Graves v. Baines

• Decision Date: 24 June 1890
• Citation: Graves v. Baines, 14 S.W. 256, 78 Tex. 92 (Tex. 1890)
• Court: Texas Supreme Court
• Parties: GRAVES <I>et al.</I> v. BAINES <I>et al.</I>

14 S.W. 256

GRAVES et al. v. BAINES et al.

Supreme Court of Texas.

June 24, 1890.

Commissioners' decision. Appeal from district court, Hamilton county.

J. A. Eidson, for appellant.

COLLARD, J.

Graves engaged the services of Baines, one of a firm of land-agents styled "Baines & Woodward," to sell the Haley place. About this there is no controversy or conflict in the testimony. There is a conflict in the testimony of Baines and Graves as to the terms upon which the sale was to be made, Baines testifying that he was directed to sell for $3,500, one-half cash, and one-half on a credit of one year, Graves testifying that he directed the sale to be made for cash, and reserved the right to sell the land himself. The court gave judgment for Baines & Woodward, thus solving the conflict in so far as it affected the rights of the parties in favor of Baines. Graves and Shockley appealed from the judgment, and assign errors.

The first assignment is that the evidence fails to show that Baines was the efficient cause of the sale. It has been held that the agent must be the efficient cause of the sale to entitle him to his commissions, Moses v. Bierling, 31 N. Y. 462; Earp v. Cummins, 54 Pa. St. 394. It has been held that if the agent is the procuring cause he is entitled to compensation. Stewart v. Mather, 32 Wis. 344; Sussdorff v. Schmidt, 55 N. Y. 319. In the latter case cited it is said that "if the purchaser is found by the broker's efforts, and through his instrumentality, he is entitled to compensation although the owner negotiates the sale himself. Nor is it indispensable that the purchaser should be introduced to the owner by the broker, nor that the broker should be personally acquainted with the purchaser, but in such cases it must appear that the purchaser was induced to apply to the owner through the means employed by the broker." And again: "If he [the broker] was the producing cause of this sale his right to compensation would not be affected by the circumstances that the defendants were ignorant of it at the time." In Stewart v. Mather, 32 Wis. 349, the rule is thus stated: "Where the price or terms of the sale are fixed by the seller, in accordance with which the broker undertakes to produce a purchaser, yet, if upon procurement of the broker a purchaser comes, with whom the seller negotiates, and thereupon voluntarily reduces the price of the thing to be sold, or the quantity, or otherwise changes the terms of sale as proposed to the broker, so that the sale is consummated on terms or conditions offered, which the party proposing to buy is ready and agrees to accept, then, in either such case the broker will be entitled to his commissions." See, also, Newhall v. Pierce, 115 Mass. 457. If the agent be authorized to make the sale, and a purchaser is procured by him, it is of no consequence that the owner did not know the fact, and made the sale himself. Lloyd v. Matthews, 51 N. Y. 124. After Baines was authorized by Graves to sell the place he went with Mings, the purchaser, and showed the place to him, and told him the terms upon which he could buy, one-half cash, and the other half in one year. Mings, the purchaser, agreed to the terms, provided he could get Graves to allow him an account of $200, held by Mings against Graves, as part payment of the purchase price. Baines did not know of Shockley's interest in the land. Mings then went from Gatesville, his residence, to Hamilton to see Graves, when the trade was closed, the latter agreeing to allow the account; that is, it was closed subject to the approval of Shockley, who was a part owner of the property....