Willson v. Crawford

HODGES, Associate Justice.

— Appellants were the owners of a tract of 1,300 acres of land situated in Cooke County, Texas. The appellees were real estate brokers, with whom the land had been listed for sale. This suit is by appellees to recover commissions on three different sales made of different portions of this tract of land. A trial in the court below resulted in a judgment for the appellees for $568.00 as commissions on one sale of 568 acres made to D. L. Powers, and in favor of the appellants as to the other two claims.

With reference to the sale made to Powers, the evidence shows that through the efforts of the appellees the owners and the purchaser were brought together, and that they agreed upon the price and terms of payment, but that Powers, upon learning that about 35 acres' of the land had been rented to a tenant for the succeeding year, declined to complete the purchase. A majority of the court is of the opinion that the appellees were nevertheless entitled to their commissions of $1 per acre, the amount previously agreed upon, and that this portion of the judgment should be affirmed.

Appellees have filed a cross-assignment of error attacking that portion of the judgment denying a recovery for a sale made to J. A. Adams & Sons. As to this transaction the evidence shows the following facts: About December 3, 1906, appellees negotiated the sale of a portion of the 1,300 acres tract to J. A. Adams & Sons for $5,368.00, of which $500 was to be paid in cash and the remainder in ten equal annual installments. When the sale was consummated and the deed passed there was an agreement between the parties to this suit that appellees should wait for their commissions till the first note matured. There is some conflict in the testimony as to what the details of that agreement were. According to the testimony of the appellants, appellees agreed to take their commissions out of the first note when it was paid. This is disputed by the version given by the appellees, their contention being that they only agreed to wait until that note matured for their commissions. However this may be, we do not think the difference in the two versions is material as affecting the right of appellees to recover. It seems that when the first note did mature the Adams people were not able to pay it, and by an agreement entered into between them and the appellants, the latter took a conveyance of the land back and cancelled all the notes which had theretofore been given. Upon this being done appellees were clearly entitled to their commissions for having made the sale. That the first note might have been collected by an enforcement of the vendor’s lien retained is not disputed. That it was not so collected on account of -the election of the appellants to rescind the sale and resume ownership of the land is equally as certain. Appellants could not in this way defeat the claim of the appellees to commissions after having availed themselves of the services of the latter in bringing about a satisfactory sale of their land. Under this state of facts the court should have rendered judgment for the appellees for the amount of their commissions, $568.00. That portion of the judgment denying this recovery is reversed, and judgment will here he rendered in favor of appellees accordingly.

■The judgment of the County Court is therefore affirmed in part and reversed and rendered in part.