author: HUPP, C. J.

text:
    CITY OF SEYMOUR v. MONTGOMERY et al.
    (No. 1485.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 22, 1919.
    Rehearing Denied Feb. 19, 1919.)
    1. Courts <®=>99(1) — Law of the Case — Re-STBAINING OBDER.
    In a suit for a permanent mandatory injunction to abate a nuisance, an order entered in Vacation, denying a temporary injunction, is not res judicata on final hearing; Rev. St. art. 1714, empowering the court, in vacation by consent of parties to enter final judgment, being inapplicable, as actions of this kind are controlled by the injunction statutes.
    2. Injunction <®==>115 — “Appearance”—Answer — Issue of Citation.
    Where, in injunction suit, defendant filed an answer to the 'entire petition, in obedience to a notice of the court, both parties thereafter appearing before the judge in chambers, who heard the evidence and refused the temporary writ, such answer constituted an “appearance,” under Rev. St. art. 1882, rendering unnecessary the issuance of a citation, as required by article 4662, where not dispensed with by article 4652.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Appearance.]
    3. Continuance ®=j26(3) — Diligence — Abuse of Discretion.
    In an application'for continuance to obtain testimony of certain witnesses, no abuse of discretion by the court was shown in denying same, as to one witness, as to whom no statutory diligence was shown.
    4. Continuance <S==>47 — Absence of Material Witnesses — Counter Affidavits.
    In a suit to abate a nuisance, it was error for the court to deny a continuance to obtain the testimony of certain witnesses, where the witnesses were material, statutory diligence was shown, and there was no controverting affidavit as to the diligence used.
    5. Continuance <§»51(5) — Second Application-Postponement of Trial.
    An application for continuance for absent witness cannot be treated as a second application merely because it was first presented on the day the case was called for trial, and again on the date to which the case has been reset, where such postponement of the trial was not based on the application.
    Appeal from District Court, Baylor County; J. H. Milam, Judge.
    Suit by W. V. Montgomeijy and others against the City of Seymour. Prom a decree granting injunction, defendant appeals.
    Reversed and remanded.
    J. A. Wheat and Dickson, Kenan & Newton, all of Seymour, for appellant.
    Bert King, of Wichita Palls, and J. W. Boynton, of Anson, for appellees.
   HUPP, C. J.

W. Y. Montgomery and some 16 other resident citizens of Baylor county, Tex., as plaintiffs, brought this action against the city of Seymour, in which they allege that they were owners of certain designated and described property, and that the city of Seymour had established on block 8, in an addition to said city, a sewerage disposal plant, in which petition for an injunction they allege that the disposal plant was a nuisance, and seek to abate the same as a nuisance, alleging that it polluted Seymour creek, which runs through the lands of the plaintiffs, and also created and emitted offensive odors, creating mosquitoes and flies, and endangering the health of plaintiffs and that of their families, and destroying their homes situated near the plant, praying as follows:

“Wherefore plaintiff prays the court that said nuisance be abated; that a preliminary writ of injunction issue immediately from this court, restraining the defendant, its officers, servants, and employes, from further operating the sewer in the manner above set forth, from further use of said receptacle to receive the contents of said sewer, from in any manner dumping and discharging the matter and substance carried by said sewer, so that the same may pollute and poison the waters of said Seymour creek, from permitting the noxious vapors, effluvia, and fumes and noisome smells to arise and escape and permeate the air that will be diffused over the premises of plaintiffs, and from allowing refuse matter, filth, and offal to accumulate, so as to provide a breeding ground for flies and mosquitoes, on the grounds of defendants above mentioned, and that the order of the court shall completely abate said nuisance; that upon trial hereof said injunction be by the court made in all things perpetual, for costs, and for such other and further relief, general and special, either in law or equity, as to the court it may be shown the plaintiffs are entitled, as plaintiffs will ever pray,” etc.

This petition appears to have been filed on the 11th day of April, 1918. The -district judge, Hon. J. H. Milam, after receiving the plaintiff’s original petition, which appears to have been presented to him, notified the defendant city thereof, and that he would hear the same in chambers at the courthouse in Seymour on the 19th day of April, 1918, and the defendant agreed to appear at said time. On the 19th day of April, A. D., 1918, the d&-fendant filed1 its original answer to the ap-pellees’ said petition with the said district judge, in which it pleaded,'in addition to general demurrer and special exceptions, as follows : (

“If required to answer said petition of plaintiff, comes now the defendant and, without waiving- its general and special exceptions, but insisting on the same, and says that it denies each and every Allegation in said petition contained' and demands strict proof of the same and of this, it puts itself upon the country. Wherefore defendant prays that the relief asked for in plain tiff’s petition be- denied and the court decree that plaintiff take nothing by their said suit. That defendant recover of plaintiff its costs, and for-such other and further relief in law and equity as it may be entitled to, for which it will ever pray. Comes now the defendant, by its attorney and denies under oath the allegations of -plaintiff’s original petition, wherein they set out facts and conclusions that defendant’s sewerage is operated so as to constitute a nuisance-. Signed and sworn to by J. A. Wheat, on the 18th day of April, 1918.”

On the issues joined in said pleadings the-district judge, on the 19th day of April, 1918, proceeded with the hearing of the evidence in said cause at length and thereafter rendered' ■ and entered the following judgment:

“In chambers, at Seymour, Texas, April 22,. 1918. Now, on this day, came on to be heard-the above entitled and numbered cause, upon plaintiff’s application for a writ of temporary injunction; plaintiffs appearing in person and-' tho defendant, the city of Seymour, appearing by counsel, and its mayor and aldermen. Whereupon the court, having heard the pleadings, the evidence, and the argument of counsel, is of the-opinion that the law and facts are against the plaintiff, and it is therefore ordered, adjudged, and decreed by the court that the plaintiff’s said application for temporary writ of injunction be-denied, and that the costs of this hearing be taxed against the plaintiffs, and their bondsmen for costs, for which let execution issue.”'

After entering of the above judgment by the judge, he filed his findings of fact and conclusions of law at the request of the plaintiffs’ counsel in the above cause. The-effect of his findings is that about August, 1918, the city established a sewerage disposal plant; that it was properly- constructed by the latest engineering science and methods, having in view that there would be 300- or more connections, and thereafter began the use of same in connection with the sewer system; that some complaints began to be made on or about March, 1918, by W. Y. Montgomery and others, and about the latter part of March, 1918, the defendant, through its city council, requested Henry E. Elrod, its consulting engineer in the building of said plant, to come to Seymour and investigate the situation; that he came and, finding that there had been only about 150 connections, that it was necessary to reduce the capacity of the dosing chamber in said plant, and at once had put in some baffle walls, so that the automatic tripping valve would operate on time as contemplated by the original plans, but after the said improvements were made the consulting engineer wired to the civil engineer of the state board of health to come to Seymour and inspect the plant. The said civil engineer for the state board of health came and inspected the plant and found it to be properly constructed, and made certain recommendations to the city council as to the manner in which it should be kept and cared for; and the city council at once employed a man to put these instructions into effect, and to visit the plant daily, and to continue to keep the plant clean and see that it was operated properly, which had been done and was then being done. He found at the time of the hearing that a sulphuric odor emits from said sewerage plant, which is distinguished 50 or 75 feet away; that the odor was not offensive, and not injurious to health; that one of the plaintiffs, G. L. McOlusky, was the nearest resident to defendant’s sewerage disposal plant, situated about 400 feet west therefrom. He found that the waters of Seymour creek were not polluted from the flow of said sewerage disposal plant, and that the plant, as then operated, was not conducive to the breeding of flies and mosquitoes, and concluded as a matter of fact from the evidence in the case that said sewerage disposal plant of the defendant, as operated and kept, was not a nuisance. At the regular term of court, which convened in July, 1918, the ease was tried upon the pleadings as set out; but upon the call of the case at that term the city of Seymour presented to the court its plea in abatement, filed in the cause on August 1, 1918, which plea was by the court overruled. The plea presented the hearing before the district judge on the 19th day of April, the pleadings of the respective parties, and the judgment of the court thereon, with the findings of fact by the trial court as a ground of abatement, and also that there had been no citation issued to the defendant, city of Seymour, as required by the statute, and in addition to his plea he presented his motion to quash the service, stating the fact that no citation had been issued", and referring to the action on the application for temporary writ, and he also pleaded the former action of the judge by a plea of res adjudicata, not waiving his plea of abatement. He then presented his motion. The court overruled these several motions and pleas, and the city then presented its motion for continuance which was also overruled.

