author: WALTHALL, J. PER CURIAM. HARPER, C. J.

text:
    BAUER et al. v. CROW.
    (No. 349.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 5, 1914.
    Rehearing Denied Dec. 3, 1914.)
    1. Appeal and Error (§ 395) — Jurisdiction —Appeal Bond.
    Under Rev. St. 1895, art. 1025, providing that, where there is a defect of substance or form in any appeal or writ of error bond, the court may allow it to be amended, a defective bond gives the Court of Civil Appeals jurisdiction on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2058, 2064r-2070, 2085, 2086, 3127; Dec. Dig. § 395.]
    2. Brokers (§ 86) — Commissions — AGREEMENT eoe Division — Evidence.
    In an action for a share in commissions which plaintiff claimed he and defendant were to divide, evidence held to establish the agreement that the two who were real estate brokers should equally divide any profits or commissions earned in a certain sale.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 116-120; Dee. Dig. § 86.]
    3. Brokers (§ 66)— Commissions — Right to.
    An agreement between two brokers that they should equally divide commissions in the event of effecting a certain sale is enforceable by one of them, even though he had no agency to sell the lands involved.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 51; Dec. Dig. § 66.]
    4. Brokers (§ 66)— Commissions — Right to.
    Where two brokers agreed that in the event of making a certain sale they would divide the commissions, and one of them introduced the parties and started the negotiations, he is entitled to his share of the commission, though he performed no further act; it appearing that nothing else was required of him.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 51; Dec. Dig. § 66.]
    5. Brokers (§ 66) — Commissions—Right to.
    Where plaintiff and another broker agreed to divide commissions from a stipulated sale, plaintiff’s rights in a note for the commission are superior to those of one who became the partner of the other broker after the agreement as well as to rights based on a decree in an action between the other broker and his partner to which plaintiff was not a party.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 51; Dee. Dig. § 66.]
    Harper, C. J., dissenting, on rehearing.
    . Appeal from District Court, Harris County ; Chas. E. Ashe, Judge.
    Action by J. W. Crow against Paul Bauer, William Barbee, and another, in which the First National Bank and another filed separate interventions. From a judgment for plaintiff, William Barbee and another appeal.
    Affirmed.
    John B. Warren, N. G. Kittrell, Jr., and Moody & Boyles, all of Houston, for appellants. Stewarts, S. H. Braskear, and R. W. I-Iouk, all of Houston, for appellee.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   WALTHALL, J.

Appellee’s first position in his brief filed in this court questions the jurisdiction of this court to hear and determine this cause on its merits, for the reason that the judgment in the trial court was rendered in favor of appellee against Paul Bauer, individually, for $3,812.50 and for a lien on a $2,000 note and for the foreclosure of same against defendants Paul Bauer, Wm. Barbee, and J. W. Hazzard, receiver, and against Mrs. N. W. Johnson and the First National Bank of Houston, Tex., while the appeal bond of appellants, Hazzard and Bar-bee, the only defendants appealing, was not made payable to Paul Bauer, who did not appeal and whose interests, appellee claims, are adverse to appellants appealing. It is suggested that, if the said note is adjudged to appellee, his judgment to the extent of the value received on the note will be reduced to that extent, while, if it is adjudged to the bank, the judgment against Bauer will receive no credit. We think it unnecessary to enter into a discussion of the sufficiency of the appeal bond to give this court jurisdiction. Revised Statutes 1895, art. 1025, provides that when there is a defect of substance or form in any appeal or writ of error bond, on motion to dismiss the appeal for such defect,' the court may allow the same to be amended by filing in the Court of Civil Appeals a new bond on such terms as the court may prescribe. In Hugo et al. v. Seffel et al., 92 Tex. 414, 49 S. W. 369, our Supreme Court, in construing article 1025, said that:

“Since the passage of the statute quoted, a defective bond is sufficient to give the Court of Civil Appeals jurisdiction over the appeal.”

We are of the opinion that, should appellee desire to question the sufficiency of the appeal bond or the jurisdiction of the court on •account of any supposed defect in the bond, the article of the statute referred to and Court of Civil Appeals rules 8 and 9 would require that a motion be filed in calling in question the sufficiency of the bond, so that appellants, in the event the court sustained appellee’s contention, could file a sufficient bond on such terms as the court might require.

This suit was brought by the appellee, J. W. 'Crow, in the district court of Harris County, Tex., and, after a number of amendments, resulted in making defendants Paul Bauer, W. L. Barbee, the firm of Paul Bauer & Co., composed of W. L. Barbee and Paul Bauer, and John W. Hazzard, as receiver of the partnership assets of Paul Bauer & Co.; Mrs. N. W. Johnson and the First National Bank of Houston filed separate interventions. Plaintiff alleged, in substance, that on May 7, 1909, he and the defendant Paul Bauer were engaged in the real estate brokerage business in Harris county and formed a special partnership under an agreement that they would share equally the profits' on any sale that might be made by either party (Crow or Bauer) to F. A. Ogden; that Crow submitted to Bauer a proposition of sale of the Milton H. Smith land, of which land Chas. Y. Moling was then the agent and that Bauer remarked that the land was just what he wanted for Ogden; that a meeting between Moling, Bauer, and Crow was had, at which it was agreed that in case a sale of the Smith land should be effected the profits should be divided one-tliird to each; that the price asked by the agents for the land was $63,000, which would give $13,000 net profits to Mol-ing, Bauer, and Crow; that thereafter, on or about the 25th day of ‘May (1909), and after the land had been offered to Ogden, and while the sale was pending with him, the agreement for a division of profits was modified and readjusted, whereby Bauer was to receive $4,000, the Moling Company $4,000, Crow $3,000, and A. B. Mays $2,000; that thereafter the'securities offered in part payment by Ogden were found to be not acceptable to the seller, and the sale on the terms contemplated was not consummated, but the efforts to sell the same land to the same purchaser were not abandoned; that after the securities offered by Ogden were found to be not acceptable to the seller, about June 9 (1909), Bauer stated to Crow that by making a reduction in the price to be paid for the land he was still satisfied they could get Ogden to raise the money and take land; and that it was agreed that he, Bauer, and Crow, would continue in their partnership agreement, and, acting in conjunction, would make efforts to sell said land to Ogden and be in the deal together and divide equally between them whatever profit was made by either party. Plaintiff further alleged that, as. a result of their joint efforts, the sale of the Smith land to Ogden was shortly thereafter consummated, for $61,'000, which gave a profit of $11,000 to the agents; that out of said profits Bauer paid to Moling'$2,625 as his share, leaving the net amount received to be divided between Bauer and Crow of $8,375, and that no part of it had ever been paid to him. Plaintiff further alleged that, during the transactions covering the sale of the land, defendant Wm. Barbee was a silent partner of Bauer in conducting a real estate brokerage business under the names of Paul Bauer and Paul Bauer & Co.; that Barbee authorized and ratified all of said agreements made between Bauer and 'Crow; that said agreements were made for the use and benefit of said Bauer and Barbee, and that Barbee participated in the profits of the sale; that the partnership relation between Bauer and Barbee was unknown to plaintiff until after the sale to Ogden had been closed and the commission earned. Plaintiff alleges that said $11,000 profit on the sale of said land was paid by Ogden as follows: $9,000 in cash, and $2,000 in the form of a promissory note executed by Ogden and payable to Smith (the owner of the land) and indorsed by Smith; that, after paying Moling as stated, there remained to be divided in cash the sum of $6,375 and the $2,000 note. Plaintiff alleges that about July 6, 1909, defendants Bauer and Barbee collected and wrongfully appropriated to their own use of said profits the sum of $6,375. in cash, which plaintiff alleges to be $2,187.50, in excess of Bauer and Bar-bee’s half of the whole profit, for which plaintiff prays judgment, and, in addition, plaintiff prays judgment for the said $2,000 note now in the hands of John W. Hazzard, receiver. Plaintiff alleges that, by reason of the defendants having received to their own use all of the cash paid, they are now estopped from asserting any interest in or title to the said note, which plaintiff alleges was worth its face value, and that said note rightfully belongs to plaintiff; that he has an equitable lien on said note; and that he elects to take same at its true value at the time of the closing of the sale as part of his share of the commission of said sale. Plaintiff alleged that the partnership of Barbee and Bauer was at an end; that since the filing of this suit the court in which this suit was pending rendered judgment in another cause, to wit, No. 49,330, Barbee v. Bauer, and in which plaintiff was not a party and in which cause John W. Hazzard was appointed receiver, and directed to take charge of said note and dispose of same; that said note and other partnership effects of said Barbee and Bauer are now in the possession of said receiver and should be applied to the satisfaction of any judgment rendered herein. Plaintiff dismissed as to the Houston National Exchange Bank.

