Denton v. Holbert

MOURSUND, J. This is a suit by J. V. Holbert against G. Denton, upon a written contract, to recover commissions for the sale of lands belonging to Denton situated in Dim-mit county, Tex., the amount sued for being $1,360 and upon a trial before the court judgment was rendered for the full amount sued for. The contract appears in the findings of fact filed by the trial court, as follows: “(1) That heretofore, to wit, on or about the 15th day of October, 1908, the defendant was the owner of and offering for sale about 32,000 acres of land situated in Dimmit county, Tex., and was himself and through agents appointed by him and through subagents selling same in the name of Denton Colony Company. “(2) Said land had been subdivided into about 2,543 tracts, most of which were in size 10 acres each, but certain tracts contained more than 10 acres. “(3) A proposed town site was laid off on said land by which arrangement there were two town lots for each tract of land. “(4) Much of said land was sold through agents of defendant and through subagents of said agents on written applications procured from intending purchasers, whereby each purchaser, upon the payment of a uniform price of $200 or $210 on terms, $10 cash and 20 notes payable monthly, per share, acquired a right to purchase one farm tract with its two accompanying proposed town lots on said land. No particular tract of land or lots were sold to any particular purchaser, but it was understood between the parties that, after sufficient shares had been sold to cover all of said land, then said land would be distributed to the several purchasers. “(5) All of said shares were sold under the above plan. “(6) The customary plan of selling was for the purchaser to pay $10 down and $10 per month until the sum of $210' had been paid for each share so purchased. It also provided in case purchaser made default in his payments the contract of sale might be canceled, and quite a number of persons did make default in their purchase contracts, and on account of which the defendant canceled said contracts, and resold, or caused to be resold, said shares to other parties, many of which were sold after the distribution of part of said land which was about September 20, 1910. “(7) Plaintiff, on or about October 15; 1908, resided in the state of California, and engaged in the real estate business at Bakersfield; and while residing at said Bakersfield, as a result of correspondence, plaintiff made. a written contract with defendant concerning the sale of said Dimmit county land, which was in words and figures, as follows: “ ‘Selling Agent’s Contract. “ ‘In accepting employment as sales agent for the Denton Colony Company, in Dimmit county, Texas, according to plan of partition I specially agree: “ ‘First. That I will vigorously push the sales as per said plan, both personally and through such subagents, if any, to be paid by me upon such basis as may be agreed upon between us, but all of the sales shall be made in my name as agent, and not in the name of the subagent. “ ‘Second. That all moneys and applications, to purchase lots and farms collected or received by me, or any of my subagents, other than the five dollars cash payment which I am entitled to retain as a part of my compensation, shall be trust funds, and myself or any of my subagents, receiving- such moneys, or applications to purchase, shall and will merely act as trustee or bailee for the purchaser, as well as the said Denton Colony Company. “ ‘Third. That all applications to purchase, and payments on applications, shall be forwarded to the Denton Colony Company, San Antonio, Texas, in due course of mail on the day received by me or any of my subagents, and failure so- to do shall be a breach of said trust next above specified. “ ‘Fourth. I agree to receive my commission and compensation as follows, viz., $5.00 cash to be collected from applicant and retained when application is taken; $5.00 to be paid me by the said Denton Colony Company when they have received payment of the first note; and $5.00 to be paid me by the said Denton Colony Company when they receive payment of the second note.; $5.00 when they receive payment of third note, and $5.00 when they receive payment of the fourth note. “ ‘Fifth. In the event of an oversale of the lots and farms, upon notice of such fact, I agree to immediately return to .the respective applicants the $5.00 collected by me, and return any applications that I or my subagents may have in hand or in transit as to all salea made or money collected by me or by my sub-agents after all lots and farms have been sold. “ ‘Sixth. No commissions are to be paid to me on any sale except such commissions as are collected from the purchasers in the manner stated in the fourth clause hereof. “ ‘Seventh. Should I be negligent, dilatory or unsatisfactory in my services, the said Denton