Leake v. Scaief

• Decision Date: 11 November 1911
• Citation: 140 S.W. 814
• Parties: LEAKE v. SCAIEF.
• Court: Texas Court of Appeals

140 S.W. 814

LEAKE v. SCAIEF.

Court of Civil Appeals of Texas. Dallas.

November 11, 1911.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Action by A. C. Scaief against W. E. Leake. From a judgment for plaintiff, defendant appeals. Affirmed.

Meador, Davis & Senter, for appellant. Wood & Wood, for appellee.

TALBOT, J.

Scaief brought this suit against Leake to recover $1,000. It is alleged in plaintiff's amended original petition, in substance, among other things: That the defendant during the latter part of the year 1909 was the owner of 1,036 acres of land in Haskell county, Tex., and that one B. M. Gentry or J. J. Stine & Bro., owned 500 acres of land situated in Dallas county, Tex., known as the "B. M. Gentry farm." That plaintiff was a real estate broker, and that he, the plaintiff, on or about the 4th day of December, 1909, met the said Gentry on a train near Stamford, Tex., and was informed by said Gentry, as he, plaintiff, understood him, that he, Gentry, was the owner of about 500 acres of land situated in Dallas county, and that he desired to exchange it for western lands. That plaintiff, then knowing that the defendant, W. E. Leake, owned 1,036 acres of land in Haskell county, and that he desired to exchange it for lands in Dallas county, represented to Gentry that he, Gentry, might exchange with defendant. That plaintiff took a description of the said Gentry's land, situated in Dallas county, and on the next day communicated with defendant, Leake, and informed him that there was an opportunity to exchange his land for 500 acres in Dallas county. That defendant was favorably impressed with the proposition, and agreed with plaintiff that, if such exchange could be made, he would pay plaintiff 2½ per cent. commission on the value of the 500 acres, should plaintiff bring about such exchange, and requested plaintiff to get in communication with the owner of said Dallas county lands, to the end that they, defendant and Gentry, might meet each other and see each other's lands, with a view to an exchange. That later it turned out that Gentry was not the owner of the 500 acres in Dallas county at that time, but had sold it to J. J. Stine & Bro. That the plaintiff got in communication with certain agents of Stine & Bro., to wit, J. F. West and W. P. White, of Dallas, and finally through them brought said J. J. Stine & Bro. and defendant together, and they made the exchange; that is, said J. J. Stine & Bro. exchanged the 500 acres, known as the Gentry land in Dallas county, for the 1,036 acres belonging to defendant situated in Haskell county. That this exchange was made about the 30th day of December, 1909. That defendant was aware all the time that the plaintiff was trying to effect the exchange through White and West, and urged its completion. Plaintiff claimed that the 500 acres of land defendant secured in the exchange was of the value of $40,000, and that he was entitled to 2½ per cent. commission on that amount. The defendant answered by general denial; and, among other things, specially answered that the plaintiff, Scaief, was seeking a recovery against B. M. Gentry for $1,000, commission alleged to be due on account of the sale or exchange of the 500 acres of land to W. E. Leake, the appellant herein; that said alleged contract with the said Gentry covered the same subject-matter as is covered by the said suit of A. C. Scaief against W. E. Leake; that the contract as alleged between A. C. Scaief and B. M. Gentry was made without the knowledge, consent, or authority of the said W. E. Leake; and that thereby the said A. C. Scaief was acting as agent, and receiving commissions, as claimed by him, from both the seller and purchaser of the same tract of land; and that therefore recovery should be denied. The case was tried before a jury, and verdict and judgment rendered in favor of the plaintiff for $984.30, and the defendant appealed.

There are but two assignments of error. The first is to the effect that the trial court erred in refusing to give a peremptory instruction, directing the jury to return a verdict in favor of the defendant. It is contended that the court erred in refusing this charge, because it appears from the evidence that the plaintiff had a contract with Gentry for 2½ per cent. commission for bringing about the exchange or sale of his 500 acres of land in Dallas county, Tex., at the time he, the said A. C. Scaief, made his alleged contract with the defendant, W. E. Leake, for the purchase of said same 500 acres of land, it appearing that the agency of A. C. Scaief for both the owner and seller of said 500 acres of land was unknown to the defendant, W. E. Leake, and for the further reason that the allegations of the plaintiff's petition and the testimony introduced in support thereof do not correspond. The second assignment is: "The trial court erred in refusing the defendant's special instruction No. 3, as follows: `If you find and believe from the evidence that the plaintiff, A. C. Scaief, had a contract with the defendant, W. E. Leake, if any, for 2½ per cent. commission without reference to the sale or exchange of the 500 acres of land, known as the Gentry farm, or without reference to any amount or value, you will find for the defendant, W. E. Leake,' for the reason that the plaintiff's pleadings were that the contract was that he should receive 2½ per cent. commission on and for the purchase of said 500 acres of land, whereas the testimony was that the contract was 2½ per cent. on the deal, the allegations of the petition and the testimony introduced thereunder not corresponding." Our conclusion is that both of these assignments should be overruled. The evidence shows that B. M. Gentry did not own the land situated in Dallas county, known as the Gentry farm, at the time the contract claimed by appellant to have been made by him with appellee was entered into; and, besides, we have very grave doubts of the sufficiency of the evidence to support a finding that the appellee had a contract with B. M. Gentry to the effect that Gentry was to pay him a commission of 2½ per cent., or any other sum, in the event he brought...