McDonald v. Cabiness

• Decision Date: 05 December 1906
• Citation: 98 S.W. 943
• Parties: McDONALD v. CABINESS.
• Court: Texas Court of Appeals

Page 943

98 S.W. 943

McDONALD v. CABINESS.

Court of Civil Appeals of Texas.

December 5, 1906.

On Rehearing, January 9, 1907.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by F. M. Cabiness against Arch McDonald and another. From a judgment in favor of plaintiff against defendant Arch McDonald, he appeals. Affirmed.

Joe H. Eagle and O. T. Webb, for appellant. Andrews, Ball & Streetman, for appellee.

JAMES, C. J.

Cabiness sued R. McDonald and Arch McDonald for and recovered $2,500 against Arch McDonald as compensation for services in reference to a sale of the timber on the Walker county school land. No recovery was allowed against R. McDonald. The petition alleged: That on or about March 15, 1902, plaintiff, a real estate agent, entered into a contract with R. McDonald and Arch McDonald, whereby, in consideration of the finding of a purchaser for and bringing about the sale of the timber on about 13,284 acres of Walker county school lands belonging to defendants, plaintiff would be allowed such sum over $3.25 per acre as might be paid for said lands by any purchaser secured by plaintiff. That prior to the making of said contract he had informed A. W. Miller that said lands were on the market and discussed with him the matter. That at the instance of Miller plaintiff came to Houston, Miller furnishing the expenses, to ascertain from the defendants the price and terms upon which the timber could be secured, and upon plaintiff's arrival in Houston, he secured from "them and each of them" the price, terms and conditions upon which they were willing to sell said timber, and plaintiff thereupon informed Miller that they would sell the timber upon said lands at the price of $4 per acre, estimated onefourth in cash and the balance in one, two, three, and four years. That Miller advised him that he and the Darlington-Miller Lumber Company had the matter under consideration and would reach a conclusion and advise plaintiff of same in a few days. That about that time, defendants and "each of them" and said Miller conspired for the purpose of defrauding plaintiff out of his justly earned commission for having brought them together. That, in order to bring about a transfer of said timber in fraud and in violation of plaintiff's right, the defendant R. McDonald transferred the said timber to his son Arch McDonald for a consideration of $3.25 an acre and that Arch McDonald thereupon transferred the said timber to one I. W. Bowden an employé of the Darlington-Miller Lumber Company, the said Bowden being financially irresponsible, for a consideration of $50,000, which was at the rate of $3.75 an acre. That the transfer was for a fraud upon plaintiff, and, if not made for the purpose of defeating plaintiff's right to the compensation agreed to be paid by defendants, then it was for some purpose unknown to plaintiff, but that it was not effectual to deprive him of the right to compensation according to said contract, or the reasonable value of the services. That said transfer, while ostensibly made to Bowden, was in reality for the benefit of the Darlington-Miller Lumber Company of which Miller was president and a large stockholder. That said Miller and his associates in the Darlington-Miller Lumber Company organized or were interested in another corporation known as the "Peach River Lumber Company" having practically the same management and being under the control and direction of the same individuals and stockholders, and thereafter caused said Bowden to convey said timber to the Peach River Lumber Company, and that defendants received from the sale of said timber the sum of $50,000; and that said sale of said timber was procured and brought about by and through the efforts and agency of plaintiff, and that plaintiff was the procuring cause of said sale. That by reason of the premises plaintiff is entitled to recover of and from defendants $6,927, with interest, in accordance with the said contract to pay to plaintiff all sums of money received by defendants, "or either of them," in excess of $3.25 per acre, or in any event plaintiff is entitled to have and receive from them "and each of them" for his services so rendered in procuring a purchaser for said timber, reasonable compensation for his services, which plaintiff alleged to be the sum of $6,927, with interest from the date of the sale at 6 per cent. per annum.

