Opinion
No. 7500.
December 20, 1917.
Appeal from Austin County Court; G. S. Cumings, Judge.
Action by Tom Vrablec against August Kocurek. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
C. G. Krueger, of Bellville, and Mathis, Teague Mathis, of Brenham, for appellant. C. C. Glenn, of Sealy, for appellee.
This suit was instituted by appellant, Tom Vrablec, against appellee, August Kocurek, to recover the sum of $500, which he claimed to be due him as a commission for selling a certain tract of land for appellee.
Appellant, plaintiff in the trial court, alleged that on the 14th day of October, 1912, he purchased from appellee a certain 72 1/4 acres of land situated in Austin county, Tex., about 2 1/2 miles west of the town of Wallis, in said county; that said tract consisted of 67 1/4 acres of prairie land and 5 acres of timber land; that plaintiff paid a part of the purchase money therefor, and executed his notes for the balance of said purchase price; that thereafter, and after said notes became due, defendant demanded payment thereof, and as plaintiff was unable to make such payment, it was agreed by said parties that, if plaintiff, Vrablec, would reconvey said lands to defendant, Kocurek, the latter would enter into a contract with plaintiff engaging him to resell said land; that thereafter, on November 1, 1915, in pursuance of said agreement, said parties executed the following contract:
"The State of Texas, County of Austin.
"Know all men by these presents that I, August Kocurek, have this day given Torn Vrablee the authority to sell my land consisting 67 1/4 acres of prairie and 5 acres of timber land for the sum of sixty dollars an acre for prairie and forty dollars for timber per acre. I allow the said Tom Vrablec the sum of five hundred dollars as commission for selling above land as soon as sold and deed made. I am not to receive less than $2,000.00 cash and balance on time on above land.
"This contract to be null and void after November 1, 1916.
"Witness our hands this 1st day of November, 1915. August Kocurek.
"Tom Vrablec.
"Witness:
"Henri Kosik.
"J. C. Matejka."
He further alleged that by the execution of said contract defendant authorized and empowered plaintiff to sell said land for the prices and on the terms stipulated in said contract at any time prior to the 1st day of November, 1916, and that by said contract defendant promised, obligated, and bound himself to pay plaintiff the sum of $500 for his services in the event plaintiff made a sale of said land before said 1st day of November, 1916, in accordance with the terms of said contract; that after the execution of the contract, and before the 1st day of November, 1916, plaintiff did procure at different times three different purchasers for said lands, to wit, Henri Kosik, Rudolph Hranicky, and Martin Haidjek, for the price and upon the terms stipulated in the contract, and that each of said proposed purchasers were ready, willing, and able to purchase said land at such price and under such terms and conditions, but that defendant refused, and still refuses, to convey said land to said purchasers or either of them.
Defendant, Kocurek, filed and presented special exceptions to plaintiff's petition as follows:
"Specially demurring and excepting herein, defendant says that the contract in this case declared upon by plaintiff, and now for the first time exhibited in this court, is wholly insufficient for plaintiff to maintain this suit upon, and is contrary to the statutes of fraud, in that it wholly fails to describe any lands, or to furnish the means of description of any lands, that were to be conveyed, on all of which defendant now prays judgment of the court, and he will ever pray.
"Defendant further excepts and demurs to all of paragraph No. 3 of plaintiff's original petition, wherein the said petition undertakes to describe the lands alleged to have been intended to be conveyed by the contract herein declared upon by plaintiff, and says that the same is wholly insufficient, and is contrary to the statutes of fraud, and that plaintiff thus seeks to ingraft upon the said written contract and agreement a description which is wholly wanting in the said contract, and now excepts to the same, and prays the court to strike the same from the record, and he will ever pray.
"Further specially demurring and excepting to paragraph No. 4 of plaintiff's original petition, defendant shows to the court that plaintiff therein alleges that he reconveyed certain lands to the defendant during the year 1915, `upon the agreement and understanding that the land should be sold, through the agency of plaintiff, in accordance with the terms of the contract hereinafter set out,' when in deed and in fact plaintiff has neither `set out' his said contract, nor has he indicated in his said original petition at what period of the year the land was `conveyed back' to defendant. Wherefore defendant prays the court that the said paragraph No. 4 be also stricken from the record and held for naught, and he will ever pray."
The trial court sustained all of said exceptions, and, upon plaintiff's declining to amend his petition, the cause was dismissed; it being recited in the judgment of dismissal that the court took such action "because the contract sued upon is within the statute of frauds."
