Hill v. Huber , 1918 Tex. App. LEXIS 324 ( 1918 )

The finding of the trial court that it was due to Huber and Casey that Hill and Sims met, and therefore that they were the "efficient, procuring cause of the exchange of the properties between Hill and Sims," is attacked as without support in the testimony. We think it has such support. It appeared without dispute that it was due directly to Huber and Casey that Tarlton went, in the first instance, to see Hill about trading him the Parr land, and Huber testified that he sent Tarlton back to see Hill about trading him the Sims land. There was Nothing in the testimony indicating that Hill would ever have met Sims and had an opportunity to trade with him as he did but for the acts of Huber and Casey. Certainly, in this attitude of the case, the court reasonably might have found as he did. The contention to the contrary seems to be based mainly upon testimony showing that neither Huber nor Casey ever in any way communicated to Hill the fact that they sent Tarlton to him to propose the exchange finally made, and on the testimony of Hill that he did not know they sent Tarlton to him or had anything to do with the Sims trade. If Huber, employed as he was by Hill to find some one with land he was willing to exchange for the merchandise on terms satisfactory to him (Hill), acting with Casey, was the cause of Sims' taking up with Hill the matter of making the exchange that was made, we think it is no answer to the claim of Huber and Casey for a commission Hill otherwise would have been liable to pay them, to say that Hill was ignorant of the fact that Huber and Casey were the procuring cause of his making the deal with Sims. Bound v. Simkins, 151 S.W. 572; Ross v. Moskowitz, 95 S.W. 86; Id., 100 Tex. 434, 100 S.W. 768; McDonald v. Cabiness, 98 S.W. 943; Id.,100 Tex. 615, 102 S.W. 721; McKinney v. Thedford, 166 S.W. 443. We do not understand the Supreme Court to have held (in Goodwin v. Gunter,195 S.W. 848, cited by appellant) to the contrary of the rule recognized by the weight of authority in this country (4 R.C.L. 430), and in the cases cited above decided by courts of this state, that the employer who concludes a transaction with a party procured by his broker is not relieved of liability to the broker because he was ignorant at the time he dealt with him of the instrumentality of the broker in procuring the party.

It is insisted it appeared as a matter of law that Huber and Casey were not entitled to claim a commission of Hill. The contention is predicated, it seems, on the finding that Huber and Casey agreed to pay, and did pay, two-thirds of the amount of the expense of Tarlton's trip to Jackson county to show Hill the Sims land, and on a rule of law stated as follows in 9 C.J. P. 540:

"A broker who is employed to exercise his ability or discretion on behalf of his principal cannot, without his principal's knowledge, agree to represent the other party to the transaction; such an agreement is contrary to public policy and unenforceable, although the original principal is not injured, the broker intends no wrong, and the other party acts in good faith."

If it should be assumed, in the absence, as is the case, of anything in the record showing that Huber and Casey were employed to represent Hill in making the exchange, and not merely as middlemen to bring Hill and one ready to exchange land for merchandise together (9 C.J. p. 576), it would nevertheless appear, we think, that the rule had no application to the case, because it did not appear that Huber and Casey undertook to represent Sims in the transaction. The agreement between them and Tarlton that they should pay part of the expense of the trip of the latter to Jackson county may have been evidence of an obligation incurred by Tarlton to them or Hill, but certainly it was not evidence of an obligation to Sims on the part of Huber and Casey inconsistent with the duty they owed to Hill.

We do not think error requiring a reversal of the judgment is shown by any of the assignments. Therefore it is affirmed.