No. 3897.Court of Civil Appeals of Texas, Texarkana.
December 14, 1930. Rehearing Denied December 18, 1930.
Appeal from District Court, Dallas County; T. A. Work, Judge.
Action by Mrs. G. W. Frierson and another against Jack McGraw and others. From a judgment for defendants, plaintiffs appeal.
Affirmed.
G. W. Frierson brought the suit in behalf of his wife, who was a real estate agent, against Jack McGraw, Clem Lumber Company, a corporation, Dallas Trust Savings Bank, a banking corporation, and H. A. Gump. The purpose of the suit was to collect real estate commissions claimed to be owing to Mrs. Frierson. The plaintiff claimed in her petition that Jack McGraw and the Clem Lumber Company “were the owners of a certain residence situated at 4404 Beverly Drive, Dallas, Texas,” and they listed the property with Mrs. Frierson for sale, “agreeing to pay her the usual and customary commission of 5%,” and that Mrs. Frierson found a purchaser for the property in H. A. Gump. The petition further alleged: “Plaintiff would further show to the court that after she had interested the said H. A. Gump and his wife in the purchase of the said property, she being the first one to bring them in contact therewith and introduce them to the sellers, that H. A. Gump, the Dallas Trust and Savings Bank, acting through its agent, the Clem Lumber Company and Jack McGraw through a plan promulgated and conceived by the agent of the said bank, to which the other defendants agreed and carried into effect, refused to consummate the sale through this plaintiff though accepting her services, and the said H. A. Gump was induced by the said agent of the bank to refuse to close the sale made through plaintiff. * * * Plaintiff would show that her services are reasonable, worth the amount sued for of $1,250.00, and that by the wrongful acts of the defendants and each of them and their conspiring to defeat her of her just claim, they jointly and severally are obligated to her for the amount of her damage, to-wit, $1,250.00.” All of the defendants appeared and filed answer. The plaintiff afterwards formally dismissed the suit as to H. A. Gump and the Clem Lumber Company, and the order of dismissal was duly entered in the minutes of the court. In the trial of the case on the merits as to Jack McGraw and the Dallas Trust Savings Bank, the two remaining defendants, the court peremptorily instructed the jury to return a verdict in their favor. From the judgment so entered, the plaintiff has appealed.
J. Hart Willis and J. W. Madden, Jr., both of Dallas, for appellants.
Cockrell, McBride, O’Donnell Hamilton, Bartlett, Brown
Thornton, and William H. Brown, all of Dallas, for appellees.
Page 479
LEVY, J. (after stating the case as above).
It is clear in the record that the Dallas Trust Savings Bank was entitled to have the peremptory instruction given, because by reasonable intendment the only cause of action alleged by the plaintiff against the bank was for compensatory damages arising through fraud and conspiracy of the agent of the bank. The petition charged that Mrs. Frierson lost the real estate commissions agreed to be paid to her by Jack McGraw “through a plan promulgated and conceived by the agent of the said bank, to which the other defendants agreed and carried into effect.” There is no evidence even tending to show fraud and conspiracy on the part of the agent of the bank. Likewise the defendant Jack McGraw was entitled to have the peremptory instruction given, and for the same reason, upon the allegation of participation in fraud and conspiracy. The evidence admittedly and conclusively shows that the agent of the bank and Jack McGraw never wrongfully prevented Mrs. Frierson from bringing to a completion the contract of sale of the property to H. A. Gump. In no wise by fraud practiced by Jack McGraw or the bank’s agent did they diminish her means of bringing about or completing a sale of the property to H. A. Gump. H. A. Gump himself abandoned his negotiations with Mrs. Frierson altogether and refused to consummate a deal for the property through her.
The other alleged ground for recovery against the defendant Jack McGraw rested upon contract to pay commissions for the sale of the property. The allegations are that “the said Jack McGraw, being in charge of building and selling with the said Clem Lumber Company, did appoint plaintiff Mrs. Frierson to find a purchaser and did list said property with her for sale, agreeing to pay the usual and customary commission of 5%; that immediately after appointment, the plaintiff began efforts to sell said property and did find a purchaser ready and willing and able to buy same in the person of H. A. Gump. * * * And that, by reason of her services, she is entitled to a full and complete commission of 5% of the selling price, that being the usual and customary fee paid to brokers, which, on a basis of $25,000.00, which plaintiff alleges is the consideration paid, would be $1,250.00 with interest from the date of the breach of the contract.” These allegations fix the class of contract sued on as an express promise to pay 5 per cent. commissions, and not an implied promise to pay reasonable value of services rendered in effecting a sale of the property. There is no evidence tending to show an express contract to pay 5 per cent. commission, and therefore, in view of the pleading, there was no error in giving the peremptory instruction. Recovery cannot be predicated on proof of an implied contract in an action founded only on express contract. 13 C.J. § 908, p. 748.
The judgment is affirmed.