The first assignment is to the action of the court in overruling the plea in abatement. A proposition is presented to the effect that the suit is wholly for a mandatory injunction, presented to a chancellor;' clothed with authority fully to hear the issues and evidence, and to grant or refuse the relief sought. The case in its nature not being ancillary, subordinate, nor subject to any other decisions than those presented by the issues made in the pleadings of the parties, and the chancellor having given notice to all parties of the time and place set by him for hearing such cause, the parties appearing upon such notice, the hearing had and a judgment and decree having been entered and filed, that the same was final and binding upon all parties thereto; and by a second proposition that the court should not require the defendant to appear and answer, and further prosecute its defense in the cause at that time, for the reason that it had not been cited to do so in terms of law, as provided in such cases under article 4662, Vernon’s Sayles’ Civil Statutes.

The second assignment is based on the action of the court in overruling his motion to quash what he terms his service. The proposition is to the effect that no judgment could be rendered against the defendant, unless on service or acceptance or waiver of process, or on appearance of the. defendant as prescribed by Revised Statutes.

The third assignment is based upon the action of the court in refusing to sustain the plea of res adjudicata.

The fourth assignment of error is based on the action of the court in overruling his application for continuing to obtain the testimony of several witnesses.

The first assignment and first proposition thereunder and the third assignment, we think, should be overruled. While it is true that article 1714, R. S., provides that a district court may in vacation, by consent of parties, exercise all powers and make all orders as fully as in term time, and may, by consent of parties trying the case without a jury, enter final judgment, we do not think such article -applicable to this proceeding, or to the facts and pleadings in this case. The action will be controlled by the statutes with reference to issuing injunctions. The proceedings on their face, together with the judgment of the court, show that the hearing before the district judge was upon the prayer for a temporary restraining order, or a temporary injunction, and his judgment entered at that time only purported to decide that, the plaintiffs in the petition'for injunction were not entitled to a temporary injunction. This judgment we do not/think would abate the suit or afford the basis for a plea of res adjudieata to an action for a permanent mandatory injunction to abate the plant as a nuisance^ It is manifest, from the notice given by the judge and the order entered at the time, that the trial judge did not intend to dispose of the case finally and defeat the plaintiffs’ right to a trial at a regular term of the court upon the issues presented. We do not think the cases presented by appellant (Riggins v. Thompson, 96 Tex. 154, 71 S. W. 14, and Ex parte Zuccaro, 106 Tex. 197, 163 S. W. 579, Ann. Oas. 1917B, 121), and other authorities cited, in point on the particular issue presented.

The question presented by the plea in abatement and the motion to quash the service is more difficult. The question presented by the record is whether or not the general answer filed on the 19th of April was such an appearance on the main issues in the case as would authorize the court to find that the appellant had waived the issuance of citation, and service. Article 4662 of the Revised Statutes is as follows:

“When any writ of injunction is issued, and such writ does not pertain to a suit pending in the court, the clerk of such court shall issue a citation to the defendant as in other civil cases, which shall be served and returned in like manner as ordinary citations issued from said court. But if any injunction is issued after1 notice to the defendant, as hereinbefore provided, no citation to such defendant shall be necessary.”

Article 4652 provides that upon the grant of any writ of injunction the party to whom the same is granted shall file his petition therefor together with the order of the judge granting the same, with the clerk of the proper court, and if the writ of injunction does not pertain to a pending suit in said court, the cause shall be entered on the civil docket of the.court in its regular order in the name of the party to. whom the writ is granted as plaintiff and the opposite party as defendant. Under the injunction statutes if a petition is presented to the judge for inspection the judge may indorse on the petition his fiat granting the prayer for a temporary injunction; but if, upon application for the writ of injunction, it appears to the judge that the delay would not prove injurious to either party, he may cause notice of such application to be served upon the opposite party and fix the time and place for hearing such application. While it appears this petition had been filed with the clerk before being presented to the judge, yet it is an action alone for a mandatory writ of injunction and is connected with no other suit or cause of action, and the judge, upon its presentation, refused on ex parte hearing to grant a temporary writ, but required notice and the parties were notified and appeared before the judge in chambers, and he heard the evidence and refused the temporary writ. The appellant, in answering, denied the allegations generally of the petition, and did not restrict the purposes of his answer. It appears to be manifest, however, that he only answered in obedience to the notice of the judge to appear and show cause why the temporary writ should not be granted, and this, the record shows, was the purpose of the hearing on the 19th of April.

The question presented is: Under article 1882, was this such a filing of an answer as would constitute an appearance, so as to dispense with the necessity of the issuance and service of citation upon it? We have found no case, and none has been cited, discussing the effect of such an answer. It is clear from the reading of article 4662 that if the trial judge had issued the temporary writ, without notice to the defendant, that citation was required to be issued and served on defendants; that if, after notice, the court had granted the temporary writ, no citation would have been required. The clear implication of the statute is that, if no temporary writ after notice was granted, citation would be required, as in other civil suits. So the question remains: Was the answer filed in obedience to the notice of the court on the 19th of April such an appearance as would waive the issuance and service of citation? At the time the answer was filed, the petition was then filed in the court, and hence citation could then be issued by the clerk, whether there was a prayer for citation or not. The answer was to the entire petitiori, both for temporary and permanent injunction. If the appellant had intended to make only a qualified appearance, it ought to have limited the answer;, however, we do not undertake to hold that such limitation could have been made, as at this time that question is not necessary to determine. It was unnecessary for the court to direct that the petition be filed in the court, as that had been done, and he was then acting on the pleadings after they had been filed in the proper court. The judge could act on the prayer for temporary injunction only, in vacation, or at a time before the regular trial, and if he had granted temporary relief, as prayed for, it would have been limited to the time of the trial or until final hearing, at' which time it would have been dissolved or made permanent. Ex parte Zuccaro, 106 Tex. 197, 163 S. W. 579, Ann. Cas. 1917B, 121. The answer, we think under our statute, was an appearance, and rendered it unnecessary to issue a citation. Article 1882, R. C. S.

The fourth, fifth, and sixth assignments present error in overruling the appellant’s application for a continuance to obtain the testimony of Henry E. Elrod, A. McDaniel, Will Randall, J. T. Burns, and L.. G. Lenert. The application was filed on August 6, 1918, and the judgment shows that the case was called that day for trial. The testimony, which appellant expected to obtain from the witnesses for which application was made, is set out very fully, and is shown by the application to be material on the issues presented by the petition. There was no statutory diligence shown as to Elrod, but it is shown that he was consulting engineer in the construction of the plant, and superintended its construction; that he had testified on a hearing before the judge April 19th, and his testimony is attached to the application as taken down at the time of that hearing by the stenographer; that he had promised to be present upon the trial, but owing to demand upon him by other duties he had been unable to reach the court; and that appellant had been unable to get in touch with him, etc. Several grounds were presented as appealing to the discretion of the judge. As to this witness we cannot say the court abused his discretion, but certainly he is shown to have been a very important witness. The appellant also set up in his motion that there was uncertainty on the part of the attorneys representing both parties in the trial court as to whether or not the appellant was in court by the answer which had been filed April 19th, and that the difficulty in obtaining the witnesses, and especially Elrod, and holding him until that question could be determined, would have been very expensive to appellant, and sought to excuse in some measure their failure to-haye him there at the beginning of the court, on the grounds stated. As will be seen, we think the appellant was wrong in its conclusion that it had not made an appearance by its answer. However, this was addressed to the sound discretion of the trial court, and unless we were able to say that the court had abused that discretion we do not feel warranted in holding that he was in error.

As to the witnesses O. McDaniel, Will Randall, and J. T. Burns, as we read the application, it was statutory. These witnesses had each been subpoenaed and had testified on April 19th, and it was alleged that they were absent from the court, and it appears they did not testify in the case. Under the law, as to these witnesses, appellant was entitled to a continuance as a matter of right. We believe the diligence shown by the application was sufficient under the statute.

The trial court qualifies the bill by stating that the case was called on the 29th of July, but was reset for August 6, 1918; that the application presented at that time was but a renewal of the application on the former day. We are not disposed to treat this application as a subsequent application. As we understand the record, the case was not continued or postponed upon an application. True a few days intervened between the first presentation and- the second; but under the peculiar facts in this record we think it will be unjust to hold this a second application. It, upon its face, purports to be a first, and there was no controverting affidavit as to the diligence used, and in fact one of the witnesses subpoenaed left for Kansas City between the two dates specified by the court, as. is shown by the application, after he had been notified the day the trial was set, aAd after promising the appellants to be present for the trial. These witnesses were all material, and this record shows the testimony upon the material issues is conflicting; many witnesses having testified on either side, and most of the appellees testifying in person. We think the appellant was entitled to the testimony of these witnesses.

There is an assignment insisting that the great preponderance of the testimony is for the appellant upon the material issues in the case, and requesting this court to exercise the powers vested in it to reverse the case where the verdict is against the great preponderance of the testimony.

We shall not discuss the evidence, or examine it for the purpose of determining the weight it should have. We believe, however, justice requires a reversal on the assignments presenting the action of the court on the motion for continuance.

