Citations
- 434 S.W.2d 453
Full opinion text
O’QUINN, Justice.
Hutchens, sole owner of Lockhart-Hutchens, Realtors, sued Marvin A. Berg-strom and wife for $45,000 as broker’s commission upon a written contract of sale of the Penthouse Apartments in Austin, Texas.
The contract of sale between the Berg-stroms as sellers and Dan Magown and Otto B. Schoenfeld as purchasers recited the commission agreement with Hutchens as follows:
“It is understood that Lockhart-Hutch-ens, Realtors, are the agents of SELLER and when this transaction is consummated for services rendered and to be rendered in connection with this transaction, they are to be paid by SELLER the following:
A. The sum of $5,000.00 cash, to be paid by SELLER to Lockhart-Hutchens, Realtors, upon receipt by SELLER of the consideration provided in Paragraph II-A hereof.
B. A sum equal to the amount which PURCHASER’S promissory note provided for in Paragraph II-D exceeds $100,-000.00, said sum to be paid to Lockhart-Hutchens, Realtors by SELLER entrusting said note to an agent mutually agreed upon by SELLER and Lockhart-Hutch-ens, Realtors, for collection with instructions that as each payment thereon is made by PURCHASER, the same shall be proportionately credited to the accounts of SELLER and Lockhart-Hutch-ens, Realtors, in accordance with their respective percentage interests in the note.”
The sale to Magown and Schoenfeld was not made. The question is whether Hutch-ens was entitled to the commission under the facts of the case.
The trial court upon findings of the jury entered judgment for the Bergstroms that Hutchens take nothing by his suit. Hutch-ens has perfected his appeal and assigns five points of error. The Bergstroms reply under three counterpoints.
Hutchens contends he was entitled to an instructed verdict because he alleged and the uncontradicted testimony showed that after accepting and executing a binding contract with Magown and Schoenfeld, who were purchasers produced by Hutch-ens, and while the purchasers were ready, willing, and able to perform, the Berg-stroms prevented consummation of the contract by conveying to a third party.
The Bergstroms take the position that Hutchens was not entitled to recover his commission because he was able to show neither that Magown and Schoenfeld were ready, willing, and able to buy, nor that the sales contract was enforceable by Bergstrom against Magown and Schoen-feld.
The contract of sale between the Berg-stroms as sellers and Magown and Schoen-feld as buyers recites that it was made and entered into January 27, 1966, and shows it was executed the following day, January 28. The contract further provided that:
“This transaction is to be consummated on or before sixty (60) days from the date hereof and is to be consummated by SELLER delivering to PURCHASER a good and sufficient warranty deed to the real property described above, a good and sufficient bill of sale to the personal property described in the General American Life Deed of trust and in Exhibits ‘B’ and ‘C’ attached hereto, together with all leases and other agreements pertaining to the business, together with the name and good will of the business in exchange for PURCHASER delivering to SELLER the consideration provided in Paragraph II hereof.”
If the sixty-day period is calculated from January 27, 1966, the sixtieth day was March 28, or if the period is measured from the date of execution, the sixtieth day was March 29. It is undisputed that on March 26, within the sixty-day period by either calculation, the Bergstroms entered into a written contract with Ruben H. Johnson to sell him the same property, and three days later, on March 29, executed a deed to Johnson which was delivered next day.
Magown and Schoenfeld did not know that the Bergstroms had contracted within the sixty-day period to sell the Penthouse Apartments to Johnson. They learned on March 31, after they had gone to the office of an attorney to close the sale, that the Bergstrom deed to Johnson had been placed of record the day before.
The jury found in answer to special issue No. 5 that the parties to the contract intended that the closing within an exact period was essential to require performance of the contract.
A further provision of the contract between the Bergstroms as sellers and Ma-gown and Schoenfeld as buyers is significant in determining whether Magown and Schoenfeld were purchasers ready, willing, and able to perform. That provision constitutes one of six contingencies set up in paragraph III, as follows:
“The consummation of this contract is expressly contingent upon and subject to the following conditions and it is expressly understood that unless all of such conditions are satisfied, this contract shall, at the option of PURCHASER, become null and void and of no further force and effect:
D. The obtaining by PURCHASER of a loan in the sum of $150,000.00 from a lender chosen by PURCHASER and upon terms and conditions acceptable and satisfactory to PURCHASER, the repayment of which is to be secured by the lien of a deed of trust secondary and inferior to that held by General American Life and covering the same property covered thereby and by the first lien of a chattel mortgage on the personal property described in the attached Exhibit