Hicks v. Christeson

MELVIN, J.

Defendant appeals from the judgment and from an order denying his motion for a new trial.

The action was one by which plaintiff sought to recover, $893.90 as damages for defendant’s failure to carry into effect an alleged agreement for the sale of real property located in Texas. It was the contention of respondent that defendant was bound under the terms of a written contract of employment to pay to him the amount sued for, by reason of Christeson’s failure to carry out an arrangement negotiated by plaintiff for the sale of the property to one McCrory.

The date of the original contract between the parties to this action was December 4, 1907. On that day defendant signed a writing by the terms of which he appointed plaintiff his agent to procure a purchaser and to enter into a contract to sell 1,365 acres of land in the “Edward Beaty League.” in the state of Texas. The agreement was mailed to plaintiff at Victoria, Texas, and was delivered, accepted, and signed by him there. By this writing defendant appointed plaintiff his exclusive agent for twelve months to sell the land at four dollars per acre net to the vendor, and (to quote directly from the instrument), “thereafter until said agency is by me terminated in writing with full authority to execute a con

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tract for the sale of said land in accordance herewith in my name and behalf. % of the amounts to be received by us for said land shall be paid in cash and the balance % within 1, 2 and 3 years shall be secured by the vendor’s lien 7% interest in the. warranty deed to said land to be executed as soon as purchaser is found and to recite as consideration therein such amount as said agent shall designate.” The. other parts of the contract had reference to the furnishing of an abstract of title and to other matters which need not be discussed here.

After entering into the said contract, the plaintiff, on May 23, 1908, executed an agreement signed by himself, and one W. W. McCrory, wherein it was provided that in consideration of $333% paid by McCrory to plaintiff the former should have the option from the date of the agreement to November 1,1908, to purchase the property upon the following terms: $1.50 cash per acre and notes in the sum of three dollars per acre bearing interest at seven per cent and secured by a vendor’s lien. These notes were to provide for the payment of the balance of the purchase price in three equal sums two, three, and four years after date. The amount paid on the execution of the option agreement was to apply on the purchase price if the option should be exercised, and plaintiff, as the agent of Christeson, promised to convey the land to McCrory or to whomsoever he might name by a good and sufficient deed of warranty in the event of the exercise of the option. This contract also provided for the tender of a deed or deeds from Christeson to McCrory upon compliance with the terms of the sale. The writing itself was not sent to Mr. Christeson, but he was notified by a letter dated May 27, 1908, that Mr. Hicks had made a “tentative” contract with some person. The letter contained the following sentence: “He is to pay one third cash and give vendor lien notes for the balance payable in equal payments on the deferred in 2, 3 & 4 years. That is you will receive one dollar per acre cash and three dollars per acre in notes.” On June 10, 1908, a letter was written by Christeson to Hicks informing him that Sarah A. Christeson had owned a half interest in the land for three years but. undertaking to get her agreement, signature, and acknowledgment to the deed at the proper time if the sale were made. Answering the part of the letter from Hicks to the effect that