Defendants Bauer and interveners Mrs. N. W. Johnson and First National Bank of Houston do not appeal, and it will be unnecessary to state their pleadings or issues made on the trial.

Defendant W. L. Barbee presented general and special exceptions to Crow’s petition and answered alleging, in substance, as follows: Denies partnership between plaintiff and Bauer; denies partnership between plaintiff, Bauer, and himself; denies that he was a silent partner of Bauer; alleges a general partnership with Bauer on and after June 10, 1909; denies authority of Bauer to the agreement alleged by plaintiff with reference to the disposition of profits; denies that he authorized or ratified agreement alleged; denies that he participated in the profits of said sale with knowledge that Bauer had made alleged agreement with plaintiff; that the contemplated sale to Ogden had been abandoned before his partnership with Bauer; alleges that the contract of June 21st, between Bauer and Moling, was made on behalf of himself and Bauer, and that by their efforts sale was made to Ogden and profits received (except note) without any knowledge on his part of any agreement between Bauer and Crow; alleges that, after his partnership with Bauer was dissolved, all assets of the firm by decree of court were placed Sn hands of Receiver Hazzard, who still retains same; that in cause No. 49,330, Barbee v. Bauer, an accounting was had between himself and Bauer, and it was adjudged that Bauer was indebted to him in the sum of $2,506.96; that he was jointly interested in and owned the partnership assets, including the said $2,000; that by said decree it was kept open and receiver ordered to pay all costs, the creditors of the partnership as established to pay one-half of the funds to him (Barbee), and such remaining moneys not to exceed Bauer’s indebtedness to him on said accounting; alleges that Bauer and himself on their own responsibility obtained from Moling an option on the Smith land for a consideration of $2,625, and by their joint efforts sold to Ogden at a profit of $5,625 cash and the $2,000 note; alleges debts in excess of said note, and defendant asserts a superior equitable lien on said note in that it was a partnership lien; alleges that after paying partnership creditors there would be no funds in hands of receiver or himself belonging to Bauer; •denied the authority of the court to interfere with the possession of said note or to render .any decree subjecting said note to a judgment in the case; alleges that if Crow ever had any agreement with Bauer it was witli- [ out consideration, as he had no interest in the Smith lands and had no right to sell or offer same for sale; that Bauer with the knowledge of Crow entered into said partnership with him (Barbee), and that Crow remained silent and permitted him and Bauer as partners to negotiate for and obtain due right to sell said lands and to sell same at their own expense and that Crow never at any time informed him (Barbee) of his right to participate in the profits arising from the sale until after same had been consummated and the moneys collected; denies that Crow ever had any agreement with -Bauer other than expressed in the writing attached to the answer and that all prior negotiations were merged in said writing, that the deal of May 25, 1909, for the sale of said lands, in which Mol-ing & Co. agreed to pay Crow $3,000 out of the profits accruing to said Moling & Co., was declared off and the contract annulled; alleges that, a few days before the Moling Company abandoned the said contract of May 25th, Moling individually bought the land from Smith by contract of date May 29, 1909; alleged that without any knowledge of Crow’s connection with or interest in the sale of said lands he (Barbee) and Bauer, on June 21, 1909, obtained from Moling' in open market an assignment of such interest as he had in said lands by reason of his (Moling’s) contract of purchase from Smith, and made the sale to Ogden; and defendant Barbee says that by reason of the facts alleged Crow had no interest in the said note or assets of Paul Bauer & Co. and no right to subject same to any demand he may have against Bauer.

Receiver Hazzard adopted the answer of Barbee as his own in part and pleaded the orders of the court in the matters affecting his receivership and said note. The court submitted the case to the jury on special issues, and the jury answered, in substance:

(1) That the plaintiff Crow and defendant Paul Bauer, on June 9, 1909, agreed between themselves that they would work together and close the deal and divide equally whatever profit or commission was made by them on the trade with Ogden.

(2) That the plaintiff Crow, after the execution of the written contract of May 29, 1909, between Milton H. Smith and C. B. Moling, did not have or obtain any authority to sell or to offer for sale the Milton H. Smith lands.

(3) That defendants Barbee and Bauer formed a partnership in the real estate business on June 10, 1909.

(4) That the plaintiff Crow knew of the existence of the partnership in the real estate business of Bauer and Barbee at and prior to the execution of the contract between Moling and Bauer on June 21, 1909.

(5) That the defendant Barbee did not know at the time of the making of the contract of June 21, 1909, between Bauer and Moling, of any agreement between Crow and Bauer to divide the profits of that deal.

(6) That Barbee did not know on June 21, 1909, or prior thereto, of any right of Crow to participate in the profits on the sale made to Ogden for the Smith lands other than as set out in the written contract of May 25, 1909, between the Charles B. Moling Company, party of the first part, and Paul Bauer, party of the second part.

(7) That Barbee did not know of the agreement, if any, between Crow and Bauer to divide the profits on the sale of the Smith lands to Ogden at the time he (Barbee) divided with Bauer the cash received on the deal.

(8) That Crow did nothing personally towards effecting the actual sale made to Ogden of the Smith lands subsequent to June 9 and prior to June 21, Í909.

(9) That Barbee and Bauer, acting together and alone, made the sale of the Smith lands to Ogden.

In addition to the findings of the jury on the special issues submitted to them, we make the following additional findings, which we think the pleadings and the evidence warrant, and the trial court in effect found: That Bauer and Crow entered into an agreement on May 7, 1909, modified and readjusted at different times to suit the changes and circumstances, as they arose, but always referring to the division of the profits on the sale of lands to Ogden; that Crow and Bauer at once acted upon the agreement they had made on May 7th, in selling lands to Ogden, and on the same day by mutual parol agreement specified the Smith lands as the lands they would sell to Ogden; that Crow at once found the agent Moling who had for sale the Smith lands; that the proposition of the sale of the lands to Ogden was submitted to him (Moling) before Barbee formed his partnership with Bauer; that the Smith lands were sold to Ogden at a profit of $9,000 cash and the $2,000 note; and that, after paying Moling his part of the commission, there remained of the net profits to be divided $5,625 and the $2,000 note; that defendants Bauer and Barbee collected and appropriated the $5,625 cash; that the $2,000 note is now in the custody of Receiver Hazzard by agreement of the parties until further ordered by the court in this cause; that the note has never been in the custody of either Bauer or Barbee, but was in the possession of the bank where originally placed and turned over by the bank to the receiver, Hazzard, by agreement of the parties to this suit. The several contracts of May 7th, between Crow and Bauer, and the parol agreements between Crow and Bauer specifying the Smith lands as the lands mentioned in their contract to be sold to Ogden; the contract of May 25th, between Moling, Bauer, and Crow, recognizing and dealing with Mol-ing as agent of the Smith lands to be sold to Ogden and stating terms of sale; contract between the Chas. B. Moling Company, acting by C. B. Moling, and Bauer, reciting conditional sale of the Smith lands to Bauer and reciting certain securities to be given as part of the purchase money in event of sale; that Moling refused to accept the securities when offered; the contract of May 29th between Smith and Moling for the option, contract, or sale of the Smith lands to Moling; the contract of June 21st with the addenda, reciting the Moling option contract for sale of the Smith lands, and that Bauer had a prospective buyer on the option contract terms, and reciting the commission to be paid Moling in event of a sale, assigned the option contract to Bauer, that Moling took the option contract from Smith on the representation of Bauer and Crow that they could sell the land, evidently to Ogden.

