Patrick v. Smith

CourtSupreme Court of Texas
Writing for the CourtGaines
Citation38 S.W. 17
Decision Date10 December 1896
38 S.W. 17
Supreme Court of Texas.
December 10, 1896.

Error to court of civil appeals of Fourth supreme judicial district.

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: "In this case, is there any probability of your selling the land, or of us getting the interest? We are preparing to sell the land in October." Again, on August 29, 1890, the defendant wrote to plaintiff: "We are making preparations to sell this land in October, and expect to have our notices out in a few days. I think we had better go ahead and sell. At the same time we will pay you liberally for any sale which you may make satisfactory to us, both as to price and terms of payment. We think you are right to ask that you have a contract, and we will be obliged if you will draft such a contract as you require, and send it to us for consideration. If, at any time before the trustee's sale, sales can be made by which Summers can carry the land, we will be glad of it, and will postpone our sale; but in that case your contract will probably be with Summers, and not with us, though you may require of us an agreement as to furnishing releases, should you effect sales for Summers." This, evidently, contemplates

Page 18

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: "Yours of some days ago, concerning the Summers matter, was received, and, in reply will say that I think it is best that you sell the land as soon as possible; then I think that the land can be cut and sold. At this time I have opportunities to sell about 1,304 of the land,—1,204 acres at $15.00 per acre, and 100 acres, all in the woods, at $12.00 per acre. This morning I received a notice from a party in La. who might take the whole tract, with the exception of small portion, which I could sell to other parties, and get some cash payment on all sales, unless it would be the unimproved land, and the parties who would purchase the unimproved land, and go to work as soon as the trade could be affected; but what is done ought to be done at once, so it would give purchaser ample time to make crops the coming year. I will want a commission of 5%, and will want the handling of all the lands, and think that I can make sales and cut the land, so that there will not be any hard stock left on hand. I do not know what kind of a contract that would suit you; so I would prefer that you draw the contract, and would want the contract allow me the handling of all the lands, with a commission of 5 cash commission. All sales to be submitted for your approval, you obligating yourself to accept all sales where they appeared to be for the interest of the company. * * *" September 6, 1890, in response to the above, the defendant, evidently through his agent, wrote as follows: "In reply to yours of the 4th inst., we have already sent the notices of sale to the sheriff to be posted, and will sell the property in October. We think the 5% commission which you ask on any sales that you may effect is reasonable enough, and we will be willing to pay it. In regard to allowing anybody else to sell the land but yourself, we think that idea should be considerably modified. We might agree for a certain length of time that you should have the exclusive right to make sales, and that on all sales effected during that time you should be allowed a commission; we, of course, agreeing to approve all sales made at a certain sum per acre, and on which a certain cash payment had been made, or that if the purchaser places the land in cultivation, or a portion of it, that we will agree to make deeds. I do not think that there will be any question between us on these matters; but as Mr. Smith is conversant with the land, and the writer knows little or nothing about it, we have thought it well to forward your letter to him in New York, before concluding the contract with you; and, on hearing from him, we will be able to make definite terms with you. We are also asking him if he can attend the sale, and, if so, he will probably make the contract with you in person." On September 10, 1890, the defendant wrote as follows: "Mr. Drought has forwarded me your letter of 4th. I see nothing unbusinesslike in your proposal; but as I leave here to-morrow, and as Mr. Drought will be away from S. A. for two or three weeks, you will please write me anything further at Indianapolis, Indiana, corner of Tennessee & 3rd streets, where I will be the end of this week, and can prepare the contract. I will go south about 1st of October. * * * We must see, of course, that the land brings Pr. & Int., taxes and all expenses."

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: "We hand you by this post a supply of circulars describing the Summers land. Please get them well circulated. We hope to hear from you by to-morrow regarding sales you had on hand." 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...

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