Shelton v. Cain , 1911 Tex. App. LEXIS 984 ( 1911 )

Under the first assignment in appellant's brief, the contention is made that the jury found for the plaintiff on the material issues in the case, and therefore it was error to render judgment in favor of the defendant. That proposition is controverted by counsel for appellee; their contention being that appellant's entire case was founded upon the allegation in his petition that, by the terms of the contract sued on, he was given the exclusive agency for the land, and that the findings of the jury to the effect that the contract did not give him such exclusive agency broke down his case and justified the court in rendering judgment against him. That contention would be correct, if the petition sought a recovery solely upon the theory of an exclusive agency and a breach of the contract by appellee, which prevented plaintiff from in any wise performing his part of the contract. But if, by the terms of the contract, appellant became appellee's agent, although such agency may not have been exclusive, still if appellant was the procuring or efficient cause of the sale of appellee's property, he was entitled to recover. Counsel for appellee concede the correctness of that proposition of law, but contend that appellant did not allege in his petition that he rendered such services as constituted the procuring or efficient cause of the trade. As to the averments of the petition in that respect, we quote as follows from appellee's brief:

"Plaintiff's pleading, setting up his contract with defendant, alleges that ``defendant herein employed him to act as his agent or broker, to sell, exchange, trade, or barter certain real estate and personal property owned by defendant and situated in Navarro and Ellis counties (describing same), * * and to find some person or persons to whom defendant could sell his said property, or with whom the defendant could effect a trade or exchange of his said property, or any part thereof, for the property owned by such person or persons desired by the defendant, and on such terms and conditions as might be satisfactory and acceptable to the defendant, or to put the defendant in communication with any such person, or persons, and in any way possible assist the defendant in negotiating a trade and effecting and consummating a deal, wherein the defendant would be enabled to barter, trade, or exchange his property to such, other person or persons for ranch property and live stock in some portion of what was termed by him West Texas, suitable for stock raising and farming, and being the kind and nature of property desired by the defendant, and to be such property as would suit the defendant and be accepted by him in exchange for his property, or for a portion of the same, as aforesaid; the said exchange to be upon terms and conditions acceptable to the defendant, and as might be agreed upon between the defendant and the owner of such other property. That plaintiff, upon being asked by the defendant his charge for such services, informed him that he would charge him a commission of 2 1/2 per cent. on the gross amount of the consideration received by the defendant for his property so listed with the plaintiff for sale, trade, exchange, or barter, on the terms and conditions above set out. That the defendant objected to paying this commission for the plaintiff's services, and proposed to plaintiff that he would list with him his property aforesaid, for the purposes aforesaid, and would agree and bind himself, and did agree and bind himself, to list the same with no other person or persons, and did agree and bind himself that he would not permit or authorize any other person or persons to represent him in the selling, trading, bartering, or exchanging of the same for other property, provided the plaintiff would represent him therein for a compensation in the sum of $2,000, payable upon consummation of any deal that might be effected, in any manner, through the instrumentality of the plaintiff herein, in the way of finding him such property as he might desire, and getting in communication or putting defendant in communication with the owner thereof, and aiding and assisting him in effecting a deal such as would be acceptable to the defendant.'

"Plaintiff further alleges that, in consideration of his being employed as sole agent and representative of the defendant in the matter of selling, trading, exchanging, or bartering his property aforesaid for other property desired by the defendant, and in consideration of the defendant agreeing and binding himself to refuse to authorize or permit any other person or persons to represent him in the matter of selling, trading, or exchanging his said property, or in aiding or assisting him therein, he agreed to and did accept the defendant's proposition to take the said sum of $2,000 in full payment for his compensation in the matter, and for his services therein, payable upon consummation of any deal that he might make, or in any manner bring about through his instrumentality, as hereinbefore alleged.

"In the seven following sections of his petition, as more fully shown under defendant's next proposition, plaintiff alleges what he did under the terms of said contract, and what defendant failed to do: and charges that defendant violated said contract by listing said property with other agents, and through them trading and exchanging with Dr. I. R. White for other property. Then in an additional count he further alleges: ``That the defendant's employment of other agents or brokers, as hereinbefore alleged, to sell, trade, or exchange his property, as hereinbefore alleged, and his negotiation and closing a deal with them, whereby he exchanged and traded his property aforesaid for that of the said Dr. R. R. White, as aforesaid, and his utterly ignoring the plaintiff and his rights therein, was a breach of and a repudiation of his contract with the plaintiff as hereinbefore alleged and declared upon and that on account thereof the plaintiff was deprived of the right and power to make said trade and exchange of the property of the defendant for the property of the sale Dr. R. R. White, as he had reasonable assurance he could and would do, as herein before alleged, and that on account of said breach of his contract aforesaid the defendant became liable and promised to pay to plaintiff his damages on account thereof in the sum of $2,000,' for which he prayed judgment.

