Vrablec v. Kocurek

• Court: Texas Court of Appeals
• Writing for the Court: Lane
• Citation: Vrablec v. Kocurek, 199 S.W. 876 (Tex. App. 1917)
• Decision Date: 20 December 1917
• Docket Number: (No. 7500.)
• Parties: VRABLEC v. KOCUREK.

Page 876

199 S.W. 876

VRABLEC v. KOCUREK.

(No. 7500.)

Court of Civil Appeals of Texas. Galveston.

December 20, 1917.

Appeal from Austin County Court; G. S. Cumings, Judge.

Action by Tom Vrablec against August Kocurek. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

C. G. Krueger, of Bellville, and Mathis, Teague & Mathis, of Brenham, for appellant. C. C. Glenn, of Sealy, for appellee.

LANE, J.

This suit was instituted by appellant, Tom Vrablec, against appellee, August Kocurek, to recover the sum of $500, which he claimed to be due him as a commission for selling a certain tract of land for appellee.

Appellant, plaintiff in the trial court, alleged that on the 14th day of October, 1912, he purchased from appellee a certain 72¼ acres of land situated in Austin county, Tex., about 2½ miles west of the town of Wallis, in said county; that said tract consisted of 67¼ acres of prairie land and 5 acres of timber land; that plaintiff paid a part of the purchase money therefor, and executed his notes for the balance of said purchase price; that thereafter, and after said notes became due, defendant demanded payment thereof, and as plaintiff was unable to make such payment, it was agreed by said parties that, if plaintiff, Vrablec, would reconvey said lands to defendant, Kocurek, the latter would enter into a contract with plaintiff engaging him to resell said land; that thereafter, on November 1, 1915, in pursuance of said agreement, said parties executed the following contract:

"The State of Texas, County of Austin.

"Know all men by these presents that I, August Kocurek, have this day given Tom Vrablec the authority to sell my land consisting of 67¼ acres of prairie and 5 acres of timber land for the sum of sixty dollars an acre for prairie and forty dollars for timber per acre. I allow the said Tom Vrablec the sum of five hundred dollars as commission for selling above land as soon as sold and deed made. I am not to receive less than $2,000.00 cash and balance on time on above land.

"This contract to be null and void after November 1, 1916.

"Witness our hands this 1st day of November, 1915. August Kocurek.

                        "Tom Vrablec
                "Witness
                   "Henri Kosik
                   "J. C. Matejka."
                

He further alleged that by the execution of said contract defendant authorized and empowered plaintiff to sell said land for the prices and on the terms stipulated in said contract at any time prior to the 1st day of November, 1916, and that by said contract defendant promised, obligated, and bound himself to pay plaintiff the sum of $500 for his services in the event plaintiff made a sale of said land before said 1st day of November, 1916, in accordance with the terms of said contract; that after the execution of the contract, and before the 1st day of November, 1916, plaintiff did procure at different times three different purchasers for said lands, to wit, Henri Kosik, Rudolph Hranicky, and Martin Haidjek, for the price and upon the terms stipulated in the contract, and that each of said proposed purchasers were ready, willing, and able to purchase said land at such price and under such terms and conditions, but that defendant refused, and still refuses, to convey said land to said purchasers or either of them.

Defendant, Kocurek, filed and presented special exceptions to plaintiff's petition as follows:

"Specially demurring and excepting herein, defendant says that the contract in this case declared upon by plaintiff, and now for the first time exhibited in this court, is wholly insufficient for plaintiff to maintain this suit upon, and is contrary to the statutes of fraud, in that it wholly fails to describe any lands, or to furnish the means of description of any lands, that were to be conveyed, on all of which defendant now prays judgment of the court, and he will ever pray.

"Defendant further excepts and demurs to all of paragraph No. 3 of plaintiff's original petition, wherein the said petition undertakes to describe the lands alleged to have been intended to be conveyed by the contract herein declared upon by plaintiff, and says that the same is wholly insufficient, and is contrary to the statutes of fraud, and that plaintiff thus seeks to ingraft upon the said written contract and agreement a description which is wholly wanting in the said contract, and now excepts to the same, and prays the court to strike the same from the record, and he will ever pray.

"Further specially demurring and excepting to paragraph No. 4 of plaintiff's original petition, defendant shows to the court that plaintiff therein alleges that he reconveyed certain lands to the defendant during the year 1915, `upon the agreement and understanding that the land should be sold, through the agency of plaintiff, in accordance with the terms of the contract hereinafter set out,' when in deed and in fact plaintiff has neither `set out' his said contract, nor has he indicated in his said original petition at what period of the year the land was `conveyed back' to defendant. Wherefore defendant prays the court that the said paragraph No. 4 be also stricken from the record and held for naught, and he will ever pray."

The trial court sustained all of said exceptions, and, upon plaintiff's declining to amend his petition, the cause was...