J. B. Watkins Land Mortgage Co. v. Thetford , 43 Tex. Civ. App. 536 ( 1906 )

Appellee brought this suit in the court below against appellant to recover commissions for his services as a real estate agent in procuring a purchaser for certain real estate owned by appellant and situated in the city of Dallas. The trial before the court and jury resulted in a verdict and judgment in favor of appellee for the sum of $1,196.

Appellant's first assignment of error complains of the action of the court below in sustaining appellee's special exceptions to that part of appellant's answer which sets up as a defense to this suit the failure of appellee to pay his occupation tax as a land agent or real estate broker prior to the transaction upon which this suit is based, appellant's contention being that under the laws of Texas the failure of the appellee to pay his occupation tax and to obtain a license to pursue the business of real estate agent or broker prevents him from maintaining this suit to recover his commissions, which he alleges accrued to him in the pursuit of such business. We do not think this contention is sound. In our opinion it was not the purpose or intention of the statute providing for the payment of an occupation tax by a real estate agent or broker to make such payment a prerequisite to his right to pursue the occupation. The civil statutes providing for the tax, and the penal statutes making it a misdemeanor to pursue the occupation without paying the tax, were enacted for the purposes of providing a source of revenue for the State and the enforcement of the collection thereof. In the case of Amato v. Dreyfus, 34 S.W. Rep., 450, the San Antonio Court of Civil Appeals, in a case involving this question, uses this language, which we approve:

"It is plain to us that the primary object of the statute is to provide revenue, and that it was not its purpose to repress or prohibit the several occupations it undertakes to license. The provision is that no person shall pursue any occupation unless he has such a receipt, which means that the person is prohibited, not the occupation. No consideration of public policy, nor one looking to the regulation of the business, enters into the statute in question. The purpose sought to be subserved, is altogether different. It could with as much propriety be asserted that a merchant carrying on business under the same circumstances would not be allowed to enforce payment for goods sold, nor a banker for money loaned." And the Fort Worth Court of Civil Appeals in the case of Railway Co. v. Carlock, 75 S.W. Rep., 931, in passing upon the question as to whether a lawyer was entitled to practice his profession without first paying the occupation tax (the statutes with respect thereto applying to lawyers as well as to land agents) held that he was, and referred to the case of Amato v. Dreyfus, supra, with approval.

Appellant's third, fourth and seventeenth assignments of error are based upon the proposition that the purchaser procured by the appellee was not able pecuniarily to comply with his contract for the purchase of the land, or to respond in damages for a failure so to do, and for that reason, appellee was not entitled to commissions for procuring such purchaser. Under a different state of case, this proposition might be correct, but the pleadings and uncontroverted testimony in this case show that the purchaser was satisfactory to appellant, and that it contracted with the purchaser for the sale of the property at a price satisfactory to it; hence the question as to whether the purchaser was able to carry out the contract is not involved in this case. (Conkling v. Krakauer, 70 Texas. 739.)

The paragraph of the charge of the court complained of in appellant's fifth assignment of error was favorable to it, and it has no ground for complaint.

Appellant's sixth assignment of error is overruled. The appellee and the witnesses Bird and Irwin testified to facts that would authorize the charge of the court complained of in this assignment. There was sufficient testimony to justify the court in submitting the case to the jury and to support the verdict. Hence appellant's seventh and sixteenth assignments of error are overruled.

In our opinion the special charges asked by appellant and refused by the court and which are embraced in appellant's ninth, eleventh and fourteenth assignments of error should have been given to the jury. If the sale was made by Bird, Robinson Co. with the assistance of appellee, under an agreement with them to divide their commissions with him, he would not be entitled to recover anything against appellant for his services. There is some testimony in the record tending to support this view of the transaction. Appellee testified that he asked Bird for a price on the lot, and told him that he had some hopes of getting him a buyer; that he knew that Bird, Robinson Co. were the exclusive agents of appellant, and that he understood that the lands of appellant could only be handled through them, and that he was privileged to offer this property for sale through them, and that he made the contract in this instance through them; and Robinson testified, in substance, that the sale was made by Bird, Robinson Co. with the assistance of appellee; that he furnished the customer but that Bird, Robinson Co. made the contract of sale, and that Higgins, the representative of appellant who came to Dallas and closed the contract with the purchaser, consulted with Bird, Robinson Co. in the matter, and had nothing to do with appellee in the negotiations which culminated in the contract for the sale of the lot, and appellee did not participate in such negotiations and was only present at some of the interviews on account of his having furnished the purchaser; that appellee asked witness about the commissions he, appellee, would get and he, witness, discussed the commissions with him and the contract as the contract of Bird, Robinson Co., and appellee knew that other agents could only get one-half of the commissions. Higgins's testimony is to the effect that in negotiating and closing the contract of sale with the purchaser, he acted with Bird, Robinson Co. and not with appellee. This testimony, in our opinion, was sufficient to require the court to give to the jury said special charges, and the refusal to give them constitutes reversible error.

There was no error in the refusal of the court to give to the jury appellant's special charge number 6, as it ignored the right of appellee to recover in the event Higgins acted with him in making the contract of sale; or, in other words, it ignored the theory that the efficient cause of the contract of sale was Higgins's acting with appellee and accepting his services as a land agent in the transaction, knowing him to be such agent at the time, although he, Higgins, may have acted with Bird, Robinson Co. in some matters respecting the sale.

Appellant's thirteenth assignment of error is overruled. If appellee made the sale in question, the fact that appellant accepted it and claimed the benefits thereunder would preclude its setting up the want of authority of Higgins to employ appellee to make the sale.

The issue sought to be injected into the case by appellant's special charge number 10, not being in any manner involved in the case, said special charge was properly refused.

The testimony, exclusion of which is complained of in appellant's eighteenth assignment of error, was immaterial. What the appellant did do in reference to the transaction in question was material, but what it would have done under circumstances not existing was immaterial.

For the errors above indicated, the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.