Sorsby v. Thom

• Decision Date: 07 January 1943
• Docket Number: No. 11400.,11400.
• Citation: 168 S.W.2d 873
• Parties: SORSBY v. THOM et al.
• Court: Texas Court of Appeals

Page 873

168 S.W.2d 873

SORSBY v. THOM et al.

No. 11400.

Court of Civil Appeals of Texas. Galveston.

January 7, 1943.

Rehearing Denied February 17, 1943.

Appeal from District Court, Waller County; W. B. Browder, Judge.

Suit by E. D. Sorsby against Mrs. Frances E. Thom and others for specific performance of contract for sale of real property. From a judgment for defendants, the plaintiff appeals.

Affirmed.

Croom & Croom and Sam G. Croom, all of Houston, and W. H. Betts, of Hempstead, for appellant.

Pitts & Liles, of Conroe (J. Robert Liles, of Conroe, George Cavanagh, of Houston, and Wm. F. Jackson, of Hempstead, of counsel), for appellees.

GRAVES, Justice.

Appellant, as plaintiff below, instituted this suit against the appellees for the specific performance of a written contract for the sale of an entire 1259¾ acre tract of land in Waller County, therein specifically described as "Rock Island Plantation" and "the Cordsen Rock Island Ranch Tract". It was alleged that such contract had been executed in behalf of the appellees, except Chapman, by R. R. Loggins, a real estate broker. After the date of the alleged contract, the appellees, Chapman and Ison, were shown to have purchased the property through a deed severally executed by all the owners, there having been no antecedent contract of sale between the parties thereto. The appellees denied the authority of R. R. Loggins to bind them to any written contract, inclusive of the one sued upon, and further pled that the contract, under its terms, was impossible of performance. Upon the findings of the jury, among other things, to the effect that no such authority had been given Loggins, judgment was rendered in favor of all the appellees.

This is the second appeal to this court in the controversy between the parties to this same contract, the disposition of the first one having been reported in 122 S.W. 2d at page 275; the contract itself was in haec verba fully set out in that opinion hence will be referred to herein without reinsertion or exact quotation.

The controlling question before determined was that the description of the 1259¾ acre tract of land involved as the "Rock Island Plantation" and "the Cordsen Rock Island Ranch Tract" was legally sufficient, where as on the appeal now at bar the sole issue of law is whether or not the trial court, on the present record, erred in refusing specific performance of that contract in appellant's favor by requiring the appellees to convey the land so described to him.

The present record is voluminous, especially as containing a statement of facts of some 618 typewritten pages; but appellant grounds his whole contention for a reversal upon the claim that the undisputed evidence showed not only that all the owners of the land authorized Loggins to make the sale provided for in that contract, but also that Chapman and N. B. Ison, who subsequently so bought the property from the appellees out from under appellant's declared-upon contract, had both actual and constructive notice of such sale, hence were bound thereby.

Thus limiting his contention here, he does not invoke this court's exclusive authority to determine whether or not the jury's adverse findings to him upon which the judgment below was returned were so against the overwhelming weight of the evidence as to be clearly wrong — but simply stands upon his claim that the undisputed evidence required that court to sustain one or the other of his motions — duly presented to it — the first for a peremptory instruction to the jury in his favor, the second for a setting aside of its verdict as returned and an entry of judgment in his behalf instead.

This court, however, after a painstaking consideration of the whole proceeding, inclusive of briefs and oral arguments at the bar, is unable to see eye-to-eye with the appellant's position; on the contrary, it concludes that the trial court was correct — on the coming in of the jury's verdict — in entering its judgment thereon denying appellant the coveted order for a specific performance.

That conclusion rests upon these, among other considerations:

(1) As an inspection of the contract itself shows, it indisputably appears from the face thereof that the self-styled "agent" and "Sales Agent", was acting therein only in the capacity of a real estate broker, and, as such, was not perforce thereby vested with any authority to sign a contract for the sale of the land with a prospective purchaser that would bind the owners; that is, under our authorities, his being thereby vested merely with the powers of a real estate broker, with no express authority to enter into a written contract of sale, no such power flowed to him therefrom; Donnan v. Adams, 30 Tex.Civ.App. 615, 71 S.W. 580, writ of error dismissed; Keim v. O'Reilly, 54 N.J. Eq. 418, 34 A. 1073; Eisenhower v. Brown, Tex.Civ.App., 4 S.W.2d 627; Colvin v. Blanchard, 101 Tex. 231, 106 S.W. 323; Reiser v. Jennings, Tex.Civ.App., 143 S. W.2d 99, writ of error dismissed.

(2) It cannot be said that there was, as a matter of law, no evidence raising the issues the trial court submitted to the jury under inquiries Nos. 1 to 21, inclusive, as to whether Loggins had the authority to bind the various ones of the appellees to the obligations he undertook so to do in the contract, or as to whether or not Chapman and Ison had knowledge of Loggins' having so contracted with the appellant, as submitted in succeeding inquiries Nos. 22 and 23.

Clearly, it is thought, both the pleadings and evidence raised all these issues as so submitted, hence, under appellant's sole objection that the undisputed evidence showed otherwise, no further question may be entertained upon this appeal.

(3) The contract, by its specific terms, undertook to bind the appellees to deliver to appellant possession of the land by November 1 of 1935, whereas the evidence was sufficient to justify, if it did not require, a finding that Loggins never mentioned in his negotiations with them to any of the owners of the property that any...