Davidson v. Wills

• Decision Date: 06 June 1906
• Citation: 96 S.W. 634
• Parties: DAVIDSON v. WILLS.
• Court: Texas Court of Appeals

Page 634

96 S.W. 634

DAVIDSON v. WILLS.

Court of Civil Appeals of Texas.

June 6, 1906.

On Rehearing, June 28, 1906.

Appeal from Nacogdoches County Court; Robert Berger, Judge.

Action by J. E. Wills against John P. Davidson. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Ingraham, Middlebrook & Hodges, for appellant. J. M. Wagstaff and Blount & Garrison, for appellee.

JAMES, C. J.

Plaintiff's petition and trial amendment stated a case against appellant substantially as follows: That Davidson placed with plaintiff, Wills, a real estate broker, a stock of goods of about $20,000 in value, listing same at the sum of $20,000, for the purpose of sale or exchange, and that, in pursuance of said agreement, plaintiff found a purchaser in the person of J. W. Davis, and that plaintiff having so found a purchaser for said stock, by calling the attention of said Davis to the proposition of said Davidson to sell or exchange and the character, value, and location of same, caused the said Davidson and Davis to come together, and, as a result thereof and subsequent negotiations between them, Davidson succeeded in making a sale of said property, and that the trade was closed about January 1, 1903, whereby said Davidson became liable to pay plaintiff for his services 5 per cent. on the amount of said goods so sold to said Davis. Defendant demurred to plaintiff's pleadings, because there was no allegation of the time when plaintiff caused Davis and defendant to come together, and because of the allegation as to the time when they finally consummated a trade. The point intended by these demurrers is that defendant became liable to plaintiff, if at all, when he brought the parties together, regardless of the time the trade was consummated. This matter will be considered in connection with the plea of limitations. Defendant interposed also a general denial.

Appellant assigns as error that the court erred in not rendering judgment for defendant under his plea of two years' limitation; his proposition being that "when a broker furnishes a purchaser, who is ready, willing, and able to buy, his commissions are then earned, although his principal may refuse to make the trade." This is the idea involved in the demurrers above referred to; the fact being that the parties were introduced about December 12, 1902, and this action was not brought until December 22, 1904. Of course there was no error committed, if, under the facts of this case, plaintiff did not become entitled to compensation for his services unless the parties arrived at an agreement. Plaintiff did not claim there was an agreement that he would be paid for merely bringing together Mr. Davidson and a person who contemplated or proposed trading, nor was there any such proof. He alleged that the stock of goods was placed with him for the purpose of effecting a sale or exchange thereof, and such was the proof. How can it be claimed that when he found Davis, who was ready, able, and willing to exchange certain real property he had for the stock of goods, and presented him to Davidson that he had performed the services contemplated, when Davidson undoubtedly had the right to be satisfied with the land offered, its value, and the title thereof? It is very clear to our minds that Davidson, if acting in good faith with reference to plaintiff, had a right to reject the proposition, and, in order to determine whether he would accept or reject it, was entitled to time for a proper consideration of it. It was shown by the evidence, and such must have been the court's finding, that it led to an exchange, but that the minds of Davis and Davidson did not meet on the subject until January, less than two years before the action was commenced; and, in our opinion, it was not until then that plaintiff's right to compensation accrued. The rule on this subject deduced from the cases is expressed in Clark & Skyles on Agency, § 771, as follows: But "in all cases, under all the varying forms of expression, the fundamental and correct doctrine is that the duty assumed by the broker is to bring the minds of the buyer and seller to an agreement...