Reversed and remanded.
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source: Caselaw Access Project

author: HUPE, C. J.

license: Public Domain

text:
    AKERS v. MOORE.
    (No. 1469.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 12, 1919.)
    R Brokers <®=>86(1) — Right to Commission —Authority to Sell — Sufficiency of Evidence.
    In realty broker’s suit for commission for selling land, evidence held to authorize finding for plaintiff.'
    2. Brokers <§==>57(2) — Realty Broker — Sale by Owner — Right to Commission.
    Realty broker, with whom farm and grass lands were listed for sale, farm lands being later withdrawn, who procured purchaser to whom owner sold all lands on terms satisfactory to himself, though different from those limited to broker, was entitled 'to commission on-price at which land was listed.
    3. Appeal and Error <§=>1064(4) — Harmless Error — Inaccuracies in Charge.
    In realty broker’s action for commission, any verbal inapeuraeies in a chai-ge held harmless to defendant owner.
    Appeal from Donley County Court; J. H. O’Neal, Judge.
    Suit by.D. C. Moore against C. D. Akers. From judgment for plaintiff, defendant appeals.
    Affirmed.

      A. T. Cole, of Clarendon, for appellant.
    H. B. White, of Clarendon, for appellee.
   HUPE, C. J.

Moore, as a real estate broker, sued Akers for a commission earned by reason of services rendered in tbe sale of a section of land. It was alleged that tbe plaintiff was engaged in tbe real estate business, and that defendant listed witb bim for sale certain lands, among wbicb was section No. 15; that 320 acres thereof was in cultivation, and tbe other 320 acres was pasture or grazing land; that tbe list price was $35 for tbe land in cultivation and $15 per acre for grass land, and tbe defendant agreed to pay plaintiff a commission of 5 per ctent. in tbe event be procured a purchaser for said land, who might be acceptable to tbe defendant, that is, a purchaser who was able, willing, and ready to purchase at such price on terms acceptable to defendant; that if plaintiff procured a purchaser of said land acceptable, who was ready and willing and able to buy at such price and upon terms acceptable to defendant, there would be due tbe plaintiff a commission of 5 per cent.; that plaintiff was authorized to procure the assistance of other real estate men to make such sale or procure such purchaser; that plaintiff procured O. N. Shaw, who purchased the section at the price defendant had authorized the plaintiff to offer, which totaled the sum of $16,000 for the entire tract, and that defendant accepted the said Shaw as purchaser therefor; that plaintiff was the procuring cause of such sale; that he showed the purchaser the land, and interested him in the land, and brought the parties together; that thereby defendant was due for such services $800. Defendant filed a general denial. The case was submitted to the jury, who rendered a verdict in favor of the' appellee, Moore, for the sum of $800, and judgment was accordingly so entered.

The appellant asserts error upon the refusal of the trial court to instruct a verdict for him as1 requested, and also error in the charge of the court. By a proposition it is asserted that, a specific contract of listing having been alleged, appellee could not recover upon an implied contract, and further that the court erred in overruling certain exceptions made by appellant to the charge of the court, on the ground that plaintiff alleged that the land sold Shaw was listed with him for sale by Akers on an express contract and agreement to pay commission, and, having failed to allege an implied contract the facts authorizing recovery only on quantum meruit, it was error for the court to charge' the jury, if Moore was the procuring cause of the sale, etc., to find for plaintiff.

The evidence will authorize a finding that the appellant listed with appellee several sections of land, among which was the section sold to Shaw, and agreed to pay, upon the sale being made, 5 per cent, commission. upon the price of the land. The first listing was that the north one-half of the northeast section was listed at a price of $35 per acre, and the north one-half of the northwest section at a price of $25 per acre, and the south half of the two sections, and two sections lying south of them at $15 per acre. After listing the land on that day the appellant, after returning home, phoned the appellee that he had concluded to take the farm land off the market; that appellee could sell the grass land separately. Ap-pellee in further explanation stated that the farm lands could not be sold separately from the grass land; that appellant did not want to sell the farm land without selling the grass land. He stated, the way appellant listed the land, that he could not sell the south half without selling the entire section with it. “The way he listed the land with me was for me to sell each of the north halves separately, and the three sections of grass land together.” The north half of the section sold was in cultivation and had the improvements on it, and the south half was grass land. The evidence shows that the appellee learned that Shaw had sold his place and wanted to buy. He notified Shaw that he could not buy the north half of the section without buying the south half; Shaw at that time stating that he only desired the farm land. The appellee employed a Mr. Poole to show Shaw the land, which he did the next day, and after looking at the land Poole took Shaw to Memphis to see appellant, and brought appellant and Shaw together. Poole testified that he told—

“Mr. Akers, T have a purchaser for the northeast half of the section.’ He remarked that he would not sell half of the section, but would sell the whole section. I told him I had been over the land with Mr. Shaw, and that he and Shaw might talk it over. He remarked to me that he didn’t have the land listed with any one but D.. O. Moore. I remarked that I had shown the land for Mr. Moore and at Mr. Moore’s request, and had brought Mr. Shaw down to see him about buying the land and to arrange terms.”

It appears the trade was not consummated that day. Shaw had not fully determined whether he could arrange to take all the land, but later in the week the appellant sold the section to Shaw, the north half for $35 per acre, and the south half for $15 per acre. The appellant himself testified that the way he had the land listed with appellee he could only sell the three sections of grass land together and the half section farms separately.

The facts are sufficient to show that appellant, in listing the land with appellee, authorized him to employ other brokers to assist him in the sale of the land. From the facts we think the jury were authorized to find that appellee had the land for sale or to.procure a purchaser therefor, but he could only sell the grass land, or they might have found from the evidence that the entirp section, which contained farming land, could not he sold by appellee, or they could have found according to appellant, that the agent could sell the farming land separately, or was only authorized to sell the grass land. There can be but little question that this land was listed with appellee, but upon what terms he was authorized to close the sale may be doubtful from the testimony. However, it is uncontradicted that he did procure a purchaser for the land, to whom the sale was effected by. the appellant after the appellee brought them together. The sale of the quantity and the form of the tract sold may have been different from that which ap-pellee was authorized to close the sale under his listing contract, but it is not clear that this is true, for at one place the appellee testified he was authorized to sell a section of land, provided the grass and farming land thereunder were sold together. The appellant says:

“The way I had listed my land with Moore, he could only sell three sections of grass land together and the half section farms separately.”

Shaw wanted, and would have. taken at once, the half section designated as farming land, but appellant demanded that he. take all of the section. The only question with Shaw was whether he could arrange to take it all. It seems to us that appellee procured a purchaser under the very terms appellant says he listed the land, but appellant wanted him to take all the section, and so closed the trade for that amount. The rule in cases of this kind is clearly stated by the Supreme Court in the case of Goodwin v. Gunter, 185 S. W. 295, which we here quote:

“It is general doctrine that, in order for a broker to be entitled to commissions under a contract stipulating for their payment in the event of his sale of given'property upon stated terms, a purchaser must have been produced through his efforts, ready, able, and willing to buy the property upon the contract terms; otherwise, the contract is not fulfilled upon the broker’s part, and the commissions are therefore not earned. But the commissions are earned, and the broker is entitled to their payment according to the contract, if, while it is in force, he procures a purchaser to whom the owner directly makes a sale upon terms which are satisfactory to himself, though different from those limited to the broker and yielding the owner a less amount than that for which the broker was empowered to sell. This is but a -rule of fairness and right. In such case the owner receives the full benefit of the broker’s effort. Through the diligence of the broker a buyer is produced. Having interested a prospective buyer, the broker is entitled to a fair opportunity of making a sale to him upon the terms authorized. The owner, pending the broker’s negotiation, may, in disregard or repudiation of his obligation to respect the broker’s right to conclude the transaction, take the matter into his own hands, avail himself of the broker’s effort, close a sale upon satisfactory terms, and yet deny the broker’s right of compensation. It is no answer in such a case to say that a purchaser has not been produced by the broker, ready, able, and willing to buy upon the terms limited by the contract, and the owner is therefore free to deal with the buyer, though produced by the broker, without any liability to the latter. That becomes unimportant in the face of the outstanding fact that it is. by the broker the buyer is produced, and before his negotiation' is concluded a sale is made, as the result of his effort, which is presumably just as satisfactory to the owner. The owner will therefore be deemed in such a case to have waived the terms to which the broker was confined, and the law declares him liable for the commissions fixed by the contract, for ’the reason that, except as to such waived provision, the broker’s part of the contract has been fully performed. The decisions of this court dearly confirm this principle. It is recognized generally elsewhere, and nothing else could well be the law. Hancock v. Stacy, 103 Tex. 219, 125 S. W. 884; McDonald v. Cabiness, 100 Tex. 615, 102 S. W. 721; Hamburger et al. v. Thomas (Civ. App.) 118 S. W. 770; Loomis v. Broaddus (Civ. App.) 134 S. W. 743; Chilton & Cole v. Butler, 1 E. D. Smith (N. Y.) 150.”