Defendants Barbee and Hazzard filed motion for judgment which the trial court overruled, and on plaintiff’s (Crow’s) motion the court entered judgment in favor of plaintiff Crow against Bauer, personally, for $3,812.-50 interest, and that plaintiff have judgment against Barbee and Bauer individually and as partners and against Hazzard as receiver of the $2,000 note, subject to the orders of the court, and against Mrs. Johnson and the First National Bank of Houston, fixing and foreclosing a lien on said note in favor of plaintiff, to secure the payment to plaintiff of said $3,812.50, and judgment against Bauer for any balance remaining unpaid, ordered Hazzard to deliver the note into the registry of the court, appointed special commission to sell the note and apply the proceeds to payment of the judgment, and that Mrs. Johnson and the First National Bank of Houston take nothing, and awarded costs.

The appellants, by proper assignments of error, call in question the action of the court in overruling the general and special demurrers of defendants and in refusing to give peremptory instruction to jury to find for defendants, and calling in question the sufficiency of the evidence to support the judgment against Barbee for foreclosure of a lien on the $2,000 note; action of the court in excluding as evidence the pleadings and evidence of Barbee in his suit with Bauer for an accounting as partners, claiming that the evidence was material, in that it would.show that upon an adjustment of equities between Barbee and Bauer as partners there would be no moneys due Bauer from the partnership assets, and that the result of the accounting would show a judgment in Barbee’s favor and that he owned the partnership assets including the $2,000 note involved in this suit. Appellants’ contentious presented in their several assignments of error are: (1) That Crow, not having the agency for the lands, did not acquire any right to or interest in any profits or commissions growing out of a sale of the Smith lands to Ogden by reason of any contract or partnership relation lie sustained to Bauer in tlie sale of the Smith lands; (2) that, if he did at anytime have such contract or partnership relation with Bauer, such contract or relation ended before the sale was consummated by reason of the changes in relation to each other growing out of the changes in the several contracts made, and because Crow did nothing (o effect the sale under any of the agreements; (3) that because he (Barbee), on the 10th day of June, and before any sale was made, formed a partnership with Bauer for the sale of lands, including a sale of the Smith, lands to Ogden, and assisted in making a sale of the lands, all of the profits or commission for the sale of the Smith lands to Ogden should go to Bauer' and Barbee; (4) that after the sale was closed and the money, including the commissions, and the $2,000 note, were deposited in the bank, and after he (Barbee) and Bauer had divided the cash part of the commission ($5,025), and while the $2,000 note was still in the bank and undisposed of, in a suit by him (Barbee) against Ms partner, Bauer, in which Crow was not a party, for an accounting, a decree was entered in the Barbee-Bauer suit for $2,596, and that he (Barbee) was jointly interested in and owned the partnership assets of the firm of Bauer and Barbee, including the $2,000 note, and I-Iazzard was appointed receiver of the assets of said firm and directed to take possession of the assets and convert them to cash. The court refused to hear the evidence as to the issues made in tlie Barbee-Bauer suit or the decree entered, and appellants assign as error the exclusion of the evidence, and claim that, because of the decree in the Barbee-Bauer suit, the issues and decree were material evidence in this suit, and that the receiver should take possession of the note as an asset of Bauer and Barbee, and apply it as directed.

The facts are practically undisputed. We think the evidence and the facts clearly show an agreement between Crow and Bauer from the very beginning of their dealings with each other that both would share equally in any profits or commissions earned by either or both in any sale of the Smith lands to Ogden. It was not a fact necessary to the ágreement for a division of commissions between Crow and Bauer, or between any of the parties subsequently entering into the several contracts looking to a sale of the Smith lands to Ogden, that Crow should have been an agent for the Smith-lands, or should have had any right or authority to sell from Smith or Moling, the sole agent of Smith. It is evident that Bauer knew at the time of making the agreement' with Crow that Crow did not have the agency for the Smith lands.. It is equally evident that, at the time of the agreement between Crow and Bauer, Bauer knew nothing of the Smith lands or that Moling was the agent for them. Crow was the first to suggest to Bauer the sale of the Smith lands to Ogden, and Bauer thought the Smith lands just what his client Ogden wanted. Crow then introduced Bauer to Moling, the sole agent for Smith, and they at once commenced a vigorous effort to make the sale to Ogden, which was accomplished within a very short time. It is true that several contracts between the parties trying to effect a sale were made, Moling becoming the owner of an option contract to buy from Smith and Bauer an as-signee of the option contract, Moling at one time agreeing to pay Crow a part of his commissions, and Bauer agreeing to pay a part of his commissions to Mays; but neither the evidence nor the facts found by the jury shows that the agreement between Crow and Bauer to divide between the two whatever commissions they should make was ever expressly or impliedly changed or abandoned by either. The contracts of May 25th, between Moling and Bauer and to the terms of which Crow agreed, provided for the payments to Moling and Bauer of all commissions received in the 'event a sale was made on the terms stated, and in that event Moling was to pay Crow out of his part of the commission $3,000, and Bauer was to pay Mays out of his part of the commission $2,000. But the sale was not made on the terms stated in that contract, and that contract was abandoned, but the effort between the same parties to sell the same lands to same party continued. Had the sale been made under that contract, it might have been claimed with some plausibility that Crow had accepted to take his profits from Moling and could not require a pooling of his profits with those of Bauer and a division of the entire profits of Crow and Bauer. But that is not the question before us. The agreement did not stipulate what part Crow was to perform and what part Bauer was to perform in making the sale of the Smith lands to Ogden. On the same day, but after his arrangement with Bauer, Crow brought the two agents together, the one representing the seller and the other the buyer, ■ and all three discussed and outlined a plan of action. What more could Crow then do? ■ It seems that his part was then accomplished, in the absence of evidence that there was something assigned him that he should or could have done which he failed to perform. It is clear to us that Crow was entitled to receive a part of the commission from Bauer on the sale to Ogden.

If we are right in our conclusion on that proposition, it would necessarily follow that his right to the $2,000 note would be superior to and take precedence. over any claim that Barbee would have to the note by reason of any subsequent partnership or agreement with Bauer to which Crow was not a party, or to any decree of the court in a suit with Bauer to which he was not a party.

The above seems to us to dispose of the other issues presented.

We believe the case should be affirmed, and we so hold.

£)n Rehearing.

PER CURIAM.

Rehearing denied.

HARPER, C. J.

(dissenting).

In order for plaintiff Crow to recover any portion of the commission or profit on the sale of the land, he must not only have had a contract with Bauer to work with him in consummating the sale, as found by the jury in reply to the special issue, but he must show, and the jury must find, that he (Crow) did something toward bringing about the sale. This is not of that class of contracts wherein a tender of services is sufficient to enable a party to a contract to participate in profits growing out of it, but this contract required some affirmative act in furtherance of the thing to be accomplished before participating in the profits.

