Dunn v. Price

• Decision Date: 26 November 1894
• Citation: 28 S.W. 681
• Parties: DUNN v. PRICE.
• Court: Texas Supreme Court

Page 681

28 S.W. 681

DUNN v. PRICE.

Supreme Court of Texas.

November 26, 1894.

Error from court of civil appeals, Second supreme judicial district.

Action by J. F. Price against W. W. Dunn. Plaintiff had judgment, and defendant appealed to the court of civil appeals. From a judgment of that court affirming the judgment in favor of plaintiff, defendant brings error. Reversed.

The opinion of the court of civil appeals was as follows (Head, J.): "Appellee instituted this suit to recover of appellant $1,500, commissions as real-estate broker, alleged to have been earned by procuring a purchaser for the latter's property, known as the `Mansion Hotel,' in Fort Worth. As to the contract of employment, after stating his business to be that of a real-estate agent, with an office in appellant's building, appellee testified as follows: `Some time during the month of December, 1887, I met W. W. Dunn, in front of the Mansion Hotel property, on Main street, in Fort Worth. In course of the conversation with Mr. Dunn, he remarked that he wanted to sell out, and leave Fort Worth; that he would take $30,000 for the Mansion Hotel property. I asked him what that included. He said that included the Mansion Hotel property proper and the two-story business houses on Main street, then occupied by L. C. Pitt and Sam Benson, respectively, but did not include the corner, as that belonged to his son. I then asked him if he was in earnest about taking $30,000, and he replied that he was in earnest; that he meant business; and that, if I didn't think he was, to bring him a purchaser, and see how quick he would make deed. I took that he meant for me to sell the property.' He then related how he started out to find a purchaser, and succeeded in a short time, when appellant refused to make the deed. As to what occurred between the parties in reference to making the sale, appellee is corroborated almost literally by the witness Darnell, who heard the conversation. Appellant denies having authorized appellee to sell his property, and gives an account of the transaction which only goes to the extent of showing that he asserted, in appellee's presence, a willingness to sell his property for $30,000, but with no intention upon his part to place it in the hands of a broker for this purpose. Appellant does not question the correctness of the propositions of law contained in the charge, but denies the sufficiency of the evidence to authorize the court to submit to the jury the question of employment at all. In other words, the effect of his contention is that the court, under the evidence introduced, should have taken the case from the jury by instructing a verdict for the defendant. We do not so regard the evidence, although we, perhaps, would have been better satisfied with a different verdict. Appellant admits that he did express to appellee a willingness to take $30,000 for his property, and it is clear that at this time he knew the business of the latter was that of real-estate broker. Appellee and his witness Darnell both testify to the invitation to the former to bring a purchaser and see how quick the deed would be made. Appellee testifies that he understood from this conversation that appellant desired him to make the sale, and he acted thereon. The jury was authorized to construe the words used by the parties in connection with all the circumstances surrounding them at the time, in order to arrive at their true meaning; and for the court to have assumed as a matter of law that no contract of employment was made in this instance, we think, would have been an invasion of their province. It is not necessary that all the terms of a contract be agreed upon in express words, but much is frequently supplied by implication. As said by the present chief justice of our supreme court in Harrell v. Zimpleman, 66 Tex. 294, 17 S. W. 478, in speaking of a contract of the kind involved in this case: `He that requests another to perform services for him is understood to agree to pay a reasonable compensation for such services, if performed.' The insufficiency of the evidence to support the verdict, not having been sufficiently called to the attention of the trial court in the motion for new trial, cannot be considered by us; but we do not by this intend to intimate that the assignment presenting this question would have been sustained if properly presented. We think the charge complained of in the second assignment applicable to the evidence, and its correctness is not challenged. We also fail to find the evidence conclusive that the authority to sell, though once given, had been revoked before appellee performed the services, as contended in the third assignment. This disposes of all the assignments, and, as we have found no reversible error, the judgment of the court below will be affirmed."

W. L. Husbands and W. B. Ford, for plaintiff in error. Ross, Chapman & Ross, for defendant in error.

GAINES, C. J.

The defendant in error brought this suit against plaintiff in error to recover compensation for services rendered in procuring for the latter a purchaser of certain property under an alleged contract. There were a verdict and judgment for the defendant in error in the trial court, which judgment was affirmed in the court of civil appeals. The defendant in error, having been sworn as a witness on his own behalf, testified as follows,...