim that appellants were due him certain money in excess of the amount due by him to appellants, for commissions earned by him in selling for appellant Florence Shaw certain real estate, and asked judgment against appellant Florence F. Shaw for the difference in the claims.

By supplemental petition appellants urged, omitting matters not material here, as special defensive matter against the counterclaim that the set-off and counterclaim was two years past due, and hence barred by limitations, and coverture.

There was a trial by jury; the verdict being: "We, the jury, find for the defendant on his cross-action in the sum of $431.25, and that said amount be credited with the funds now held by defendant belonging to the plaintiff." Upon the verdict judgment was entered for appellee Faires for $431.25 against Florence F. Shaw and her husband, V. B. Shaw, upon which a credit was directed of $3,374.42, being the amount agreed by all parties to be due by appellee to appellant Florence F. Shaw. The judgment also directed that execution for the balance should issue and be levied upon the separate property of Florence F. Shaw. From such judgment this appeal is taken.

It may be said that the following facts are undisputed: Appellant Florence F. Shaw and appellee many years prior to the transactions involved in this suit resided in Denison and were childhood friends. About 10 years before trial she left Denison with her parents, removing to Kansas City, Mo. There her mother died, and there she married and removed to Bellingham, Wash. At her mother's death she became (by inheritance we presume) the owner of a three-fourths interest in a two-story brick building, and the land on which it was situate, blocks 9 and 10 in Cyrine Park addition, 10 acres in Woodlawn boulevard, and nine vacant lots, all within or adjacent to the town of Denison. At this point sharp conflicts arise in the testimony. We only state those facts which were proven, though disputed, considered necessary to sustain the judgment, foregoing any attempt to reconcile same, since that duty is the peculiar function of the jury. About five years prior to the controversy involved in this appeal, Mrs. Shaw visited Denison and employed appellee, who was engaged in the insurance and real estate business, to sell her property, keep her storehouse insured, oversee repairs thereon, and inform her with reference to her taxes, and sometimes collect her rents, though not usually. The agreement was verbal, and the amount of commissions in case of sale was not agreed upon. Subsequently, although the approximate date even is not given, appellee sold the two blocks of land in Cyrine Park addition, also two other blocks of land, as well as a 10 or 11 acre tract of land, in consideration of all of which Mrs. Shaw paid him a commission of 5 per cent. The customary and usual commission for such sales in Denison, in the absence of agreement, is 5 per cent. of the amount of the sale price and the amount allowed appellee by the jury. Mrs. Shaw sold the storehouse to M. D. Brazile about February, 1910, for $11,500. Prior to the sale to Brazile, and after the placing of the property with appellee for sale by Mrs. Shaw, appellee negotiated with Brazile, who owned a building adjoining, for the purchase of Mrs. Shaw's property, in fact negotiated with him for quite a long time. Brazile testified in the case and corroborated appellee's claim that he negotiated with him, although Brazile fixes the period of last negotiation at two years prior to the time he finally bought it, and appellee, so far as the record discloses, did not attempt to fix the date of his last negotiation with Brazile. Brazile concluded no purchase through appellee, but after his negotiations with him, and just prior to his purchase of the property, he secured Mrs. Shaw's address from her tenant and wrote her, making an offer for the property. The offer Mrs. Shaw referred to her father at St. Louis, and wired appellee, asking business conditions at Denison, and whether he would or not recommend that she sell. At this time Mrs. Shaw had not withdrawn from appellee the right to sell her property. Appellee advised Mrs. Shaw in answer to her telegram not to sell, as he thought he could secure $11,500 for the property. Mrs. Shaw's father, after learning that appellee had advised Mrs. Shaw not to sell, wrote appellee that it was Brazile who was offering the $11,000, but that he would defer closing with him if appellee could get more from another. Appellee did not reply to him. Negotiations between Mrs. Shaw's father and Brazile were abandoned for a while, but resumed later, when Brazile offered $11,500 for the property, and which was accepted.

We will not attempt to discuss the many assignments seriatim, but will discuss the issues raised thereby as such. We are of opinion that the evidence is sufficient to sustain the verdict and judgment.

Generally speaking, the law is that, if a purchaser is found by the broker's efforts and through his instrumentality, he is entitled to compensation, since he is the procuring or efficient cause of the sale. Graves v. Bains, 78 Tex. 92, 14 S. W. 256; Bellis v. Hann & Kendall, 157 S. W. 427.

In like manner is the broker entitled to his compensation if his exertions be the efficient and procuring cause of the sale, notwithstanding the sale may be concluded through the medium...