Thompson v. Ferguson Turnley , 1923 Tex. App. LEXIS 745 ( 1923 )

KLETT, J.

The pleadings and evidence ?how that the appellant, J. H. Thompson, owned a lot in Amarillo, Tex., and was building a house on the property, which he listed for sale with plaintiffs, N. C. Ferguson and G. H. Turnley, real estate brokers, at $6,250, stating that, in the event he got as much as $1,000 cash, he might sell for $6,000, and that upon completion of the house he would look over his bills to see if he could take $6,-000. Thereupon plaintiffs undertook to find a purchaser and succeeded in procuring one II. C. Egbert, to whom the defendant conveyed the property for the sum of $6,000. Plaintiff sought and secured judgment against appellant for 5 per cent, commission.

During the negotiations with the purchaser one of the plaintiffs stated that “he might be able to pull Thompson down to $6,-000.” There is no evidence that such effort was made by the agent. Appellant charges that this declaration on the part of the agent was a violation of the rule of uberrima tides, and defeats the right of the agent to claim a commission. The .appellant did not plead this defense on the trial. Without deciding whether the question should have been raised by the pleadings, we are of the opinion the issue of good faith, as here presented, was one of fact, which we regard as resolved against the appellant by virtue of the judgment rendered. The statement complained of was not necessarily an act of duplicity or disobedience. The selling price was not fixed. Manifestly the principal was interested in reducing the price if the cost bill would permit, because the commodity offered would sell more quickly on the market. Presumably the principal engaged the services of the plaintiffs as salesmen because of their skill and ability. If good salesmenship required the agent to make the statement in order to effect the sale in good faith, then allegiance to the 'principal, as well as fairness to the purchaser, made it the duty of the agent to advise the purchaser of the possibility of the change in price. And, if an agent must be honest as well as loyal, we see nothing in the evidence requiring us to hold, as a matter of law, that the utterance was violative of instructions given or information received.

The appellant also asserts that the agent forfeited his right to compensation in that he urged the sale of his own property during the time he was trying to sell the defendant’s property. We are unable to assent to this proposition in view of the fact that the plaintiffs were not under contract to sell the defendant’s property exclusively, but were only operating under an offer made by the defendant to pay a commission in the event the plaintiffs found a purchaser.

The next proposition presented is that the evidence does not support the finding that plaintiffs were the procuring cause of of the sale. We have carefully reviewed the evidence and reached the conclusion that this contention must be overruled. It is true that the defendant testified that he had a sign posted on the lot advertising the property for sale; that he had several private interviews with Egbert about the property; that he did not know plaintiffs were negotiating with Egbert, and that he subsequently secured Egbert’s signature to the contract. But there is also evidence in behalf of plaintiffs showing that as soon as the property was listed with them they went to work with Eg-bert, showed him the property, gave him the price, and induced him to buy. A dispute arose before the written contract' was entered into as to whether or not the plaintiffs were entitled to the commission and ended in defendant telling one of the plaintiffs to go ahead with the deal. There is also evidence that Egbert would not have bought unless the property had been shown by plaintiffs, and that during the negotiations defendant induced Egbert to buy direct from him upon the promise that he would save money. Although there are irreconcilable differences in the testimony, there is ample evidence to sustain the judgment of the trial court.

The defendant filed a cross-action against Egbert, asking for judgment for such amount as may be recovered in the plaintiff’s suit, the defendant alleging in his cross-action that Egbert falsely represented to defendant that no agent had shown the property to Egbert, and that upon such representation he sold the property to Egbert for $6,000, when in fact, if he had known the truth, he would have priced said property to Egbert for enough to take care of the commission, in addition to the $6,000. The defendant complains of the action of the trial court in refusing him judgment against Egbert on the cross-action. We cannot disturb this judgment because we find in the record that before the written contract was signed the plaintiffs told the defendant, in the presence of Egbert, that they claimed the commission, and Egbert also informed the defendant in the same conversation that plaintiffs were the first to show him the property, and that he guessed he would not have looked at it had it not been for them. Egbert also offered to rescind the deal and lose the $100 forfeit money advanced on the deal in order to avoid trouble, but defendant refused. In such event we think the defendant cannot complain when he did not enter into the contract in ignorance of the plaintiff’s claim for commission.

The judgment is therefore affirmed.