Colony Company, or any one of them is authorized, or the general state agent who appoints me shall have the right to immediately terminate this contract. “ ‘Eighth. I also agree that I will not sell any lots and farms in another agent’s territory, it being understood and agreed in advance that no agent will be allowed any commission for applications taken from residents of another agent’s territory, except in cases of sales to nonresidents of the state and sales to traveling men. “ ‘Ninth. I agree that I will not publish an advertisement (except extracts from owner’s printed literature) and that if I desire to have any other advertisement printed, that I will first submit the copy through owner’s San Antonio office, to owner’s attorney, and receive owner’s approval through his attorney, before the advertisement is printed; and further agree that any violation of this rule discharges me and forfeits to owner all commissions on business done which will thereafter accrue to me.’ “(8) It was further understood and agreed between plaintiff and defendant by correspondence that the territory assigned plaintiff under said contract was the state or territory of Arizona; and the plaintiff soon thereafter went to said territory and remained there for about one year, going from place to place in selling, and attempting to sell shares in defendant’s land plan, and in soliciting and appointing sub-agents to sell the same, and among other sub-agents so appointed by plaintiff were J. H. Hudson and Y. H. Melick, of Williams, Ariz., under an arrangement with the plaintiff whereby said subagents were to receive $5 for each share sold by or through them, and there was an understanding or agreement between plaintiff and defendant and said subagents that said subagents should report any and all applications for the purchase of said shares of land directly to the defendant, and that the defendant should remit to them $5, or said subagents might collect and retain $5 on each application when taken, per share, so sold as said sub-agent’s commission or compensation for making such sale, and the remaining $20 was to be paid by defendant to plaintiff. “(9) This appointment by plaintiff of said sub253 agents was never revoked, and all the land sold by them, to wit, about 161 shares or applications, were sold by said Hudson & Meliek under the arrangement first entered into and said Hudson & Meliek received from defendant the compensation of $5 per share for each of said shares so sold; and the defendant reported and paid unto plaintiff the sum of $20 per share on 93 shares of said shares so sold, being the first 93 shares so sold by said Hudson & Meliek as subagents of plaintiff. Defendant did not report to plaintiff the sales of the remaining 68 shares so sold by plaintiff by and through his subagents said Hudson & Meliek, and has not paid plaintiff any compensation or commission therefor, on each of which plaintiff was entitled to $20 from defendant, according to said contracts between said parties thereto and said subagents’ contract with plaintiff which was accepted and ratified by defendant, and the commission due plaintiff from defendant on sales made by said subagents is $1,360, and plaintiff is entitled to same with interest thereon at the rate'of 8 per cent, per annum from January 31, 1912. “(10) I further find that plaintiff substantially complied with the obligations of his contract with defendant and that his contract with defendant was never canceled or revoked. “(11) I further find that defendant availed himself of the labor and benefits of plaintiff’s said subagents in accepting the contracts, and the benefits thereunder, for sale of said 68 shares of defendant’s land, and did not pay plaintiff the agreed compensation of $20 per share thereon.” [1,2] The court concluded that as the defendant availed himself of plaintiff’s sub-agents in accepting the contracts for the sale of said 68 shares, and did not pay plaintiff the agreed compensation of $20 per share thereon, plaintiff was entitled to recover $1,-360 with interest thereon from January 31, 1912, at the rate of 8 per cent, per annum. Appellant contends that the evidence shows a flagrant failure on the part of plaintiff to perform his contract, in that he failed to return to Arizona and push the sales of defendant’s land in person, and in fact was absent from Arizona during all the time when the contracts were made upon which he bases his claim for commissions. This attack upon the court’s finding that Holbert substantially complied with his contract cannot be sustained. The facts set out in the eighth finding of fact are undisputed and are referred to in this Connection. It appears that, when Holbert came to San Antonio with Me-liek, he wanted to remain in San Antonio and intrust the further work in Arizona to sub-agents, and especially to Hudson & Meliek. Denton wanted