It is true that there is evidence that Crow brought the parties together, and that alone is sufficient to enable him to recover, if the jury believed him, so the point to be determined in this case is: Was that question submitted to the jury, and, if so, was it determined for or against appellee Crow? I am of the opinion that the special issues submitted, in the form in which the questions were framed, did submit the question, and especially the question and answer No. 9 quoted in the original opinion, “That Barbee and Bauer, acting together and alone, made the sale of the Smith lands to Ogden,” is a direct finding that Crow did nothing toward consummating the sale; therefore constitutes a verdict for the defendant. And the judgment of the lower court should have been entered accordingly. This question having been presented by the twenty-second and twenty-third assignments of error, they should have been sustained. The motion for rehearing now pending should be granted, and the cause reversed and remanded. Wherefore I, at this time, enter my dissent to the majority opinion.


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    MIDGLEY & CURTSINGER v. TAYLOR.
    (No. 5354.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 25, 1914.
    Rehearing Denied Dec. 16, 1914.)
    1. Evidence (§ 419) — Parol Evidence — Construction of Contract.
    A written contract for the sale of goods at the invoice price is not varied by evidence that the invoice price on one article was less than that represented by the seller and paid by the buyer, since a written contract is not varied by proof that the consideration was other than that stated in the contract.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dec. Dig. § 419.]
    2. Sales (§ 39S) — Remedies of Buyer — Fraud — Casual Damages.
    Where the seller of goods at the invoice price represented that the price of a certain article was $2,000, which was paid by the buyer, whereas in fact the price was $1,500, the measure of damages is the difference between the invoice price and that represented and collected.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1137-1139; Dec. Dig. § 398.]
    3. Sales (§ 75) — Construction oe Contracts —Invoice Price.
    Where a firm sold certain articles at the first invoice price, a buyer was required to pay only such price thereof, even though the seller may have paid more than that price for the article.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 204; Dec. Dig. § 75.]
    Appeal from Zavala County Court; O. A. Stubbs, Judge.
    Action by E. B. Taylor against Midgley & Curtsinger. Judgment for the plaintiff, and defendants appeal.
    Affirmed.
    W. D: Love, of Uvalde, for appellants.
    M. L. Harkley, G. B. Fenley, and Ivy H.,Burney, all of Uvalde, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   FLY, C. J.

This is a suit for damages in the sum of $500, instituted by appellee against appellants; the allegations being in substance that appellants sold to appellee certain property at invoice prices, among the rest a soda fountain which they represented cost at the factory $2,000, and they were paid ■that sum for the fountain, when in truth and fact the invoice price was $1,500. All of this was denied by appellants, but the court on hearing the evidence rendered judgment in favor of appellee for $500.

The evidence sustains the conclusion that appellants agreed to take the first invoice price for .the soda fountain, which they represented was $2,000. Upon the faith and credit of that representation, appellee paid appellants $2,000 for the fountain, but after-wards discovered that the invoice price for the fountain was only $1,500.

The petition was not open to attack by a general demurrer. There was no allegation in the petition indicating that in order to sustain the' suit evidence would necessarily be introduced to vary the terms of the written contract. The allegations show that more was obtained for the property than the contract price agreed upon, by means of the representations of .appellants. A written contract is not varied by proof that the real consideration was different from that set forth in such contract. This is an old common-law rule, and it is a rule not based on allegation and proof of fraud, accident, or mistake. In the case of Taylor v. Merrill, 64 Tex. 494, .the defendants when sued upon promissory notes, given for certain land, alleged that $2,000 in money was paid as part consideration tor the property; that the money was paid on account of representations made by the plaintiffs that certain personal property went with the land which were untrue. The Supreme Court held that the answer did not seek to vary the contract. That case has often been cited with approval.

Under the facts alleged and proved in this case, there could be but one measure of damages that could apply. Appellants agreed ■to accept in payment for the soda fountain the amount of its first invoice cost, and represented at the same time to appellee that the fountain cost $2,000. Appellee, after he had paid the money, discovered that the real cost was $1,500. Reason and common sense plainly indicate that he was damaged in the . sum of $500, and the difference between the

value of the fountain and price paid for it could have no more applicability than to try to ascertain a certain quantity of water by linear measure. The amount of damages was clearly stated and proved. It is not a question of what the real value of the fountain may have been, but what appellee agreed to pay for it. He agreed to pay the factory invoice price, and that price was $500 less than appellants had collected. He wanted his money back, and the court, in justice and good conscience, gave it to him.

It is true, as stated in appellants’ brief, that Midgley swore that the firm bought the fountain from Curtsinger at $2,000, but that cannot control .this case, because under the contract appellee was to pay only the first invoice price for the fountain. The uncontroverted evidence shows that the first invoice price was $1,500, and that was .the price appellants agreed to take for the fountain, regardless of what they may have paid some other party. The fact that Curtsinger may have sold a secondhand soda fountain to .the partnership for $500 more than he gave for it when new does not authorize appellants to breach their contract. Curtsinger was not called as a witness but remained discreetly silent.

There is no merit in the assignments of error, and the judgment is affirmed.


author: WALTHALL, J.

text:
    POLLARD v. ALLEN & SIMS.
    (No. 361.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 25, 1914.)
    1. Appeal and Error (§ 282) — -Assignments of Error — -Trial by Court.
    Under Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612), requiring appellant to file with the court below his assignments of error, distinctly specifying the grounds on which he relies, declaring that errors not so specified are waived, and making the assignments of error in the motion for a new trial the assignments of error on appeal, where findings of fact and conclusions of law were not filed by the trial court, and appellant did not file a motion for a new trial therein, there were no valid assignments of error which could be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Etror, Cent. Dig. §§ 1662-1665; Dec. Dig. § 282.]
    2. Appeal and Eebob (§ 760) — Bbiefs — Propositions and Statements.
    Where the brief on appeal did not comply with rule 31 for Courts of Civil Appeals (142 S. W. xiii), requiring that to 'each proposition there shall be subjoined a brief statement of such proceedings, or part thereof, contained in the record, as will be necessary and sufficient to understand and support the proposition, with reference to the pages of the record, the assignments of error will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3095; Dec. Dig. § 760.]
    3. Appeal and Error (§ 753) — Review — Fundamental Error.
    Where there are no valid assignments of error in the record, and where the purported assignments are not properly briefed, the Court of Civil Appeals is confined to the consideration of fundamental errors, or errors apparent on the face of the record, of which it must take notice without assignments and briefs.
    [Ed. Note. — For other-cases, see Appeal and Error, Cent. Dig. §§ 30S6-30S9; Dec. Dig. § 753.]
    Error from District Court, Harris County ; N. G. Kittrell, Judge.
    Action between W. H. Pollard and Allen & Sims. Judgment for Allen & Sims, and Pollard brings error.
    Affirmed.
    R. I-I. & A. S. Tiernan, of Houston, for plaintiff in error. Campbell, Sonfield, Se-wall & Myer, of Houston, for defendants in error.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   WALTHALL, J.

This case was tried before the court. In this case findings of fact and conclusions of law were not filed by the trial court. Plaintiff in error failed to file a motion for a new trial in the court below. In this condition of the record, there are therefore no valid assignments of error which we can consider. Acts 1913, e. 136, p. 276 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612); American, etc., v. Mercedes, 155 S. W. 286; Cooney v. Dandridge, 158 S. W. 177, 178; Moore v. Rabb, 159 S. W. 85; Dees v. Thompson, 166 S. W. 56.

