Berg v. San Antonio St. Ry. Co.

• Decision Date: 05 January 1898
• Citation: 43 S.W. 929
• Parties: BERG v. SAN ANTONIO ST. RY. CO.
• Court: Texas Court of Appeals

Page 929

43 S.W. 929

BERG v. SAN ANTONIO ST. RY. CO.

Court of Civil Appeals of Texas.

January 5, 1898.

Motion for rehearing. Overruled.

For former report, see 42 S. W. 647.

JAMES, C. J.

We are of opinion, upon a reconsideration of the case upon the motion for rehearing, that the case has been correctly disposed of. There is no uncertainty in the writing which defined appellant's right to commissions. He was to receive a compensation for making a sale of the bonds, to be paid out of the proceeds of the sale, as the proceeds were received. Appellee's contention is substantially this: That it was a condition to the payment of his compensation that the sale should be consummated, and proceeds of sale received; and that if, for any cause, not the willful or fraudulent act of the appellee, the sale was not effected, or the purchase money not paid, appellant was not to be compensated. That the contract might have been worded to have this effect, cannot be doubted. Pryor v. Jolly (Tex. Sup.) 40 S. W. 959; Flower v. Davidson (Minn.) 46 N. W. 308; Peet v. Sherwood (Minn.) 45 N. W. 859. Had the sale been made on deferred payments, the payments would clearly have been a condition to defendant's liability to pay appellant under this writing. The cases cited by appellee (Pryor v. Jolly [Tex. Sup.] 40 S. W. 959; Tombs v. Alexander, 101 Mass. 255; Walker v. Tirrell, Id. 257) are not authority for its position. In Hinds v. Henry, 36 N. J. Law, 328, also cited, the cloud on the title which broke off the contract to sell was known to the agent when he received his power of attorney, and the opinion in that case states that the evidence showed that the defendant made no fraudulent concealment of the defect in his title, and that the plaintiff acted with full knowledge that his efforts might prove abortive by the defendant's inability to convey as was stipulated. It is well settled that when a broker, at the time he contracts, or at the time he performs the work for which he asks compensation, knows of the matter which ultimately defeats his efforts, be is not entitled to recover. But when he does not know, the rule is that he has the right to assume, and his principal impliedly warrants, that the title to the property he deals with is free from infirmity. Gauthier v. West (Minn.) 47 N. W. 656; Loan Co. v. Thompson (Ala.) 5 South. 473; Sweeney v. Gas Co. (Pa. Sup.) 18 Atl. 612; Phelps v. Prusch (Cal.) 23 Pac. 1111; Peet v. Sherwood, supra. In the case of Gauthier v. West it is stated that, if the broker agrees to wait for his commission until the sale is fully completed, there is an implied contract that the defendant had the ability and could confer upon the purchaser a perfect title to the property. We think this is sound. And we are unable to see any difference in this respect between cases where the owner agrees to pay the agent generally, and where there is a stipulation that he is to receive his pay when the sale is completed, or out of the proceeds when they are received. In the latter cases, it is true, the agent would have to await the completion of the sale, or the receipt of the proceeds after the sale. So far his compensation would be conditional. In cases where he is to be paid upon the completion of the sale, the authorities are that the broker is nevertheless entitled to compensation if the sale was not completed because of the owner's inability to give a good title. This being the case, how can it be said that a stipulation that he was to await the payment of the purchase money, or be paid out of the purchase money when received, relieves the owner from the implied warranty that he has a good title, when the sale is defeated, and thereby the fund out of which the agent was to be paid is...