White v. Larson
| Decision Date | 15 August 1979 |
| Docket Number | No. 6840,6840 |
| Citation | 586 S.W.2d 212 |
| Parties | James H. WHITE, Appellant, v. Reuben LARSON, Individually and d/b/a Interstate Realty Company, Appellee. |
| Court | Texas Court of Appeals |
This case involves the rights of real estate agents to a commission under two different Listing Contracts involving the same property. Suit was filed by Appellant to obtain a declaratory judgment as to his right to a commission under the earlier contract. The Appellee filed a cross-action for damages alleging a wrongful interference with his contract which was in existence when the sale was made. Based upon a jury verdict, judgment was entered for Appellee. We reverse and render.
On November 27, 1973, Johnny Garren signed a listing contract with the James C. White Realty Company authorizing the latter to show and offer for sale approximately twenty-eight acres of land and improvements in Dona Ana County, New Mexico, known as the Lazy "S" Ranch. The listing contract included the usual sales information, described the property and existing liens and contained the following clause:
For and in consideration of $1.00 paid in hand and services rendered and to be performed, the undersigned owner hereby employs the James C. White Realty Company, Realtors, and associates (collectively referred to as 'Agent') as sole and exclusive sales agent to sell for said Owner the above described property for the price and terms specified, or for any other price and on any other terms and conditions that shall be accepted by Owner; and if sold during the term of this listing or sold thereafter, in whole or in part, if the Agent is the procuring cause of such sale, Owner agrees to pay to said Agent a commission of 6% Of the sale price of said property.
That contract expired on September 30, 1974. A new contract dated November 11, 1974, extended the listing to December 31, 1974, and also had the same clause as to the agent's commission.
During the period covered by these listing agreements, Mr. Conke Viramontes, an agent with the White Realty Company, showed the property to Jose Diaz on two occasions and on several occasions discussed a possible sale with him. No offer was ever made prior to termination of the second listing which expired at the end of 1974.
Some time in late 1974, George Luther, an agent with Interstate Realty Company, contacted Mr. Garren and got a listing contract and placed sales signs on the property. When he was advised that White Realty Company still had a contract on the property, he destroyed the contract and took down the signs. On January 10, 1975, he obtained a new listing contract and again put up signs on the property. This contract called for a $25,000.00 commission and it provided:
For and in consideration of the agreement of the Agent, as hereinafter defined, to exercise diligence to sell the property described on the reverse side hereof, as evidenced by said Agent's acceptance of this listing, the undersigned Owner hereby employs Interstate Realty Company , Realtor, as the sole and exclusive agent, except only as hereinafter provided, with the exclusive right to sell the property for said Owner until May 10 , 19 75 , at 11:00 P.M., for the price and upon the terms specified or for such other price or upon such other terms or trade, as may be acceptable to the Owner. Owner agrees to sell the property for the said price and upon the terms specified herein.
This contract had a provision for payment of the commission if the agent was the procuring cause of a sale within 120 days after the expiration of the contract.
Both Mr. White and Mr. Viramontes testified that they did not know about the listing contract with Interstate Realty Company. The property was listed with Multiple Listing Service of which the White agency was a member, but Mr. White testified his agency did not use Multiple Listing Service on farm property.
On or about April 3, 1975, Mr. Diaz contacted Mr. Viramontes to see if the property was still for sale and to make an offer. Mr. Viramontes contacted Mr. Garren who told him to call his attorney. Mr. Viramontes and Mr. Diaz met with the attorney and a sales contract was signed for a price of $310,000.00 and for a commission to the White agency of $17,000.00. On the same date, Mr. Garren contacted Interstate Realty Company and made an agreement that if he, Mr. Garren, sold the property himself the commission to Interstate Realty Company would be 1% Of the sales price. The closing statement provided for payment of $17,000.00 to White Realty Company and $3,100.00 to Interstate Realty Company.
On trial of the case, the jury found White or his agent, Viramontes, knew or should have known of the listing contract with Interstate Realty Company; that White or Viramontes interfered with such contract; that such interference was willful and intentional; that Viramontes first showed the property to the ultimate purchaser and was the producing cause of the sale; that the interference was a proximate cause of any money loss to Interstate Realty Company; damages of $9,400.00; that White and Viramontes acted with malice and that exemplary damages should be assessed in the sum of $25,000.00. The trial Court entered judgment on the verdict, and then ordered a remittitur of $22,000.00 of exemplary damages and such remittitur was filed.
By his First Point of Error, Appellant complains of the error of the trial Court in overruling his motion for instructed verdict. One of the grounds asserted was that the tort of willful interference with a contract requires that the conduct be without legal justification, and that by the listing contract the White agency had the right to sell even after its contract expired if it was the procuring cause of the sale. Thus, it was asserted in the trial Court, and now in the first point of error, that a basic element of the cause of action was not established.
It appears that Mr. Garren gave both White Realty Company and Interstate Realty Company what is generally referred to as an "exclusive agency to sell." In Baker v. Skipworth, 244 S.W.2d 299 (Tex.Civ.App. Fort Worth 1951, writ ref'd), the court said:
A clear distinction is drawn between the appointment of a broker as an "exclusive agent to sell" and the granting to him the "exclusive right to sell." In the former contract, the owner does not surrender his own right to sell the property and in the event he does so, is under no obligation to pay a commission to the broker. In the latter case, the broker is entitled to his commission if owner makes sale...
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