Furthermore, the brief filed by plaintiff in error in this case fails to comply with rule 31 (142 S. W. xiii), which requires that to each proposition there shall be subjoined a brief statement in substance of such proceedings or part thereof, contained in the record, as will be necessary and sufficient to understand and support the proposition with reference to the pages of the record. Colorado Canal Co. v. McFarland & Southwell, 50 Tex. Civ. App. 92, 109 S. W. 435; Walker v. International & G. N. R. Co., 54 Tex. Civ. App. 406, 117 S. W. 1020; St. Louis & S. F. R. Co. v. Lane, 118 S. W. 847; Gulf, C. & S. F. R. Co. v. Wafer, 130 S. W. 712; Broussard v. South Texas Rice Co., 120 S. W. 587; Kirby Lumber Co. v. Chambers, 41

Tex. Civ. App. 632, 95 S. W. 607; Johnson v. Lyford, 9 Tex. Civ. App. 85, 29 S. W. 57; Galveston H. & N. Ry. Co. v. Olds, 112 S. W. 787; Johnson v. Hulett, 56 Tex. Civ. App. 11, 120 S. W. 257.

Since there áré no valid assignments of error in the record, and since the purported assignments which were filed by plaintiff in error in the "court below are not properly briefed, we are therefore confined in the consideration of this case to those errors which are fundamental in their nature, or else such errors apparent upon the face of the record as we .are required to notice without assignments and briefs.

We have carefully examined the record, and find no errors of this nature, and the judgment of the lower court is therefore affirmed.


author: HIGGINS, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. TERRAZAS.
    (No. 391.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 25, 1914.)
    Courts (§ 497) — Jurisdiction—Property in Bond — Custody of Law.
    Under Act Cong. March 2, 1833, c. 57, 4 Stat. 632 (U. S. Comp. St. 1913, § 1560) providing that all property taken or detained by any officer under any revenue law shall be irrepleviable and shall be deemed in the custody of the law subject only to the orders of the federal courts, and Act Cong. Feb. 23, 1887, c. 215, 24 Stat. 411 (U. S. Comp. St. 1913, § 5698), providing that merchandise transported in bond shall not be unladen or transshipped between the ports of first arrival and final destination, unless authorized by the regulations of the Secretary of the Treasury, property introduced from without the United States and in the possession of a carrier for transportation in bond, is beyond the jurisdiction of the state courts.
    [Ed. Note. — For other cases, see Courts, Cent Dig. §§ 1386, 1397, 1398, 1404-1406; Dec. Dig. § 497.]
    Appeal from District Court, El Paso County; A. M. Walthall, Judge.
    Action by Luis Terrazas against the Galveston, Harrisburg & San Antonio Railway Company. From an order granting a temporary injunction, defendant appeals.
    Reversed and remanded, with directions.
    Coldwell & Sweeney and Beall & Kemp, all of El Paso, for appellant. Davis & Goggin, of El Paso, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HIGGINS, J.

’ Terrazas sued the Galveston, Harrisburg. & San Antonio Railway Company to recover the title and possession of 1,158 bundles of hides. It was alleged that the hides had been introduced into the United States from the Republic of Mexico, and were then situate in El Paso county in the possession of defendant, whose purpose it was to transport same out of the state and county and beyond the jurisdiction of the court It sufficiently appears from the allegations of the petition that the hides were in defendant’s possession as a carrier, for transportation in bond, and the plaintiff averred that he was willing and able to pay any import duties which might be due upon said hides, and held himself ready to do so upon the surrender thereof to him, and he offered to enter into bond to protect the railway company or the government of the United States against loss of any kind arising by reason of the detention of said hides in the possession of the company under injunction. A preliminary injunction was asked, restraining defendant from removing the hides from the county and state and from delivering same to any other person. The injunction was granted, and defendant appeals, assigning as error that same was improperly issued, because the property was in. custody of the law, being taken and detained by defendant under authority of the revenue laws of the United States, and was subject only to the orders and decrees of the courts of the United States having jurisdiction and because such injunction interfered with and prevented the transportation and disposition of said property in accordance with the national revenue laws.

By the second section of “an act further to provide for the collection of duties on imports” approved March 2, 1833, it was provided that:

“All property taken or detained by any officer or other person under authority of any revenue law of the United States, shall be irrepleviable, and shall be deemed to be in the custody of the law, and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof.” 4 U. S'. Statutes at Large, 632.

This was carried forward in section 67 of the act of July 13, 1866, chapter 184, 14 U. S. Statutes at Large, p. 98, at 172. It was also incorporated into the Revised Statutes of 1878 under title 13, relating to the judiciary, and there appears as section 934.

By the act of February 23, 1887, it was provided:

“That merchandise transported under the provisions of this act shall be conveyed in cars * * * under the exclusive control of the officers of the customs. * * * Such merchandise shall not be unladen or transshipped between the ports of first arrival and final destination, unless authorized by the regulations of the Secretary of the Treasury in cases which may arise, * * * or from legal intervention * * *.” 24 U. S. Statutes at Large, 411.

The assignment is well taken. The language of the statute is plain. Property introduced into the United States and in possession of a carrier for transportation in bond is within its purview and to allow state courts to interfere therewith or control its disposition by injunction or other process would be in direct conflict with the declaration that it should be deemed to be in the custody of the law and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof. Counsel have cited no case in point, and we have been unable to find any, but in support generally of the views here expressed, see Ableman v. Booth, 21 How. 506, 16 L. Ed. 169; Covell v. Heyman, 111 U. S. 176, 4 Sup. Ct. 355, 28 L. Ed. 390; Harris v. Dennie, 3 Pet. 292, 7 L. Ed. 682; The Marion (D. C.) 99 Fed. 448; McCullough v. Large (C. C.) 20 Fed. 312; May v. Hoaglan, 72 Ky. (9 Bush.) 171.

The status of goods in bonded warehouses is quite, if not wholly, analogous to goods transported in bond, and that the United States Treasury Department regards property in a bonded warehouse as in no wise amenable to process of state courts is evidenced by an official communication of the assistant secretary, dated May 12, 1898, and to which reference is made as throwing some light upon the subject here considered. The material portion thereof reads:

“Sir: The department is in receipt of your letter of the 6th instant, with accompanying exemplified copy of a judgment roll, relating to the case of Dwight P. Cruikshank against (3. I. E. Geisderver and A. E. Noe, trading as Hogel-maier & Co., in an action for breach of contract.
“It appears from the facts submitted by you as attorney for Mr. Cruikshank that a certain importation had been consigned by Hagelmaier & Co., who are Holland merchants, to your client, in pursuance of an arrangement by which he was to make payment within sixty days. The bill of lading, however, was forwarded to Messrs. Knautli, Nachod & Kuhne, of New York City, with instructions to deliver the same upon payment of cash only, which latter proposition was refused by your client, Mr. Cruikshank, on the ground that it was contrary to the terms upon which the purchase was made, and he, therefore, refused to take the bill of lading on the above terms, and the goods were then sent to ‘Campbell’s Stores,’ in Hoboken, N. J., under ‘general orders.’
“Suit was brought in the circuit court for Hudson county, in the state of New Jersey, with the result that judgment was rendered in the said court in favor of the plaintiff, Cruikshank, against the said defendants for $2,506.32 and costs.
“Execution was issued on the judgment, and the sheriff attempted to levy on the goods in question while in warehouse under general order, but recognition of the writ of execution upon the judgment was refused, and your request, in behalf of your client, that the customs officials be instructed to release the goods, alleging that the merchandise is free of duty, and that there are no charges against the importation except for storage, which your client is willing to settle on receipt of the goods.
“In reply, you are informed that the so-called Customs Administrative Act of June 10, 1890, provides, among other things, ‘that all merchandise imported into the United States shall, for the purpose of this act, be deemed and held to be the property of the person to whom the merchandise may be consigned; but the holder of any bill of lading consigned to order and indorsed by the consignor shall be deemed the consignee thereof,’ and section 934 of the Revised Statutes, after declaring that ‘all property taken or detained by any officer or other person, under authority of any revenue law of the United States, shall be irrepleviable’ provides further that all such property so taken or detained ‘shall be deemed to be in the custody of the lawr, and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof.’ You will perceive, therefore, that merchandise in bonded warehouse, or in customs custody, is not subject to the orders, judgments or decrees of any state court, and no state officer has any control over it; such liens or executions can only attach upon a full discharge of the goods from such custody.”

