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Tex. Rev. Civ. Stat. Ann. art. 6573a, § 28 provides that no action shall be brought for the recovery of a commission for the sale or purchase of real estate unless the promise or agreement upon which the action is brought, or some memorandum thereof, shall be in writing and signed by the person to be charged or his lawfully authorized agent. To satisfy the requirements of this statute, the written memorandum must furnish within itself, or by reference to some other existing writing, the means or data by which the particular land may be identified. The sufficiency of the description is determined by the test that is used in cases arising under the statute of frauds and the statute of conveyances.
Petitioner real estate dealer, H.B. Owen, brought an action against respondent property seller, Ray Hendricks, to recover a commission. Prior to the sale of the property, the parties had exchanged letters that petitioner argued constituted a memorandum of the parties' agreement. Respondent filed a motion for summary judgment, urging that the description of the land in the written memorandum he signed was not sufficient to satisfy the requirements of Section 28 of Article 6573a, and that the memorandum did not contain a promise or agreement to pay any particular commission. Respondent’s motion was sustained by the trial court, and the Court of Civil Appeals affirmed. Petitioner challenged the order.
Could the petitioner recover commission on the basis of the two letters exchanged between petitioner and respondent?
The supreme court affirmed, noting that under Tex. Rev. Civ. Stat. Ann. art. 6573a, § 28, no action shall be brought for the recovery of a commission for the sale or purchase of real estate unless the promise or agreement upon which the action was brought, or some memorandum thereof, shall be in writing and signed by the person to be charged or his lawfully authorized agent. In this case, the court held that the two letters did not constitute a written memorandum sufficient to satisfy the requirements of Tex. Civ. Stat. Ann. art. 6573a, § 28. When the two letters were read together, the one written by respondent was clearly in reply to the earlier letter written by petitioner, and the letters related to the same subject matter, but there was nothing in the letter signed by respondent that referenced the existence of another writing (i.e., petitioner's letter). Because the contents of such letter did not show that it was based on an adoption of the letter written by petitioner, the two letters could not be taken together as constituting the signed memorandum as required to support an action under Article 6573a.