"Findings of Fact.
"(1) That on June 12, 1906, plaintiff, W. S. Roberts, L. A. Wells, and S. V. Gist, jointly purchased of James Free, John Free, and Stanley Free surveys 102, 134, and the east one-half of survey 158, in block 2, A. B. & M., lands in Potter county, Tex., paying therefor the sum of $8,120 cash, and assumed the payment of six outstanding vendor's lien notes, aggregating about $14,280, against said lands, which notes were held by one R. L. Chanslor. The said Roberts was to have an undivided one-half interest in said lands, and the said Wells and Gist were to each have an undivided one-fourth interest therein, and, as among themselves, they were to be held liable on the assumed notes in proportion to their respective interests in the lands.
"(2) That said lands were purchased by said parties for the purpose of speculation; that the same were to be resold, and the parties were to share in the expenses, profits, and losses in the handling the property, in proportion to their respective interests in the lands. And after they became the owners thereof they agreed among themselves and fixed prices for which each tract or part of tract should be sold, etc., and each party was to seek purchasers, and a 5 per cent. commission was to be allowed to any one of them finding a purchaser. But the land or any part of it should not be sold for a less price than that agreed upon, except by consent of all the interested parties.
"(3) On June 22, 1906, L. A. Wells sold and conveyed his undivided one-fourth interest in said lands to the defendant G. J. Nunn for the consideration of $2,000 cash and the assumption on his part of the outstanding vendor's lien notes held by said Chanslor against the land. This sale and conveyance was made without Wells or Nunn consulting Roberts and Gist, and no new express agreement, as to the handling and sale of these lands, was entered into by Roberts, Gist, and Nunn, after Nunn became the owner of Wells' interest. But, soon after Nunn bought out Wells, he (Nunn) and Roberts together discussed the said agreement between Roberts, Gist, and Wells, and he made no objection to it, and the subsequent sales were afterwards made substantially at prices and terms agreed upon between Roberts, Gist, and Wells.
"(4) Before any part of these lands were sold, one of the Chanslor notes matured and was paid off by Roberts, Gist, and Nunn; each contributing such part thereof as his interest in the land represented.
"(5) On January 4, 1907, plaintiff W. S. Roberts with the assistance of other outside parties, procured a purchaser for section 102, in the person of A. C. Neff, for a cash consideration of $11,840. From this sum some minor expenses were paid; $640 was paid as commissions to W. S. Roberts and those assisting him in making the deal, enough was paid on the Chanslor notes to procure from him a release of his vendor's lien on said section, and the remaining sum was divided between Roberts, Gist, and Nunn, proportionately to their respective interests in the land. Conveyance was duly executed by Roberts, Gist, and Nunn to A. C. Nelf for said survey 102, and the transaction closed. Roberts made the deal with Neff, received and disbursed the cash received, and rendered statement of same to Gist and Nunn, and they made no objection to the same.
"(6) On February 20, 1907, Roberts and Gist sold and conveyed their undivided three-fourths interest in section 134 to defendant G. J. Nunn, for the consideration of and at the rate of $19 per acre, for their 480-acre interest in the survey, making the aggregate price the sum of $9,120, thereby placing the entire title to the section in defendant Nunn. Included in said $9,120 was the assumption by Nunn of three-fourths ($4,575) of the sum of $6,100 owing to Chanslor by the vendor's lien notes held by him against said section, for the payment of which $6,100 lien, Roberts, Gist, and Nunn were all jointly liable, but, as between themselves, Roberts was liable for $3,050 thereof, Gist for $1,525, and Nunn for $1,525. Nunn was only able to pay Roberts and Gist, at that time, the sum of $1,515 cash on the trade, and therefore not able to then liquidate the $6,100 owing on the Chanslor lien. Roberts and Gist were desirous of being relieved of their liability on the Chanslor notes for said $6,100 lien, and to consummate the trade, and at the same time accommodate Roberts and Gist, Nunn paid them $1,515 cash on the trade, and executed two notes for $1,515 each, payable February 24, 1909 and 1910, respectively, and one note for $3,060 payable February 24, 1911, all signed by G. J. Nunn and payable to the order of W. S. Roberts and S. V. Gist, and Nunn also executed a deed of trust on the section to secure payment of said several notes, and in this trust deed gave priority of payment to the said two notes of $1,520 each, and said note for $3,060. These last-mentioned notes, aggregating $6,100, were transferred, by Roberts and Gist, over to R. L. Chanslor, in order to release the land of his lien and to relieve Roberts and Gist of their liability on the Chanslor notes against said section of land. The said several notes executed by Nunn to Roberts and Gist included the $1,525, for which Nunn was already liable to Chanslor, as his part of the $6,100 lien, held by Chanslor against the survey; and, after the Chanslor lien was so taken up, Nunn became the sole and only obligor for the lien covered by his said notes and deed of trust. Roberts and Gist divided the cash and the two first notes of $1,515 each between themselves, and that closed up the sale of their interest in the survey to Nunn.
"(7) On February 25, 1907, Roberts, Gist, and Nunn sold and conveyed to J. T. and M. R. Clark the southwest one-fourth of the southeast quarter of section 158, being 40 acres, for the consideration of $1,000, a part of which was paid in cash and the balance in vendor's lien notes on the tract sold. Roberts procured this trade. For the deferred payments the Clarks executed their vendor's lien notes, one of which notes was made payable to the order of W. S. Roberts in a sum equal to one-half of
the deferred payment, and the remaining half of the deferred payments was divided equally and the notes executed therefor, payable to Gist and Nunn, respectively. Roberts received the cash and notes given for his 40 acres, and after deducting the amount of an expense bill, made by him in accomplishing the sale, and his commissions for making it, Roberts reserved to himself one half of the balance of the cash received and the note made payable to him, and the remaining half of the cash he divided equally, paying one part to Gist and the other to Nunn, and also delivered to them their respective notes for deferred payments, and the entire deal was closed satisfactorily to all parties concerned.
"(8) On the 9th day of July, 1907, Roberts, Gist, and Nunn sold 80 acres, being the north one-half of the southeast quarter of section 158, to R. M. Sooter, for the sum of $2,000, a part of which was paid in cash and the balance in vendor's lien notes, payable separately to Roberts, Gist, and Nunn, in proportion to their respective interests in the land. Roberts procured this purchaser, and the consideration was delivered to him. Out of the cash received on this sale, Roberts paid enough on the Chanslor notes to secure a release of that lien on the tract sold, settled the expenses incurred in making the sale, reserved to himself his commissions, and divided the cash and notes between himself and Gist and Nunn in the same manner as was done in the sale of the 40 acres to the Clarks, and thus closed the entire deal satisfactorily to all the parties concerned.
"(9) On the 10th day of September, 1907, Roberts, Gist, and Nunn sold and conveyed to Nunn and Boetcher 40 acres, same being the southeast one-fourth of the southeast quarter of said section 158, for the consideration of $1,600, a part of which was paid in cash and the balance in vendor's lien notes, payable separately to Roberts, Gist, and Nunn, in proportion to their respective interests in the land. Roberts procured these purchasers, and the consideration...