See Decision No. 19340, vol. 1, Synopsis of Decisions, Treasury Department, p. 721.

Our attention has been directed to Conard v. Pacific Insurance Co., 6 Pet. 262, 8 L. Ed. 392, which contains expressions not wholly in accordance with the views expressed, but this case was decided in 1832, prior to the enactment of the statute here considered.

Peabody v. Maguire, 79 Me. 572, 12 Atl. 630, is also cited. D. and J. Maguire were the principal defendants. 'Chase, Leavitt & Co. were joined as trustees. The property which the trustees held was in a bonded warehouse, and it was simply held that this circumstance afforded no reason why it was not subject to trustee process, since it was in the constructive possession of, and subject to the control of, the trustees. In some of the New England states garnishment proceedings are denominated a trustee process, and is in substance an equitable proceeding to determine the ownership of funds or property in dispute. 20 Cyc. 978. Conceding this holding to be correct, it is nevertheless apparent that the ease is readily distinguishable from a proceeding to render such property directly subject and amenable to state process.

The injunction is dissolved, and cause reversed and remanded, to be disposed of in a manner conformable to this opinion.

WALTHALL, J., did not sit in this case.


author: HUFF, C. J.

text:
    HENDERSON & GRANT v. GILBERT.
    (No. 669.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 21, 1914.)
    1. Appeal and Eeeoe (§ 262) — Reservation of Grounds of Review — Exceptions — “Fundamental Eeeoe.”
    The failure of the court to submit a case to the jury, where there is sufficient testimony to^ authorize such submission is a “fundamental error” ; and hence the giving of a peremptory instruction may be reviewed, though not excepted to, notwithstanding the act of the Thirty-Third Legislature (¡Acts 33d Leg. c. 59) relative to exceptions to instructions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1582-1589, 1593-1595; Dec. Dig. § 262.

    For other definitions, see Words and Phrases,. First and Second Series, Fundamental Error.]
    2. Brokers (§ 57) — Compensation — Variance Between Contract Procured and Contract Authorized.
    Defendant on May 25th listed land with plaintiffs for sale, for a period of 60 days, the terms of sale to he “$23 per acre, 5 per cent., commission included, on basis of all cash,” plaintiffs to have as compensation for their services all oyer the listed price. On July 8th they executed a contract of sale on behalf of defendant for a consideration of “$14,720 ($23 an acre), less 5 per cent, commission,” $1,250 to be paid at the signing thereof as earnest money, and the balance when the deed was delivered, December 1st. The contract required defendant to execute a deed within 15 days, which, with the earnest money, was to be placed in escrow until the title was approved. Meld that, under the listing contract, the selling price was $23 an acre, plus the commission, and the commission was not a part of the $23, and hence the contract of sale which ^required the owner to accept $23 an acre, less the commission, was not authorized by the listing contract, nor was the sale made a cash sale within the listing contract, as the purchaser might wait until December 1st before paying the balance of the price, and hence, unless defendant ratified the contract of sale with full knowledge thereof, plaintiffs were not entitled to commission.
    [Ed. Note. — For other eases, see Brokers, Cent. Dig. §§ 66, 67, 72; Dec. Dig. § 57.]
    3. Brokers (§ 49) — Earnest Monet Payment-Checks.
    If one of a firm of brokers who executed on behalf of a purchaser a contract of sale executed by the firm for the vendor had a right to draw a check on a deposit by the purchaser, and if there was such a fund on deposit, and the check was an assignment of the amount thereof, his check placed in escrow with the contract was a sufficient deposit under the contract of sale requiring an earnest money payment to be placed in escrow with the deed until the title was approved.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 70-72; Dec. Dig. § 49.]
    4. Brokers (§ 58) — Compensation — Enforceability oe Contract — Necessity.
    To entitle brokers to commissions, a contract negotiated by them need not be enforceable, if the purchaser is ready and willing to perform it and the sale is defeated by the owner.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 90; Dec. Dig. § 58.]
    5. Brokers (§ 49) — Compensation—Option or Sale.
    In a contract for the sale of land, made by brokers, providing for an earnest money payment to be placed in escrow until the title was approved, and that, if the purchaser should fail to comply with the contract, the earnest money should be declared forfeited and paid over to the vendor, the forfeiture clause did not render the contract a mere option, rather than a sale.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 70-72; Dec. Dig. § 49.]
    6. Brokers (§ 58)— Compensation — Acting for Both Parties.
    A contract of sale made by brokers was not void because one of the brokers executed it for the proposed purchaser, if he acted in good faith and with fairness towards the vendor, and the vendor knew that he was acting for the purchaser.
    [Ed. Note.' — For other cases, see Brokers, Cent. Dig. § 90; Dec. Dig. § 58.]
    7. Brokers (§ 57)— Compensation — Amount — Ratification of Unauthorized Contract.
    Where brokers authorized to make a sale of land for $23 an acre, plus their commission, made a sale under which their commission was to be deducted from the purchase price of $23 an acre, if such contract was ratified, they were entitled to the agreed percentage on the purchase price.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 66, 67, 72 ; Dec. iiig. § 57.]
    Appeal from District Court, Hale County ; L. S. Kinder, Judge.
    Action by Henderson & Grant against C. L. Gilbert. From a judgment for defendant, plaintiffs appeal.
    Reversed and remanded.
    L. C. Penry and Randolph & Randolph, all of Plainview, for appellants. Mathes-& Williams, of Plainview, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes-

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUFF, C. J.

The appellants, Henderson

& Grant, instituted this suit against C. L. Gilbert for the sum of $736, and interest, alleged to be due appellants as commission for the sale of land belonging to appellee. We adopt the following statement as to the appellants’ pleadings from their brief:

“Plaintiffs allege necessary facts showing agency under written contract to sell said land within 60 days from May 25, 1912, at a stipulated price, on the ‘basis of all cash,’ for which services plaintiffs were to receive 5 per cent, of the consideration therefor; that sale was made to Pacific Security Company for the price specified, to be paid on delivery of the title ‘on or before’ December 1, 1912, said sale being evidenced by contract signed by said firm of Henderson & Grant for defendant, and by M. V. Henderson, one of said firm, for the purchaser, dated July 8, 1912, which contract provides that the deeds shall be made to any person said Security Company might designate; that a copy of said sales contract last referred to was at once delivered to defendant, and no objection was urged thereto by defendant, but, on the contrary, defendant proceeded to carry out its provisions by submitting his abstracts for examination to the attorneys designated in said contract; the title was directed to be taken in the name of certain persons as trustees, said direction being made before the listing contract expired; that the purchaser so secured was ready, able, and willing to take and pay for said land. Plaintiffs also alleged a right of recovery upon the ground that, as agents for defendant, they sold the land at the price fixed by defendant to H. C. Randolph and J. H. Slaton, trustees, who were ready, willing, and able to take and pay said price for said land in cash, and that usual and reasonable compensation for such services and the reasonable value thereof was $736; that defendant was advised of the sale and terms thereof, and that he made no objection thereto, but proceeded in part to execute the same by delivering the abstract for examination; that afterwards defendants refused to close the deal and convey the land without lawful excuse therefor, and prays for judgment.”

