Wall v. Ayrshire Corporation

352 S.W.2d 496, 1961 Tex. App. LEXIS 2069
CourtCourt of Appeals of Texas
DecidedDecember 14, 1961
Docket13811
StatusPublished
Cited by13 cases

This text of 352 S.W.2d 496 (Wall v. Ayrshire Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wall v. Ayrshire Corporation, 352 S.W.2d 496, 1961 Tex. App. LEXIS 2069 (Tex. Ct. App. 1961).

Opinions

BELL, Chief Justice.

This is an appeal from a summary judgment rendered in favor of appellees in response to their motion for summary judgment.

Appellant N. R. Wall was a real estate agent. On February 1,1946, he entered into a contract with appellee Ayrshire Corporation under the terms of which he was given the exclusive sales agency to sell the lots into which certain property should be thereafter subdivided. The property, which was unplatted acreage in the City of Houston, consisted of 215 acres. After the making of the contract, from time to time portions of the acreage tract were subdivided and thus made into residential subdivisions. The subdivisions were called “Ayrshire”. There were twelve sections subdivided by Ayrshire Corporation. One other section, being numbered 13, was subdivided by appellee, Roy Miller, after 9.268 acres of the 215 acre tract had been sold by Ayrshire Corporation to appellee, J. B. Cassidy, and by him sold to Miller. Section 14 was a subdivision of some 14 acres conveyed by Ayrshire to Ayrshire Pension Trust and by the Trust to John Hannah. For all lots which were sold in the first 12 sections of Ayrshire appellant received the commission agreed upon in the contract. He was paid the [498]*498commission even though the sale was made Dy someone else. This was in accordance with the agreement.

In 1957 this suit was brought against Ayrshire Corporation, J. B. Cassidy and Roy Miller. Appellant in his original petition sought recovery of commissions on two sales of acreage tracts out of the 215 acre tract that had not been subdivided. By his amended petition, filed in November, 1960, appellant sought to recover his asserted commissions on these and two other acreage tracts. Too, he alleged that 19 acres of the 215 acres remained undisposed of and he sought a judgment declaring he would be entitled to his commission on any sale of this acreage. The four sales on which appellant claims commissions are as follows:

1. The sale for $27,500.00 by Ayrshire Corporation to the City of Houston of approximately 5½ acres for park and right-of-way purposes. The sale was of unplatted acreage and was made under threat of condemnation in October, 1953.

2. The conveyance by Ayrshire Corporation to J. B. Cassidy of 9.268 acres on April 9, 1956. This was on the same day conveyed by Cassidy to Roy Miller. The only reference we find to the sale price is in appellant’s petition, where he asserts it was $200,000.00 and in the alternative it was a distribution of assets of Ayrshire Corporation and had that market value. This was unplatted acreage. A short time later it was platted by Miller into Ayrshire Section 13.

3. The conveyance in 1959 by Ayrshire Corporation to David Hannah and W. F. Burge, Trustees of Ayrshire Pension Trust of 14.849 acres. This was later conveyed to John Hannah, brother of David Hannah, who was President of Ayrshire Corporation. The price was allegedly $300,000.00.

4. The sale by Ayrshire Corporation in February, 1959 to the City of Houston of 4.5 acres of unplatted land for right-of-way for street purposes. This sale was under threat of condemnation.

Appellee Ayrshire Corporation answered, asserting a failure by appellant to perform. It also claimed cancellation of the contract in September, 1957. Further it contended appellant was entitled to a commission only on “lots” sold where the property had been made into a city subdivision and that he was entitled to no commission on acreage sold that was no part of a subdivision. It pled full payment of commissions on all lots sold.

Appellees Cassidy and Miller pled they were not parties to the written contract sued on and had no agreement of any kind to pay any commission and if there was any agreement it rested in parol and was within the inhibition of the Real Estate License Act, Article 6573a, Vernon’s Ann.Civ.Tex.St. Appellant on appeal does not seek to reverse the judgment favorable to these two appel-lees and we will notice the suit as to them no further.

The court sustained appellee Ayrshire’s motion for summary judgment on the theory that appellant was entitled to commissions only on the sale of “lots” into which acreage might have been subdivided and that the sales of acreage were not sales of “lots.” Too, as to the sales in 1959, appellant was entitled to no commission as appellee had cancelled the contract.

Appellant relies for reversal on two points of error.

1. He contends the contract entitled him to a commission on the sale of any portion of the 215 acres whether it had been made into a city subdivision or not.

2. He contends the contract was not cancellable by appellee without giving him a reasonable opportunity to perform and that he had not been given such opportunity. At all events, he says, a fact question was raised as to whether he had been given such reasonable opportunity.

We have reached the conclusion that the trial court correctly sustained the motion for summary judgment.

We think the contract imposed no duty on appellee to subdivide the whole of the 215 [499]*499acres into a city subdivision or subdivisions and that the agency of appellant was only to sell such “lots” as the property was divided into by the platting of city subdivisions. It should be kept in mind that appellee has fully paid appellant his commission on every lot sold whether he actually made the sale or not. In fact, between 1950 and 1956 appellee paid appellant some $92,000.00 in commissions though appellant neither personally, nor through his agent, made any sale. Appellant claims he was ready and willing to do so but was prevented from doing so by appellee.

The contract reads as follows:

“Ayrshire Corporation, a Texas Corporation with its principal place of business in Houston, Harris County, Texas, is the owner of 215.960 acres of land made up of two tracts in the P. W. Rose Survey in Harris County, Texas, one tract containing 23.060 acres and the other tract embracing 192.9 acres, such 215.960 acres being all the land formerly owned by League Davis Properties and lying South of Bellaire Boulevard, West of Stella Link Road, East of G. H. and S. A. Railroad, and North of Brays Bayou (Such Bayou forming the South boundary of the property).
“At its own cost and expense, Ayrshire Corporation contemplates subdividing said 215.960 acres into a city subdivision and constructing a residential building on each lot of the subdivision, to the end that by December 1, 1947 all such subdividing and building should be completed.
“N. R. Wall, a resident of Houston, Harris County, Texas, doing business under the name of N. R. Wall Realty Company, is engaged in the business of acting as agent for owners of real estate in Harris County, Texas, in the selling thereof and receiving a commission therefor on each sale.
“Ayrshire Corporation is hereinafter referred to as 'CORPORATION’ and N. R. Wall (N. R. Wall Realty Company) is hereinafter referred to as ‘WALL’.

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Wall v. Ayrshire Corporation
352 S.W.2d 496 (Court of Appeals of Texas, 1961)

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Bluebook (online)
352 S.W.2d 496, 1961 Tex. App. LEXIS 2069, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wall-v-ayrshire-corporation-texapp-1961.