him to go back to Arizona, but did not insist upon it, nor cancel the contract, and, in fact, if he had the right to demand that Holbert should in person solicit contracts in Arizona, he waived. such right, and permitted Holbert to fulfill his obligations through subagents. In this connection, the evidence warrants a finding that the contract made by Holbert with Hudson & Meliek was signed in Denton’s office and a copy filed with Denton. Denton recognized that Holbert was performing his contract, and availed himself of the fruits of the labor of the subagents, treating them throughout as subagents. This is shown by the fact that he paid them only $5 on each contract mentioned in plaintiff’s petition which was the amount due them under their contract with Holbert, and by the further fact that he does not even contend that he ever notified such subagents that any change had taken place such as would entitle them to represent him directly. Denton paid Holbert his commission on 93 contracts sent in by Hudson & Meliek, thus showing conclusively that he regarded the contract as being in full force and effect, and the testimony of Hol-bert and Sawyer supports the court’s finding that the contract between Holbert and Den-ton was never canceled. Holbert testified that Denton told him that he (Holbert) and his subagents had sold over 400 contracts. This was a remarkable performance, and it appears that Holbert won a prize awarded by Denton for efficiency in selling contracts. It appears that Denton considered that his contract with Holbert did not confer the exclusive agency for Arizona, and he sent one A. G. Gnatz to Arizona; but, although he was in Arizona about two months, he failed to sell a single contract. The court was justified in finding that Hol-bert substantially complied with his contract; but even if he had not done so, as Denton elected not to avail himself of the provision authorizing him to cancel for certain reasons, and received the benefits accruing from the efforts of Holbert’s sub-agents, he should not now be permitted to say that grounds existed upon which he would have been authorized to cancel the contract. The first assignment is overruled. [3] The second and third assignments relate to. the admission of testimony of Holbert with regard to the correspondence leading up to the making of the written contract. This testimony was to the effect that in such correspondence it was stated and agreed that Holbert should have the general and exclusive agency for the sale of lands for Denton in the state of Arizona. The contract after-wards drawn fails to show in what territory Holbert was to exercise his functions as selling agent, but it does prohibit him from selling in another agent’s territory except to nonresidents of the state or to traveling men. The territory in which Holbert was to operate is not described in the contract, and there can be no valid objection to permitting Holbert to show what territory his contract applied to, and that is the only fact found by the court upon said testimony. Abbott’s Trial Evidence, p. 361; Ascarete v. Pfaff, 34 Tex. Civ. App. 375, 78 S. W. 974; Kirk v. Brazos County, 73 Tex. 56, 11 S. W. 143. We do not understand that the court’s judgment was predicated upon the theory that Holbert had the exclusive agency for Arizona. Nothing is said in his findings of fact with regard thereto, and Denton could not have been injured by admitting testimony to the effect that Holbert was to have the exclusive agency. We therefore deem it unnecessary to [254] determine whether such evidence was admissible upon the theory that it showed a contract or agreement which induced the execution of the written contract. The assignments are overruled. [4] Appellant also contends that Holbert abandoned the contract and engaged in work under an employment wholly antagonistic to the business of defendant, and therefore his contract was annulled prior to the sales by Hudson & Melick upon which the suit is based. It appears that in January, 1910, Holbert entered into a contract to sell for E. P. Simmons a section of land in Dimmit county under a plan similar to the one used by Denton. The evidence fails to show that he tried to sell any of this land in Arizona, and it appears from Denton’s testimony that he had no objections to Holbert’s handling other deals in Texas. The fourth assignment is overruled. [5] Appellant contends that all sales for which commissions are claimed were made direct and through the office of the defendant and were not brought about by any efforts on the part of plaintiff. As is fully shown in discussing the first assignment of error, there is no merit in the foregoing contention, for all sales were made by Holbert’s subagents, recognized and treated as such by Denton, and without ever attempting to employ them to sell in any other capacity than as Holbert’s subagents. Assignments 