The defendant answered the petition, which is not necessary, as we deem it, to set out. We state the facts from the appellants’ view point alone, as the trial court instructed a verdict for appellee.

On the 25th day of May, 1912, the appellee, Gilbert, listed the land in question with the appellants, designating the instrument a “listing contract,” which has the following provision:

“I hereby constitute and appoint Henderson & Grant my authorized exclusive agents, and list for sale for a period of 60 days from date the land.” (Then follows the description.) “The terms of sale for the above-described property to be as follows: $23 per acre, 5 per cent, commission included on basis' of all cash. It is further agreed that I will execute deeds conveying to the purchaser of said land and furnish a complete abstract showing clear title to said property whenever sold, and to allow Henderson & Grant, my authorized agents, as compensation for their service, all over and above listed px-ice as their commission for furnishing the purchaser or making the sale,” and giving the agents one-half of any money put up as a forfeit should the proposed purchaser forfeit it, and authorizing the agents to sign contracts of sale for him upon the above basis and terms.

On the Stli (lay of July, 1912, Henderson & Grant, acting as agents for appellee Gilbert and M. D. Henderson, acting as ’ the agent of Pacific Security Company, entered into a contract for the sale of the land, by which appellee agreed to convey to the Pacific Security Company, or to any one It might direct, by a good and sufficient deed, with good merchantable title, the land in question, which contained 640 acres, “for a total consideration of $14,720, less 5 per cent, commission, to be paid as follows: $1,250 at the time of signing thereof as earnest oi* forfeit money, to bind this contract and to constitute a part of the cash payment, if the trade 'is fully consummated, and $13,450 additional to said earnest money to make the full cash payment when deed is delivered December 1, 1912.” Gilbert was given thereby 15 days from that date to furnish abstract, which was to be approved by H. C. Randolph, the company’s attorney, within 15 days of its delivery to him, Randolph. Gilbert was to execute a deed within 15 days from the date of the contract to the company or to any one it should direct. The deed and earnest money to be placed in a named bank in escrow to be held until the title was approved, the company agreeing to pay full cash payment and execute notes as above provided; “it being fully understood and agreed that the closing up of this contract and the making of the full cash payment shall be on or before December 1, 1912; it being understood that, if said second party (the company) shall fail or refuse to comply with the terms of this agreement within the time specified, then the earnest money put up shall be declared forfeited, and the bank is hereby authorized to pay over the same to the said first party (Gilbert) or his authorized agent as fullliquidated damagesbut, if title was not good, the money should be returned to the company. The evidence of the appellants tends to show that, immediately upon the execution of the contract for the sale of the land, they mailed a copy of that contract, together with a letter of date July 8, 1912, to the appellee, in which they informed him that they had made the contract of sale securing all cash December 1, 1912, with a handsome forfeit to make the contract good, and appellee to retain the crops on the place for that year. On July 31, 1912, appellants mailed a deed and the opinion of the selected attorney on the title, asking that he (ap-pellee) execute the deed inclosed. The title was pronounced good, except the failure to produce interest receipts from the state of

Texas, and appellee was requested to furnish such receipts. On the 13th day of July, 1912, the appellee delivered to Randolph, the attorney for the company, an abstract of title to the land for his examination. The abstract showed that it had been brought down to July 12th, the day previous. Gilbert received the letters above mentioned and the copy of the contract. The deed prepared and sent to appellee conveyed the land to Randolph and Slaton, as trustees, and was prepared to be signed by Gilbert and his wife. Gilbert took the deed and went to the office of Randolph with it, and informed Randolph that it was not necessary that he and his wife sign'it. Randolph explained why his wife should sign the deed, but appellee declined to have the deed so executed at that time. Some time afterwards a deed was sent to him to be signed by himself alone. This Gilbert refused to execute. The appellants show that the company had authorized Henderson to make such a contract for it and that it had another agent, however, to examine and pass upon the quality and value of the land; that the company then had on deposit $300,000, for the purpose of placing up forfeit money on contracts of this kind, and that before December 1, 1912, had a million dollars on deposit to pay for lands contracted to be purchased — this land, amongst others. It directed that the land be deeded to Randolph & Slaton, as trustees for it. The testimony tends to show that the company, as well as the trustees, were ready, willing, and able to take and pay for the land by December 1, 1912. The evidence further shows that the actual cash was not put up in the bank with the contract, but that Henderson’s check for $1,250 was attached to the contract and placed in the bank as specified in the contract of sale, and tends to indicate that Henderson had the right to cheek on the $300,000 deposited in the bank by the company to secure forfeiture stipulations in the contracts.

At the conclusion of the evidence, the trial court instructed a verdict for Gilbert, the appellee. In this case the appellant did not except to the charge of the trial court peremptorily instructing a verdict, on the ground that there was testimony tending to prove ratification of the contract made by the agents. The appellee in this case objects to the assignments of error of the appellants on that ground. This court has heretofore held that, where the trial court peremptorily instructs a verdict, when there is testimony authorizing the submission of the case to the jury, that it is not necessary to file an exception to the charge of the court so given under the amendments to the statute with reference to instructions by the Thirty-Third Legislature (Acts 33d Leg. c. 59); that, if there is sufficient testimony authorizing the submission of a case to the jury, a failure to do so would be fundamental error, and for that reason it is not necessary to except to the charge of the court. The statute as amended it is not believed by us was intended to apply to cases of that hind, but only to instructions where from informality or for failure to properly charge the law of the case, and then exceptions should be taken as pointed out in the statute. At any rate, we have concluded to consider the ease upon the assignments presented.

The first assignment complains of the action of the court in instructing a verdict for the appellee, because it is insisted that the evidencé with reference to ratification was sufficient to raise that issue, and should have been submitted to the jury for their findings.

noticing further the assign-assignof appellants, we shall give our views upon the case as presented by the record. We have reached the conclusion that the contract of sale was not authorized by the contract of agency in at least two particu-particuThe contract appointing appellants as agents has the stipulation: “The terms of sale for the above-described property to be as follows: $23 per acre, 5 per cent, 'commission included on a basis of all cash.” It further provides for the compensation of the agents which was “all over the above listed price as their commission for furnishing the purchaser or making the sale.” In the contract of sale the appellee agreed to convey the land for the total consideration of $14,-720, less 5 per cent, commission. $14,720 for 640 acres of land is exactly $23 per acre. The purchaser therein agreed to pay the consideration $1,250 at the time of signing the contract, and $13,450, “the full cash payment, when deed is delivered December 12th.” The amount $13,450 is evidently a mistake. It should be $70, instead of $50. It is pleaded as a mistake, and the proof sustains the plea. The agents were not authorized to sell for less than $23 per acre and to contract that the owners should take less. We think that the list price, as evidenced by the contract, is $23 per acre, and 5 per cent, commission included. It is $23 plus 5 per cent, and not minus 5 per cent. This conclusion is rendered reasonably certain by the clause following, which .stipulates the agents were entitled as compensation to “all over the above list price.” They were not entitled to any compensation under the contract, unless they received something over that price. The listed price of the land was $23, but the 5 per cent, commission was to be included in the terms of sale, and all over the list price, $23, the agents were entitled to as compensation. In making the contract of sale the agents obligated Gilbert to take $1.15 per acre less than he authorized them to sell the land for. True, the contract obligates the purchaser to pay $23 per acre, but by the contract Gilbert does not get that amount, but the 5 per cent is taken from the amount as the commission. Under the instruments in evidence, clearly this was not the agreement Whether the commission was to be added to the $23 or compose only a part of that amount, if the amount of 5 per cent, was deducted, it was not in either event in accordance with the agreement; but, as above suggested, we think the agency contract clearly contemplated that the agents were required to include 5 per cent, with the $23 per acre, and not as part of the $23. Under the contract of sale, the purchaser paid the $23 per acre, but Gilbert took $1.15 less for the land than he listed it, thereby paying the commission to the agent out of the price asked by him, and not out of the amount over the list price.

