#### WILLIAMS et al. v. UNION PRODUCING CO. et al.

No. 12575.

Court of Civil Appeals of Texas. Galveston.

June 4, 1953.

Rehearing Denied June 25, 1953.

*573Frank Webb; Garwood & Garwood and Calvin B. Garwood, Jr., Houston, for appellants.

Vinson, Elkins, Weems & S earls, Thomas Fletcher and Earl A. Brown, Jr., all of Houston, for appellees.,

GRAVES, Justice.

This appeal by James P. Williams and J. W. Fabriguze, as appellants, against Uhion Producing Company, a private corporation, as appellee; is from a judgment of the 130th District Court of Matagorda County, Hon. G. P. Hardy Jr., judge, sitting without a jury, to this abbreviated effect:

Cancelling as a cloud upon the title of the appellee to a 9,507 acre tract of land it held under a mineral lease thereof in Matagorda County, -which cloud the court held had been created and caused by the filing of an affidavit in the deed records of Matagorda County, where the appellee’s lease was also recorded, by the appellants herein, in which they claimed a commission of some $3 per acre of such leasehold tract as a commission for their having allegedly procured such lease of the land to the ap-pellee, as brokers for it.

The court filed neither findings-of-fact nor conclusions-of-law in support of its judgment, nor were any of either sort requested by either party to the cause.

In this Court appellants’ points of error are these:

“I. The trial Court erred in rendering judgment for Appellee, since the evidence shows that Appellee Union Producing Company and Arthur G. Baer conspired to defraud Appellants of their -commission.

“II. The trial Court erred in holding that Appellants (cross-plaintiffs below) were not entitled to a commission, since Articles 3995a and 6573a, Vernon’s Texas Civil Statutes, are not applicable to this case.

“III. The Appellants alleged and proved a measure of damages upon which recovery can be based.”

To. such appeal, the appellee replies with these'counter-points:

“First. The final judgment entered by •the trial court in this action is supported by the evidence and such judgment, being based upon the facts determined by the trial court, is not subject to -attack in this Court (Germane to Point 1 of Appellants).

■“Second. The -recovery of a broker’s commission, as was sought by Appellants in cross action filed herein, is foreclosed under the laws of the, State of Texas and the facts adduced on trial hereof (Germane to Point 2 of Appellants).

“Third. The final judgment entered by the trial court - in this -action must be sustained because Appellants failed to prove a measure of damages upon which any recovery could be based (Germane to Point 3 of Appellants).”

This Court is constrained -to hold that the face of the extended record brought here discloses that there was amply sufficient evidence to require this Court to affirm the judgment so -rendered below. Flint v. Knox, Tex.Civ.App., Galveston, 1943, 173 S.W.2d 214 (on R.W.M.); Texas Civil Practice by McDonald, Vol. 4, pages 1302 and 1303.

■The'appellee corporation, as plaintiff, had filed this suit in such district court of Mata-gorda County, against the appellants as defendants, in the form of an action to remove a cloud from its claimed title to the land covered in that county by its lease there upon such 9,507 acre tract of land; it alleged, specifically, that the claimed *574cloud on its title to such land had been caused by the filing in the deed records of Matagorda County of an affidavit made by the appellants here, in which they claimed a commission from the parties to such oil lease — that is, the owner of the land, Arthur G. Baer, as lessor, and this appellee, Union Producing Company, as lessee.

The undisputed testimony' — including that of both the appellants- — was that they were not real estate brokers and did not have or claim to have ever had a license to act as such brokers under the provisions of our Real Estate laws, to-wit these: Articles 3995, 3995a, 6573a, Sec. 22, V.A.T.S.

In the recently developed state of our Real Estate laws, especially under the Supreme Court’s construction of them, in Breeding v. Anderson, 254 S.W.2d 377, it was held that the cause so pleaded and proved by the appellants has been authoritatively determined against them; in other Words, irrespective of their pled and testified-to claim that thé 'lessor, Arthur G. Baer, and the lessee, Union Producing Company, therein, conspired to defraud appellants of their commission they claimed they had earned for the procuring of such lease between those parties thereto, their admitted failure to have real estate licenses, under the cited statutes, left them without the “wedding garment” necessary to recover.

As this Court sees it, the conclusiveness of the Supreme Court’s holding in the Breeding v. Anderson case, which was likewise based upon the same kind of conspiracy as that appellants here so alleged and testified to, concludes the controversy against them; wherefore, it becomes unnecessary to pursue the question as to whether or not there was a conspiracy— as so alleged — that -might have — in other circumstances — given them a right 'of action. Delz v. Winfree, 80 Tex. 400, 16 S.W. 111.

These conclusions require an affirmance of the judgment. It will be so ordered.

Affirmed.

MONTEITH, C. J., not sitting.