Stuckey v. Union Mortg. & Inv. Co.

• Decision Date: 22 October 1964
• Docket Number: No. 54,54
• Citation: 383 S.W.2d 429
• Parties: James H. STUCKEY et al., Appellants, v. UNION MORTGAGE & INVESTMENT COMPANY, Inc., Appellee.
• Court: Texas Court of Appeals

Page 429

383 S.W.2d 429

James H. STUCKEY et al., Appellants, v. UNION MORTGAGE & INVESTMENT COMPANY, Inc., Appellee.

No. 54.

Court of Civil Appeals of Texas, Tyler.

Oct. 22, 1964.

Rehearing Denied Nov. 5, 1964.

Herman W. Mead, Houston, for appellants.

John T. Golden, Vinson, Elkins, Weems & Searls, Houston, for appellee.

DUNAGAN, Chief Justice.

This suit was instituted by Union Mortgage & Investment Company, Inc., Appellee, against James H. Stuckey and Glen R. Bowman, a partnership doing business as Bowman-Stuckey Properties, Appellants, seeking to recover a commission upon an alleged oral contract under which Appellee agreed to secure for Appellants a loan commitment for the refinancing of Appellants' Community Center, located in Houston, Texas. It was alleged that for the obtaining of a loan commitment in the amount of $225,000.00, Appellants agreed to pay Appellee a fee of one per cent of said sum. Appellee alleged its performance in the procurement of the commitment for Appellants and a refusal by Appellants to pay the fee. A verdict was rendered favoring Appellees. Appellants appealed from a judgment entered against them for the amount of $2,250.00

Appellants are the owners of a community center in Houston, Texas. Appellee is a loan brokerage company engaged in the business of securing loan commitments for its clients. Being desirous of a loan for additional improvements on these properties, James H. Stuckey, one of the partners, contacted Appellee's president, C. T. Traylor, Jr., about October, 1959, at which time a loan in the amount of $225,000.00 was sought by Appellants. From that date until about December, 1959, various negotiations were carried on, but apparently Traylor had been unsuccessful in procuring a loan for Appellants. During this same period, Stuckey likewise was making efforts, in his own behalf, to secure the loan from various lending institutions. His efforts, like Traylor's, were meeting with no success.

In December, 1960, Stuckey made an application for the loan with American National Life Insurance Company. The latter refused the loan in January, 1961. About this time, Traylor again contacted Stuckey requesting a further opportunity to secure the loan commitment. Stuckey consented and forwarded to Traylor the loan application dated January 26, 1961. After January 26, 1961, and apparently while Appellee was seeking the loan commitment from General American Life Insurance Company, Stuckey made an application for the loan with Jefferson Standard Life Insurance Company. The latter gave Appellants, a commitment dated February 23, 1961. Stuckey admitted that he agreed to pay the one per cent fee to Appellee if it was successful in obtaining the type of loan Appellants desired. Appellee succeeded in obtaining a loan commitment which was transmitted by it to Appellants by letter dated February 24, 1961. This case arises because of the failure of Appellants to pay to Appellee the one per cent brokerage fee--it being Appellants' contention that Appellee had not procured an unconditional loan commitment in accordance with the application and, therefore, had earned no fee.

By its first Point of Error Appellants complain of the Trial Court's action in overruling their Motion for Instructed Verdict Appellants contend that Appellee failed to establish the existence of a contract in that Appellee had failed to prove an 'offer and acceptance.'

In determining the correctness of the Trial Court's action in this regard, we must determine whether there was sufficient evidence of probative force to raise a fact issue on a material question. Sullivan v. Airhart, 336 S.W.2d 776 (Tex.Civ.App., 1960), no writ; Air Conditioning, Inc. v. Harrison-Wilson-Pearson (1960), 151 Tex. 635, 253 S.W.2d 422. In considering such Motion, the evidence must be considered most favorably in behalf of the party against whom the instruction is sought. White v. White (1943), 141 Tex. 328, 172 S.W.2d 295; Stevens v. Karr (1930), 119 Tex. 479, 33 S.W.2d 725. This is the rule though the evidence may be legally insufficient to support a verdict. Wallace v. Southern Cotton-Oil Co., 91 Tex. 18, 40 S.W. 399; Maryland Casualty Co. v. Morua (Tex.Civ.App., 1944), 180 S.W.2d 194, er. ref.; Great Atlantic & Pacific Tea Company v. Giles (Tex.Civ.App., 1962), 354 S.W.2d 410, er. ref., n. r. e. A peremptory instruction should not be granted if the evidence raises any material issue, and such an instruction is warranted only when the evidence is such that no other verdict could have been rendered. Stevens v. Karr, supra. Applying these rules, we conclude that the Trial Court correctly overruled Appellants' Motion for Instructed Verdict.