Under appellant's first assignment of error, we are presented with three propositions as follows: (1) The testimony fails to show any relationship of principal and agent between defendants jointly on one part and plaintiff on the other. Judgment should, therefore, have been for both defendants. This proceeds upon the theory that the petition alleged a contract with the two defendants, and that the testimony showed the contract to have been with one defendant, Arch McDonald, alone. This is not in accord with our construction of the petition. The allegation was that defendants and each of them gave plaintiff the price and terms. This seems to us to charge that it was the contract of each of them, and authorized a recovery upon proof that either one of defendants contracted. (2) That all the testimony clearly shows that plaintiff, if agent for any person in making the sale, was the agent of Miller. We find that the testimony did not show such to be the fact, and that it supports the court's finding in this particular. (3) That, if plaintiff was the agent of defendants, or either of them, and was entitled to compensation, the undisputed testimony shows that 2½ per cent. of the sale was the reasonable value of his services and not 5 per cent. as allowed by the court. This we find is not the undisputed evidence, and, in this connection, we find that the evidence was sufficient to warrant the court in awarding 5 per cent.

The second assignment we copy: "The court erred in rendering the judgment and decree in this cause in the manner and form as it now exists, because the undisputed testimony of both the plaintiff and the defendant A. McDonald and all witnesses shows that, at the time of the contract alleged by plaintiff to have been made, or testified to by plaintiff to have existed, between the plaintiff and either of the defendants, the 13,284 acres of land, known as the `Walker County School Land,' belonged to the defendant R. McDonald, and it is not shown by either pleadings or any proof that the defendant Arch McDonald was the agent for R. McDonald, or had any right to bind R. McDonald; and further, that no allegation or proof was made by the plaintiff that he had any contractual relationship with the defendant A. McDonald, after the time of the acquisition of said 13,284 acres of timber by Arch McDonald from R. McDonald; and further, that the testimony is undisputed that a valuable consideration, free of taint or fraud and made and paid in good faith by Arch McDonald to R. McDonald, induced the said R. McDonald to sell said 13,284 acres of timber to the defendant A. McDonald; and the undisputed testimony shows that the reason such transaction between R. McDonald and Arch McDonald was made was because the said R. McDonald was offering to sell said property at a smaller figure than a total of $50,000, whereupon Arch McDonald conceived probable profits in acquiring it for less than $50,000 and selling it at $50,000." The court found the fact to be "that, about May 16th, approximately the time Miller came up to see McDonald and made the deal, McDonald (meaning Arch McDonald), according to his evidence, bought the Walker county school lands from his father by verbal contract though the deed was not made until later." Arch McDonald testified: "It belonged to me, I had no deed to it, but it belonged to me. In view of this there is nothing in the first proposition under this assignment." Not only did Arch McDonald have at the time an understanding with his father for a conveyance, but about two weeks later he received the deed from his father in pursuance of that understanding and further, if, as the court found Arch McDonald as owner made the contract with plaintiff to sell the property which the evidence amply supports, it mattered not that he did not actually own the land. He dealt with plaintiff as the owner, and authorized plaintiff to sell it for a price net to him, and, if plaintiff rendered the service, he would not be allowed to defeat plaintiff's claim for the services upon the ground that he did not, at the particular time, own it as he pretended. Especially is this so when it was shown that he practically controlled it at the time, and actually owned it when he sold it. In reference to matters referred to in the second proposition under the second assignment, it was not indispensable that, when Arch McDonald made the sale, he should have known that plaintiff had procured Miller and his associates as purchasers. This matter will be referred to again further on.

The third proposition under the same assignment is that there was no fraud or collusion relative to the sale at the time between R. McDonald and Arch McDonald. The findings of the court in this regard were, we think, not sustained by testimony, as also another finding, the sixteenth, that all the parties, buyers and sellers were conspiring together to defeat plaintiff's claim. These conclusions, however, were immaterial, and not necessary to support the judgment rendered.

The third assignment relates to the eighth conclusion of fact and this, also, was an immaterial finding.

The fourth complains of the ninth conclusion of fact which stated: "That on May 10th plaintiff wrote appellant a letter saying he was still working on the sale of...