Thornton v. Moody

• Decision Date: 13 December 1893
• Citation: 24 S.W. 331
• Parties: THORNTON v. MOODY.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

24 S.W. 331

THORNTON v. MOODY.¹

Court of Civil Appeals of Texas.

December 13, 1893.

Appeal from district court, Bexar county; George N. Noonan, Judge.

Action by S. S. Moody against James S. Thornton for real-estate commissions. Judgment for plaintiff. Defendant appeals. Affirmed.

Simpson & James, for appellant. Leo Tarleton and C. A. Keller, for appellee.

FLY, J.

Plaintiff in the lower court (here appellee) instituted this suit on a contract between him and appellant, wherein the latter named agreed to pay him $2,100 for negotiating a sale or exchange of certain property in the city of San Antonio; that the exchange of the property was negotiated and agreed to by appellant, who afterwards refused to comply with its terms, or pay appellee his commissions. Defendant (appellant) filed a general demurrer and general denial. The case was tried before a jury, and resulted in a verdict for $1,925, upon which the judgment appealed from was rendered. The facts proved are as follows: J. S. Thornton placed in the hands of S. S. Moody, a real-estate broker, for sale, certain property on South Flores street, valued by Thornton at $35,000, and a homestead on Dwyer avenue, valued by him at $8,500. In consideration of a sale of the property, Thornton agreed to pay Moody the sum of $1,500 on the South Flores street property, and 5 per cent. of the $8,500, the value of the homestead on Dwyer avenue. Moody, ascertaining that he could not make a sale for all cash, but could make it by taking part real estate, went back to Thornton, and told him about it, and Thornton agreed to the terms, and told him to proceed with the sale. In pursuance of his express contract with Thornton, Moody negotiated a sale with one Richard Wooley, Jr., wherein it was agreed that the South Flores property should be valued at $36,000, and the Dwyer avenue property at $12,000, for which Wooley was to give his residence at "West End," valued at $25,000, to assume liens on Thornton's property to the extent of $20,000, and transfer to Thornton West End Town Company's stock, of the value of $3,000. This was modified by Thornton, who wanted $3,000 in cash, instead of West End stock, and it was arranged that $1,500 in cash should be paid Thornton, and that Moody should take $1,500 of the West End stock as part of his commissions. There was no dispute about the West End stock being worth the amount for which it went in. The contract of sale was drawn up, and Wooley's agent signed it, but, Thornton desiring that Wooley himself should sign it, refusing to sign unless this was done, Moody followed Wooley to Llano, where he obtained his signature. Moody then presented the contract of sale to Thornton, who refused to sign it, saying he had a better offer for his property. Moody demanded his commission from Thornton, payment of which was refused. There was considerable testimony showing that the customary commission for selling or exchanging property was 5 per cent. on the value of the property exchanged. The facts in regard to the contract to pay the commissions to Moody, and in regard to his sale, with the sanction of Thornton, of the property to Wooley, are uncontradicted by any witness. Thornton failed to testify. The only propositions made and contended for are: First, that, "where the plaintiff sues on an express contract, he cannot recover on an implied one, and testimony in such case to show an implied liability is not admissible;" and, second, "an authority to sell, or a sale, means a disposition of the property for cash, and does not imply barter or exchange for other property, and it follows that, where a commission is promised for a sale to be made of property, such promise would not be presumed to have reference to its exchange for other property."

The first proposition is a clear and terse enunciation of a correct legal rule, that is founded on an elementary principle that the allegata and probata must correspond, the latter being a clear answer to the former. Shiner v. Abbey, 77 Tex. 1, 13 S. W. 613; and Krohn v. Heyn, 77 Tex. 319, 14 S. W. 130. While this proposition is the law, yet in this case we do not think it applicable, because the evidence clearly shows that, if the original contract was abrogated so far as it demanded a sale for cash alone, there was...