"``Plaintiff further alleges that in pursuance of his duties under said appointment and employment he at once entered upon his duties thereunder, and learned that one Dr. R. R. White of Temple, Tex., owned a large, valuable, and desirable ranch located and situated in Mills county, Tex., together with a considerable number of horses, mules, cattle, and other live stock and property situated and located thereon, all of the estimated value of $100,000, and being the kind of property that was desired by the defendant, and that said Dr. R. R. White desired to sell, trade, or exchange the said property owned by him for other property more suitable to his taste, convenience, and purpose. That the plaintiff entered into communication with the said Dr. R. R. White in person, as well as through his representative, and obtained from the said Dr. R. R. White in person a description of his property aforesaid, and afterwards communicated such description to the defendant, and informed him that he could, with reasonable certainty, effect an exchange of the defendant's property for the property of the said Dr. R. R. White on terms and conditions agreeable and acceptable to both parties. That the defendant ex. pressed himself interested in said proposition, and stated to the plaintiff that he believed that the property owned by Dr. R. R. White was just the kind of property that he wanted, and agreed to accompany the plaintiff to said ranch in Mills county Tex., and carefully inspect the said property owned by the said Dr. R. R. White as soon as he could find time out of his crop to do so; the same being at a very busy season of the year.'

"After stating in the two next sections of his petition that he was at all times ready to push said negotiations and close said deal, and frequently urged defendant to go with him and inspect said land, and defendant deferred the matter, but assured him that no one else should have said agency, said petition runs thus: ``Plaintiff further alleges that the defendant, notwithstanding his promise and obligation to the plaintiff, afterwards, without the knowledge and consent of the plaintiff, and concealing his intention From the plaintiff, afterwards listed his property aforesaid with another person or firm of land agents or brokers for sale, trade, or exchange, and afterwards traded and exchanged his property aforesaid, valued at $100,000, to the said Dr. R. R. White for his aforesaid ranch in Mills county together with a large number of horses, mules, cattle, and other live stock thereon, and other personal property valued by them at $100,000 through the aforesaid firm of land agents in Ennis, Tex., utterly disregarding his obligation and contract with the plaintiff, and ignoring him in said transaction. * * * That the said deal or trade between the defendant and the said Dr. R. R. White was made on or about the 28th day of October, 1908, on terms and conditions that were acceptable and agreeable to the defendant, and that the plaintiff had reasonable assurance that he could and would have closed a like deal between the defendant and the said Dr. R. R. White, on terms equally, if not more, acceptable to the defendant, than the terms upon which he did close the same. Plaintiff further alleges that the defendant, by reason of his promise and obligation aforesaid, and by reason of the fact that the plaintiff procured a buyer for the property of the defendant, or a person with whom he could make a trade, exchange, or barter of his property, as aforesaid, and communicated that fact to the defendant, and the defendant, by reason of thereafter making such trade, barter, or exchange with the said Dr. R. R. White, became liable and promised to pay to the plaintiff the said sum of,' etc."

We are of opinion that the plaintiff's petition alleged facts showing that he found a purchaser who was able, ready, and willing to purchase the defendant's property on terms satisfactory to him; that he communicated that fact and the name of such purchaser to the defendant; and that thereafter, by reason of the services so rendered, the defendant sold his property to the purchaser referred to.

After the plaintiff had rendered that service, although his agency may not have been exclusive, the defendant could not, by ignoring him and acting in person or through another agency, sell the property to the same purchaser and defeat the plaintiff of his right to recover compensation. Hancock v. Stacy, 125 S.W. 884.

While on this branch of the case the petition is not as full and specific as it might have been, we do not think its averments are contradictory; and, in the absence of a special exception (which was not urged against it), all reasonable intendments and inferences are to be indulged in its favor; and we therefore hold that it is sufficient to authorize a recovery upon that theory.

The verdict having found that the plaintiff had an agency for the sale of the land; that he was to receive $2,000 as compensation; that he found the purchaser to whom the property was sold, notified the defendant who the purchaser was, and rendered such other services as constituted him the procuring and efficient cause of the sale, and would have rendered all other necessary services, if defendant had given him an opportunity to do so — we conclude that the judgment should be reversed and rendered for appellant against appellee for $2,000, with interest thereon at the rate of 6 per cent. per annum from the 1st day of January, 1909, and it is so ordered.

Reversed and rendered.