
    SNOW v. PRINCE et al.
    (No. 1654.)
    Court of Civil Appeals of Texas. Beaumont.
    March 27, 1928.
    Rehearing Denied April 4, 1928.
    1. Brokers <&wkey;82(4) — Instrument constituting earnest-money receipt or option to purchase, held properly excluded as variance from pleading.
    In suit to recover on contract, for commission in procuring a deed from certain persons to defendants, instrument constituting a mere earnest money receipt, or option to purchase, or executory contract for sale, but in no event constituting a deed or present conveyance to defendants, held properly excluded as being at variance with pleading.
    2. Estoppel <&wkey;IIO — Oral testimony that defendants, agreeing to pay commission for deed, took possession under different instrument heid inadmisible without plea of estop-pel or waiver.
    In suit to recover under contract, for commission in procuring deed to certain tract of land to defendants, oral testimony to effect that defendants entered into possession after execution of instrument in the nature of an earnest-money receipt, held inadmissible without plea of estoppel or waiver.
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Suit by John H. Snow against H. Prince, H. Brown, and others, subsequently dismissed as to defendant last named, and wherein executors of the estate of defendant first named were made parties in his stead after his death. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    A. E. Masterson, of Angleton, and Bryan, Colgin, Suhr & Bering, of Houston, for appellant.
    Eouts, Ameraran, Patterson & Moore, of Houston, for appellees.
   HIGHTOWER, O. J.

This suit was filed by appellant, John H. Snow, on May 15, 1920, in the district court of -Brazoria county, against H. Prince, H. Brown, A. Eeldman, and J. J. Moody, as defendants. Appellant, for his cause of action, alleged, in substance, that on .or about April 3, 1919, the defendants Prince, Brown, and' Feldman made a contract with him, by the terms of which they agreed and bound themselves to pay him $3,000, if he would procure for them a deed from certain persons to a tract of one and one-half acres of land in the oil 'field at West Columbia in Brazoria county, and he alleged, in substance, that he had carried out the contract on his part and did procure the deed, but that the defendants had failed and refused to pay him for doing so, according to their contract.

The defendants Prince, Brown, and Feld-man, all being citizens of Harris county, filed their plea of privilege to be sued in that county, which plea was sustained and the ease was transferred to the district court of Harris county. After the case had reached the district court of Plarris county, the defendí ants answered by general demurrer and general denial and the case remained on the docket without trial for a number of years, approximately seven years. In the meantime, defendant Prince died, and defendant Brown disappeared, and his whereabouts became unknown and he was dismissed from the suit by the plaintiff. The executors of Prince’s estate were made parties defendant in. his stead, and after appellant had filed several amended petitions and supplemental petitions, the case proceeded to trial and the result was an instructed verdict and judgment thereupon entered in favor of defendants then before the court.

Appellant’s second amended petition, upon which the case proceeded to trial, in stating the contract upon which the suit is based, was as follows:

‘‘That heretofore, to wit, on the 3d day of April, 1919, H. Prince, A. Feldman and H. Brown contracted with the plaintiff that if he, plaintiff, would procure the signatures of Charles Williams and wife, Minnie Williams, Thomas Rhodes and Lee Rhodes, and in the alternative, the signature of Lee Rhodes alone, to a deed to one and one-half (1½) acres of land in the West Columbia oil field in Brazoria county, Tex., adjoining the cemetery and fully described in the deed from Charles Williams and his wife, Minnie Williams, and Thomas Rhodes and Lee Rhodes to H. Prince, H. Brown and A. Feldman, of record in volume 151, page 540 of the Record of Deeds for Brazoria county, Tex., to which reference is here made for description, that they would pay to the plaintiff the sum of $3,000, in cash for such services.”
“Plaintiff alleges that he did on, to wit, the 3d day of April, 1919, procure the signatures of all of said persons to said deed, and that he did on the 3d day of April, 1919, at the special instance and request of the said H. Prince, A. Feldman, and H. Brown go to Matagorda county, Tex., cause the said Lee Rhodes tó go tó West Columbia in Brazoria county, Tex., and cause the said Lee Rhodes to execute to the said Prince, Feldman, and Brown the deed here-inabove described.
“Plaintiff alleges that he performed each and every act undertaken by him in his agreement with said Prince, Feldman and Brown, and has fully and completely performed his part of the contract, for which the said H. Prince, A. Feld-man and H. Brown agreed to pay him said sum of three thousand ($3,000) dollars aforesaid.”

