Brackenridge v. Claridge

• Decision Date: 20 October 1897
• Citation: 42 S.W. 1005
• Parties: BRACKENRIDGE v. CLARIDGE et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

42 S.W. 1005

BRACKENRIDGE v. CLARIDGE et al.¹

Court of Civil Appeals of Texas.

October 20, 1897.

Appeal from district court, Bexar county; J. L. Camp, Judge.

Action by Claridge & Payne against George W. Brackenridge to recover a brokerage commission. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Franklin & Cobbs, for appellant. Clamp & Harris, Dan Lewis, and J. I. Terrell, for appellees.

FLY, J.

This suit was instituted by appellees to recover of appellant a commission alleged to be due for services rendered in securing purchasers for lands. The cause was tried with a jury, and resulted in a verdict and judgment for appellees in the sum of $3,263.50. The facts show that appellant contracted with appellees that, if they would procure a purchaser for certain lands at the minimum price of $3.50 per acre, he would pay them 5 per cent. commission. Appellees were real-estate brokers, and, in pursuance of the contract made with appellant, procured parties who were ready, willing, and able to purchase the land at the price of $3.75 per acre, and brought them to appellant. The proposed purchasers were acceptable to appellant, and he made a contract with them, by which they agreed to pay $1,000 cash and $9,000 in 30 days if they found the title to the lands perfect. The title was upon an investigation found to be imperfect, and for that reason alone the sale was not consummated.

The trial court did not err in overruling appellant's general demurrer to the petition. It is a familiar rule that on general demurrer every reasonable intendment will be indulged in favor of the pleading to which exception is made. The petition presents a case of a broker who had been employed to procure a purchaser for certain lands at a certain minimum price, and who presented to his principal parties who were willing and able to buy the land. The principal was satisfied with the intending purchasers, and actually contracted with them to execute a deed within 30 days if the parties were satisfied with his title. The title was found to be defective, and for that reason the trade was not consummated. There was no agreement between the broker and his principal as to the title, but it was his duty to make a perfect title, and the failure to do so would not deprive appellees of the right to recover their commissions. It is a well-settled rule of law that the agent has earned and is entitled to his compensation whenever he procures a purchaser acceptable to the principal, and ready, able, and willing to buy on the terms given the agent by the principal, although the sale be not finally consummated, if the consummation is prevented through the fault or refusal of the principal, or through defects in his title. Cheatham v. Yarbrough (Tenn. Sup.) 15 S. W. 1076, and cases therein cited; Stange v. Gosse (Mich.) 67 N. W. 1108.

The second assignment of error is not well taken. The allegation as to the absence of appellant would doubtless have been stricken out on special exception, and no point was made on his absence in the testimony, and the court did not in the charge present any issue involving the absence of appellant from San Antonio; and we are of the opinion that no damage accrued to appellant by refusal to give the requested charge.

The fourth assignment of error is without merit. The fact that Claridge may have promised to pay Disney a part of the commission in case he found a purchaser did not make Disney a partner of Claridge, and the former was not a necessary party. There was no assignment of a part of the contract to Disney, but Claridge merely offered to pay him a part of the commission if he procured a purchaser. There was no privity of contract between Disney and appellant, and he was not a necessary party. There was no plea in abatement or demurrer raising the question of nonjoinder of parties, and, if it be said that appellant did not know of the nonjoinder until the evidence was introduced, it can be answered that he should have asked then that Disney be made a party. The matter was raised for the first time in the motion for new trial.

The objections urged to the first paragraph of the charge have no merit. The court could assume that appellant agreed that he would pay 5 per cent. on the agreed purchase price, because there was no conflict of evidence on that point. Appellant swore to it himself. The charge objected to is as follows: "If you find from the testimony that the defendant herein employed plaintiffs to find a purchaser or purchasers for the land described in plaintiffs' petition, and you further find that said plaintiffs, or either of them, procured proposed purchasers in the persons of Bennie & Freeman, who were acceptable to the defendant, and who were ready, able, and willing to buy said land at a price and on terms entirely satisfactory to defendant, you will find for plaintiffs the sum of five per cent. on the amount of the agreed purchase price of said land." The charge is perhaps open to the criticism that it authorizes a finding for appellees regardless of whether plaintiffs brought and presented the proposed purchasers to defendant, or put the parties in communication with each other; but, if so, we do not believe that it resulted in injury to appellant, for the reason that there was no issue as to that fact, but it was uncontroverted that the seller and buyers were brought into communication, and that the purchasers were satisfactory to appellant. It was not error to authorize the jury to find for Claridge & Payne, if for no other reason, because the last contract with appellant as to commissions was made when Claridge was a partner of Payne. Certainly, if the contention of appellant that Disney should have been a party be tenable, then Payne ought to have been a party, and entitled to recover, if Claridge was. Appellant swore that he authorized appellees to negotiate a sale at a minimum sum of $3.50 per acre, and if the brokers negotiated the sale for a larger sum, which was approved by appellant, the broker was entitled to 5 per cent. commission on the price for which appellant contracted to sell, and the charge was not erroneous in so instructing the jury. Gelatt v. Ridge (Mo. Sup.) 23 S. W. 882. The cases cited by appellant are not applicable to the facts of this case.

The sixth assignment of error complains of the action of the court in refusing a new trial, and we will consider the reasons assigned except in so far as they have been already considered under other assignments. The contract was not that there should be an actual transfer of the title, or a valid contract for such transfer, but, as stated by Claridge, whose testimony must have been accepted by the jury, was to the effect that, if appellees would bring to appellant a buyer who would pay the price demanded for the land, he would pay appellees 5 per cent. commissions on the amount of the purchase money. The minimum price fixed was $3.50 per acre. If appellees, under that contract, procured men who were ready, willing, and able to contract...