Again, the consideration was to be all cash, and we do not consider the sale so made. The $1,250 was paid down; the residue was payable on or before December 1, 1912 — more than 4 months from the date of the contract. If the deed had dede-livered within a day or 30 days, appellee could not -have forced a payment of the residue before December 1, 1912. It was optional with the purchaser to pay before that date or wait until the last day. The agents executed a contract in the name of the owner, thereby binding him to sell on at least 3 or 4 months’ credit ■ The agents were not authorized to make such concon-tract. Gough v. Coffin, 55 Tex. Civ. App. 550, 120 S. W. 210; Colvin v. Blanchard, 101 Tex. 231, 106 S. W. 323; Pryor v. Jolly, 91 Tex. 86, 40 S. W. 959; Evants v. Fuqua, 102 Tex. 430, 118 S. W. 132, 132 Am. St Rep. 854; Id., 50 Tex. Civ. App. 201, 111 S. W. 675; Hagler v. Ferguson, 102 Tex. 118 11S S. W. 133, 132 Am. St. Rep. 895; Id., 50 Tex. Civ. App. 191, 111 S. W. 673. From the authorities and our construction of the contract in question, the appellants cannot recover, unless, after the execution of the contract, with full knowledge thereof, the owner ratified the sale as made by the agents. Wilson v. Burch, 162 S. W. 1018; 2 Wilson, Civ. App., § 593; Thornton v. Moody, 24 S. W. 331; Evans v. Gay, 74 S. 575; McDonald Donald v. Cabiness, 100 Tex. 615, 102 S. W. 721; Id., 98 S. W.

We have concluded the facts in this case raise the issue of ratification and are sufficient to take the case to the jury. Whether the check was cash or not, and whether the appellee knew that the check was so placed, we think also a question of fact. If Henderson had the right to draw the check on the fund deposited in the bank, and at that time there was such a fund on deposit, and if the check was an assignment of the amount thereof, we think that such facts, if so found, would be sufficient to show a deposit as called for by the contract of sale.

Whether the Pacific Security Company could make a binding contract or not is not here so presented by the record as would authorize a holding on that question. If properly presented, it would be an interesting question. The appellants contend the company selected two trustees to whom the deed was to be executed and who were authorized and had the money to pay on the land according to the contract, and that they were ready, willing, and able to do so. If it should be held that the contract by the Pacific Security Company was not an enforceable one, because the company was a nonresident, or because not known whether incorporated or a partnership or the like, such question became immaterial; and if ap/ellee had offered to complete the .trade, and the purchaser or trustee designated had refused on their part, then—

“in such case there would have been neither a willingness to buy nor an enforceable contract to buy; one or the other of which conditions would be essential to the broker’s right to compensation. But the latter condition (enforceable contract) is not essential where the first exists (willingness), and the sale is defeated by the owner of the property. The question whether or not the plaintiff performed the services called for by the contract is not wholly dependent upon the writing executed between the owners of the property and the proposed purchaser. The fact that the latter really was willing and able to buy, and would have bought, notwithstanding he was at liberty not to do so, had he not been prevented by the defendants’ failure to produce proper evidence of title, must be regarded as controlling, and as dispensing with the necessity of a binding contract to purchase, which might otherwise have existed.” Hamburger v. Thomas, 103 Tex. 2S0, 126 S. W. 561.

It is urged by the appellee that the forfeiture clause rendered the contract not one of sale, but that it was an option given to the proposed purchaser. We believe this case falls under the rule announced in the case of Moss v. Wren, 102 Tex. 567, 113 S. W. 739, declared in the original opinion, and is not such a contract as falls under the opinion of the Supreme Court in the above case upon rehearing. 102 Tex. 567, 120 S. W. 840; Heath v. Huffhines, 152 S. W. 176. The case of Crum v. Slade, 154 S. W. 352, when rightly understood, is to the same effect. If the purchaser was ready and willing to perform the contract, then, under the rule announced in the case of Hamburger v. Thomas, supra, it would not be essential that the contract was enforceable, if the sale was defeated by the owner of the property.

The contract of sale would not be void if the appellee knew that Henderson, who was then a member of the partnership agency of Henderson & Grant, was, at the time of making the contract, acting for the proposed purchaser, if he acted in good faith and with fairness towards the appellee in the transaction. Upon the record in this case, we do not feel justified in declaring, as a matter of law, because he (Henderson) was acting for the seller and purchaser, that the contract for that reason is void.

question of quantum meruit is pre-preby the pleadings in this case. It is doubtful whether the facts are sufficient to authorize the submission of that issue. We do not deem it necessary to decide that ques-quesat this time, and we are not fully agreed upon this issue. If the $23 per acre was the list price, and the agents were to have all over that sum as compensation for their services, and the contract for the sale of the land having been made for that amount or less, it is suggested nothing was due the agent, whether or not the trade was consummated. The appellants, by the con-conhad earned nothing, and the appellee’s refusal to make the deed lost them nothing. The following cases, and others, appear to support this theory: McCarty v. Bristow, 145 S. W. 1029; Evans v. Gay, 74 S. W. 575. 575. however, is not deemed necessary to a decision of this case, as we view it. If the jury shall find that appellee ratified the contract of sale, then by the contract he was to have $14,720, less 5 per cent, commission; the purchaser was to pay the full sum of $14,-$14,-■ There was therefore $736, as commis-commisstipulated for in the contract, which both appellee and appellant recognized as being provided for in the contract. Under the contract, if ratified, appellants would be entitled to that sum.

We think the court was in error in refusing to submit the question of ratification to the jury, and for that reason the case is reversed and remanded.


text:
    GLOBE LOAN OO. CO. BETANCOURT.
    (No. 5398.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 5, 1914.
    Rehearing Denied Dec. 16, 1914.)
    Appeal and Ebbok (§ 65) — Jurisdiction of Coubt op Civil Appeals — Amount in Oon-TBOVERSY.
    , Where plaintiff in justice’s court, demanding judgment for $104, recovered judgment for $76, and, on appeal by defendant, filed in the county court an amendment reducing the demand to $76, the amount in controversy in the county court was $76, and the Court of Civil Appeals has no jurisdiction of an appeal from a judgment for that amount.
    [Ed. 'Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 315-328; Dec. Dig. § 65.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by Ireneo Betancourt against the Globe Loan Company. From a judgment for plaintiff, defendant appeals.
    Dismissed.
    Chambers & Watson, of San Antonio, for appellant. Fred N. Cowen, Wm. H. Russell, and McCollum Burnett, all of San Antonio, for appellee.

      For other oases see same topic and section NUMBER, in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   FLY, C. J.

This is a suit for double the

alleged amount of usurious interest paid by appellee to appellant, which in the justice’s court was placed at $104. The cause was tried by the justice of the peace, and judgment rendered in favor of appellee for $76. The cause was appealed by appellant to the county court. During the trial in .the county court, appellee filed an amendment, in wbicb the amount claimed was reduced to"$76, and the jury found in favor of appellee for that amount.

By the amendment in the county court the amount in controversy was reduced from $104 to $76, a sum from which an appeal could not he prosecuted to this court. Bishop v. Lawson, 47 Tex. Civ. App. 646, 105 S. W. 1008.

The appeal is dismissed.