Wolfman & Katz v. Callahan
| Decision Date | 05 June 1918 |
| Docket Number | (No. 6060.) |
| Citation | 204 S.W. 777 |
| Court | Texas Court of Appeals |
| Parties | WOLFMAN & KATZ v. CALLAHAN. |
Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
Action by R. G. Callahan against Ben Wolfman and John Katz. Judgment for plaintiff, and defendants appeal. Affirmed.
W. H. Kennon and H. A. Hirshberg, both of San Antonio, for appellants. W. P. Lobban, of San Antonio, for appellee.
This is a suit for broker's commission by R. G. Callahan, appellee, against Ben Wolfman and John Katz, appellants. The cause was submitted to the court without a jury, and judgment was rendered against appellants for $370.
The petition alleged the usual and customary commission, and that appellants accepted appellee's services knowing that he was in the business of broker for hire and knowing that appellee expected to receive the usual and customary commission and that appellants expected to pay it. The petition fully alleged the broker's services and that appellants executed a contract for the sale of their land to the purchaser procured by appellee, which contract was also executed by the said purchaser. The appellants demurred to the petition, and after a general denial specially answered that the commission was not earned until the sale of appellants' land was consummated or a contract entered into, specific performance of which could be enforced, and that the contract of sale executed was not such a contract. The evidence, without conflict, established all the allegations of the petition, leaving the interpretation of the sale contract the sole question for our determination.
The first assignment complains that the court erred in overruling the general demurrer. The second assignment assails the judgment because contrary to the law and evidence. The proposition under both assignments resolves itself into the contention above stated, that the contract of sale was conditional, specific performance of which could not be enforced. Counsel for appellants, in argument, claim the rule adopted in such cases in England and Maryland, namely, that the broker's commission is not earned until the sale is consummated, and that the sale is not consummated until the seller receives payment for his land. Riggs v. Turnbull, 105 Md. 135, 66 Atl. 13, 8 L. R. A. (N. S.) 824, 11 Ann. Cas. 783.
The English and Maryland rule is not the rule in Texas, which follows the rule adopted in Massachusetts and most...
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...Tex. 521, 260 S.W. 1023; Jones v. Parker, Tex.Civ.App., 26 S.W.2d 742; Adams v. Brown, Tex.Civ.App., 25 S.W.2d 879; Wolfman & Katz v. Callahan, Tex.Civ.App., 204 S.W. 777; Seidel v. Walker, Tex.Civ.App., 173 S.W. 1170, writ dismissed, and cases there cited; J. B. Watkins Land-Mortgage Co. v......
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Del Andersen and Associates v. Jones, 4846
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