Wyche v. Works, 16253
| Decision Date | 22 November 1963 |
| Docket Number | No. 16253,16253 |
| Parties | Charles D. WYCHE, Appellant, v. R. V. WORKS, Independent Executor, Appellee. |
| Court | Texas Court of Appeals |
Yarborough, Yarborough & Johnson, Dallas, for appellant.
Bowyer & Thomas, Dallas, for appellee.
This is a companion case to Works v. Wyche, 344 S.W.2d 193, err. ref. n. r. e. A reading of our opinion in that case will undoubtedly provide a better understanding of this opinion.
Both cases were based upon a written contract whereby, in consideration of $1,000, Wyche granted to R. V. Works, Trustee, an option to purchase two tracts of land for $93,000 and agreed that upon the exercise of the option by R. V. Works, Trustee, or his assigns, he would furnish a title policy and 'pay the usual commission of 5% (five per-cent) on the purchase price to George W. Works and Company.' In the former case R. V. Works, Trustee, and his principal, Industrial Properties Corporation, alleged the exercise of the option and sought specific performance, which this court held on appeal they were entitled to.* The present suit was filed by George W. Works, doing business as George W. Works & Company, for the 5% commission provided for in the contract. He died during the pendency of the suit and R. V. Works, independent executor of his estate, was substituted as plaintiff. The plaintiff then moved for summary judgment under Rule 166-A, Vernon's Texas R.C.P. The trial court sustained the motion and rendered judgment for the full amount of the commission with interest thereon.
The appellants Wyche challenges that summary judgment here on the grounds that (a) there were certain genuine material issues of fact which, if resolved in his favor, would support a judgment in his favor, and (b) that the summary judgment deprived him of his legal right to a jury trial.
In determining whether any fact issues are in the case for jury determination, we must resolve all doubts as to the existence of fact issues against the appellee-movant. We must also accept as true all evidence of appellant and give him the benefit of every reasonable inference which properly can be drawn in his favor. Hersh v. H. E. Butt Grocery Co., Tex.Civ.App., 338 S.W.2d 174, err. ref. n. r. e.; McCauley v. Simmer, Tex.Civ.App., 336 S.W.2d 872, err. dism.; Womack v. Allstate Insurance Co., 156 Tex. 467, 296 S.W.2d 233; Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93; Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Lucky v. Fidelity Union Life Insurance Co., Tex.Civ.App., 399 S.W.2d 956, no writ. hist.
Appellant in his brief does not point out any genuine issue as to any material fact, and our search of the entire record fails to reveal any. The contract expressly obligates appellant to pay the commission sued for upon the exercise of the option. The option was exercised and this court has held that the purchaser was entitled to exercise it. Therefore appellant's liability appears to be established unless it is defeated under one or more of the legal defenses asserted in his answer and reply to the motion for summary judgment.
(1) The first such defense was that R. V. Works drew the contract sued on, but was not a licensed lawyer; that the contract was therefore illegal, being in violation of Sec. 17 of Art. 6573a, Vernon's Ann.Tex.St., and that neither George W. Works nor his son, R. V. Works, should be entitled to profit from the said illegal act of R. V. Works. This contention is without merit for two reasons: (a) the record shows that R. V. Works did not prepare the contract sued on, but that it was prepared by John M. Stemmons, President of the Industrial Properties Corporation, the undisclosed principal for which R. V. Works, Trustee, was acting in making the option contract; and (b) even if such a contract were prepared by one not a licensed lawyer, the validity of the contract would not be affected thereby.
(2) It was then asserted that there was no privity of contract between appellant and George W....
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