Opinion
No. 7906.
March 16, 1918. Rehearing Denied June 23, 1918.
Appeal from District Court, Dallas County; Kenneth Foree, Judge.
Suit by the Eidt-Summerfield Company against R. P. Hull and others. Judgment for plaintiff, and defendants appeal Affirmed.
Muse Muse and W. D. Cardwell, all of Dallas, for appellants. Spence, Haven Smithdeal, of Dallas, for appellee.
Appellees brought this suit against appellants to recover commissions, alleging that they were real estate brokers, for the sum of $775, on account of having effected a contract of exchange of the lands with one Harry Sigel; the lands of both parties being situated in Dallas county and duly described in the petition.
Appellants plead a misjoinder of parties defendant, general and special exceptions, general denial, and fraudulent representations as to the amount and character of the land owned by Sigel. Supplemental pleadings were subsequently filed by both parties. A jury being waived, the cause went to trial before the court, judgment being rendered in favor of appellees for $775, from which judgment this appeal is prosecuted.
Conclusions of Facts.
Appellants listed their land with appellees for sale or exchange. Appellees found one Harry Sigel, who proposed to exchange his ranch of 919 acres with appellants. Appellees brought Sigel and appellants together, and a contract of exchange was agreed upon, which contract was in writing and signed by R. P. Hull, Will Hull, H. Sigel, and Mrs. S. B. Hull. When the contract was made Will Hull asked, "What commission will we owe you boys?" Appellees replied, "The customary commission on your part of the valuation of the land." Mr. Sigel spoke up and said, "Will you pay your part and I will pay mine; the boys have worked hard on this deal, and we will pay them whatever is right; you pay your part, and I will pay my part on my land, and you pay yours." Nothing further was said by Will Hull. The customary fee in such cases is for each man to pay 2 1/2 per cent. on his valuation at which he bought it in.
The original and supplemental contracts contained the following clauses:
"Witnesseth: That for and in consideration of the mutual agreements, obligations, and covenants by each made to and with the other said parties, have bound themselves as follows:
"Said R. P. Hull and Will Hull agree and obligate themselves to convey by general warranty deed to Harry Sigel the following described real estate clear of incumbrance: Being 310 acres or more as follows: 87 1/2 acres known as the Wunderlich tract, 122 1/2 acres known as the Woods tract, and 108 acres out of the Sol Dixon survey, known as R. P. Hull's homestead of 104 acres and 4 acres of Will Hull's homestead, and all improvements thereon — and the execution by the said R. P. Hull and Will Hull of one note in the sum of $5,000.00, which is secured by the land conveyed to them by the said Harry Sigel hereinafter described and due and payable May 1, 1919, and bearing 7 per cent. interest per annum payable annually.
"In consideration of the above and foregoing agreements and obligations on the part of the said R. P. Hull and Will Hull, the said Harry Sigel agrees to convey the following described property free of incumbrance except the aforementioned $5,000.00 note; being 919 and 42/100 acres, or more known as the T. Jones survey, about 3 1/2 miles southwest of Cedar Hill, known as the Harry Sigel tract, and all improvements thereon.
"Said deferred payment is to be evidenced by a vendor's lien note executed by R. P. Hull and Will Hull and secured by a vendor's lien expressly retained in said deed and by a deed of trust containing power of sale together with the usual covenants as to default, taxes, insurance, etc., upon said property.
"Said Sigel and said H. P. Hull and Will Hull are to furnish authentic abstract each to the above-described property which they each agree to convey. Should said abstracts not show good title in the respective parties, either party shall have a reasonable time, not to exceed 30 days, in which to make said title good. Should either party not be able to make said title good within said time, then this contract to be void.
"Said parties agree that should abstracts show good title in the respective parties, they shall within 30 days of delivery of said abstracts close the deal as above described, at which time they shall each deliver a general warranty deed conveying the said property in fee simple.
Al taxes are to be paid up to and including the year 1913 by each party on the land which he agrees to convey.
"Taxes for the year 1914 are to be prorated up to and including date or delivery of deed.
"It is hereby agreed between R. P. Hull, Will Hull, and Harry Sigel that, if the said R. P. Hull and Will Hull shall not be able to obtain general warranty deed evidencing title in them to the 122 1/2 acres known as the Woods tract within 30 days from date from Scott Bros., then they shall have a reasonable length of time in which to furnish same, not to exceed 90 days."
The valuation put on the Sigel tract was $36,000 and for the Hulls' land $31,000.
Conclusions of Law.
(1) The first, second, third, and fourth assignments of error complain of the overruling of special exceptions to appellees' petition, all of which, in effect, urge that there is a misjoinder of parties defendants and causes of action, and that the petition does not allege the value of the lands to be exchanged. We are of the opinion that none of the exceptions are well taken. The contract for commissions was an oral one between the parties. It was made between appellees and R. P. Hull and Will Hull, father and son, who acted jointly in combining their different tracts of land, and who entered into a written contract of exchange with Sigel for an entire consideration and was to receive from Sigel a joint deed to his entire tract of land; nothing being said by either of the Hulls as to the value of their separate interests. Besides, both agreed to make a warranty deed to the Woods tract of 122 1/2 acres, if a title could be obtained. 6 Ruling Case Law, § 246; 9 Cyc. 653, 663667.
(2) The evidence showing that the title to the Woods tract had been secured by the Hulls within the time limited in the contract of trade, and that Sigel was willing to accept it, there was no ground for the Hulls to repudiate it.
(3) The appellants having listed their land with appellees for sale or exchange, and appellees having procured a party who was willing, ready, and able to make an exchange of lands, and with whom the appellants did contract to exchange lands, which contract was breached by appellants without sufficient cause, they became liable to appellees for the customary commissions, which was 2 1/2 per cent. of the valuation of the land.
(4) There was no error in the amount of the judgment, $775, that being 2 1/2 per cent. of the valuation placed on the Hull land by them. After signing the contract of exchange it was the understanding between appellants and appellees that the customary commission was to be the basis, that is, 2 1/2 per cent. on the valuation placed on the lands traded by the respective parties.
(5) There was no error in the appellees representing both parties, as appellants knew of appellees' acting for both parties in making the exchange. There is no act of appellees that is charged as being wrongful or unfair or dishonest The contract of exchange was made between appellants and appellees. Nothing was done by appellees, except to bring the parties together.
The judgment is affirmed.