Daugherty v. Smith ( 1916 )

On Motion for Further Rehearing.

I. The main Contehtion of appellánt is that a half interest in the land was sold to his brother prior to January 3, 1912, the date of the written agreement, which is the basis upon which this suit is predicated, and hence appellee was not entitled to recover because said agreement provided that appellee was only entitled to receive commissions upon sales thereafter made. We think it is clear from the testimony in this case that the sale by appellant to appellee was not consummated until after January 3, 1912. While appellant testified that he made a verbal agreement with his brother, W. J. Daugherty, to sell him a half interest in the place, in the latter part of November or early in December, 1911, or contracted with his brother to this effect, still the deed'was not executed until February 3,1912. Before the execution of the deed there was only a parol contract on his part to convey to his brother, not, enforceable under the statute of frauds; hence no sale of the land can be said to have been made by him to his brother until after the execution of the deed, which was subsequent to the date of the contract on which the suit is based. Until the sale had been actually completed, appellee was not entitled to a recovery.

II. It is further urged by appellant that, as Smith and his associate had knowledge of the sale at the date of the contract, and failed to provide for payment of commissions thereon, it is clear that he did not intend to claim any commissions arising therefrom. Even' if they knew the facts, as above recited, at the time of the execution of the written contract, it would not prevent their recovery, because it did not amount to a sale, and recovery was not authorized until the subsequent consummation of the existing parol contract, which occurred on February 3,1912.

After a full consideration of the motion for rehearing, we have concluded that it should be overruled; and it is so ordered.

Motion overruled.