Appeal from Jim Wells County
For Appellant: Kenneth Oden; J. G. Adami, Jr.; Alice, Texas.
For Appellee: Grose, Nixon & Erck; Alice, Texas.
This is a summary judgment proceeding. Appellant, George Taggart, III, sued appellee, Thomas W. Crews, for specific performance of a contract of sale of a tract of 1,965 acres of land in Duval County, Texas, owned by Crews; and in the alternative, for damages for the breach of such contract. A petition in intervention was filed by Compton and Compton, the real estate brokers involved, seeking commissions from Crews. This portion of the case was severed. The trial court granted appellee's motion for summary judgment and decreed that Taggart take nothing against Crews. Taggart filed no motion for summary judgment and on this appeal seeks only a reversal and remand.
Appellant asserts three points of error: (1) the trial court erred in holding that as a matter of law the offer in writing was but a real estate listing contract; (2) the trial court erred in holding that the offer in writing and the acceptance of such offer did not satisfy the requirements of the Statute of Frauds; (3) the trial court erred in granting appellee's motion for summary judgment against appellant and in rendering a take nothing judgment against appellant without a conventional trial on the merits.
The summary judgment evidence consists of depositions of Thomas W. Crews, George Taggart, III, M. A. Compton, Jr., an affidavit of Robert B. Wallace, an attorney at law and tax consultant, and various exhibits.
The background of this case is somewhat complicated and involved. Appellant contacted Mr. Miles A. Compton, Jr., a licensed real estate broker, and told Compton that he was looking for a place to buy land in brush country. Thereafter, Compton contacted Crews, who evidenced some interest in sale of his ranch; and, generally, the terms were discussed. Compton advised Crews that he would draw up a letter agreement covering what they had discussed; that he had two or three prospects, but that he had promised one of the prospects the first look at the property. Crews then told Compton to bring his prospect over. On April 30, 1973, Compton brought Taggart to Alice, Texas, where Crews lived and, at such time, took a letter agreement to the residence of Crews and left such letter agreement with him. This letter agreement was never signed.*fn1 Compton then took Taggart to the ranch, and Crews and Compton discussed with Taggart the terms of the trade and some discussion was had as to when Crews would be able to move his cattle from the property. Before leaving the ranch, Taggart told Crews that he would buy the ranch, but that he wanted to show it to his partners. Crews, at such time, told Compton he wanted to see him, and after Taggart left, Compton went to see Crews, who said that there was some misunderstanding about the letter agreement drawn up by Compton; that Crews thought that Compton's commission was going to be added to the purchase price, and this letter agreement was never signed. Thereafter, after some negotiations between Compton and Crews it was agreed that: (1) if Taggart bought the property, at $135.00 per acre, the commission would be three percent; or (2) if someone else bought the property at $145.00 per acre, Compton's commission would be six percent. Thereafter two documents were prepared by Compton; both of which were dated May 1, 1973, and both of which were signed by Compton and Crews. The letter agreement which was accepted by Taggart reads as follows:
Mr. Tom Crews 1328 Lincoln Drive Alice, TX. 78332
This letter will confirm our agreement on a sixty (60) day listing from May 1, 1973, for Compton & Compton Company, to sell one thousand nine hundred sixty five (1,965) acres, more or less, in Duval County, owned by you, to George Taggert /sic/, III.
The sale price agreed on is One Hundred Thirty Five Dollars ($135.00) per acre, or a total price of Two Hundred Sixty Five Thousand, Two Hundred Seventy Five Dollars ($265,275.00). This is to be the cash price. Also, this price is ...