Stewart v. Lomax

• Decision Date: 14 October 1965
• Docket Number: No. 129,129
• Citation: 395 S.W.2d 82
• Parties: Gordon STEWART et al., Appellants, v. J. P. LOMAX, Appellee.
• Court: Texas Court of Appeals

Page 82

395 S.W.2d 82

Gordon STEWART et al., Appellants, v.J. P. LOMAX, Appellee.

No. 129.

Court of Civil Appeals of Texas, Corpus Christi.

Oct. 14, 1965.

Rehearing Denied Nov. 4, 1965.

Mahoney, Shaffer & Hatch, Lee Mahoney, Corpus Christi, for appellants.

Luther E. Jones, Jr., Corpus Christi, Richard D. Hatch, Aransas Pass, for appellee.

GREEN, Chief Justice.

AppellantsGordon Stewart and Curtis Hall, Duly licensed real estate dealers, filed suit against appelleeJ. P. Lomax to recover the sum of $1,250.00 as a commission under the provisions of a written contract.Some time after plaintiffsmotion for summary judgment had been overruled, the case went to trial before the court without a jury, and a take-nothing judgment was rendered.At the request of plaintiffs, findings of fact and conclusions of law were filed.

This appeal is presented on two points, as follows:

FIRST POINT

'The trial court erred in overruling plaintiffs' motion summary judgment on their claim against appellee.'

SECOND POINT

'The trial court erred in refusing to render judgment for appellants and in entering judgment for appellee because the undisputed and uncontradicted evidence and testimony is directly contrary to the findings of fact made by the court, and such findings of fact have no support in the evidence and testimony and appellants were entitled to judgment based on the facts established.'

We shall first consider the second point, which raises the law question of no evidence to support the trial court's findings.Gulf, Colorado & Santa Fe Railway Company v. Deen, 158 Tex. 466, 312 S.W.2d 933.In determining whether the trial court's findings are supported by any evidence of probative value, we will give credence only to the evidence favorable to the findings, and will disregard all evidence to the contrary.Brown v. Frontier Theatres, Inc., Tex.Sup.Ct., 369 S.W.2d 299.

It was appellants' position in the trial court, and is their contention here, that they are entitled to recover by virtue of an alleged violation by appellee of a written contract being plaintiffs' exhibit No 1, and readings as follows:

'Feb. 5, 1963

'It is mutually agreed by and between the undersigned that Gordon Stewart and Curtis Hall, as real estate agents, are to receive a total of $1,250.000 in full and complete satisfaction for their commission for services rendered in the sale of any part of the 843.8 acre tract of M. A. Broughton property in San Patricio County, Texas; such $1,250.00 to become due and payable by J. P. Lomax upon completion of a sald of part of such property to J. P. Lomax.'

This instrument was signed by Clint A. Broughton, J. P. Lomax, Gordon Stewart, and Curtis Hall.

The court's findings of facts, being somewhat lengthy, we copy herein the portions pertinent to our discussion, as follows:

'1.Late in 1962 or early in 1963defendant entered into a contract of sale with Clint Broughton to buy a 354 acre tract of land.It was the claim of plaintiffs that on completion of any sale of this tract to defendantthey were entitled to be paid a real estate commission by seller.The seller caused defendant to be made aware of this claim and required, as a condition of completing the sale, that defendant agree to pay plaintiffs, as a real estate commission, the sum of $1,250.00.Defendant thereupon entered into the agreement which is in evidence as Plaintiffs' Exhibit No. 1.The promise of defendant in such agreement to pay $1,250.00 to plaintiffs was made solely to meet seller's requirement of such a promise from him as a condition of selling the aforementioned 354 acre tract to him.This promise was not made in consideration of any services rendered or to be rendered by plaintiffs to defendant with reference to said 354 acre tract or with reference to any other land.The intent of the parties to such agreement, reflected by the words they used construed in the light of their situation and the surrounding circumstances, was this, that in case of completion of sale of the 354 acre tract to the defendant then he was to pay to plaintiffs the sum of $1,250.00, i. e. the intent of the parties to such agreement was that completion of such sale was a condition precedent to defendant's liability thereunder.The parties to such agreement did not intend that defendant would be liable to pay such sum in event of a failure of such sale to be completed.Sale of said 354 acre tract was not completed.The reason it was not completed was that the seller was not able to convey a title sufficient to meet defendant's title requirements, Seller and defendant, in these circumstances, mutally agreed to rescind the contract of sale as to said 354 acre tract.

'2.In the meantime, on July 1, 1963, about three months after execution of the agreement which is in evidence as Plaintiffs' Exhibit 1 there was a sale to defendant of a 320 acre tract.This is the only sale shown by the evidence to have been made to defendant.

'3.* * * Nor did they(appellants) establish by a preponderance of the evidence that the intent of the parties to the aforementioned agreement was that defendant was to be liable under such agreement upon completion of sale to him of said 320 acre tract.On the contrary, a preponderance of the evidence establishes that the parties to such agreement did not have any such intent but instead intended only that defendant was to be liable under such agreement if, but only if, there was a sale completed to him of the aforementioned 354 acre tract.

'6.Premises considered, it is the conclusion of the Court that plaintiffs did not legally establish any ground of recovery entitling them to recover and that, accordingly, defendant was entitled to entry of the take nothing judgment heretofore entered in this cause.'

The only witness to testify as to the facts of the transaction was appellee, called to the stand by appellants as an adverse witness.According to his testimony, in 1962appellee had been interested in buying all of the M. A. Broughton...