Coastal Plains Development Corp. v. Micrea, Inc.

*819KEITH, Justice,

dissenting.

I respectfully dissent.

On page six of the contract between the parties, dated July 31,1970, only the signatures of the parties and this language appear:

“It is expressly understood and agreed that the performance by the respective parties of their respective obligations under the terms of this contract shall not constitute the parties as partners in connection therewith and neither is the performance of this contract by the respective parties to be considered a joint venture, but to the contrary each party shall be solely responsible for the performance of the respective obligations herein contracted to be undertaken by each respective party.”

Ordinarily, as said in Park Cities Corp. v. Byrd, 534 S.W.2d 668, 672 (Tex.1976), the rule followed by the courts is stated in this language:

“The agreement of the parties is to be controlling of our decision and we shall construe and interpret their agreement pursuant to the applicable law of contracts.”

Yet, the majority — in the face of explicit language disavowing any intention to create a joint venture and despite clear language refusing to share losses in the undertaking — has found that a joint venture exists. And, having made this judicial determination of intention, the court has created a vehicle which negates the applicability of the Real Estate Licensing Act to the dealings between the parties. I decline to join in this aberration.1

I note only a few of the misgivings I have concerning this holding. Whether or not the relationship of joint venture is created ordinarily depends upon the intention of the parties. Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716, 722 (1945). Here, our parties expressly disclaimed any such intention to form the relationship.

The contract in this case did not authorize either party to create any liability to third parties which would have been binding on the other. “The [joint venture] relationship being in the nature of a partnership, losses must be shared as well as profits.” Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704, 709, 59 A.L.R.2d 1011 (1956).

This record shows, as recounted by the majority opinion: “[W]hen plaintiff [Mi-crea] submitted its expense summary, reflecting an excess of some $13,000 in expenses over receipts, this was not paid.” As every businessman knows and realizes, when you have expenses in excess of receipts, you have a loss. But, Micrea, refusing to recognize a joint venturer status where losses as well as profits are to be shared, sued for all of its loss — $13,000. More, importantly, this court has permitted its recovery of the entire sum against the defendant. Once again, the parties disavowed the joint venture concept by their actions.

Regardless of the perspective from which one views this case, it is clear that Micrea has recovered judgment representing compensation which it claims it would have earned from the sale of defendant’s land; and, admittedly, Micrea was not licensed under the Act. In this dissent, I adopt with approval Justice Stephenson’s language found in Elrod v. Becker, 537 S.W.2d 84, 86 (Tex.Civ.App.—Beaumont 1976, writ ref’d n. r. e.):

“Our courts require a strict compliance with the terms of the Real Estate Dealers License Act if a salesman is to use the courts for recovery for his services. Hall v. Hard, 160 Tex. 565, 335 S.W.2d 584 (1960).”

*820See also, Tex-Co Grain Company v. Happy Wheat Growers, Inc., 542 S.W.2d 934, 936 (Tex.Civ.App.—Amarillo 1976, no writ), and authorities therein cited.

This case, as laid out in the majority opinion, turns on the concept of joint venture, a form of business entity which seems to have escaped mention in the Act itself. But, the new law announced in the opinion does violence to and is contrary to the theory behind the Act and its administration. See A. Amdur, “The Real Estate License Act — Synopsis, Elaboration, and Comments,” 12 S.Tex.L.J. 269, 276, et seq. (1971).

Indeed, as I read the majority opinion, it likely is in conflict with the well-reasoned opinion in Macphee v. Kinder, 523 S.W.2d 509 (Tex.Civ.App.—San Antonio 1975, no writ).

The judgment of the trial court should be reversed and judgment here rendered denying plaintiff any recovery.

. In his immortal work “Through the Looking-Glass,” Lewis Carroll finds Alice puzzled with Humpty Dumpty’s “unbirthdays.” Being questioned by Alice, Humpty said: “When I use a word, it means just what I choose it to mean— neither more nor less.” But, objected Alice: “The question is, whether you can make words mean so many different things.” To which Humpty replied; “The question is, which is to be master — that’s all.” Do the words mean what the parties said or do they mean what the court has said? Or, more importantly, who is to be the master?