Dickinson v. Sanders, 1059.

• Decision Date: 14 May 1931
• Docket Number: No. 1059.,1059.
• Parties: DICKINSON v. SANDERS.
• Court: Texas Court of Appeals

Page 102

39 S.W.2d 102

DICKINSON v. SANDERS.

No. 1059.

Court of Civil Appeals of Texas. Waco.

May 14, 1931.

Appeal from District Court, Limestone County; H. F. Kirby, Judge.

Suit by W. L. Sanders against Mrs. Pearl Dickinson. From a judgment for plaintiff, defendant appeals.

Affirmed.

Mr. & Mrs. C. S. Bradley and J. E. & B. L. Bradley, all of Groesbeck, for appellant.

L. W. Shepperd, of Groesbeck, for appellee.

ALEXANDER, J.

This suit was brought by W. L. Sanders against Mrs. Pearl Dickinson to recover a broker's commission alleged to be due plaintiff by the defendant for bringing about an exchange of defendant's property, consisting of some brick buildings in Coolidge, for certain land belonging to R. E. Perry. The plaintiff alleged an express contract for a commission of 2½ per cent. for bringing about an exchange of said property, and, in the alternative, sued in quantum merit for the reasonable value of his services. The case was submitted to a jury on special issues, and, on the answers of the jury thereto, the court entered judgment for the plaintiff for the sum of $750. The defendant appeals.

The jury found that the appellant knew that the appellee was engaged in the real estate business; that appellant employed appellee to find a trade for the property in question and agreed to pay him a commission of 2½ per cent. of the trade value of the property; that appellee was the procuring cause of the trade by which the property was traded to R. E. Perry; that appellant accepted the services of the appellee in bringing about the trade, with full knowledge of the fact that appellee was engaged in the business of effecting sales and trades of real estate for a commission, and that the usual and customary commission for such services was 2½ per cent.

At the close of the testimony appellant requested an instructed verdict in her behalf, and here contends that the evidence was insufficient to show either that there was a contract of employment between appellee and appellant or that appellee was the procuring cause of the trade. The appellee testified that he had a conversation with the appellant in the Post Office building at Coolidge about June, 1930, with reference to finding a trade for her property. In this connection, he testified: "I asked Mrs. Dickinson if she would pay a commission, and she asked me how the commission went through trades. I told her the customary commission would be 5% for cash, and 2½ in trade, and she said go ahead and trade that stuff off." Later on, after the parties had been brought together and were about to complete the trade, appellee had another conversation with appellant, and he testified with reference thereto, as follows: "* * * Then Mr. Martin and Mr. Miller went around to look at the buildings and I just got into the car with Mrs. Dickinson, and Mrs. Dickinson asked me: `What are you going to get out of this'. and I said: `I am going to get a customary commission', and then we discussed again about the five per cent and the two and one half per cent." There was other corroborating testimony not necessary to here mention. This evidence was sufficient to raise a question for the jury as to whether the appellant employed appellee and agreed to pay him a commission for bringing about a trade for her property.

With reference to whether appellee was the procuring cause of the sale, it appears that a Mr. Miller and a Mr. Martin of Hillsboro were representing Perry in the sale or exchange of his land. The appellee immediately after his conversation with the appellant in the Post Office building got in touch with Miller and had him and Martin come to Coolidge for the purpose of inspecting the appellant's property. The appellee arranged a meeting between the appellant and Martin and Miller at the hotel in Coolidge and took the appellant to the hotel for that purpose. Martin first offered to trade another tract of land known as the Poindexter land, but finding that this involved too much money, that trade was abandoned. Martin then suggested trading the Perry land. The appellee took part in the interview and discussed with all parties the trade for the Perry land. It was then agreed by all parties that the negotiations might thereafter be carried on by Martin directly with the appellant in the event the appellee was not available to participate in the discussions. After several weeks of negotiations, the trade was finally consummated. The testimony of the appellee to the above facts was corroborated by other witnesses. It is appellant's contention that, although appellee brought the parties together for the purpose of bringing about an exchange of appellant's land, since Martin was the first party to suggest an exchange for the Perry tract, Martin's act in suggesting the particular trade, and not the acts of the appellee in bringing the parties together, was the procuring cause of the trade. It is true that Martin first suggested the trade for the Perry land, but it was through the efforts of the appellee that the parties were brought together for the purpose of making the trade. We think the evidence was ample to support the findings of the jury that appellee was the procuring cause of the sale. Keener v. Cleveland (Tex. Com. App.) 250 S. W. 151; Cruz v. Perkins (Tex. Civ. App.) 21 S.W.(2d) 1078. There being evidence in the record reasonably tending to support the verdict, this court is bound thereby. Crawford v. Beaver-Electra Refining Co. (Tex. Civ. App.) 273 S. W. 892; Trimmier v. Carlton, 116 Tex. 572, 296 S. W. 1070, par. 18.

The appellant next complains of the action of the court in defining "procuring cause." The court defined this term as follows: "By the term `procuring cause' as herein used is meant that cause which is a natural and continued sequence, unbroken by an independent intervening cause, producing the event without which it would not have occurred." We do not think there was any error in this charge. Keener v. Cleveland (Tex. Com. App.) 250 S. W. 151, par. 1; Cruz v. Perkins (Tex. Civ. App.) 21 S.W.(2d) 1078 (writ ref.).

The appellant objected to the following charge by the court: "When a real estate broker is instrumental in bringing together the seller and a purchaser who is acceptable to the seller and they consummate a sale and purchase of property on terms that are satisfactory to the seller, the agent is the procuring cause of the sale." Appellant's objection to this charge is not made clear by the brief. She...