Appellant then alleged the breach.on the part of the defendants of the contract pleaded by him, and prayed for recovery against them for the sum of $3,000.

This is a sufficient statement of the pleadings of the parties to make clear our disposition of the appeal.

When the case was reached for trial below, appellant offered in evidence, for the purpose of showing that he had carried out and performed his contract with the defendants Prince, Brown, and Feldman, the following instrument:

“In consideration for the amount of $100 in cash paid by parties of the first part, receipt of which is hereby acknowledged, Minnie Williams and husband, Charles Williams, Thomas Rhodes and Lee Rhodes, this agreement is made as follows:
“(1) We, the undersigned, parties of the first part, have sold and conveyed one tract of land consisting of 1½ acres, more or less, described as Rhodes tract in West Columbia, Tex., adjoining Colored Cemetery on the east, flag pond on the west, and Chas. Brown on the north to H. Prince, A. F.eldman, and H. Brown, of Houston, Tex. Parties of the second part, for the consideration of $1,500.
“(2) The parties of the first part guarantee to parties of the second part that the above mentioned and described tract is free of any incumbrance or other claims.
“(3) The parties of the first part agree to accept $1,000 as a deposit on the bargain, balance of $14,000 to be paid on Monday, April 7, 1919, on passing good title to parties of the second part. There are no 6il leases on said land. “Minnie Williams.
“Charley Williams.
“Thomas Rhodes.
“Lee Rhodes.”

This instrument was duly acknowledged by all parties signing it, the acknowledgment taking the form of an acknowledgment to a deed.

When the above instrument was offered in evidence by the appellant, counsel for ap-pellees objected to its introduction on tbe ground, substantially, that appellant’s petition alleged that bis contract witb appellees was to procure tbe signatures of tbe parties signing tbe instrument to a “deed” and that tbe instrument offered in evidence was not ■a deed, and that it was not admissible for any purpose under appellant’s pleading. In other words, counsel for appellees objected to tbe introduction of tbe instrument then offered, because there was a variance between it and appellant’s pleading. This objection was sustained by tbe trial court and appellant was not permitted to introduce tbe instrument in evidence as a compliance witb bis alleged contract.

After tbe trial court bad refused to permit appellant to introduce tbe above-mentioned instrument in evidence, counsel for appellant asked permission of tbe trial court to introduce certain parol testimony, which tbe trial court permitted, excusing tbe jury in tbe meantime. Thereupon, appellant was placed upon tbe witness stand and testified, in substance, which we shall state very briefly, that tbe signatures of tbe persons signing the instrument tendered in evidence were secured by him, and that after the instrument bad been signed by them all and duly acknowledged, defendant Feldman stated to him, appellant, that be, appellant, had earned bis money, and that be would be paid as defendants bad agreed to pay him for bis services. He further stated, in substance, that defendants never requested him to procure for them any other instrument in this transaction, and be also testified, that immediately after tbe instrument was signed appellants erected a derrick, upon tbe one and one-half acres of land described in tbe instrument, for tbe purpose of operating for oil. In other words, appellant testified that immediately after tbe instrument was executed, appellees took possession of tbe one and one-half acres of land.

Two other witnesses, R. M. Mohler and Lee Rhodes, testified, substantially, as did appellant touching the satisfaction of de-fendants with the instrument above described, and tbe erection of the derrick by defendants upon tbe one and one-half acres of land. There was also other testimony by these witnesses touching other details, all of which comes up in tbe form of a bill of exceptions, but since it has no material bearing upon the question before us, it will not be mentioned.

