Shook v. Parton, 5872.
| Decision Date | 12 April 1948 |
| Docket Number | No. 5872.,5872. |
| Citation | 211 S.W.2d 368 |
| Parties | SHOOK v. PARTON. |
| Court | Texas Court of Appeals |
Appeal from Potter County Court; E. O. Northcutt, Judge.
Brokerage suit by W. L. Parton against E. F. Shook. From the judgment, the defendant appeals.
Affirmed.
Stone & Stone, of Amarillo, for appellant.
Sanders, Scott, Saunders & Smith, of Amarillo, for appellee.
This is a brokerage suit in which appellee, W. L. Parton, a licensed realtor, filed suit against appellant, E. F. Shook, to recover $960 as a five per cent commission on $19,200, alleged to be due by virtue of appellee's efforts in procuring a purchaser for 320 acres of land sold by appellant to Fred Weigman on September 27, 1947. The action was founded upon a series of letters that passed between the parties, which appellee contends constitutes a memorandum of a promise or agreement in writing sufficient to comply with the provisions of Article 6573a, Vernon's Annotated Civil Statutes, known as the Texas Realtors Act.
The case was tried to a jury which found that appellee was the procuring cause of the sale of the land and judgment was rendered for appellee upon the verdict for the sum of $960 from which judgment an appeal has been perfected to this Court. The principal grounds upon which appellant attacks the judgment are that the contract for the listing of the land in question was not enforceable since it was not in writing, not signed by appellant and the letters in question do not give a sufficient description of the land as required by Section 22 of Article 6573a.
The record reveals that early in 1947 appellee, as a brokerage agent for the owner of the land at that time, sold the said land in question to appellant; that in the summer following appellant listed the land with appellee in an oral agreement understood by both parties and authorized him to sell the land at $65 acre without reserving any mineral rights for which services appellee was to receive five per cent as commission; that appellee was offering the land for sale and had early in August of 1947 advertised the same for sale in an Amarillo paper without describing the land fully; that on or about August 11, 1947, appellee had an inquiry through the mail from Fred Weigman written on a postal card as follows:
Thereafter on August 13, 1947, appellee replied to Fred Weigman's inquiry as follows, to wit:
(the above and foregoing letter was taken from a copy introduced since the original was not produced and the evidence shows the original was signed by appellee); that on the same day appellee wrote appellant the following letter, enclosing a copy of the letter to Weigman hereinabove set out, and mailed them both to appellant;
(the above and foregoing letter was taken from a copy introduced since the original was not produced and the record reveals that the original was signed by appellee); that appellee thereafter received the following post card from appellant:
The record further reveals that, at some time subsequent to the original listing and during personal negotiations between appellant and appellee, appellant had decided to vary the terms of the original listing and appellee wrote appellant the following letter:
We further find that appellee received the following reply from appellant:
Soon thereafter on September 27, 1947, appellant sold the land himself to Fred Weigman for $60 per acre or a total of $19,200, without reserving any mineral rights; and that appellee thereafter sued appellant for commission on the sale price of the land.
Section 22 of Article 6573a, upon which appellant relies for a reversal, provides that no action shall be brought for recovery of a commission for the sale or purchase of real estate unless the promise or agreement, or some memorandum thereof, upon which the action is founded, shall be in writing and signed by the party to be charged therewith or his duly authorized agent. This Court has held that in determining the sufficiency of the description of the land contained in the contract of employment, the rules governing the construction of Article 3995, Vernon's Annoted Civil Statutes, apply. Dickson v. Kelley, Tex.Civ.App., 193 S.W.2d 256, and Dunn v. Slemons, Tex.Civ.App., 165 S.W. 2d 203. It has likewise been held that Section 22 of the said Article does not attempt to prescribe the essentials of a cause of action for the recovery of a real estate agent's commission upon the sale of the land. It simply provides that "the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith * * *." This means that there must be a promise to pay a commission, and that the tract of land to be sold must be identified by the writing. Volkmann v. Wortham, Tex.Civ.App., 189 S.W.2d 776. All the statute requires is written evidence from which the whole contract may be made out. The statute may be satisfied by letters passing between the parties that...
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