Spires v. Mann

• Court: Texas Court of Appeals
• Writing for the Court: Leslie
• Citation: Spires v. Mann, 173 S.W.2d 200 (Tex. App. 1943)
• Decision Date: 04 June 1943
• Docket Number: No. 2370.,2370.
• Parties: SPIRES v. MANN et al.

173 S.W.2d 200

SPIRES v. MANN et al.

No. 2370.

Court of Civil Appeals of Texas. Eastland.

June 4, 1943.

Rehearing Denied July 9, 1943.

Appeal from District Court, Nolan County; A. S. Mauzey, Judge.

Suit by Mary Lee Mann, executrix of the estate of Arthur Mann, deceased, and Clay Mann, against L. R. Spires for a real estate commission. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Beall, Beall & Yonge, of Sweetwater, for appellant.

Wilson & Durham, of San Angelo, for appellees.

LESLIE, Chief Justice.

This is a real estate commission suit by Mary Lee Mann, executrix, and Clay Mann against L. R. Spires. The plaintiffs alleged that Arthur Mann for several years prior to his death, April 20, 1941, was a duly licensed real estate dealer, operating under the name of "Mann Commission Company", and that Clay Mann was also a duly licensed real estate dealer, doing such business as "agent and broker in association with Arthur Mann, who was his brother."

The defendant answered by general demurrer, special exceptions and general denial. A trial before the Court without a jury resulted in judgment for plaintiffs for amount sued for. There are no findings of fact and conclusions of law in the record.

The defendant appeals, challenging the correctness of the trial court's judgment first, "because the record contains no evidence or proof that Appellees, or either of them, were licensed real estate brokers in the State of Texas when their cause of action, if any, arose, as required by Art. 6573a Sec. 13, [Vernon's Annotated] Revised Civil Statutes of Texas"; and second, "because the alleged contract for payment of commission was oral and was made in May or June, 1940, which violates Art. 6573a * * * Sec. 22, effective since September 19, 1939."

The appellees take the position that said statute has no application to this case, because the land was listed by appellant with appellees, and actual negotiations with purchaser were begun before the statute went into effect. The appellees' counter propositions that since Spires listed his land with them by verbal agreement to pay them 50¢ per acre for selling land, and since they, prior to the effective date of Art. 6573a, found a purchaser who continued negotiations with Spires and afterward purchased his land, they are entitled to recover the agreed commission without regard to the terms of such statute.

Stated somewhat differently, the appellees assert that since they found a purchaser and initiated the negotiations between Appellant and purchaser before said law went into effect, they are entitled to recover their commission as though the sale had been consummated before the law went into effect. That, having earned their commission before the effective date of the statute, its provisions would not preclude them from recovering their commission, and that to give such statute a contrary effect would render the same unconstitutional and void.

The record discloses that Spires listed his land with Arthur and Clay Mann as partners as early as 1933 or 1934 and kept it continuously listed with them, down to the time the land was sold to Foster S. Price by virtue of a contract, specific performance of which was compelled in Spires v. Price, Tex.Civ.App., 159 S.W.2d 137. The evidence is that the final sales contract was signed June 8, 1940, but the negotiations leading up to the same were started by appellees with said Price some nine months and more before the signing of such contract. The proposition of selling Price the ranch was submitted to him by appellees on or before September 9, 1939.

There is evidence that the appellant, after the sale of the land, many times recognized his obligations to pay the commission and he did not testify on the trial of this case. The ranch contained 7040 acres and the judgment was for 50¢ per acre.

The above statute became effective September 19, 1939, and considerable time prior thereto, the appellees, under their listing contract with Spires, submitted his property for sale to Price, and kept up negotiations with the view of consummating such deal until the final contract was signed June 8, 1940, and later consummated.

As to the propositions now under consideration, the appellees stand upon the elementary principle that a broker is entitled to a commission for effecting a sale, if he is the efficient cause of the sale by bringing the parties together by negotiations, although the sale is thereafter concluded by the owner himself, or after the effective date of the statute.

Under the facts and the authorities it seems quite certain that the Mann Commission Company was the efficient cause of said sale.