This case has been followed in a number 'of cases since. It is now recognized that' when the owner changes the terms which he has given to the agent to those satisfactory to himself and makes a sale to a purchaser procured by the efforts of the agent, the agent is entitled to recover the per cent, agreed upon originally. Pryor v. Scott, 200 S. W. 909; Ford v. Malone, 196 S. W. 347. The jury evidently applied the above rule to this case, and we think their findings not without evidence.

The appellant asserts that the sixth paragraph of the court’s charge was error. This paragraph is not,' in our judgment, correct as framed; but when read in the light of other paragraphs of the charge, and of the evidence adduced, we believe the jury would understand therefrom, although the sale was effected upon terms which, under the listing contract, appellee could not have consummated, yet the appellant, if the purchaser was procured by appellee, would be liable for the contract price, even though the owner sold on such terms as suited him. At any rate, we think the case ought not to be reversed because of the verbal inaccuracies of the charge, if any.

The case will be affirmed.
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text:
    BUCK v. WOODSON.
    (No. 1479.)
    '(Court of Civil Appeals of Texas. Amarillo.
    Feb. 12, 1919.)
    1. Brokers <§=353 — Realty Broker — Procurement of Sale — Burden to Allege and Prove.
    Realty broker, suing for commission earned in selling land, was required to allege, and prove ■affirmatively, to establish his case, that he was procuring cause of sale.
    2. Brokers <§=88(3) — Realty Broker — Procurement of Sale — Question for Jury.
    In realty broker’s action for commission for having procured sale, whether plaintiff was procuring cause of sale held for jury.
    3. Brokers <§=82(2) — Realty Broker — Answer — Exception.
    In realty broker’s action for commission for having procured sale, defendant’s answer, facts not showing affirmatively plaintiff procured sale as made, but negativing it was so procured, alleging specifically facts in connection with charge of double agency, which constituted defense, held not subject to exception on ground it did not negative plaintiff was procuring cause -of sale.
    4. Brokers <§=56(3) — Realty Broker — Right to Commission — Sale by Owner.
    If broker, employed to sell land, finds pur-‘ ■chaser, and purchaser is induced to apply to owner through broker, owner is liable on contract with broker, when he effects sale satisfactory to himself.

      5. Brokers <§=67(2) — Realty Broker — Action for Both Parties — Commission.
    Realty broker cannot act for buyer and seller, and recover commission from both, and cannot recover from either unless he acted with full knowledge and consent of both, even though his principal, the seller, was not in fact injured, or he intended no wrong, or the other party, the buyer, acted in good faith.
    6. Brokers <§=67(1) — Realty Broker — Action for Both Parties — Right to Compensation.
    Where realty broker brought together his principal, with land for sale, and another person, for whom he was acting to effect exchange, in which event he would have received commission from both without either having knowledge of double agency, law will not give effect to illegal act by awarding him commission against principal with land for sale, simply because other principal- did not exchange lands, but sold them, and bought lands of first principal.
    7. Brokers <§=46 — Realty Broker — Right ■of Owner to Sell.
    Ordinarily an owner of land may sell, even though he has listed it with a broker.
    8. Brokers <®=67(1) — Realty Broker — Right to Commission — Action for Both Parties.
    Owner of land, whose broker to sell was acting for third person with land to exchange, in order to receive commission from each, was not required to treat third person, who bought land after selling his own, as purchaser produced by broker, but could treat broker as agent of third person, not entitled to commission from him.
    9. Trial <§=194(11) — Instruction on Weight of Evidence.
    In broker’s action for commission, instruction that if plaintiff had contract with defendant to sell land, and no contract of exchange, and if third person was procured as one who would trade for defendant’s land, and was introduced for that purpose, jury should find for defendant, held properly refused as on weight of evidence.
    Appeal from Crosby County Court; Pink E. Parish, Judge.
    ( Suit by R. Taylor Woodson against James T. Buck..v Prom judgment for plaintiff, defendant appeals.
    Reversed, and cause remanded.
    J. A. Buck, of Orosbyton, for appellant.
    J. W. Burton, of Orosbyton, for appellee.
   HUPP, C. J.

Woodson, as a real estate broker, sued Buck for a commission, alleging that he procured a purchaser for a section of land owned by Buck in the person of Geo. W. Baker, to whom Buck sold the land thereafter; that theretofore appellant listed the land with appellee for sale, agreeing, if appel-lee secured ai purchaser, and brought about a sale for such price as appellant should accept, to pay appellee a commission of 5 per cent, on the full amount of the selling price, alleging the price received on the sale of the land, and the commission earned thereby to be $603.05.

After a general denial, the appellant pleaded: (2) That he listed his land with appel-lee, to be sold for $20 per acre, or a total of $17,445, and that the listing did not authorize an exchange of land;, that Baker was not presented to appellant as a prospective purchaser of the land, but was brought by appel-lee to appellant with the statement that Baker would probably exchange other lands for appellant’s land, but nothing was said with reference to Baker’s being a prospective purchaser. (3) At the time mentioned appellee was representing Baker, and not defendant, and had Baker’s land listed for sale or exchange, and was to receive a commission from Baker in case he was successful in making the deal. (4) Appellant, a few days after the discussion to exchange the land, showed Baker the land, unassisted by appellee, who was not then in the country. (5) That about the 14th day of August, 1915, unassisted by appellee, appellant sold to Baker the land. (6) That appellant did not know that appel-lee had Baker’s land listed for sale or exchange at the time appellee brought Baker to appellant There was no knowledge on the part of either Baker or appellant that appel-lee was expecting a commission out of the other, “and said silent understanding with himself was a fraud upon defendant.’’

The appellee excepted specially to each of the paragraphs Nos. 2 to 6, inclusive — the effect of the exceptions being that the answer did not allege that the sale did not grow out of the introduction 'of the parties to exchange; that it is immaterial to plaintiff’s cause of action whether he had Baker’s land listed or not, as it nowhere alleges that ap-pellee 'took Baker’s land as part of the sale as finally made; that there was no allegation that, an exchange was consummated, and for that reason the contract between appellee and Baker is immaterial, there being no allegation that appellee had collected, or would attempt to collect, commission from Baker, and for that reason there was no fraud practiced. The trial court sustained each of the exceptions to all of the named paragraphs of the answer, and the case was tried upon appellant’s general denial. The appellant excepted to the action of the court in sustaining the exceptions and assigns error thereon.

On the trial of the case the appellant offered to prove by Baker that at the time ap-pellee carried him to see appellant, proposing an exchange of lands, that he (Baker) had his lands listed with appellee for sale or exchange, and was to pay appellee a commission in case of such sale or exchange. The bill of exception recites that Baker would have so testified. The appellant also offered to testify that at that time he had no knowledge that appellee was acting for Baker as agent in offering the exchange or to sell his land. Upon objection being made by appellee to the proffered testimony, on the ground that it was immaterial, the court sustained the objection and refused the introduction of the testimony, to which proper bills of exception were taken and assignments presented in this court.

The evidence upon the trial in part shows that Baker saw appellee’s advertisement of the land and other land, and called on him, and, after getting a description of the land, said he would take the land if appellee would take his land in exchange. It appears that appellee called on appellant about the proffered trade, but appellant stated he wanted to sell, but further said he would see about it. Appellee then took Baker to see appellant, and when the proposition of exchange was made appellant stated that he wanted to sell. Appellee was then ready to leave the country for an extended trip, and stated to the parties what .they did would be all right with him. Appellant took Baker to look at the land, and in discussing the exchange Baker priced his land double in value to that of appellant’s, if an exchange could be effected. Baker could not bay appellant’s land, unless .he could effect an exchange or sell his land. When appellant refused to exchange, he asked for time to s'ell his land, and it would appear that he was given a few days, and in the meantime, through another agent, Baker sold his land, and then bought appellant’s land, paying about $15 per acre, or about what appellant had in it; the deed reciting a cash consideration of $650 and the assumption of six notes against the land, for the principal sum-of $1,630 each, with 6 per cent, interest.

The jury in answer to the only issue submitted, fopnd that the appellee was the procuring cause of the sale made by appellant to Baker. The court rendered judgment for the amount sued for upon the findings of the jury.

We shall not notice the first and second assignments of error, and not discuss them, as they relate to the sufficiency of the testimony.

The fourth, fifth, seventh, and eighth assignments assail the action of the court in sustaining the exception to the answer and the exclusion of the testimony offered.