The action of the court in sustaining said exceptions and in dismissing the cause is complained of by appellant in his sole assignment of error.
The contract sued upon by appellant was not within the statutes of fraud, and the court erred in holding to the contrary.
The rule with reference to contracts of employment between a broker and his principal is stated in Ruling Case Law, vol. 4, p. 249, § 6, as follows:
"Contract of employment between a broker and his principal may be either oral or written, unless there is an express statutory provision requiring it to be reduced to writing, and this is true irrespective of the nature of the property relative to which negotiations are to be instituted. The reason for this is that the ordinary statute of frauds, requiring contracts for the sale or purchase of real or personal property to be in writing, is intended to apply only to agreements the purpose of which is to effect an actual change of some kind in the title to the property involved, and hence has no application to a mere contract of employment by which one person is to act as the broker of another in negotiating a sale or purchase of the property of the latter. The employment of a real estate broker is no exception to the rule, for his duties seldom require him to conclude or execute a contract of sale."
Again, same volume, page 300:
"As we have previously seen, the usual provisions of the statute of frauds requiring contracts for the sale or purchase of real or personal property to be evidenced by a written memorandum thereof are intended to apply only to agreements which contemplate effecting a change of some kind in the title to the property involved, and have therefore no application to a mere contract of employment by which one person is to act as the agent of another in negotiating a sale or purchase of property, so as to defeat the rights of such an agent acting under parol authority to recover the agreed compensation."
An agency to sell real property may be created by parol, and a broker in whose hands real property is placed for same under a parol agreement may recover the commission agreed upon if he effects a sale, or produces a purchaser ready, able, and willing to comply with the terms specified. Womack v. Douglas, 157 Ky. 716, 163 S.W. 1130.
Where a broker is employed by the owner of real property to sell the same, and it is contemplated that the broker shall procure a contract between himself and the proposed purchaser which will mutually bind the owner and the purchaser, his authority to execute such contract is required to be in writing, and where no such authority is given, authority to make such contract does not exist. But where the broker has been employed to make sale of real property by the owner, either by parol or by writing, and produces a purchaser who is ready, able, and willing to purchase upon the terms proposed by the owner, and is prevented from concluding such purchase by the owner's refusal to convey the property, the broker is entitled to the commission agreed upon between him and the owner, and in such case the necessity for a binding contract to purchase is unnecessary, in the absence of a contract that he shall so bind the purchaser. Henderson Grant v. Gilbert, 171 S.W. 308; Levy v. Duncan Realty Co., 178 S.W. 984; Goldsberry v. Thomas, 178 Mo. App. 334, 165 S.W. 1179.
When the pleadings of both parties are considered, we think it is apparent that appellee was sufficiently advised of the identity of the tract of land for the sale of which appellant seeks to recover a commission.
Plaintiff alleged that on the 14th day of October, 1912, he purchased from defendant a tract of land situated 2 1/2 miles west of the town of Wallis in Austin county, consisting of 72 1/4 acres, 67 1/4 acres of which was prairie land, and 5 acres of which was timber land; that after paying a part of the purchase money, and finding that he was unable to pay the remainder, he reconveyed said land to defendant; that, in consideration of such reconveyance, defendant agreed to and did enter into the contract hereinbefore set out. Defendant in his answer averred that on the 14th day of October, 1912, he conveyed to plaintiff certain premises; that he repurchased said premises from plaintiff; that he repurchased the same for a homestead for himself and family; that he owned no other lands, nor has he since acquired any other lands, and does not own any other lands than that repurchased from plaintiff; that he moved upon the said premises as soon after his repurchase as plaintiff would vacate same, etc.
Averments in an answer may be looked to in aid of the petition, when such averments cover the want of averments in the petition. Gaston v. Wright, 83 Tex. 282, 18 S.W. 576; Lyons Gribble v. Logan, 68 Tex. 524, 5 S.W. 72, 2 Am.St.Rep. 511; Hill v. George, 5 Tex. 89; Thomas v. Bonnie Bros., 66 Tex. 637, 2 S.W. 724; Grimes v. Hagood, 19 Tex. 249.
Looking, then, to the pleadings of both parties, we think the land in question was sufficiently described to identify it as the land which appellee authorized appellant to sell.
We think the trial court erred in sustaining appellee's exceptions to appellant's petition and in dismissing the cause.
The judgment of the trial court is reversed, and the cause is remanded for trial on its merits.
Reversed and remanded.