Thornton v. Stevenson

• Decision Date: 27 March 1895
• Citation: 31 S.W. 232
• Parties: THORNTON v. STEVENSON.
• Court: Texas Court of Appeals

31 S.W. 232

THORNTON v. STEVENSON.

Court of Civil Appeals of Texas.

March 27, 1895.

Appeal from district court, Bexar county; George H. Noonan, Judge.

Action by Frank W. Stevenson against James S. Thornton for commissions on a sale or exchange of land. From a judgment for plaintiff, defendant appeals. Reversed.

H. P. Drought, for appellant. Leo Tarleton and Geo. C. Altgelt, for appellee.

FLY, J.

The appeal in this case is prosecuted from a judgment for $1,000, which is based upon allegations that appellee was a real-estate agent, and that appellant agreed to pay him the sum for which the judgment was rendered for consummating an exchange of property between appellant and Sidney B. Wood. The case was tried by a jury. In the third paragraph of the charge the court instructed the jury: "You will inquire from the evidence whether defendant Thornton employed plaintiff to make a sale or exchange of property for him and one Sidney B. Wood on the terms set out in plaintiff's petition, and if plaintiff did on those terms make a sale or exchange of said property with said Wood, or that the efforts of plaintiff were the procuring cause of such sale or exchange. If, therefore, you believe from the evidence that a sale or exchange of property was made on the terms alleged by plaintiff, you will find a verdict in favor of the plaintiff." Appellant claims that this clause is erroneous, because it does not instruct the jury that they should not find for appellee unless they found that appellant employed appellee to make the sale or exchange on the terms alleged by plaintiff. This assignment is hypercritical, and without merit. The same is true of the second and third assignments of error. The special charges to which exceptions are urged could not have been productive of injury to appellant when taken in connection with other portions of the charge. The contract between the parties to this cause was shown to have been that appellant would give appellee $1,000 if he procured a trade with Sidney B. Wood by which property which appellant owned on South Flores street, in the city of San Antonio, valued at $40,000, would be given for property owned by Wood on South Alamo street, valued at $25,000, Wood to pay the difference in value in cash. That appellee was authorized by appellant to make the exchange of the property on the terms mentioned is not denied. Neither is it controverted that he was actively engaged in endeavoring to bring about the trade as desired by appellant, or that he obtained the consent of Wood to trade in the manner desired by appellant. The trade was consummated in all respects as indicated by appellant, except as to the manner of payment. "A broker has earned his commission when he procures a party with whom his principal is satisfied, and who actually contracts for the property at a price satisfactory to the owner." Whart. Ag. § 328; McGavock v. Woodlief, 20 How. 221. If the efforts of appellee caused appellant and Wood to come together, and their minds to meet on the subject of the trade of the property, and appellant voluntarily changed the terms of payment so as to allow time for the payment of the $15,000, the difference in the value of the property, and so as to lend Wood $20,000, and on these terms consummated an exchange of the property, appellee would be entitled to the commission that appellant agreed to pay him. Whart. Ag. § 329. In the case of Stewart v. Mather, 32 Wis. 344, it is said: "Where the price or other terms of sale are fixed by the seller, in accordance with which the broker undertakes to produce a purchaser, yet if, upon procurement of the broker, a purchaser comes with whom the seller negotiates, and thereupon voluntarily reduces the price of the thing to be sold, or the quantity, or otherwise changes the terms of sale as proposed to the broker, so a sale is consummated, or terms or conditions offered which the party proposing to buy is ready and agrees to accept, then and in either such case the broker will be entitled to his commissions at the rate specified in his agreement with his principal." In the case of Levy v. Coogan (Com. Pl. N. Y.) 9 N. Y. Supp. 534, the court says: "It is not essential, to entitle a broker to his commissions, that he should have procured a purchaser upon the precise terms named by the principal at the time of the employment. If, through the instrumentality of the broker, the buyer and seller meet, and negotiations are thus opened between them, which, continuing without withdrawal of either party therefrom, culminate in a sale, though for a sum less than that originally demanded, and upon terms deviating from those first fixed by the principal, there can be no equitable ground in support of the claim that the broker has not been the procuring cause of the sale, and has not, for that reason, earned the commission. The principal possesses an undoubted right to adhere to the price and terms originally fixed; but, if he deviates therefrom, and consents to a modification thereof, and thereupon concludes a sale with the person procured by the broker, he * * * is liable for the commissions." In Potvin v. Curran, 14 N. W....