All this parol testimony was objected to by counsel for appellees, on tbe ground that it was wholly immaterial to any issue made by tbe pleadings, and this objection was sustained by tbe trial court, and tbe jury was recalled and peremptorily instructed to bring in a verdict for tbe defendants. Tbe action of tbe court, in excluding tbe above instrument and in refusing to admit tbe oral testimony, was duly excepted to by counsel for appellant.

Tbe only questions before us are, as to whether tbe trial court was in error/in refusing to permit the introduction in evidence of tbe above-described instrument, offered by appellant as showing a compliance on bis part witb bis alleged contract, the refusal being based upon tbe ground that there was a variance between appellant’s pleading and tbe instrument that he offered in evidence to sustain it, and whether tbe trial court was in error in refusing to admit tbe parol testimony above shown.

Upon submission, the case was orally argued by able counsel for both sides and has been briefed by both, and after careful consideration we have reached the conclusion that tbe trial court was correct in both rulings. It is clear to us that tbe instrument offered in evidence by appellant is not a “deed” or present conveyance of land by the signers to Prince, Brown, and Feldman. Tbe only earmarks of a deed that we see in this instrument are these words, “have sold and conveyed,” as used in paragraph 1 of the instrument. It is contended by counsel for appellees, that this instrument is nothing more than an earnest money receipt, and that, therefore, it was not admissible under appellant’s pleading to tbe effect that be was to procure the signatures of tbe named parties, Rhodes and others, to a “deed.” Whether this instrument was a mere earnest-money receipt, or whether it gave a mere option to purchase the land, or whether it was a mere executory contract for the sale of land, it is unnecessary for us to determine. It is of no higher dignity than one of these. It certainly is not a deed or present conveyance of the land described to Prince, Brown, and Feld-man.

“The word ‘deed’ * * * is commonly understood to mean an instrument in writing, duly executed and delivered, conveying real estate.” Lockridge v. McCommon, 90 Tex. 234, 38 S. W. 33; Peterson v. McCauley (Tex. Civ. App.) 25 S. W. 826; Wallace v. Wilcox, 27 Tex. 60.

If it were necessary to determine the exact nature of this instrument, we would be inclined to hold that it is only an earnest-money receipt. It starts off:

“In consideration for the amount of $100 in cash paid by parties of the first part, receipt of which is hereby acknowledged, Minnie Williams and husband, Charles Williams, Thomas Rhodes and Lee Rhodes, this agreement is made as follows:”

Then in the concluding part of paragraph 1 of the instrument, it is stated, that the consideration that the parties of the first part are to pay to parties of the second part for the land is “Fifteen Hundred Dollars.” (Evidently it was intended by the parties that the consideration for the land, instead of being $1,500 was to be $15,000, because, in paragraph 3 of the instrument, as we have shown, it is stated that the “balance of $14,-000” was to be paid four days later “on passing good title to parties of the second part.”) Again, paragraph 3 starts off by saying, that the parties of the first part “agree to accept $1,000 as a deposit on the bargain.” What bargain? If this instrument was intended as a deed by the parties, why the use of having it to state that the parties were making the instrument in consideration of $100, and that they agreed to accept $1,000 as a deposit ,on the bargain ? As we have stated before, this instrument bears none of the earmarks of a deed, save and except the words “have sold and conveyed.” All other portions of the instrument show clearly, we think, that the parties were making only a written instrument sufficient to bind the bargain, and that four days after the execution of the instrument a “good 'title” was to be passed by the makers of the instrument to Prince, Brown, and Eeldman. It must be kept in mind that it was not pleaded by appellant that he was only to procure the instrument above described, but his allegations are that he was to procure the “signatures” of the makers of the instrument to a “deed.” We hold that the trial court was correct in excluding the introduction of this instrument in evidence, as showing a compliance by appellant with the contract pleaded by him.

Since there was no plea of estoppel or waiver by appellant, the trial court was correct in excluding the parol testimony above mentioned-, because the only theory upon which that testimony could have been properly admitted would have been in support of a plea of waiver or estoppel, but none such was interposed. It results from these conclusions that the judgment of the trial court must be affirmed, and such has been our order. 
      ^^sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     