Opinion
Writ of error dismissed.
December 1, 1927. Rehearing Denied January 5, 1928.
Appeal from McLennan County Court; Jas. R. Jenkins, Judge.
Suit by B.R. Goldberg and others against R. D. Roman. Judgment for plaintiffs, and defendant appeals. Affirmed.
S. J. T. Smith, of Waco, for appellant.
Tirey Tirey, of Waco, for appellees.
Appellees filed this suit against appellant, seeking to recover a real estate commission which they claimed appellant owed them by reason of their having been the procuring cause of appellant's consummation of an exchange or sale of property which he owned in Waco for some land in west Texas. The cause was tried to a jury, submitted on special issues, and resulted in judgment being rendered for appellees.
Appellant contends by various assignments of error that the trial court erred in overruling his general demurrer and a number of special exceptions which he leveled at appellees' petition. We have carefully examined all these assignments, and do not think any of them show reversible error, and same are overruled. Golden v. Odiorne, 112 Tex. 544, 249 S.W. 822.
Appellant, by various assignments, complains of the action of the trial court in permitting appellees to testify to conversations which they had with the purchaser of the property belonging to appellant. We overrule these assignments. Appellees were showing appellant's property to the prospective purchaser as agents of appellant, and the conversations about which they testified were only with reference to what they did and the information they conveyed to the purchaser with reference to appellant's property. The record shows that appellees had for a number of years been selling various tracts of real estate for appellant, and that appellant, who was engaged on a rather extensive scale in the building of houses and selling and exchanging of same, had paid them commissions on the sales as made without any controversy or contention. Appellees had a customer, Mrs. Corriher, who came to Waco for the purpose of trading a tract of land owned by her father in West Texas for a home in Waco. Appellees communicated this fact to appellant, who directed that they show her certain residential properties owned by him. Appellees did show said properties to her, but none of them were satisfactory, and, while on the inspection trip, they showed her a vacant lot adjoining one of the residences owned by appellant, and she then asked if the owner thereof would build her a house on said vacant lot. Appellees communicated this inquiry to appellant, and called him to their office, where they introduced him to Mrs. Corriher, and, as a result of this introduction and bringing together of said parties, appellant entered into negotiations which finally led to his erecting a building on the vacant lot and selling same to Mrs. Corriher, and in exchange therefor receiving the tract of land in West Texas and an additional consideration in cash.
Appellant contends that the evidence was not sufficient to show that appellees were the procuring cause of the sale being made. We overrule this assignment. We think the evidence was sufficient to sustain the jury's finding on said issue.
Appellant complains of the action of the trial court in permitting witnesses to testify with reference to the custom among real estate brokers to charge 5 per cent. commission on cash sales, and 2 1/2 per cent. on exchange of lands. We overrule this contention. It seems to be the settled law that, where a real estate broker, at the request of the owner of property, makes a sale, he is entitled to compensation, and, where there is a custom which fixes the amount of compensation, which is known to the parties, the custom, in the absence of a definite contract, will control, and evidence is admissible to show said custom. McNabb v. Woolfolk (Tex.Civ.App.) 240 S.W. 1043; Martin v. Law (Tex.Civ.App.) 290 S.W. 261; Webb v. Harding (Tex.Com.App.) 211 S.W. 927; Hancock v. Stacy, 103 Tex. 219, 125 S.W. 884. Appellant in this case testified that he had handled a large number of tracts of land, and that he was familiar with the custom among real estate agents, and that the usual and customary commissions to be paid were the same as those testified to by appellees, namely, 5 per cent. on all cash sales and 2 1/2 per cent. on trades.
Appellant contends that there was no listing by him of his property with appellees for sale, and that appellees were not therefore entitled to any compensation for the services which they rendered with reference thereto. We overrule this assignment. Appellant himself testified that it was his custom to, and he did, pay anybody a commission who sold any of his property, and he further testified that he had paid appellees commissions on several different tracts which they had sold for him. Appellee Goldberg testified that appellant told him in 1924 that at any time he could sell or exchange any of his properties that he would pay the usual commissions. Appellant contends that any listing that he might have made more than one year before the sale was consummated would be prohibited by reason of the statute of frauds. We overrule this contention. It seems to be the settled law that any verbal contract made by parties that is possible of performance within a year is not prohibited by the statute of frauds, although, as a matter of fact, it may be several years before the contract is actually performed, the real test being as to whether it would be possible for the contract to be performed within a year, and, if so, the statute would not apply. Roberts v. Carlisle (Tex.Civ.App.) 287 S.W. 110; Weatherford M. W. N.W. Ry. Co. v. Wood, 88 Tex. 191, 30 S.W. 859, 28 L.R.A. 526. Where property listed by the owner with a real estate agent for sale is sold through the efforts of the real estate agent, the owner cannot defeat the agent's right to recover compensation for services rendered by reason of the statute of frauds, although same may not be sold within one year after same was listed for sale.
Appellant complains of the action of the trial court in permitting appellees to testify with reference to a number of different sales which they had made, and on which appellant paid them commissions. We overrule these assignments. We think the testimony under the circumstances surrounding this case was admissible. If, however, it could be said that the evidence was not admissible, it is harmless error, because the same facts were without objection testified to by appellant on cross-examination. Street v. Masterson (Tex.Civ.App.) 277 S.W. 407; Texas Employers' Ins. Ass'n v. Jimenez (Tex.Civ.App.) 267 S.W. 752.
We have examined all of appellant's assignments of error, and same are overruled.
The judgment of the trial court is affirmed.