Webb v. Durrett

• Decision Date: 22 April 1911
• Citation: 136 S.W. 1189
• Parties: WEBB et al. v. DURRETT.
• Court: Texas Court of Appeals

Page 1189

136 S.W. 1189

WEBB et al. v. DURRETT.

Court of Civil Appeals of Texas.

April 22, 1911.

Appeal from Jones County Court; Jas. P. Stinson, Judge.

Action by T. J. Durrett against B. D. Webb and others. From a judgment in favor of plaintiff T. J. Durrett and in favor of N. N. Durrett against Webb, he appeals. Reversed and rendered.

J. B. McMahon, for appellant. C. P. Chastain and Brooks & Brooks, for appellees.

DUNKLIN, J.

T. J. Durrett, plaintiff, recovered a judgment against B. D. Webb as principal, and N. N. Durrett as guarantor, for $180, the judgment being also in favor of N. N. Durrett on his plea over against Webb, and Webb has appealed. The suit originated in the justice court, but was appealed to the county court, and in both courts was tried on written pleadings. According to allegations contained in plaintiff's petition, defendant Webb employed defendant N. N. Durrett, a real estate broker, to procure a purchaser for a certain tract of 480 acres of land owned by Webb, agreeing to pay the broker for such services a commission of 5 per cent. on the amount realized by the sale. The broker procured a purchaser in one Dr. Cantrell at the price of $7.50 per acre, and thereby earned a commission of $180. For a valuable consideration paid to him by plaintiff N. N. Durrett, the broker transferred to plaintiff his claim against Webb for the commission so earned, and by an instrument of writing guaranteed its payment. The suit was instituted in Jones county, where plaintiff and defendant N. N. Durrett resided, but Webb resided in Foard county. By plea in abatement Webb invoked the statutory privilege to be sued in the county of his residence, basing that plea upon allegations that the alleged transfer of the claim sued on to plaintiff and guaranty of its payment were fictitious and done for the sole purpose of conferring jurisdiction upon the court in which the suit was instituted over him (the defendant Webb).

The plaintiff introduced in evidence a contract in writing between Dr. Cantrell and defendant Webb which by its terms purported to bind the former to purchase and the latter to sell the land for $7.50 per acre, and the plaintiff introduced other evidence tending to show that N. N. Durrett procured Cantrell to enter into that contract. However, the proof showed further without controversy that Cantrell later refused to consummate the purchase by paying the consideration which he contracted to pay. But plaintiff insisted that the written contract of sale was legally binding upon Cantrell to purchase the property, and, being thus enforceable, the promised commission has been earned; and upon this theory a recovery was awarded. As a part of the consideration for the land, Cantrell agreed to transfer to Webb an undivided one-half interest in a certain stock of drugs and fixtures, the same to be taken in the trade at cost price. Webb testified that Cantrell represented that the stock of drugs would invoice about $2,000; that N. N. Durrett told Webb that the drugs were good and new. There was also testimony tending to show that Cantrell represented to Webb that the goods were unincumbered. Webb further testified without contradiction that he found the stock of goods to be old and stale and considerably incumbered; and N. N. Durrett admitted on the witness stand that Cantrell agreed to pay him $100 if he would induce Webb to sign the contract. By special charge ...