The appellant did not have to negative by his answer that appellee was the procuring cause of the sale. That was an affirmative fact, which appellee was required to allege and prove, to establish his case. The appellee had the right to allege any fact showing that the sale was not brought about or consummated by the appellee. It was for the jury, under all the facts, to say whether appellee was the procuring cause. The facts alleged did not show affirmatively that appel-lee procured the sale as made, but negatived that such wasi so procured. We think that such of the exceptions, which assail the answer because it-does not negative that appel-lee was the procuring cause, should have been overruled. It is probably true that all the facts so alleged were admissible under a general denial, but it was not error to allege specifically the facts which constituted the defense. Especially were these facts proper to be alleged in connection with the charge of double agency.

It is urged by appellee that the evidence is sufficient to support the finding of the jury that appellee was the procuring cause of the sale, and, that being established, the question of double agency becomes immaterial, as it was shown the exchange was not effected, or a sale of Baker’s land made, by appellee. It is true, if the broker, employed to sell land, finds the purchaser through his efforts as the agent of the owner, and the purchaser is induced to apply to the owner through the means employed by the broker, the owner is liable on his contract with the broker, when the owner effects a sale with the party so produced satisfactory to himself. The broker is entitled to his compensation, if he leaves the negotiations to the owner after so producing the purchaser. Graves v. Bains, 78 Tex. 92, 14 S. W. 256; Hodde v. Malone, 196 S. W. 347; Masters v. Hunt, 197 S. W. 219; Hancock v. Stacy, 103 Tex. 219, 125 S. W. 884; Shaw v. Faires, 165 S. W. 501; Webb y. Harding, 159 S. W. 1029; Parks v. Sullivan, 152 S. W. 704; Martin v. Jeffries, 172 S. W. 148; Akers v. Moore, 209 S. W. 241, this day handed down by us.

It is also the rule established in this state that a broker cannot act in the double capacity for both buyer and seller, and recover a commission from both. On grounds of public policy, such agent will not be allowed to recover compensation from either party, unless he acts with full knowledge and consent of both principals: it will not affect the rule if the principal was not in fact injured, or that the agent intended no wrong or that the other party acted in good faith. Armstrong v. O’Brien, 83 Tex. 635, 19 S. W. 268; Moore v. Kelley, 162 S. W. 1034; Bass v. Tolbert, 51 Tex. Civ. App. 437, 112 S. W. 1077; Braden v. Scherer, etc.; 61 Tex. Civ. App. 240, 128 S. W. 1159; Tinsley v. Penniman. 12 Tex. Civ. App. 591, 34 S. W. 365; Yoakum v. Gossett, 200 S. W. 582; Mechera on Agency, vol. 1, § 1206; 4 R. C. L. “Broker,” g 64, p. 328.

It appears to be appellee’s contention, because, as the sale was finally consummated, the appellee could not recover a commission from Baker, as his land was not exchanged for appellant’s or sold by appellee, that his contract for a commission, when he brought appellant and Baker together, becomes immaterial, and that such effort of his inducing Baker to apply to appellant would support a finding that appellee was a procuring cause. According to the allegations in the answer, when appellee brought appellant and Baker together, he'did so to effect'an exchange of land, in which event he was to recieve a commission from both, without either having knowledge of his double agency. The facts upon the trial show that he did not effect an exchange, and did not sell Baker’s land. Although he brought .the parties together to earn a double commission, it is urged nevertheless by so doing he was the procuring cause, and hence entitled to compensation in accordance with his agency contract made with appellant. The law denounces his act, an agreement- for double compensation, upon which he relies, as illegal. We do not believe the law will give effect to his illegal act, or purge it of the taint, simply because he did not effect his illegal purpose. This illegal act, being the genesis of that which made him the efficient and procuring cause of the sale, would not entitle him to compensation. Subsequent to bringing the parties together, and before he knew whether an exchange would be effected or not, he left the parties, and had nothing more to do with consummating the sale. The owner and Baker closed the trade on different terms to that upon which appellee had brought them together. In such event it seems to us. the holding in Pryor v. Jolly, 91 Tex. 86, 40 S. W. 959, would apply.

Ordinarily, the owner may sell, even though he has listed his land with the broker. Under the allegations' of the answer, good faith did not require appellant to treat Baker as a purchaser produced by appellee as his agent; but he could treat him as the agent of Baker, which in fact he was under 'the allegations of the answer. If, under sufficient evidence, a jury should find the allegation of double agency true, as alleged, judgment should be entered for appellant. We think the court was in error in sustaining each of the special exceptions, and also erred in sustaining the objections to the testimony offered.

This disposition, perhaps, renders it unnecessary to consider other assignments; but we will notice the third, which asserts error in refusing to give a requested charge to the effect that, if appellee had a contract with appellant to sell the land and no contract to exchange, and if Baker was procured as one who would trade his land for appellant’s, and was introduced to appellant for the purpose of exchanging land, then the jury should answer the issue submitted in the negative. The issue presented by the pleadings, after sustaining the exceptions, only left the issue of whether appellee was the procuring cause of the sale which was effected between appellant and Baker. While the evidence shows Baker sought an exchange, it yet indicates he desired to purchase the land, provided he could sell. He asked time for sale, which was granted, and he did sell, and after sale bought from appellant, and the evidence would indicate a continuing" negotiation. We believe, under the pleadings, to have selected out the proposition of exchange, and to have directed the jury that a failure to make the exchange would authorize a finding that ap-pellee was not the procuring cause, would have been a charge upon the weight of the evidence and for that reason the court properly refused the charge. Cornelius v. Burford, 28 Tex. 303; Hildt v. Webster, 60 Tex. 207; Gallagher v. Neilon, 121 S. W. 564; White v. Epperson, 32 Tex. Civ. App. 162, 73 S. W. 851.

It will be unnecessary to discuss other assignments. For the reasons above stated, the judgment of the trial court will be reversed, and the cause remanded.
      <S=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    EDWARDS et al. v. ROBERTS et al.
    (No. 5961.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 4, 1918.
    Rehearing Denied Eeb. 19,1919.)
    1. Appeal and Error <®=»1036(6) — Permitting Intervention — Reversible Error.
    In trespass to try title, any error in permitting one to intervene and prosecute suit, though corporation plaintiff had been dissolved, leaving, as contended, no suit in which to intervene, furnishes no ground for reversal; in-tervener being in fact a plaintiff and there being nothing to indicate that course pursued prejudiced appellants.
    2. Contracts <®=»10(1) — “Unilateral Contract.”
    A contract is unilateral, when one party furnishes no consideration to the other' and does not obligate himself to do anything which may result in injury to himself or benefit to the opposite party.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Unilateral Contract.]
    3. Contracts <⅞=>10(1) — Unilateral Contract — Validitst.
    A unilateral contract is not supported by a sufficient consideration, and unless there has been some performance, or other equitable reasons to prevent, either party may declare the contract null and void.
    4. Contracts 4fcml0(l) — Unilateral Contract-Consideration.
    Where there has been partial or full performance of a unilateral contract, such performance operates as a sufficient consideration, and renders the contract binding upon the other party.
    5. Contracts <S=10(4) — Unilateral Contract-Part Performance.
    Conceding that contract for purchase of gravel was unilateral and lacking in mutuality when made, where thereafter appellants incurred considerable expense looking to performance, and paid to appellees or their vendors a considerable sum of money, which was received in part performance, the contract was binding upon all parties.
    Appeal from District Court, McLennan County.
    Action by the Provident Sand & Gravel Company against Alf A. Edwards and another, in which A. R. .Roberts filed a plea of intervention against defendants, and also made Hugh B. Shick and others parties defendant. From the decree rendered, inter-vener and defendants appeal.
    Reversed and remanded.
    Davis & Cocke, of Waco, for appellants. E. G. Senter, of Washington, D. C., for ap-pellees.
   Findings -of Fact.

KEY, C. J.

On the 9th day of December, 1914, the Provident Sand & Gravel Company brought an action of trespass to try title against Alf A. Edwards and the White Rock Gravel & Sand Company; both the companies referred to being private corporations. On July 1, 1916, A. R. Roberts filed a-plea of intervention against the defendants, and also made Hugh B. Shick, F. M. Shick, and Margaret S. Shick parties defendant, in which plea he sought, first, to recover the land and rents; and, second, and in the alternative, to recover judgment against the Shicks upon their warranty of title. On November 20, 1916, Roberts filed an amended plea of intervention, in lieu of his original plea, reiterating and elaborating his former pleas; and on May 22,1917, he filed a supplemental petition, in which, among other things, he sought and obtained a restraining order, enjoining and restraining the defendants from removing gravel from the land in controversy. On November 20, 1916, the defendants filed an answer to the plea of intervention, which answer contained a plea in abatement, a general demurrer, numerous special exceptions, a general denial, and special answer alleging among other tilings, that by the terms of a certain instrument, attached to the plea of intervention as Exhibit A, they became the purchasers of all the gravel situated on the land in controversy, and were entitled to possession thereof in order to remove such gravel, etc. On January 22, 1917, the defendants filed their first amended answer to the plea of intervention reiterating their plea in abatement, and all their former pleas, 'with considerable elaboration. On June 16, 1917, the defendants filed an answer to the supplemental plea of intervention which included a general demurrer, several special exceptions, a general denial, and special plea, the substance of which need not be here stated. On June 22, 1917, A. R. Roberts filed his first amended answer to the plea of intervention, which contained a general demurrer, several special exceptions, a general denial, and a special plea,. the substance of which it is not necessary to state here.