Appellee's suit was one for a fee allegedly earned under an express oral contract with Appellants, whereunder Appellee agreed to obtain a loan commitment for Appellants. Allegations of performance of the contract by Appellee and a refusal to pay on the part of the Appellants were made.

Appellants denied generally Appellee's allegations; asserted further that if such an oral agreement, as alleged by Appellee, was made, the same was for a period of time of less than six months and that Appellee was unable to perform its obligations under such oral contract within such period of time. Appellants further alleged that Appellee was never able to obtain an unqualified commitment and that the only one procured by Appellee was a qualified conditional commitment.

Under the pleadings of Appellee, it had the burden to establish the oral contract and to secure findings that it had performed its obligation thereunder, or that Appellants had either accepted the performance as shown by Appellee, or had, by its conduct, ratified the same. Hollums v. Hancock, (Tex.Civ.App., 1944), 180 S.W.2d 209, no writ.

In Stevens v. Karr, supra, it is stated that a commission ordinarily becomes payable on completion of the transaction which the broker was employed to negotiate unless stipulated to the contrary. If, by the contract of employment, the broker is merely to find a customer who is able, ready, and willing to enter into a transaction with the principal on terms prescribed by him, the broker is entitled to compensation upon performing that service, whether or not the principal completes the transaction.

If the broker finds a customer who is ready, willing and able to consummate the transaction on terms prescribed by the principal, or even on terms that are later ratified as satisfactory by the principal who later refuses to complete the transaction, the broker is nonetheless entitled to his compensation. Hollums v. Hancock, supra; Harrison Bldg. Co. v. B. F. Dittmar Co. (Tex.Civ.App., 1928), 4 S.W.2d 1038, no writ. Having alleged an express oral contract with Appellants to procure the loan commitment and its performance, it was, of course, incumbent upon Appellee to produce evidence of probative force raising these issues. Whether there was performance on the part of Appellee, or whether there were circumstances from which the jury could reasonably infer performance, were matters for the jury, provided there was evidence thereof. The question of performance, assuming evidence raising the issue, was for the jury. Kitchen v. Lloyd, (Tex.Civ.App., 1928), 14 S.W.2d 335, no writ. The basis of Appellants' Motion for Instructed Verdict is that there was no evidence of an 'acceptance' in the case. Appellants say that if the application submitted by Stuckey is the offer involved, there was no unqualified 'acceptance' because the commitment submitted to Appellants was not identical with the application. Further, if the commitment submitted by Appellee is considered a 'counter-offer,' Appellants assert there was no evidence showing an 'acceptance' of such counter-offer. In either event, it is Appellants' position, there was no evidence of the formation of a contract. We do not agree. Appellee pled that it orally agreed to secure a loan commitment for Appellants in the desired sum of $225,000.00. For the obtaining of such a commitment, Appellants agreed to pay Appellee a one per cent commission. Appellee alleged it did procure such a commitment acceptable to Appellants, but Appellants refused to pay the fee. Under Appellee's pleadings, it was unnecessary that the commitment be actually used by Appellants in order to entitle Appellee to its commission. If Appellee procured the loan commitment desired by Appellants, or such a loan commitment acceptable to them, by such performance Appellee had earned the commission. The fact that Appellants declined to use the commitment procured by Appellee would not necessarily preclude its recovery. In order to determine whether there was any evidence of probative force raising these issues, a review of the evidence in some detail is necessary.

C. T. Traylor, Jr., president of Appellee, testified that after previous efforts in 1959 to procure the loan commitment had failed, he called Stuckey in January, 1961, and inquired as to whether the loan had been secured. Stuckey replied that it had been submitted to American National Life Insurance Company and he was them awaiting a reply. Stuckey advised him that if he did not get an answer within seven to ten days he would again talk to Traylor. In about two weeks Stuckey called Traylor and advised him that American National Life Insurance Company had declined the loan, and he then asked Traylor if he desired to resubmit the application. Traylor replied affirmatively and told Stuckey that it would not take much time to determine whether he could get the loan commitment inasmuch as much of the work had already been performed. Traylor denied that Stuckey gave him any specified time within which to procure the commitment. Traylor advised him the loan application would be submitted to General American Life Insurance Company. Stuckey at that time, gave Traylor an application fee of $450.00. According to Traylor, the parties had a complete...