Vickrey v. Lefmann

• Decision Date: 19 March 1925
• Docket Number: (No. 8661.)
• Citation: 270 S.W. 880
• Parties: VICKREY v. LEFMANN.
• Court: Texas Court of Appeals

270 S.W. 880

VICKREY v. LEFMANN.

(No. 8661.)

Court of Civil Appeals of Texas. Galveston.

March 19, 1925.

Error from District Court, Harris County; Chas. E. Ashe, Judge.

Action by L. S. Vickrey against Vina L. Lefmann. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

James G. Donovan and A. E. Dawes, both of Houston, for plaintiff in error.

Harry Holmes and W. J. Armstrong, both of Houston, for defendant in error.

GRAVES, J.

The trial court sustained a general demurrer to this petition:

"I. That on and prior to the 23d day of September, A. D. 1919, plaintiff was a real estate broker engaged in the business of procuring purchasers and in making sales of land for others. That on said day defendant represented to plaintiff that she was the owner in fee simple and impliedly represented that she had a good merchantable title to the following described land situated in Harris county, Tex., to wit:

"All of lot No. 4, on Taylor's bayou, in the Ritson Morris survey, between said bayou and G. A. & S. A. Railway, containing 165 acres.

"That defendant being desirous of selling said land made and entered into an agreement with the plaintiff evidenced by memorandum in writing dated September 23, 1919, and signed by defendant Mrs. Vina Lefmann, wherein and whereby defendant placed and listed the same for sale with the plaintiff at the price and upon the following terms and conditions, to wit:

"Defendant authorized plaintiff to sell said land for $60 per acre cash, aggregating $9,900, reserving no mineral rights, and agreed that in the event plaintiff sold said land to E. A. Peden for $60 per acre cash, defendant should receive $9,250 cash net to her, and that from the said $9,250, defendant agreed to pay off the then existing mortgage on said land and to pay the taxes thereon to January 1, 1920, and also agreed to release without cost to this plaintiff the lien on two lots, Nos. 99 and 100, in the Ruggles subdivision in Harris county, Tex., said two lots had been and were mortgaged to A. G. Ruggles, said lien containing a release clause providing for a release of any one lot in said subdivision upon the payment of $50; and agreed to pay plaintiff a commission for his services the excess of the selling price over and above the said $9,250.

"That in pursuance of said listing, said agreement, and said representation, this plaintiff did on or about the 25th day of September, 1919, procure said E. A. Peden of Harris county, Tex., who was ready, willing, and able to buy said land at $60 per acre, or a total consideration of $9,900, cash, providing defendant Mrs. Vina Lefmann had a satisfactory title, that is, a good merchantable title in said defendant.

"That on or about the said 25th day of September, 1919, said E. A. Peden in a letter dated at Houston, Tex., addressed to plaintiff and signed by him (E. A. Peden), offered to pay $60 per acre cash for the above 165-acre tract on the above set out terms and conditions, and that on or about the said last date plaintiff notified defendant that E. A. Peden had made the said offer to buy said land for $60, per acre cash provided that defendant Mrs. Vina Lefmann had a satisfactory title, and provided the said defendant would pay all taxes up to January 1, 1920, and would furnish a complete abstract of title to said land and premises, the same to show a satisfactory title, that is, a good merchantable title, in defendant.

"That then and there the defendant accepted said plaintiff's offer and did soon thereafter furnish said E. A. Peden a complete abstract to said land whereby defendant and said E. A. Peden entered into a legal and binding contract for the sale of said land upon the terms and stipulations aforesaid agreed to by and between plaintiff and defendant, save and except the said agreement to furnish the said abstract of title, showing satisfactory title to said land in defendant; whereby defendant agreed to convey a good marketable title in and to said land to said E. A. Peden upon the above terms and stipulations; and said E. A. Peden agreed to buy the same for $60 cash per acre, conditioned that defendant had a satisfactory and marketable title, and paid taxes thereon to January 1, 1920.

"Wherefore, the sale of said land was consummated for all purposes and intentions, that said E. A. Peden employed Mr. Champ Ross of the law firm of Ross & Wood to examine said title, the said Ross made an honest examination of said abstract and found that there was an outstanding undivided one-sixth interest in the name of Mary J. Dobie and reported the same to said E. A. Peden, that said title was not satisfactory to him (E. A. Peden), and was not a marketable title; that defendant cured said defect and some other minor defects in the said title on or about ____ day of March, 1921, and requested said E. A. Peden to comply with his said agreements; that said E. A. Peden refused to do so because defendant delayed in perfecting said title; that by reason of the foregoing defendant became bound and obligated to plaintiff and promised to pay plaintiff the sum of $750.

"That though often requested, defendant has neglected, failed, and refused, and still refuses, to pay plaintiff same or any part thereof to plaintiff's damage in the sum of $750.

"II. Pleading in the alternative to paragraph No. 1, plaintiff represents that in the event he is mistaken and the defendant did not expressly promise to pay plaintiff said amount as above set out for said services by virtue of the foregoing promises, plaintiff represents that defendant impliedly promised to pay plaintiff a reasonable compensation for said services, and that the said excess of $650, and the said $100 required to obtain, aggregating $750, is a reasonable compensation, premises considered, for said services, and that a commission of 5 per cent. of the selling price is a reasonable and customary compensation for said services, wherefore defendant became bound and obligated to plaintiff, and promised to pay plaintiff the sum of $750.

"That though often requested, defendant has neglected, failed, and refused, and still refuses, to pay plaintiff same or any part thereof, to plaintiff's damage in the sum of $750.

"III. Plain...