Volkmann v. Wortham, 11545.
| Decision Date | 26 September 1945 |
| Docket Number | No. 11545.,11545. |
| Citation | 189 S.W.2d 776 |
| Parties | VOLKMANN v. WORTHAM. |
| Court | Texas Court of Appeals |
Appeal from District Court, Menard County; Raymond Gray, Judge.
Action for broker's commission by W. H. Wortham against William F. Volkmann. Judgment for plaintiff, and defendant appeals.
Affirmed.
Frank Hartgraves, of Menard, for appellant.
Collins, Jackson & Blanks, of San Angelo, for appellee.
W. H. Wortham recovered a judgment against Wm. F. Volkmann for the sum of $750—5% of $15,000—as and for a real estate dealer's commission upon the sale of a tract of land by Volkmann to J. C. Landon, Jr.
The trial court upon request filed findings of fact and conclusions of law, which we have examined and here approve. In stating the case we make full use of said findings.
Appellant's principal attack upon the judgment is that appellee can not recover by reason of the provisions of section 22 of the Real Estate Dealers License Act, Article 6573a, Section 22, Vernon's Ann. Civ. Stats., which reads as follows:
It appears that Wortham, a licensed real estate dealer, had been informed that J. C. Landon, Jr., was in the market for ranch property. Arthur Warring knew of Wortham's prospect and wrote to Volkmann who owned a ranch which Warring thought might be for sale. On March 2, 1942, Volkmann wrote the following letter to Wortham:
After some negotiation with Volkmann, J. C. Landon, Jr., entered into a contract whereby he agreed to purchase Volkmann's ranch at the agreed price of $65,000. Of this amount, $50,000 was payable in cash and $15,000 was to be evidenced by vendor's lien notes. This sale was consummated in accordance with the terms of the agreement and an appropriate conveyance executed by Volkmann and delivered to Landon.
Wortham testified that the ranch owned by Volkmann was known as the "Old Wes Smith Ranch." The contract of sale entered into between Volkmann and Landon, as well as the deed consummating the transaction, recited that the property was the "same lands conveyed to William Volkmann by Wes Smith and wife, * * *."
The efforts and services of Wortham were the efficient and procuring cause of the sale above mentioned.
Volkmann paid to Wortham a 5% commission upon the $50,000 cash consideration, but, although the $15,000 in vendor's lien notes has now been paid off, Volkmann refuses to pay to Wortham 5% of such amount.
There was a dispute in the testimony, in that Volkmann contended that as he agreed to take less than $17 per acre for his ranch, Wortham agreed to cut his commission to 5% of the cash consideration. This Wortham denied and contended that he was entitled to receive 5% of $15,000 when the vendor's lien notes were discharged. This fact dispute was resolved by the trial judge in favor of Wortham.
In Dunn v. Slemons, Tex.Civ.App., 165 S.W.2d 203, it was pointed out that the wording of Article 6573a, Section 22, is very similar to that of Article 3995, Vernon's Ann.Civ.Stats., and consequently cases construing the provisions of Article 3995 are of great assistance and have controlling effect in construing the similar wording of Article 6573a, Section 22.
Article 6573a, Section 22, does not attempt to prescribe the essentials of a cause of action for the recovery of a real estate agent's commission upon the sale of land. It simply provides "the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith * * *." This means that there must be a promise to pay a commission, and that the tract of land to be sold must be identified by the writing.
The case of Morrison v. Dailey, Tex. Sup., 6 S.W. 426, 427, supports appellee's position insofar as the question of the sufficiency of the description of the land is concerned. The memorandum there involved read as follows:
Judge Gaines, writing the opinion for the Supreme Court, said:
."
Upon another phase of the case Judge Gaines followed Fulton v. Robinson, 55 Tex. 401, although stating that the weight of American authority seemed to be contrary thereto. However, as to the question of the sufficiency of the memorandum to identify the land, it was stated that, "all the authorities are agreed."
In the recent case of Wilson v. Fisher, Tex.Sup., 188 S.W.2d 150, the Supreme Court cited the following authorities as...
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Kyle v. Kansas City Life Ins. Co.
... ... v. Progressive Inv. Co., 202 S.W. 257. (13) Real estate ... board rule immaterial. Volkmann v. Wortham, 189 ... S.W.2d 776. (14) Immaterial that respondent did not obtain ... the contract ... ...
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Peters v. Coleman
...* * *.' Memorandums not very dissimilar were held to be sufficient in Jones v. Smith, Tex.Civ.App., 231 S.W.2d 1003; Volkman v. Wortham, Tex.Civ.App., 189 S.W.2d 776, writ dismissed, and Shook v. Parton, Tex.Civ.App., 211 S.W.2d 368. See also Kittrell v. Barbee, Tex.Civ.App., 198 S.W.2d 155......
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...60, 63, 100 N.W.2d 314 (1960) (joint contract by brokers, one of whom is unlicensed, invalid as to all); but see Volkmann v. Wortham, 189 S.W.2d 776, 779 (Tex. Civ. App. 1945) (concluding without analysis that fact that licensed broker paid part of commission to unlicensed person did not ba......
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...contrary to well-established Texas law. Goodwin v. Gunter, 109 Tex. 56, 185 S.W. 295, 296 (Tex.1916); Volkmann v. Wortham, 189 S.W.2d 776, 779 (Tex.Civ.App.--San Antonio 1945, writ dism'd); McPherson v. Osborn, 475 S.W.2d 804 (Tex.Civ.App.--Amarillo 1971, no writ); Kelley v. Dunn, 620 S.W.2......