Patrick v. Smith
Citation | 38 S.W. 17 |
Parties | PATRICK v. SMITH. |
Decision Date | 10 December 1896 |
Court | Supreme Court of Texas |
Action by W. A. Patrick against Francis Smith. A judgment for plaintiff was reversed on appeal to the court of civil appeals, and judgment there rendered for defendant (36 S. W. 762), from which plaintiff brings error. Reversed, and cause remanded for new trial.
F. M. Boyles and Martin & Eddins, for plaintiff in error. H. P. Drought, for defendant in error.
This suit was brought by plaintiff in error to recover of defendant in error and H. P. Drought, as partners, under the name of Francis Smith & Co., commissions for negotiating a sale of certain parcels of land under an alleged contract between the parties. Drought pleaded that he was not a partner, and was let out of the case. It appears that Smith, in transacting the business in question, used the partnership name given above. The plaintiff obtained a judgment in the trial court, but upon appeal the court of civil appeals reversed that judgment, and rendered a judgment for the defendant.
The evidence adduced upon the trial shows the following facts:
The defendant Smith had a deed in trust, with a power of sale, upon a large body of lands in Falls county, to secure a debt owed him by the mortgagors. The debt had matured, and defendant was proposing a sale of the lands under the power granted in the deed in trust. The plaintiff, who is an attorney at law, having been employed by the mortgagor to negotiate an adjustment of the debt and security so as to save them a homestead of 200 acres of the lands, called to see the defendant about the matter. Their conference led to a protracted correspondence by letter, in which the terms of a contract were agreed upon in all the particulars save one, but which, in so far as it expressly refers to the proposals upon either part, fails to show a definite agreement. On August 8, 1890, the defendant, under the name of Francis Smith & Co., wrote to the plaintiff the following: Again, on August 29, 1890, the defendant wrote to plaintiff: This, evidently, contemplates an employment by defendant of the plaintiff to make contracts of sale of the lands, the execution of which was to be contingent upon the defendant becoming the owner at the foreclosure sale. To this letter, on September 4, 1890, the plaintiff replied: * * *"September 6, 1890, in response to the above, the defendant, evidently through his agent, wrote as follows: On September 10, 1890, the defendant wrote as follows:
It is clear that up to this point there was no mutual assent to all the terms of the proposed agreement. But the correspondence evinces that both parties were willing to agree upon a contract, and that they were ready to concur as to its terms, except as to one or possibly two minor points. But the correspondence with reference to the contract having dropped at this stage, on September 25, 1890, defendant wrote plaintiff as follows: Again, on the 29th of the same month: "Please let us know by return mail if you have succeeded in effecting trades for the Summers land, whereby you have secured written offers from your clients, and oblige." Again, on October 3, 1890: Again, on October 4, 1890: Again, October 6, 1890: ...
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