E. R. D.C. Kolp v. Brazer , 1913 Tex. App. LEXIS 1033 ( 1913 )

HUFF, C, J.

On October 25, 1913, we rendered a decision in this ease, reversing and remanding it. Appellee has filed a motion for rehearing and called to our attention errors that we are now persuaded we committed in our- former opinion, in applying the law to the facts of the case; we therefore grant the motion for rehearing and file this opinion as our conclusion ■ of the law governing the ease. We may be permitted to state, partly in justification of our former opinion, that appellee did not brief the case, and we considered the case alone from the brief of appellants and the examination of the record and authorities which we were able to mate at the time.

Wm. P. Brazer, appellee, sued E. R. & D. O. Kolp, the appellants, in the county court of Tarrant county, for $104 for brokerage commission, for the sale of 202 cars of bran, at $2 per car, alleged to have been sold by appellee for the account of appellants during the months of June and July, 1910.

We overrule the propositions presented under the first, second, and third assignments of error, which assail the action of the court in overruling appellant’s special charge to the jury, directing peremptorily a verdict for appellants. The contract in this case was executed by correspondence between Louis J. Jones, the agent and manager for appellants at their St. Louis office, and the appellee. In pursuance to such contract, appellee contracted to sell 202 car loads of the feedstuff handled by appellants, and for which, under the contract, he was to receive $2 per car. Appellants assert.as a proposition that the burden was on the plaintiff, appellee herein, to prove that Jones was appellants’ agent and acting within the scope of his authority, and that the letters in'question should be established as the writing of appellants and appellee. It appears from bills of exception that the signatures to the letters from appellants were typewritten and the letters from appellee were carbon copies. Appellants filed a plea of non est factum in the usual form. We think the jury had ample evidence to justify them in finding that Jones was acting for appellants and had the authority to do so, and that he was acting within the scope of his authority. The appellee testified he wrote the original letters of the carbon copies and sent them by due course of mail to appellants at their office in St. Louis, and that he got the replies thereto by due course of mail. Jones testified he wrote such letters for appellants, acting for them as their agent and manager, giving the substance thereof; and, further, that he turned over the books and correspondence to the appellants. He also testifies that he sent to appellants a copy of such letters when received. The trial court appends as a qualification to the bill of exceptions the following: “Notice was given by plaintiff to defendants, to produce the original letters. Defendant E. R. Kolp testified that Louis 3: Jones had authority to write the letter signed E. R. & D. O. Kolp, and authority to make the brokerage arrangements to pay the $2 a car and to pay for all telegrams as recited in the correspondence.” E. R. Kolp excused himself from searching through his letters and papers, for the correspondence in question, on the ground that the mass and bulk of the papers were so great that it would take considerable time to find them, etc. The court submitted to the jury the question of Jones’ authority and the question as to whether the contract was so entered into. We think there is sufficient evidence to sustain the findings of the jury on that point. Feagan v. Barton-Park Mfg. Co., 42 Tex. Civ. App. 373, 93 S. W. 1076.

The fourth assignment, to the effect that there was error in permitting appellee to read in evidence the carbon copies of letters because not the best evidence, will be overruled. We think from the above statement of the facts it will be seen appellee used sufficient diligence to obtain the originals, and, upon his failure to do so, had the right to resort to secondary evidence, and that there was no abuse of discretion on the part of the trial court in permitting the carbon copies to be read in evidence. McDonald v. Hanks, 52 Tex. Civ. App. 140, 113 S. W. 604. The execution of the letters and copies was established, if not by direct testimony, circumstantial.

The fifth and sixth assignments are overruled. Jones was permitted to testify that he sent letters of confirmation of sales to the purchaser upon the receipt of telegrams from appellee that he had made sales to them. All papers, correspondence, etc., in connection with the St. Louis office, were turned over to appellants by Jones, and they were given proper notice to produce them upon the trial. He also sent a carbon copy of each letter for confirmation, one to appellants and one to appellees. The carbon copies sent to appellees were introduced in evidence, over the objection of appellants, to the effect that such letters were not the best evidence. The confirmations of the sales as made by appellants were in effect acceptances of the contracts as made and of the proposed purchasers. The carbon copies were acts and declarations of appellants through their agent and manager, and were therefore admissible as such, and would bind them. We do not think it was necessary in this case to obtain the original letters to prove that appellants had accepted the purchasers of the contracts as made. When they notified appellee and the sales so made by him were confirmed, we think that the declaration and acts, in so far as appellee was concerned, were original testimony.

The seventh assignment is overruled. The statement of the witness that appellee sold certain parties is not, as we understand the connection in which it is used, a mere opinion of the witness. The objection to the answers of the witness that it is not responsive to the question must be taken by exception on that ground before announcement for trial. There is no exception to the answer because not responsive, shown to have been made before announcement of ready for trial. This exception appears to have been made during the trial. However, we think the answer responsive.

It is insisted under the eighth assignment that appellee should prove that the purchasers were ready, willing, and able to buy under the terms proposed. This rule does not apply where the principal accepts the purchaser and the contract is consummated. Where the appellants wrote letters confirming the sale to the purchasers and also to the appellee, the broker, we think it would be held that he had earned his commission. He furnished ,a purchaser acceptable to appellants, and nothing further was required of him. Watkins Land Mortgage Co. v. Thetford, 43 Tex. Civ. App. 536, 96 S. W. 72; Albritton v. Bank, 38 Tex. Civ. App. 616, 86 S. W. 646; Conkling v. Krakauer, 70 Tex. 735, 11 S. W. 117; Roche v. Smith, 176 Mass. 595, 58 N. E. 152, 51 L. R. A. 510, 79 Am. St. Rep. 345.

The testimony is sufficient to support the finding of the jury that appellee sold the number of cars of bran to the proposed purchasers named in the exhibit to the petition, for the price and on the terms named, and that he immediately reported the sales as made to appellant’s St. Louis office, and that appellants, through their agent and manager, Jones, confirmed such sales by letters to the proposed purchasers, and also by letter to appellee, and that appellants, as principal, received a copy of such confirmation. The evidence also shows that appellee made out in accordance with the contract a full report of the sales as made and duly transmitted the same in regular course of mail to appellants. This evidence, at least, made a prima facie case. If appellee did not make the contract of sale with the proposed purchasers, the burden shifted on appellants to show it We do not believe it incumbent on appellee to prove by each of the purchasers that he had made the contract with them. He swears that he did make it, and when that fact is not rebutted by appellants, except by the general statement that they knew nothing of it, we think the jury entitled to find such sales were made from the facts so proven — at least the verdict has testimony supporting it. If the contracts were made, as contended, and as established by the verdict, appellants could have enforced specific performance or could have recovered damages for the breach of same. When such is the case, the broker has earned his commission, and a sale is effected in so far as he can do so. The delivery and other details were for the appellants., Moss & Raley v. Wren, 102 Tex. 567, 113 S. W. 739, 120 S. W. 847. We therefore overrule the eighth and ninth assignments of error.

All other assignments are overruled.

We think there was sufficient evidence to support the finding of the jury that Jones was the agent and manager of appellants in employing appellee and in confirming the' sales made by appellee, and that he was acting at the time within the scope of his authority. Having concluded that we were in error in our former opinion, we grant the appellee’s motion for rehearing and also overrule appellants’ motion to reverse and render.

The judgment of the lower court is affirmed.