5 and 6 are overruled. [6] It is further contended that Holbert’s conduct was such as to estop him from claiming commissions, in that he declined to return to Arizona, engaged in the sale of other lands, and failed to notify Denton he expected commissions. What we have heretofore said disposes of this contention adversely to appellant. There is no element of es-toppel in this transaction. Assignment No. 7 is overruled. There is no merit in the eighth and ninth assignments. Holbert did spend his money and in person prosecute sales vigorously for a year, and afterwards his subagents paid such expenses as they incurred. Defendant incurred no expense in connection with the sale of the 161 contracts reported by Hudson & Melick, except the payment of commissions as contracted. It is plainly apparent from his own testimony that he regarded it as his duty to send out literature at his expense to such persons as his agents named. [7] It is further contended that the court erred in rendering judgment for the sales made after the latter part of January, 1910, appellant’s theory being that at said time the deal was closed and all agents notified and discharged, and the greater portion of the 68 sales were made afterwards, and ap-pellee should not be awarded commission on such sales. Appellant contended that he discharged Holbert as an agent, in so far as the Arizona contract was concerned, in November, 1909; but the court’s finding against such contention is amply supported by the testimony. Appellant also testified that he closed up his deal and discharged his agents generally in the latter part of January. Sawyer, Denton’s bookkeeper, testified that Den-ton sent out a telegram to his agents stating that all lots had been sold, or that nearly all had been sold; that in fact they were not all sold, and the telegram was for the purpose of bringing in a rush lot of sales. Hol-bert testified that Denton never discharged him, and that he never heard of being discharged until the trial of the ease. Denton’s books show that several sales were made by Hudson <& Melick on February 1, 1910, one in May, 1910, and quite a number in June and July, 1910. No change was made in the method of keeping the books at the end of January. Denton made reports to Holbert up to May 7, 1910, of sales by Hudson & Me-lick and of payments made by purchasers. The parties, in speaking of the close of the sales of Denton Colony lands, appear sometimes to have in view the telegram sent in January to the agents, and sometimes the distribution of the lands which occurred about September 29, 1910. It is very plain that, regardless of what may have been the case as to other agents, Denton went right on with the contract with Holbert, availing himself of the ability of Holbert’s subagents to sell contracts, and reaping the benefits thereof, treating them as subagents and paying them as subagents. It is apparent that, when he “discharged his agents generally,” he omitted to discharge Holbert and Hol-bert’s subagents, and the court did not err in holding him liable for commissions on all sales made by them. Assignment No. 10 is overruled. [8] The eleventh assignment presents the contention that Holbert should not recover for any sales made after November 20, 1909, the theory being that a new contract was then made between Holbert and Denton whereby Holbert was authorized to sell in Texas, and therefore he should not recover under the first contract. It appears that Denton recognized the first contract as remaining in full force and effect, reporting to Holbert many sales made after November 20, 1909, and playing his commissions thereon. The assignment is overruled. Assignments 12 to 16, inclusive,' constitute attacks upon the findings of fact of the trial court, while assignments 17 and 18 constitute attacks upon the conclusion of law filed by the trial court. All of these assignments are overruled, and the findings of fact filed by the trial court are adopted by us. The twentieth, in which the contention is made that Holbert was not the procuring cause of the sales for which he seeks to collect commissions, is also overruled. The twenty-first and twenty-second assignments are also overruled. Our views with [255] regard to tlie contentions made axe sufficiently disclosed in the discussions relating to other assignments. Assignments 23 to 35, inclusive, complain of the failure of the court to make additional findings of fact pursuant to request of appellant. There being an agreed statement of facts in the record, and it being our opinion that appellant has been enabled to present fully all of his contentions, and that no injury has been sustained by reason of the failure of the court to find in answer to the questions asked, we overrule all of such assignments. The judgment is affirmed. Footnotes [1] <gx^>For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes