Shelton v. Cain

• Decision Date: 05 April 1911
• Citation: 136 S.W. 1155
• Parties: SHELTON v. CAIN.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

Page 1155

136 S.W. 1155

SHELTON v. CAIN.^†

Court of Civil Appeals of Texas.

April 5, 1911.

Rehearing Denied May 10, 1911.

Appeal from District Court, Mills County; John W. Goodwin, Judge.

Action by R. N. Shelton against G. T. Cain. From a judgment for defendant, plaintiff appeals. Reversed and rendered.

This is an action by R. N. Shelton against G. T. Cain, wherein the plaintiff sought to recover $2,000, alleged to be owing him by the defendant as compensation for services rendered by the plaintiff as a real estate broker. The pleadings presented the special issues which were submitted by the court to the jury, which issues and answers thereto made by the jury were as follows:

"No. 1. Did the defendant, Cain, authorize the plaintiff, Shelton, to exchange, trade, or barter the land in evidence in Navarro county, and the stock and farm machinery referred to in plaintiff's petition, for other lands and property, on such terms as might be satisfactory to the defendant? Answer: Yes. Jesse Lowe, Foreman.

"No. 2. Did the defendant, if he agreed to let plaintiff exchange, trade, or barter the property referred to in question No. 1, agree that the plaintiff should have the sole and exclusive right to exchange, trade, or barter such property? Answer: No. Jesse Lowe, Foreman.

"No. 3. If the defendant gave plaintiff the exclusive agency to barter, trade, or exchange his property for other land and property, was such agency, if any, general, or did it relate solely to an exchange or trade for the White ranch and property? Answer: Defendant did not give plaintiff exclusive authority of any kind or for any purpose. Jesse Lowe, Foreman.

"No. 4. Did the defendant authorize Harper, Eubanks & King to exchange, barter, or trade the land and property described in plaintiff's petition for other land and property? Answer: Yes. Jesse Lowe, Foreman.

"No. 5. Did the defendant authorize Harper, Eubanks & King to exchange, barter, or trade the land and property described and referred to in plaintiff's petition for the R. R. White ranch and property in Mills county? Answer: Yes. Jesse Lowe, Foreman.

"No. 6. Did plaintiff inform defendant of the R. R. White ranch and property in Mills county, Tex., and that White wished to exchange it for other land and property? Answer: Yes. Jesse Lowe, Foreman.

"No. 7. Did plaintiff inform R. R. White of defendant's land and property, and that he wished to exchange it for ranch lands further west? Answer: Yes. Jesse Lowe, Foreman.

"No. 8. Did Harper, Eubanks & King inform defendant of the White ranch and property, and of the desire of White to exchange it for other land and property? Answer: No. Jesse Lowe, Foreman.

"No. 9. Did Harper, Eubanks & King inform R. R. White of defendant's land and property, and that defendant desired to exchange his land and property for ranch property? Answer: Yes. Jesse Lowe, Foreman.

"No. 10. Who first notified defendant of the White property and his desire to exchange it, plaintiff or Harper, Eubanks & King? Answer: Plaintiff. Jesse Lowe, Foreman.

"No. 11. Who first notified White of the land and property of defendant, and his desire to exchange it for ranch land, plaintiff or Harper, Eubanks & King? Answer: Plaintiff. Jesse Lowe, Foreman.

"No. 12. Did plaintiff promise and agree to go with defendant to see the White ranch? Answer: Yes. Jesse Lowe, Foreman.

"No. 13. Why did not plaintiff go with defendant to see the White ranch? Answer: Did not have an opportunity. Jesse Lowe, Foreman.

"No. 14. Was the defendant led to go and see the White ranch and to exchange his land and property for the White ranch and property by reason of the information given him by plaintiff concerning said White ranch, or was he led to go to see the White ranch, and to exchange his land and property for same, by reason of the information given him by Harper, Eubanks & King, or either of them? Answer: Defendant was led to go and see the White ranch and property, and to exchange his land and property for the White ranch and property, by reason of the information given him by plaintiff. Jesse Lowe, Foreman.

"No. 15. Did defendant request plaintiff to go with him to Mills county to see the White ranch? Answer: No. Jesse Lowe, Foreman.

"No. 16. Did plaintiff state to defendant that he would not go with him to Mills county to see the White ranch because it was useless; that White would not trade for all of defendant's land? Answer: No. Jesse Lowe, Foreman.

"No. 17. Did defendant tell plaintiff, in substance and effect, that Harper, Eubanks & King had fooled him off to Mills county to look at the land, but for him (plaintiff) to keep quiet and do nothing, and that he (defendant) would see that he (plaintiff) got his commission? Answer: Yes. Jesse Lowe, Foreman.

"No. 18. What, if anything, did defendant agree to pay plaintiff if he effected an exchange of his land and property for him? If he promised to pay anything, has he done it? Answer: $2,000. No. Jesse Lowe, Foreman.

"No. 19. Did defendant exchange his land and property for the White ranch and stock in Mills county, Tex., in July or August, 1908? Answer: Yes. Jesse Lowe, Foreman.

"No. 20. Did Harper, Eubanks & King, or either of them, go with defendant to see White's land, introduce defendant to White, and assist defendant in closing the trade with White? Answer: Yes. Jesse Lowe, Foreman.

"No. 21. Did the plaintiff, after receiving the letter introduced in evidence and purporting to have been written by R. R. White, take any further steps towards effecting an exchange of land with White? If not, why not? Answer: Yes. Jesse Lowe, Foreman.

"No. 22. Had the plaintiff a reasonable certainty of being able to effect an exchange of defendant's property for the White ranch and property on terms that would have been acceptable to the defendant? Answer: Yes. Jesse Lowe, Foreman."

Upon these findings of the jury, the trial court rendered judgment for the defendant, and the plaintiff has appealed.

R. L. H. Williams and E. B. Anderson, for appellant. John C. Darroch and Wilkinson & Lee, for appellee.

KEY, C. J. (after stating the facts as above).

Under the first assignment in appellant's brief, the contention is made that the jury found for the plaintiff on the material issues in the case, and therefore it was error to render judgment in favor of the defendant. That proposition is controverted by counsel for appellee; their contention being that appellant's entire case was founded upon the allegation in his petition that, by the terms of the contract sued on, he was given the exclusive agency for the land, and that the findings of the jury to the effect that the contract did not give him such exclusive agency broke down his case and justified the court in rendering judgment against him. That contention would be correct, if the petition sought a recovery solely upon the theory of an exclusive agency and a breach of the contract by appellee, which prevented plaintiff from in any wise performing his part of the contract. But if, by the terms of the contract, appellant became appellee's agent, although such agency may not have been exclusive, still if appellant was the procuring or efficient cause of the sale of appellee's property, he was entitled to recover. Counsel for appellee concede the correctness of that proposition of law, but contend that appellant did not allege in his petition that he rendered such services as constituted the procuring or efficient cause of the trade. As to the averments of the petition in that respect, we quote as follows from appellee's brief:

"Plaintiff's pleading, setting up his contract with defendant, alleges that `defendant herein employed him to act as his agent or broker, to sell, exchange, trade, or barter certain real estate and personal property owned by defendant and situated in Navarro and Ellis counties (describing same), * * * and to find some person or persons to whom defendant could sell his said property, or with whom the defendant could effect a trade or exchange of his said property, or any part thereof, for the property owned by such person or persons desired by the defendant, and on such terms and conditions as might be satisfactory and acceptable to the defendant, or to put the defendant in communication with any such person, or persons, and in any way possible assist the defendant in negotiating a trade and effecting and consummating a deal, wherein the defendant would be enabled to barter, trade, or exchange his property to such other person or persons for ranch property and live stock in some portion of what was termed by him West Texas, suitable for stock raising and farming, and being the kind and nature of property desired by the defendant, and to be such property as would suit the defendant and be...