West Brothers v. Thompson & Greer, 48 Tex.Civ.App. 362, 106 S.W. 1134, is a case in which West Brothers listed lots in San Angelo with Thompson & Greer for sale on a 5% commission. The agents submitted the property to W. R. Moore, but did not close the deal with him, and thereafter, West Brothers sold the property direct to Moore. West Brothers instituted a suit for their commission, and the case reached the appellate court, where the judgment in their favor was affirmed in an opinion saying: "It appears from the evidence in this case that the appellees were instrumental in bringing about the sale. They brought the parties together, and had negotiations with the purchaser concerning the sale. It is true that, subsequent to this time, the defendants made the sale to the proposed purchaser themselves without plaintiffs' knowledge, and plaintiffs did not participate in the sale as actually made. But we think it is the settled law that an agent is entitled to his commissions if he is the efficient cause of the sale, and where he brings the parties together for the purpose of negotiating a sale, he is entitled to his commissions, notwithstanding the fact the sale is afterwards concluded by the principal himself. Graves et al. v. Baines et al., 78 Tex. 92, 14 S.W. 256; Sallee v. McMurry, 113 Mo.App. 253, 88 S.W. 157 and authorities there cited."

Other authorities announcing and applying the same rule of law are: Bellis v. Hann & Kendall, Tex.Civ.App., 157 S.W. 427; Shaw v. Faires, Tex.Civ.App., 165 S.W. 501.

We now give specific consideration to the application of said statute to the facts of this case. Since the appellant listed his property with the appellees long before the effective date of Art. 6573a and negotiations were under way, which ultimately materialized in the sale of his land to Price, we are of the opinion that said statute constitutes no obstacle to plaintiffs' right of recovery, although the deal was ultimately and finally closed after the effective date of said statute. Any other construction would render that act unconstitutional and void.

In Purser v. Pool, Tex.Civ.App., 145 S.W.2d 942, this court had occasion to consider the effect of Art. 6573a in a land commission case on the rights of a broker to his commission. We held, as stated in syllabus 3, that: "The laws existing at time oral conduct for commissions on sale of real estate was made, so far as material rights and remedies were concerned, became a part of the contract." Under the facts of that case, the Article was given no application and the broker was held to be entitled to recover his commission. That was a holding that the act could not apply to a contract made before it went into effect.

In the instant case appellees' evidence is uncontradicted that the listing agreement was entered into prior to the passage of said Act, and that negotiations thereunder were well under way prior to the effective date of the act. At such time the agreement, though oral, was legal and valid when entered into. The obligation of the contract could not thereafter be impaired by legislative enactment. U. S. Constitution, Art. 1, Sec. 10; Texas Constitution, Art. 1, Sec. 16.

Further consideration of this contention will be given presently, but at this point we express the opinion that said proposition is sound, and that it matters not that the obligation was still conditional as to complete performance at the time of the enactment of the law or its effective date. The constitutional protection or guaranty is not restricted to unconditional obligations, but extends to all alike. As to this, it would seem to be unnecessary to do more than call attention to the numerous conditional obligations recognized in the commercial world and protected by said constitutional provisions. For illustrations of such contracts, those of suretyship and insurance policies are typical. In such cases the surety pays off only in event the principal defaults, and a fire insurance company pays off after the house is burned. No actual liability for immediate payment exists at the time such contracts are entered into, and in most cases never arises. Nevertheless, such contracts or obligations carry a potential value and are themselves protected by the Constitution.

In the instant case the obligation of the listing agreement came within the scope of the constitutional protection at the time it was made and put in the process of execution, and the facts and circumstances then prevailing became controlling, and not those existing at the time of the effective date of the enactment. The testimony in this record would readily give rise to the trial court's implied finding to the effect that even before said law was passed, the appellees had begun with Price the negotiations which finally resulted in the sale to him, that is, that they had found a purchaser who later proved to be ready, able and willing to buy at the listed price. In that state of the transaction, the conditional obligation, or obligation of the contract, was of material value to the appellees, whose efforts had produced a purchaser before the Act became effective. Certainly Spires would have been without power under such facts and the law to recall the listing after Appellees had found the purchaser.

Applicable to the...