Citations
- 564 S.W.2d 180
Full opinion text
MOORE, Justice.
This is a suit to recover on a promissory note executed in payment of a brokerage commission. Plaintiff, Jordan Financial Corporation, brought suit to recover on a promissory note executed by defendant, Robert Morris, in payment of a brokerage fee as provided for in a contract executed by the parties. Morris denied liability on the ground that the condition precedent to his obligation to pay on the note, as set forth in the contract and the promissory note in question, had not occurred. Morris also counterclaimed, alleging that Jordan Financial tortiously interfered with his business relations with Alex Kallay, the ultimate purchaser under the contract, and North Dallas Bank & Trust Co., the escrow agent.
Trial was had before the court without a jury. The trial court awarded judgment for plaintiff in the face amount of the promissory note and denied defendant recovery on his counterclaim. The trial judge found, inter alia, that the condition precedent to defendant’s obligation to pay the brokerage commission effectively occurred, but that, if it did not literally occur, plaintiff as broker was nevertheless entitled to recover the commission due him under the contract. Defendant duly perfected this appeal.
We affirm.
The facts are not in dispute. Plaintiff, Jordan Financial, entered into a contract of purchase and sale with defendant, Robert Morris, for the purchase of 396 acres of land in Collin County, Texas, for and in consideration of $1,667,150. Jordan Financial agreed to execute a promissory note to Morris in that amount and agreed to make an interest payment on the note in the amount of $120,868.37 on December 31, 1974. The contract between the parties provided that Jordan Financial was to be paid a 6% realtor’s commission; however, the contract contained a special condition that the payment of such commission was “contingent” on Morris’s receiving the interest payment due on the note on December 31, 1974. Subsequently, Jordan Financial’s contract of purchase and sale was assigned to Alex Kallay, who purchased the land under the terms of the contract. Kallay executed a promissory note (the “Original Note”) to Morris in the amount of $1,667,150 with interest, in accordance with the contract of purchase and sale. Under the terms of the contract and the promissory note Kallay was obligated to make an interest payment to Morris on December 31, 1974, in the amount of $120,868.37.
After Kallay purchased the land, Morris executed and delivered to Jordan Financial a promissory note (the “Commission Note”) in part payment of the brokerage fee as provided for in the contract. The note, which is the basis of the present suit, is in the amount of $50,164.49 and represents one-half of the commission due Jordan Financial under the terms of the contract of purchase and sale. The note recites as follows:
“This note is payable as follows:
On or before December 31, 1974, it being understood and agreed the maker hereof shall have no liability with respect to the payment of this note unless and until said maker shall have received the installment of interest due and payable on that certain promissory note of even date herewith executed by Alex L. Kal-lay, Trustee, and payable to the order of Robert Morris, in the original principal sum of $1,667,150.”
Before the interest payment came due under the $1,667,150 note, Kallay notified Morris that he intended to default on the note. As a result, the parties executed on December 17, 1974, a Modification Agreement whereby Morris and Kallay agreed to amend the Original Note by reducing the principal amount to $1,180,431 and altering the payment terms. Jordan Financial was not a party to, nor did it consent to, the Modification Agreement.
Pursuant to the Modification Agreement, Kallay executed and delivered to Morris a promissory note (the “Modified Note”) in the principal amount of $1,180,431, with interest payable beginning December 31, 1974. The Original Note was returned by Morris to Kallay. Under the terms of the Modified Note Kallay was obligated to pay, on December 31,1974, the sum of $82,823 in interest and the sum of $38,045 on the principal, totaling $120,868, which amount is only 37