Branstetter v. Hook , 1923 Tex. App. LEXIS 130 ( 1923 )

KLETT, J.

In a commission suit instituted by Thomas P. Branstetter against W. H. Hook, plaintiff alleged that the defendant promised to pay him $5 per acre for finding a. purchaser for 353 acres of land and that the service was performed by procuring one Toney Colle to enter into a contract of purchase with defendant. The defendant, following a general denial, specially-answered: That the contract was not concluded because the purchaser was not financially able; that the defendant was induced to enter into the contract by the false and fraudulent representations of the plaintiff as to the purchaser’s financial ability; and that it was the agreement between the plaintiff and defendant that no commission was to- be paid unless the purchaser made the cash payment of $12,-000 called for and closed the contract in accordance with its terms. The plaintiff replied by supplemental pleadings that after the written contract was entered into the plaintiff waived the fraud by undertaking to carry out the contract after he learned of the fraud and excused performance by accepting the forfeit of $500 fixed as liquidated damages in case of the purchaser’s nonperformance.

In answer to special issues, the jury found that defendant was deceived by plaintiff as to the purchaser’s financial ability and that the commission was to be paid when the deal was closed and cash payment made. Thereupon judgment was rendered in favor of defendant. The evidence, though conflicting in many respects, is sufficient to support the special defenses made by the defendant’s answer. .The failure to complete the sale was not chargeable to defendant, but was due to the purchaser’s financial ability. The defendant testified at. the trial that he was still ready to close the deal if the purchaser would carry out his part of the contract. The plaintiff admitted on the witness stand:

“I knew my prospective purchaser failed to comply with his contract. I think Mr. Hook has complied with his part.”

Upon the facts stated we are of the opinion that all propositions- presented by appellant are concluded against him and that the judgment of the trial court must be affirmed under the rule that where the commission is payable only in the event the contract of sale is completed, the plaintiff will be denied recovery where he fails to- show performance unless the failure of performance is due to the fault of the owner. Lundell v. Allen (Tex. Civ. App.) 244 S. W. 1098; Heath v. Huffhines (Tex. Civ. App.) 152 S. W. 176; Freeman v. Wooten, 234 S. W. 415; Owen v. Kuhn (Tex. Civ. App.) 72 S. W. 432; Cheatam & Haney v. Dansby (Tex. Civ. App.) 159 S. W. 385.

But appellant urges that appellee was at fault on the ground that appellee waived or excused performance by accepting the $500 forfeit instead of undertaking to compel performance l5y suit. Our view is that this position is not maintainable for the reason that the purchaser was not financially able to perform and that the owner could not force performance. Suit for specific performance would have been idle. Laird v. Elliott (Tex. Civ. App.) 219 S. W. 499; Kollman v. Brooks (Tex. Civ. App.) 155 S. W. 1007.

The judgment of the trial court is affirmed.