Shinn v. Boyd , 34 Tex. Civ. App. 151 ( 1903 )

It is earnestly insisted by learned counsel for appellants, in a motion for rehearing filed by them in this cause, that we erred in affirming the judgment of the court below on the ground that appellants having procured a rescission of the contract of sale to Bone and others and thereby reduced the number of acres contracted to be sold to less than 200 were not entitled to the commission agreed to be paid them by appellees under the contract upon which the suit was brought. In support of this contention it is urged that under the contract sued on appellants' right to commissions was not dependent upon the actual sale of the land, but accrued and became complete when a purchaser was procured by them and a contract of sale executed between such purchaser and the appellees, and the subsequent rescission of such contract of sale could not affect appellants' right to their commission. This view of the case would be perfectly sound were it not for the fact that appellants were themselves associated with Bone as purchasers in the contract of sale made by him with appellees and were the active agents in procuring its rescission. Under their contract with appellees appellants were not prohibited from becoming the purchasers of the land. They could have taken it all and would only have been required to pay appellees therefor the sum of $40 per acre less their 5 per cent commission. Let us suppose that instead of procuring the two contracts for the sale of the land they had simply executed an agreement with appellees to purchase the land upon the terms upon which under their contract they were authorized to sell it and had afterwards procured a rescission of such agreement and the return to them of the earnest money paid thereunder to appellees, under such circumstances it goes without saying that they would not be entitled to any commission unless by the terms of the contract of rescission their right to such commission was preserved. We think the case we are considering is not different in principle from the one supposed. Appellees agreed by their contract to pay appellants a large commission provided a purchaser was found for as much as 200 acres of their land, and, as suggested by counsel for appellant, in order to protect themselves in the payment of this commission required that the purchaser advance as earnest money a large portion of the purchase price of the land. Appellants having, in order to procure a contract of sale of a sufficient quantity of said land to entitle them to their commission, agreed to purchase a portion of said land for themselves and having paid to appellees their portion of the earnest money required to make their agreement of purchase binding can not, after inducing appellees to release them from their contract of purchase and return to them their earnest money, be allowed to recover of appellees commissions which were dependent upon said contract of sale. The case of Gilder v. Davis, 33 N.E. Rep., 559, relied on by appellants to sustain their contention, holds that it is only when the broker is not responsible for the noncompletion of the contract of sale he is entitled to a commission for procuring such contract. The question of appellants' right to recover upon a quantum meruit the reasonable value of his services in procuring the sale of the 150 acres of the land to John Watson is not raised by the pleadings.

We think it clear that under the facts no recovery can be had upon the contract upon which the suit was brought and the motion for rehearing is overruled.

Overruled.

Writ of error refused.