Shropshire v. Adams

• Citation: 89 S.W. 448
• Parties: SHROPSHIRE v. ADAMS.
• Decision Date: 22 June 1905
• Court: Texas Court of Appeals

89 S.W. 448

SHROPSHIRE v. ADAMS.

Court of Civil Appeals of Texas.

June 22, 1905.

On Rehearing, October 19, 1905.

Appeal from District Court, Harris County; W. P. Hamblen, Judge.

Action by C. T. Shropshire against E. H. Adams. From a judgment in favor of defendant, plaintiff appeals. Reversed on rehearing.

Lane & Higgins, for appellant. J. V. Meek and W. H. Haynes, for appellee.

GILL, J.

C. T. Shropshire, sued E. H. Adams to recover damages for breach of contract. He has appealed from a judgment sustaining a general demurrer to his petition, and here complains of the action of the trial court. The following is a substantial statement of the material facts of the petition: Plaintiff averred that at the request of E. H. Adams he undertook to find a purchaser for certain land belonging to Adams at a price satisfactory to him; that, in consideration of his bringing about such a sale, Adams promised to furnish money sufficient to purchase 1,000 head of good cows (to be owned jointly by plaintiff and defendant), to furnish pasturage for them for five years, the plaintiff to manage, care for, and control them in the meantime; and that at the end of five years the stock and its increase should be divided one-fourth to plaintiff and three-fourths to defendant. The cattle were to be purchased before January 1, 1903. There is no allegation as to what would have been the cost of the 1,000 head of good cows, the value of the pasturage, the value of the plaintiff's services in caring for and controlling them for five years, or the probable increase either in numbers or value at the end of that time. Appellant further averred that he undertook the sale of the land for Adams, and thereafter reported to him that H. Masterson wished to purchase it and had offered him (Shropshire) $5,000 in cash in case he (Shropshire) would bring about the purchase; that Adams assented to plaintiff's acceptance of the joint employment by Masterson, and said he would be glad to see Shropshire make that sum, and that his acceptance of it would in no wise interfere with plaintiff's contract with defendant; that thereafter plaintiff brought Adams and Masterson together, and the latter purchased the land for $110,000, and Adams executed a conveyance; that Masterson at all times knew of plaintiff's contract with defendant, and paid plaintiff the $5,000 promised him, but defendant has refused to furnish the money to buy the cattle and has wholly repudiated his agreement; that his interest in the cattle at the end of five years would have been worth $15,000, for which sum he sues. He prays, in the event he is not allowed to recover for the breach of the cattle contract, he be awarded the reasonable value of his services to plaintiff in bringing about the sale of the land; the value being placed at $15,000. To this petition defendant interposed a general demurrer, which was sustained, and plaintiff refused to amend.

Defendant here contends that the petition stated no cause of action for these several reasons: First, because it shows upon its face that plaintiff had forfeited his right to compensation from Adams by accepting the inconsistent employment for the same purpose from the purchaser, Masterson; second, because the cattle contract was void under the statute of frauds, because not performable within one year; third, because, if the contract is valid, the measure of damage sued for is not applicable under the law; and, fourth, he cannot in any event recover on a quantum meruit, because he alleges a specific contract by which the parties bound themselves as to the compensation he should receive.

We are of opinion the first objection to the petition is not sound. It is generally true that the double agency of a real estate broker, undertaking to represent the vendor and vendee, will not be countenanced; but the objection to such agency disappears when each party knows of and assents to the double employment. Am. & Eng. Ency. Law, vol. 1, p. 1113.

In our opinion the second objection is equally without merit. Under the allegations of the petition the compensation promised the plaintiff by defendant was the formation of a partnership with him in the ownership, handling, and ultimate disposition of 1,000 head of cattle. For the purchase of these defendant was to furnish the money, and they were to embark in the enterprise by January 1, 1903. It is thus apparent that the promised partnership relation was to be established within the year, and to that extent, at least, the statute of frauds had no application. The enterprise once begun, the defendant according to the agreement would have owned an undivided three-fourths in the cattle and the plaintiff the remaining one-fourth. From that time the rights and relations of the partners would have been controlled by the terms of the partnership agreement; that is to say, the defendant must have furnished pasturage. If ...