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December 4, 1957


Author: Archer

ARCHER, Chief Justice.

This is a suit brought by appellee, a licensed real estate dealer, against appellant seeking to recover $1,500 as a commission for securing a purchaser for a beauty parlor. Both parties moved for a summary judgment. Appellant's motion was denied, appellee's motion granted, and judgment in favor of appellee and against appellant entered for $1,500.

The appeal is on one point assigned as error and is as follows:

"The Trial Court erred in granting a summary judgment for appellee and in failing to grant a summary judgment for appellant because the uncontroverted facts show that appellee had full knowledge of the defect in appellant's title at the time the written agreements were entered into."

Appellee in four counterpoints contends that there was no error in granting appellee's motion for summary judgment because the affirmative defense was not pleaded in the Trial Court but was raised in the Court of Civil Appeals, and that any evidence offered by appellant in support of the affirmative defense not pleaded would be inadmissible, and that the defense of knowledge by appellee of the defect in appellant's title is not raised by the evidence, and appellant's own testimony estops her from denying her title was defective.

It appears that on March 13, 1956, appellant entered into a written sales contract with Mozelle Prince to sell certain equipment and fixtures in a beauty shop for $11,500, and to lease a building to Prince for five years. In a special agreement appellant agreed to pay appellee $1,500 for services in acting as an agent in consummating the sale.

On March 8, 1955, Herman Vaughn filed a lis pendens notice in the County Clerk's office in which he claimed title to the real estate which appellant had contracted to lease to Prince.

An attorney representing Prince refused to approve the closing of the transaction because of the lis pendens.

In his petition appellee alleged the execution of the contract to sell the property for appellant for $10,000 and to pay appellee $1,500 as a commission; that he procured Mozelle Prince as a purchaser for the property for the total sum of $11,500 and that the purchaser was ready, able and willing to purchase the property; that a contract of sale was entered into between appellant and Prince but appellee failed to produce a good and merchantable title and as a result Prince refused to consummate the purchase and appellant refused to pay appellee his commission.

Appellee answered by general denial, set out the contracts, and pleaded that she has at all times been ready, able and willing to comply with the contracts and alleged that the claim of third party (Vaughn) was not well founded and that she stood ready to execute the lease contract and the Bill of Sale, and that until the contract is consummated she is not indebted to appellee.

On January 19, 1957, appellee filed his motion for summary judgment, setting out the substance of his original petition, with a copy of the agreements, and the lis pendens notice, with a supporting affidavit made by appellee that there is no genuine issue as to any material fact.

Appellant filed an answer to appellee's motion for summary judgment and alleged that there were sharply disputed issues of fact involved in the cause of action, and referred to the oral depositions on file. Appellant further alleged that plaintiff was fully advised as to all facts and circumstances in connection with the property and was aware of the lis pendens notice, the suit pending and of the claims made therein, and further answered that the purchase price was never tendered to her and that she was ready to complete the sale and made a motion for summary judgment, because the sale had not been consummated; that appellant was not entitled to recover and attached supporting affidavits and made the contracts and depositions a part of the motion.

Upon a hearing on the motions the Court concluded that there was an absence of genuine issue of material fact, and that the law was with appellee and against appellant and gave appellee a judgment for $1,500.

We believe that there were fact questions of a material nature to be resolved in a trial on such issues, raised by the pleadings and evidence in support thereof in the oral depositions of both appellant and appellee, as to nature and knowledge by appellee of the claimed title defect, and as to an opportunity by appellant to remove such defects, if any [which she subsequently did], Vaughn v. Crews, Tex.Civ.App., 294 S.W.2d 429, and that the Court was in error in granting a summary judgment.

In an oral deposition taken prior to the filing and hearing on the motions for summary judgment, appellee Cooley testified:

"Q. (By attorney for appellant) All right, then when did Mrs. Crews ever refuse to execute a bill of sale when you offered her $10,000? When did she refuse? That is what I want to know. You said in your pleadings that she ...

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