On November 20, 1916, the defendants filed a motion to dismiss Roberts’ plea of intervention, alleging that the plaintiff, Provident Sand & Gravel Company, had been duly and legally dissolved, and that no successors thereto had made themselves parties plaintiff, for which reason it was claimed Roberts had no right to intervene. On the following day A. R. Roberts, A. R. Wilson, and J. Y. Webb filed a plea, alleging that they were the trustees of the plaintiff, Provident Sand & Gravel Company, which since the bringing of the suit had been dissolved, and that no receiver or liquidation agent had been sppoint-ed to take charge of the affairs of that corporation, and therefore they, as the directors of such corporation, became by operation of law trustees to wind up the corporation’s business, and for that reason they asked to he made substitute trustees, and on June 2S, 1917, after having been permitted to become plaintiffs, they filed a plea, adopting the plea of intervention formerly filed by A. R. Roberts.

There was a nonjury trial, which resulted in a judgment overruling the defendants’ plea in abatement and motion to dismiss the plea of intervention. The court also overruled all of the •defendants’ exceptions to Roberts’ plea of intervention, except one, and rendered judgment for Roberts, tne intervener, for the recovery of the land in controversy, and for the value of the gravel taken therefrom by the defendants, and perpetuating the injunction. It was also decreed that the plaintiffs recover nothing from the defendants, and the defendants recover nothing upon their cross-action against the plaintiffs; and intervener, Roberts, and the defendants have prosecuted this appeal.

The trial judge filed findings of fact and conclusions of law, which it is not deemed necessary to set out in full. Suffice to say that they, in connection with the declaration incorporated in the judgment to that effect, indicate that the trial court held that the contract relied upon by the defendants was unilateral, and therefore not binding upon either party, and that each' had been legally canceled by intervener, and his vendors. The contract referred to, and the one which preceded it, read as follows:

“August 5/ 1909.
“This agreement, between E. M. Shick and Alf A. Edwards, witnesseth that said E. M. Shick, owning approximately 35 (thirty-five) acres of gravel land in Jake Walker survey, and desiring to sell said gravel land to said Edwards, agrees to permit said Edwards to prospect said land for the purposes of establishing the amount of gravel on said place, hereby gives said Edwards the right to put in test holes on the land at the expense of said Edwards, and further agrees that, in event that the gravel is in sufficient quantities to permit its being a paying proposition, said Edwards agrees to put a railroad track, to mine the gravel at no expense toi said E. M. Shick, and to pay said F. M. Shick at the rate of 1⅜ (one cent) per yard for all gravel taken out. Said Edwards agrees to use due diligence and to crowd the work of track laying and the mining of this said gravel to his utmost. Said F. M. Shick agrees to give said Edwards the contract he now holds on a right of way over the farm lands to his (Shick’s) land line.
“[Signed] Alf A. Edwards.
“E. M, Stick.”
“Second Contract.
“The State of Texas, County of McLennan.
“Know all men by these presents: That we, E. M. Shick and wife, M. S. Shick, and Hugh B. Shick, of the first part, and Alf A. Edwards, party of' the second part, acting herein for himself and his associates, successors, and assigns, have this day and do hereby enter into the following contract and agreement, to wit:
“(1) The said party of the first part are the owners in fee simple of the following described tract of land situated in McLennan county, Texas, to wit: Being a part of 117 acres out of the Jacob Walker league which was conveyed to W. F. Shick as shown by deed recorded in vol. 143, page 553, of the Deed Records of McLennan county, Texas, and being at the southeast corner of said tract in the eastern line of the Waco and Ft. Graham road at the intersection of the north line of a lane leading to the Dallas road; thence N. 58¾° E. with the north line of said lane, 117 vrs., to the S. W. corner of a 25-acre tract formerly owned by I. C. Meek; thence N. 28° W., 615 vrs., to stake for corner; thence S. 58¾° W., 117 vrs., to said Waco and Ft. Graham road; thence S. 28° E., 615 vrs., to the place of beginning, containing 8½ acres of land.
“(2) That for the consideration hereinafter named the said parties of the first part do hereby bargain, sell, and convey unto the said Alf A. Edwards all of the gravel deposits in and upon the tract of land above described, whether on the surface or below the surface and to the extent of the depth thereof at the price of 2‡ (two cents) per cubic yard for all of the gravel taken from said premises.
“(3) As said land has been developed by the said Edwards at a considerable expense to himself, with the knowledge and by the permission of the parties of the first part, and as said land is located quite a distance from a railroad, and as the building of a spur from said land to a railroad will be accompanied with considerable delay and will have to be brought about by the said Edwards without any expense to the parties of the first part, and as said Edwards will necessarily be compelled to go to considerable expense in supplying the proper equipment for the mining of said gravel, obtaining right of way, etc., and as undue haste in rushing such matters might result in embarrassment to said Edwards and thwart the purposes of this contract, it is agreed that he shall have all of the time he deems reasonably necessary in order to get these preliminary matters completed so that the work of selling and shipping gravel may be started.
“(4) The said Edwards shall have the right to take immediate possession of said premises, and to keep the same until said gravel is removed, and to make all improvements thereon that he may deem necessary towards carrying on the operations under this contract, and likewise to remove all such improvements within six months after the termination of this contract.
“(5) Said Edwards agrees to use all reasonable diligence in finding a market for said gravel when the same is ready for shipment, and he also agrees to pay the party of the first part at Waco, Texas, on the 1st of each and every month after the shipments begin at the rate aforesaid for all gravel that has been shipped out, and the said,Edwards also agrees to have a man in charge of such shipments, who shall keep a book showing correct entries as to the number of cars shipped out, showing the quantity of gravel taken; it being understood for the purpose of settlement that the average sized car for shipment of gravel will contain about twenty-six cubic yards of gravel, and that the party of the first part shall have the privilege of inspecting the books and records kept of such shipments at any time that he may see proper during office hours at the place where said records are kept.
“(6) Whenever said Edwards comes to the conclusion that no more gravel can be mined and shipped or sold from said premises in paying quantities, then he shall so announce to the party of the first part, whereupon all further rights of the said Edwards to mine gravel upon said premises shall cease and all further right on his part to any unmined gravel shall immediately cease.
“Witness' our hands, on this the 16th day of October, 1909.
“[Signed] E. M. Shick.
“Margaret Shick.
“H. B. Shick.
“Alf Edwards.
“The State of Texas, County of McLennan.
“Before me, Chas. E. Moore, a notary public in and for McLennan county, Texas, on this day personally appeared E. M. Shick, Margaret S. Shick, and Alf A. Edwards, and H. B. Shick, known to me to be the persons whose names are subscribed to the foregoing instrument, and acknowledged to me that they executed the same for, the purposes and consideration therein expressed.
“Also before me this day appeared Margaret S. Shick, wife of the said E. M. Shick, known to me to be the person whose name is subscribed to the foregoing instrument, and haying been examined by me privily and apart from her husband, and having same fully explained to her, she, the said Margaret S. Shick, acknowledged such instrument to be her act and deed, and declared that she willingly signed the same for the purposes and consideration therein expressed. and that she did not wish to retract it.
“Given under my hand and seal of office, this 5th day of November, A. D. 1909.
“[Signed] Chas. E. Moore,
“Notary Public, McLennan County, Texas.”

A subsequent contract was entered into, which reads as follows;

“Waco, Texas, 8 — 14—12.
“E. M. Shick, Alvin, Texas — Dear Sir: Referring to the contract between yourself and the writer, covering the gravel on your place on the Et. Graham road, and which is covered by contract dated October 16, 1909, beg to advise that we have been considerably delayed in getting into operation on your side of the road, and as up to date have had no revenue in the property through us, we beg to submit the following schedules of prepayments, which are to be returned to us in gravel out of the first gravel mined on your property and which is covered by the contract of October 16,1909: “August 1, 1912, $30,00; September 1, 1912, $30.00; October 1, 1912, $30.00; November 1, 1912, $30.00; December 1, 1912, $40.00; January 1,1913, $40.00; February 1, 1913, $40.00; March 1, 1913, $40.00; April 1, 1913, $40.00; May 1, 1913, $40.00; June 1, 1913, $45.00; July 1, 1913, $45.00; August 1, 1913, $50.00; September 1, 1913, $50.00; October 1, 1913, $50.00; November 1, 1913, $50.00; December 1, 1913, $50.00.
“In submitting this schedule we wish to say that we waive no rights which we might enjoy under the contract of October 16, 1909.
“I trust that this letter meets with your approval, and as it is written in duplicate that we may both sign it and understand it fully.
“These remittances are to be made to you at Alvin, Texas. Respectfully,
“AAE — T White Rock Gravel & Sand Co., ’
“[Signed] Per Alf A. Edwards, President.
“Accepted by E. M. Shick.
“Witness:
“N. H. Martin,
“W. J. Heine.”

