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Banking, Business and Contracts No. 09-02-489 CV, 6/5/2003. Click here for the full text of this decision FACTS: Fred Smith, a forester doing business as Fred Smith Forestry, sued James David Sullivan to recover a sales commission on an attempted sale of timber on 215 acres of land that Sullivan co-owned with other family members. The jury found that Sullivan breached the contract with Smith, and found damages in the amount of $26,765. The trial court entered judgment on the verdict and also awarded attorney fees in the amount of $6,759. James David Sullivan held a one-eighth interest in 215 acres of timbered land that he owned with his brothers, William and Wayne, his sister Frances Idoux, and his cousin, Jane Molpus. Fred Smith negotiated different agreements with each of the co-tenants, for marking timber on the land and soliciting bids for sale of the marked timber. HOLDING: Reversed and rendered. Smith’s contract with Sullivan indicated that Smith would be paid 7 percent of the high bid for a successful timber sale. First, Smith produced potential buyers for the timber, but the sale did not occur and no consideration was exchanged. Therefore, Smith could not recover his fee under the express terms of his contract with James Sullivan, which provided for payment upon a successful sale. Second, no binding contract of sale was ever formed between Sullivan and the timber companies. The elements required for the formation of a binding contract are: 1. an offer; 2. acceptance in strict compliance with the terms of the offer; 3. a meeting of the minds as to subject matter and essential terms; 4. communication of each party’s consent to the terms of the agreement; and 5. execution and delivery of the contract with the intent that it be mutual and binding. McCulley Fine Arts Gallery Inc. v. “X” Partners, 860 S.W.2d 473, 477 (Tex. App. – El Paso 1993, no writ). There is no evidence in the record of written acceptance of Temple – Inland’s and Ellis Timber’s bids in a manner that would make the timber sale enforceable through specific performance. Both companies withdrew their offers when presented with the seller’s terms of sale. Therefore, Smith did not procure a valid, enforceable contract for which he could claim a commission. Third, there is no evidence that Temple and Ellis, or any of the other bidders for the timber, were ever ready, willing, and able to buy the property on the terms stated in the commission contract or upon other terms acceptable to the seller. Smith varied from the terms of the Sullivan contract when he marked the timber. Although there is evidence that Sullivan was willing to accept the bids made for the timber actually marked by Smith, the transaction involved more than the sale of a product for a certain price. As demonstrated by the timber deeds in the record, the transaction also involved logging operations and reconditioning the surface. Although Sullivan agreed on the price offered for the timber, he did not agree to the other terms of the offer, nor did the lumber companies agree to his terms for the conveyance. Therefore, there is no evidence that Smith performed under the Sullivan contract so that he would be entitled to a commission for an aborted sale. Furthermore, there is no evidence of breach by James Sullivan of the contract with Smith, which contemplated that the timber contract would protect the tract of land and which did not restrict the conditions Sullivan could place on the sale or in the timber deeds. Nor did that contract require Sullivan to sign the deeds prepared by Smith and by Temple regardless of the terms therein expressed. Since Sullivan was not bound to sign any timber deed presented to him by Smith regardless of its terms, he did not breach the commission contract by instead signing timber deeds that contained language unacceptable to the timber companies. No evidence supports the jury’s finding that the appellant failed to comply with his agreement with the appellee. OPINION: McKeithen, C.J.; McKeithen, C.J., Burgess and Gaultney, JJ.

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