Walker v. Keeling, 5400.

• Decision Date: 02 March 1942
• Docket Number: No. 5400.,5400.
• Citation: 160 S.W.2d 310
• Parties: WALKER v. KEELING.
• Court: Texas Court of Appeals

160 S.W.2d 310

WALKER v. KEELING.

No. 5400.

Court of Civil Appeals of Texas. Amarillo.

March 2, 1942.

Rehearing Denied March 30, 1942.

Appeal from District Court, Lubbock County; G. V. Pardue, Judge.

Suit by J. B. Walker against J. W. Keeling to recover a brokerage commission allegedly due in connection with the sale of defendant's land. From an adverse judgment, plaintiff appeals.

Judgment affirmed.

Nelson & Brown and G. E. Lockhart, all of Lubbock, for appellant.

Vickers & Campbell, of Lubbock, for appellee.

FOLLEY, Justice.

This suit was filed by the appellant, J. B. Walker, a real estate broker, against the appellee, J. W. Keeling, to recover a brokerage commission in the sum of $320 alleged to have been due the appellant in connection with the sale of 160 acres of appellee's land in Lynn County. At the conclusion of the evidence in a trial before a jury, the trial court peremptorily directed a verdict for the appellee upon the theory that the brokerage agreement was not evidenced in writing as required by Article 6573a, Vernon's Ann.Civ.St., known as the Real Estate Dealers License Act.

The facts show that the appellant was a duly licensed real estate dealer. He met the appellee in the road some few miles from the land involved. After some preliminaries relative to a sale of the land and the commission to be allowed, the appellant broker wrote a memorandum in his notebook which the court excluded from the jury, but which was admitted in the record for the purpose of a bill of exceptions. Such memorandum was as follows: "Memo. 3-4-41 Go east to pavement, then south to the road that runs east. Just before you get to the brick home then go east to the end of the road. Then south one mile to the quarter, house on the northeast corner. Price $45.00 an per acre, commission $2.00 per acre. Must sell in week to get possession. Owner, Walter Keeling."

It is admitted that the appellee did not sign this memorandum, nor did he expressly authorize the appellant to sign his name for him. The appellant contends that under the facts there was an implied agreement for the appellant to sign appellee's name to the memorandum. In support of his contention the appellant testified that he asked the appellee what his initials were, that appellee replied "Walter," and that appellant then told appellee he would sign the latter's name for him, which he did. This testimony was contradicted and denied by the appellee. It is conceded there was no other memorandum or writing evidencing the agreement. It is also uncontroverted that the land was thereafter sold upon the terms mentioned in the memorandum to a purchaser to whom the appellant had talked about the sale. However, there is a dispute between the parties as to whether the broker fulfilled the time limit allegedly placed upon the sale by the appellee, but, in view of our other conclusions herein, we think this matter becomes immaterial.

Under the above facts, it is our opinion there does not exist in this case any memorandum or writing signed by the appellee, or by some person by him lawfully authorized, sufficient as a predicate for a recovery of the commission. We rest our decision in this respect to a large extent upon the wholesome rule announced in 1 Mechem on Agency, par. 180, in the following language: "While there does not appear to be any reason why, in the ordinary case of a written contract or memorandum, one party may not, in the presence and by the direction of the other at least, sign the latter's name to the contract or memorandum made between them, it is held that, in the case of the note or memorandum required by the statutes of frauds, the other party cannot be the agent referred to in the statute. The theory is that it would defeat the whole purpose of the statute if the other party, who could not under the statute directly...