The undisputed proof shows that under the contract of August 5, 1909, Edwards took possession of the land and made several test holes at his own expense; that under the contract of August 16, 1909, he and his associates took possession, bought rights of way, and built spur tracks to the property at considerable expense, and had excavated some gravel from the land. Under the supplemental contract Edwards and his associates made the advanced payments therein provided for. On the 21st day of January, 1914, the Shicks conveyed the land to A. R. Roberts and John Albert Stack, and on the 24th day of February, 1914, Roberts and Stack conveyed it to the Provident Sand & Gravel Company. On June 1, 1914, the Provident Sand & Gravel Company conveyed the land to A. R. Roberts, and disposed of all of its property, and was dissolved. On October 18,1916, the plaintiffs’ suit was dismissed for want of prosecution, and on October 19th was reinstated on motion of the plaintiffs.

On the 26th day of January, 1914, the Shicks undertook to annul the contract of date October 16, 1909, by executing and delivering to the defendants the following written instrument:

“The State of Texas, County of McLennan.
“Know all men by these presents: That whereas, heretofore, on October 16, 1909, E. M. Shick and wife, M. S. Shick, and Hugh B. Shick, as parties of the first part, made and entered into a written contract of said date, with Alf A. Edwards, acting for himself and associates, as parties of the second part, which said contract is of record in Book E, page 332, of the Bill of Sale and Lease Records of Mc-Lennan County, Texas, to which instrument and the record thereof, reference is hereby made for better description;
“And whereas, by the terms of said agreement, the parties of the first part sold and conveyed to the parties of the second part all of the gravel deposits upon that certain tract or parcel of land lying, being and situated in McLennan county, Texas, a part of the 117-aore tract out of the Jacob Walker league, which said 117-acre tract was conveyed to W. E. Shick as shown by deed recorded in vol. 143, page 553, of the Deed Records of McLen-nan County, Texas, and which said tract of land is more fully described as follows: Beginning at the south or southeast corner of said tract in the eastern line of the Waco and Et. Graham road, at the intersection of the east line of a lane leading to the Dallas road; thence north 58¾ ° east, with the north line of said lane, 117 varas, to the southwest corner of a 25-acre tract formerly owned by I. 0. Meek; thence north 28° west, 615 varas, to a stake for corner; thence south 58¾° west, 117 varas, to said Waco and Et. Graham road; thence south 28° east, 615 varas, to the place of beginning — containing 8½ acres of land; ■
“And whereas, since the execution of said contract the parties of the second part have advanced to the said parties of the first part the sum of $650.00-;
“And whereas, the parties of the second part have wholly failed and refused to comply with said contract and have breached the same in every part and parcel, and therefore the said parties of the first part are released from said contract:
'“Now, therefore, the said parties of the first part do hereby declare that they are no longer bound by the terms of said agreement, and that said agreement is hereby terminated and annulled, and the said parties of the first part, no longer recognizing said agreement, will deal with sai'd premises as if said contract had never been entered into.
“And the parties of the first part hereby notify the said Alf A. Edwards, D. H. Orand, W. M. Kelly, Dan Wise, W. W. Hyde, and the White Rock Gravel & Sand Company, Incorporated, that you will vacate said premises, and you will not enter upon the same, and you will not remove or attempt to remove any gravel or any deposits of any kind whatsoever from said premises.
“And in view of said cancellation aforesaid the parties of the first part hereby tender to the parties of the second part the said sum of $650.00, together with $25.00 interest thereon, making a total of $675.00, and hereby demand that the parties of the second part to the contract aforesaid cancel and release the contract heretofore mentioned and deliver the same to the parties of the first part for cancellation.
“Witness our hands this the 29th day of January, 1914. E. M. Shick.
“M. S. Shick,
“By F. M. Shick.
“Hugh B. Shick,
“By E. M. Shick.
“Under Power of Attorney.”

The foregoing instrument, together with $675, was placed in an envelope, carried to the office of appellant Edwards, who was the agent and manager of his codefendant, and laid upon his desk, and the person who carried it there immediately left before Mr. Edwards ascertained what it was. Mr. Edwards made an unsuccessful effort to follow up the person who brought the package to his office, and deliver it back to him, whereupon appellants caused the $675, referred to, to be placed in a bank in Waco, Tex., subject to the order of appellees.

The proof shows that on November 4, 1909, .appellants leased what was known’ as the Lattimore tract of gravel land, consisting of about 35 acres, which was near the land in controversy; and after that lease was made, appellants, at a very considerable expense, and after considerable, but not necessarily unreasonable, delay caused a spur track of railroad to be built to the Lattimore tract, and thereafter, after considerable, though not necessarily unreasonable, delay, and at considerable additional expense, caused the track to be extended to the land in controversy, and seemingly were prepared to utilize and develop it as a gravel bed at the time they were served with the injunction restraining them from so doing.

On December 30,1913, appellee F. M. Shick wrote to the White Rock Gravel & Sand Company, requesting the payment of $50, the last payment under contract of August 14, 1912, and among other things used this language :

“I followed your struggle with Chalk Bluff fellows, and glad you came on top, and hope you will get out lots of stuff.”

Other facts and circumstances maybe referred to hereafter.

Opinion.

We shall not undertake to set out or specifically refer to the numerous assignments of error in appellants’ brief. The first four complain of the action of the court in permitting A. R. Roberts to intervene; the main contention being that as the original plaintiff, the Provident Sand & Gravel Company, a private corporation, had been dissolved, no suit was left, and therefore there could be no, intervention. That contention, if not hypercritical, is without merit, and furnishes no grounds for reversing the case. The intervener was, in fact, a plaintiff, and, now that the parties have litigated the cause of action which he asserted, it seems to us it would be absurd to hold that the ease should be reversed and the suit dismissed, merely ■because he did not file a separate suit, instead of intervening in the one already on file. There is nothing to indicate that the course pursued resulted in more court costs than would have been the case if an independent suit had been filed, and it is not claimed that as a result of that course appellants were denied any right they would have had, if the latter course had been p-ursued. Hence we overrule the assignments referred to.

However, we sustain appellants’ contention, presented under various assignments, to the effect that the trial court erred when it held as a matter of law that appellees had the right to annul and terminate the contract. The trial court did not find as a fact that appellants had breached any substantial part of the contract, but seems to have sustained the contention asserted on behalf of appellees, and to the effect that the contract was unilateral, and therefore not binding upon either party. A contract is unilateral when one party furnishes no consideration of value to the other party, and does not obligate himself to do anything which may result in injury to himself, or benefit to the opposite party.

Such a contract is not supported by a sufficient consideration, and therefore, unless there has been some performance, or other equitable reasons to prevent, either party may declare the contract null and void, and it will not thereafter be binding upon him; but when there has been partial or full performance, such performance operates as a sufficient consideration, and renders the contract binding upon the other party. Fontaine v. Baxley, 90 Ga. 416, 17 S. E. 1015; Brown v. Bowman, 119 Ga. 153, 46 S. E. 410; Cooper v. Lansing, 94 Mich. 272, 54 N. W. 39, 34 Am. St. Rep. 341; Boyd v. Brown, 47 W. Va. 238, 34 S. E. 907; Emerson v. Pacific Packing Co., 96 Minn. 1, 104 N. W. 573, 1 L. R. A. (IST. S.) 445, 113 Am. St. Rep. 603, 6 Ann. Gas. 973.

Therefore if it be conceded that the contract under consideration was unilateral, and therefore lacking in mutuality when it was first made, still, as the undisputed proof shows that appellants thereafter paid to ap-pellees, or their vendors, the Shicks; $650 upon the contract, which was received by them in part performance on the part of appellants, and also incurred considerable expense looking to its performance upon their part, before there was any attempt to repudiate or withdraw from the contract, we hold that by reason of acceptance of such partial performance the contract ceased to be unilateral, and was binding upon both parties. This being the case, and as the trial court did not find that appellants had breached the contract, it committed reversible error in rendering judgment for appellees.

