Patterson v. Kirkpatrick

184 S.W. 739, 1916 Tex. App. LEXIS 361

• Court: Court of Appeals of Texas
• Decided: March 15, 1916
• Docket: No. 1589.
• Status: Published

Opinion

LEVY, J.

(after stating the facts as above). According to the evidence, the only controversy between the parties was respecting the mode of payment of the commissions earned by appellants in effecting the sale. The jury made the finding that it was the understanding of the parties that appellees might make payment of the compensation for the services of appellants in notes obtained as consideration for the sale of the lands. And the evidence conclusively, even admittedly, shows that appellees had sold and delivered to a third person all the notes obtained from the sale of the 199%-acre tract. The fact of the sale by appellees of the notes mentioned has the legal effect attaching, it is believed, of making the contract of the parties, respecting the sale of the 199%-acre tract, payable in money. It is the rule that, where the debtor fails to abide the stipulation to deliver the specific article, the neglect or omission operates to make the original promise to pay compensation an absolute engagement for the payment of money. Baker v. Todd, 6 Tex. 274, 55 Am. Dec. 775; Chevallier v. Burford, 1 Tex. 503; D'eel v. Berry, 21 Tex. 463, 73 Am. Dec. 236; Ward & Martin v. Lattimer et al., 2 Tex. 245; Grant v. Burleson et al., 38 Tex. 214; Short v. Abernathy, 42 Tex. 94; Roberts v. Beatty, 2 Pen. & W. (Pa.) 63, 21 Am. Dec. 410. And upon the fact of sale of the notes being a legal default the appellants were entitled to demand money and receive it on their petition in assumpsit for services rendered. The purpose and intention of appellees to repurchase the notes and deliver them to appellants would not avail as a defense against a moneyed judgment, for by the sale appellees lost the right to make payment in notes, and such right would not be restored except by express consent of appellants.

It not appearing, though, that appellees have sold the notes obtained for the 91-acre tract, and it appearing, as it does, that they have' tendered them on the compensation owning for that particular sale, the right of appellees to pay such demand in notes and not money would continue, and conseguently appellants would not be entitled to recover a moneyed judgment in this ease for the sale of the 91-acre tract.

The judgment is reversed and here rendered in favor of appellants for $693, and this judgment to be without prejudice to enforce rights if legally .necessary, respecting the agreement for compensation for sale of the 91-acre tract. The appellees will pay all costs.