Stevens v. Karr, 4962.

• Decision Date: 20 December 1930
• Docket Number: No. 4962.,4962.
• Citation: 33 S.W.2d 725
• Parties: STEVENS et al. v. KARR.
• Court: Texas Supreme Court

33 S.W.2d 725

STEVENS et al. v. KARR.

No. 4962.

Supreme Court of Texas.

December 20, 1930.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by J. L. Karr against W. J. Stevens and others. Judgment for defendants was reversed and remanded (297 S. W. 287), and defendants bring error.

Affirmed.

Dibrell & Snodgrass and J. B. Dibrell, Jr., all of Coleman, for plaintiffs in error.

Jenkins, Miller & Wilson, of Brownwood, for defendant in error.

SHARP, C.

J. L. Karr instituted this suit in the district court of Coleman county against W. J. Stevens, T. L. Stevens, and F. E. Stevens, to recover a broker's commission, alleging in substance that the Coggin Ranch situated in Brown county was listed with him for sale for $20 per acre net to the owner; that Hubert Shore, who lived at Coleman, assisted him in the matter; that they interested defendants in the purchase of the land, advising them that the price of the land was $20 per acre net to the owner and that their commission would have to be paid by the purchaser in addition to the net price per acre quoted; that Ben F. Stone, executor, who held legal title to the land, also advised defendants that the price for the land was $20 per acre net to the owner and the broker's commission in addition thereto.

That defendants, after being so advised, sought, obtained, and accepted the services of the plaintiff in showing them the land and in bringing them and the owner together and assisting in negotiating and making the sale by the owner to the defendants; that as a result of the plaintiff's efforts a written contract was entered into by defendants with B. F. Stone, executor, whereby the latter sold the land and obligated himself to make proper conveyance of same; that by reason thereof, the defendants obligated themselves to pay to plaintiff and Hubert Shore the usual and customary broker's commission of 5 per cent.; that defendants in some way settled with Hubert Shore, and this suit is by plaintiff for one-half of the usual and customary commission of 5 per cent.

Defendants answered by general and special exceptions and by a general denial. Defendants of their own volition refused to pay the purchase price and to accept conveyance of the land and contend that said contract was a mere option contract. At the close of the evidence, the defendants requested of the court a peremptory instruction on their theory that no sale had been made, but merely an option of contract had been entered into. The trial court accepted their view and instructed a verdict for them. Plaintiff excepted to the court's charge and requested certain issues to be submitted to the jury, all of which the trial court overruled. An appeal was made to the Court of Civil Appeals and the cause reversed and remanded for another trial. 297 S. W. 287.

For convenience we will refer to J. L. Karr as plaintiff and W. J. Stevens, T. L. Stevens, and F. E. Stevens as defendants, as was done in the trial court.

By contract dated April 9, 1925, between Ben F. Stone, independent executor and trustee under the will of Mrs. Mattie R. Coggin, as first party, and W. J. Stevens, T. L. Stevens, and F. E. Stevens, as second parties, it is agreed that Stone would sell and convey to the Stevens 6,248 acres of land known as the Coggin Clear Creek Ranch in Brown county, for a consideration of $20 per acre, aggregating the sum of $124,960, one-fourth of which was to be paid in cash and the remainder to be paid in installments secured by a vendor's lien on the land.

The contract further provides:

"As evidence of their good faith, Second Parties have this day placed in the Coggin National Bank, Brownwood, Texas, United States Government bonds of the face value of $5000.00, and it is understood and agreed that a copy of this contract shall be placed in said bank and that in the event Second Parties shall fail or refuse to comply with their agreement as hereinbefore set out to purchase said lands and premises without any transfer on the part of the First Party, that the said government bonds shall be delivered by said bank to First Party and shall be accepted by him as his full liquidated damages for breach of said contract by Second Parties, and it is further expressly agreed that if First Party shall breach the foregoing contract and refuse to complete the sale of said lands and premises to Second Parties, that Second Parties shall be entitled to recover as their liquidated damages by reason of such breach of contract from the First Party, the sum of $5000.00 which is hereby agreed upon as the amount of damages that will be sustained by Second Parties through breach of this contract by the First Party."

Daniel Baker College was beneficiary of the will of which Ben F. Stone was executor. The testimony offered by plaintiff upon this phase of the case is substantially as follows:

J. L. Karr, in his first conversation with W. J. Stevens late in the fall of 1924, stated that he had learned through Hubert Shore that Stevens was interested in the Coggin Ranch, and he told him about the ranch and he became interested in it. He further told him about its location and improvements and that it had to net the college $20 per acre and that the purchaser would take care of the commission. Afterwards Stevens came down to look at the ranch and Karr went out to the ranch and drove over it with him. Tom Stevens came down later and looked over the ranch with Stone and others.

J. L. Livingston, a witness for plaintiff, testified in substance that he was with Karr when he had a conversation with W. J. Stevens relative to the price of the land, and that Karr stated to W. J. Stevens that it took $20 an acre net to the college and that the purchaser would have to pay the commission.

Hubert Shore, in substance, testified that he stated to Will Stevens that it would take $20 per acre net to the college to buy the land and that the commission would come in addition to that price.

W. J. Stevens, one of the defendants, testified, in substance, that he knew Karr and Shore were expecting him and his brothers to pay them a commission and that the price of the land was $20 net to the college.

It was after this conversation that they executed the written contract and that all parties understood that the college was not to pay any commission; that the parties entered the contract knowing that Karr and Shore were expecting the defendants to pay a commission.

T. L. Stevens testified, in substance, that the reason they repudiated the contract was because they felt like they had made a bad trade. The record shows that the defendants paid to Stone, the executor, the $5,000 deposited in the bank in lieu of performance of the terms stipulated in the contract.

In view of the record in this case plaintiff contends:

(a) Where a good cause of action is alleged and sufficient evidence is offered to sustain the material allegations in the petition, it is error for the court to refuse to submit the issues to the jury.

(b) Where both pleadings and proof on the part of plaintiff raise issues sufficient to sustain and support the relief prayed for, it is error for the court to give a peremptory instruction in favor of the defendants.

(c) Where a broker procures a purchaser to enter into a written contract of purchase and sale of real estate capable of being specifically enforced by the party liable for the commission, he has earned his commission, and such party cannot by repudiating his contract relieve himself of liability to such broker for his commission.

(d) When a contract for the purchase of land is capable of being specifically enforced, it is not an option contract.

Defendants contend that the action of the trial court in instructing a verdict for them was correct for the following...