In support of the views just expressed, we quote as follows from the opinion of the Supreme Court of Georgia in Brown v. Bowman, supra, which quotation includes excerpts from several text-writers upon the question of law which controls this case:

“Bowman’s agreement, which appears in the foregoing statement of facts, was evidently without consideration when made, as Brown and Taylor at that time neither did nor agreed to do anything. It was therefore, when made, unenforceable for want of mutuality. When, however, Brown and Taylor within a reasonable time, and in the absence of any revocation of the agreement by Bowman, by much labor and'considerable expense, as the petition alleged, located and developed gold in the land in ' question, they did the very thing they were expected to do, and thereby furnished the contemplated consideration, which changed the nudum pactum into a valid and binding contract. ‘A contract is often such that, until something is done under it, the consideration is imperfect; yet a partial performance, or a complete'performance on one side, supplies the defect. If, for example, one promises another, who makes no promise in return, to pay him money when he shall have done a specified thing, if he does it, not only is the contract executed on one side, but also the consideration is perfected, and payment can be enforced. And, in more general terms, when from any cause the party from whom the consideration moves is not compellable to render it, if he does render it, the contract becomes thereby perfected.’ Bishop, Contracts, § 87. To the same effect, see Parsons on Contracts, 451; Clark on Contracts, pp. 169, 170; Story on Contracts, § 569; 7 Am. & Eng. Ene. L. 1151 In Hammond on Contracts, p. 683, it is said: ‘The test of mutuality is to be applied, not as of the time when the promises are made, but as of the time when one or the other is sought to be enforced. A promise may be unenforceable for want of mutuality when made, and yet the promisee may render it valid and binding by supplying a consideration on his part before the promise is withdrawn.’ This doctrine is well settled by many adjudged cases cited by the above-named text-writers, and has been fully recognized by this court. Sivell v. Hogan (this day decided) 119 Ga. 167, 46 S. E. 67, and cases therein cited.”

We do not wish to be understood as holding that the contract in this case was at any time unilateral, and therefore without consideration. On the contrary, we are strongly inclined to the view that appellants rested under an implied, if not expressed, obligation to exercise reasonable diligence at their own expense to develop and place upon the market the gravel on the land in controversy; and such obligation, if it existed at the time the contract was entered into, made it a bilateral and binding obligation. It has often been held that mining contracts, which do not specifically bind the lessee to do anything looking to the development of minerals, nevertheless carry with them an implied obligation so to do. At any rate, after the contract became a binding obligation by reason of partial performance, such implied obligation rested upon appellants.

For the reasons stated, the judgment appealed from is reversed, and the cause remanded for another trial, consistent with the views expressed in this opinion.

Reversed and remanded.
      <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    CROSBY et al. v. ARRIETTA.
    (No. 988.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 30, 1919.
    Rehearing Denied Eeb. 27, 1919.)
    Courts <®=^480(3) — Conflicting Jurisdiction — Injunction.
    Where county court at law had jurisdiction of parties in a forcible detainer case and judgment was regular upon its face, district court did not have jurisdiction to enjoin issuance and execution of a writ of possession; an appeal having been taken to appellate court from county court.
    Appeal from District Court, El Paso County; Balia-rd Coldwell, Judge.
    Proceedings by Mary Arrietta to enjoin Josephine Crosby and others from issuing and executing a writ of possession out of the county court. From an order granting a temporary writ of injunction, the defendants appeal.
    Reversed and rendered.
    C. W. Croom and S. O. Lattner, both of El Paso, for appellants.
    Jno. T. Hill.jof El Paso, for appellee.
   HARPER, C. J.

This is an appeal from an order granting a temporary writ of injunction.

The order of the court upon the application for the writ is not in the transcript; but, from the fact that a statement of facts is brought up with the record, we conclude that the'application was set down for hearing with notice to appellants, and that upon hearing the court entered its order granting the writ to the effect:

“That Josephine Crosby and Douglas Crow-ell, their agents and attorneys, are enjoined from issuing and executing a writ of possession to the premises ⅜ * ⅝ out of the county court at law, until this cause is heard in this court, or until further order or modification of this temporary injunction, * * * and the clerk, shall issue notice, etc.”

The record discloses that the statutory action of forcible detainer was filed February 13, 1918, by Mrs. Crosby against Mary Arrietta for possession of the property in controversy; that, from a judgment there, the case was appealed to the county court at law of El Paso county, Tex.; that in September, 1918, the latter court tried the cause with a jury, and upon their verdict entered its judgment for plaintiff, Crosby, for possession of the premises, and for $175 rents due, and ordered execution and writ of restitution.

Defendant, Arrietta, filed affidavit of inability to pay costs or to give security therefor in lieu of appeal bond, thereby perfecting an appeal to the Court of Civil Appeals of the Eighth District. Thereafter, upon November 18, 1918, the clerk of the county court issued a writ of possession in due form; there is nothing in the record to show whether or not this writ was placed in the hands of the sheriff or constable for execution. Did the district court have jurisdiction? In Baker v. Crosbyton S. R. Co., 107 Tex. 506, 182 S. W. 287, Justice Yantis, for the Supreme Court, quoting article 4653 Vernon’s Sayles of Texas, said:

“ ‘Writs of injunction granted to stay proceedings in a suit, or execution on a judgment, shall be returnable to and tried in the court where such suit is pending, or such judgment was rendered. * * * ’ This statute commanded that, when the district court issued its writ of injunction, it should make it returnable to the county court where the judgment which was under attack by it had been rendered. By implication it deprived the district court of jurisdiction to do more, except in cases where the judgment of the county court is void upon its face, or where it appears affirmatively from the record that such judgment is void, or that the property attempted to be levied upon is exempt from such levy or is owned by persons not parties to the judgment.” Hammack v. Schley, 186 S. W. 872.

In Clayton v. Hurt, 88 Tex. 595, 32 S. W. 876, it was held that where a court of general jurisdiction, in the exercise of its ordinary functions, renders a judgment in a cause in which it has jurisdiction over the person of the defendant and of the subject-matter in controversy, such judgment is never void, no matter how erroneous it may appear from the face of the record or otherwise.

From the record, it conclusively appears that the county court at law had jurisdiction of the parties, and tíiat the judgment is regular upon its face — a valid and binding judgment of a court of competent jurisdiction over the subject-matter and amount involved, and it has not been superseded. We are therefore of the opinion that the facts pleaded and proved present no valid ground for the writ. The judgment of the district court is reversed and rendered, and the writ of injunction dissolved.


author: WALKER, J.

text:
    SPARKMAN v. SPARKMAN.
    (No. 424.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 6, 1919.)
    Divorce <®=»77 — Service After Return Day.
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1868, in husband’s suit for divorce, default judgment granting him divorce was erroneous, where notice to serve wife as nonresident was issued November 24th, returnable the 27th, but was not delivered to her until December 5th.

      Error from District Court, Jasper County; W. R. Blacksbear, Judge.
    Suit for divorce by L. Sparkman against Lizzie Sparkman. To review decree granting divorce, defendant brings error.
    Decree reversed, and cause remanded.
    Andrews, Streetman, Bums & Logue, of Houston, for plaintiff in error.
    Howth & Vaughn, of Beaumont, for defendant in error.
   WALKER, J.

This is an appeal by appellant from a decree granting a divorce to tbe appellee. Notice to serve tbe appellant as a nonresident was issued by tbe clerk of tbe district court of Jasper county on tbe 24th day of November, 1916, returnable on tbe 27th day of November, 1916. This notice was delivered to tbe appellant in Ouacbita county, Ark., on tbe 5tb day of December, 1916. Appellant did not answer in tbe case. At tbe succeeding term of tbe district court of Jasper county, beginning on tbe 28th day of.May, 1917, and ending on tbe 30tb day of June, 1917, tbis cause came on for rebearing, and the appellee was granted a divorce.

Appellant assigns as error the action of the court in rendering judgment on tbis service. Tbis assignment must be sustained. Cobb v. Brown, 3 Wilson, Civ. Cas. Ct. App. § 314; Harrington v. Harrington, 4 Willson, Civ. Cas. Ct. App. § 80, 16 S. W. 538; Vernon's Sayles' Tex. Civ. St. 1914, art. 1868, as follow:

“If the citation be issued too late, or if it cannot be served at least ten days before tbe first day of such return term, exclusive of tbe days of service and return, the officer to whom it is delivered shall nevertheless proceed to serve the same at any time before the return day thereof; and such service shall compel the defendant to plead at the next succeeding term of the court.”

In Harrington w. Harrington, supra, Judge Willson said:

“Judgment by default was rendered in favor of defendant in error, against plaintiff in error, in the county court, upon a promissory note for $307.15 and interest thereon and costs. Said judgment is erroneous because the defendant in the suit was not cited to appear and answer in the suit in the manner provided by law. A citation was issued March 29, 1888, * * * and this citation was served upon the defendant June 25, 1888, and the judgment by default was rendered July 6, 1888. Service of a citation after the return day thereof is a nullity, and will not authorize a judgment by default. Rev. St art. 1228; 3 Civil, Cas. Ct. App. § 314. The judgment is reversed, and cause remanded.”

For tbe error indicated, tbis cause is reversed and remanded.
      <§z»For other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes