Opinion
No. 3513.
February 23, 1928. Rehearing Denied February 27, 1928.
Appeal from County Court, Harrison County; John W. Scott, Judge.
Action by N. D. Goldberg against Heartsill Clark. Judgment for plaintiff, and defendant appeals. Affirmed.
Hobart Key and Barrett Gibson, both of Marshall, for appellant.
G. L. Huffman, of Marshall, for appellee.
The appellee sued the appellant to recover the sum of $400 as commission claimed for selling a tract of land. The trial was before the court, and a judgment was rendered for the amount sued for.
The principal complaint in this appeal is that the evidence does not support the judgment. No findings of fact and conclusions of law were filed, and it must be assumed that the trial court accepted as true the evidence adduced by the appellee. According to the appellee's testimony, he was employed by the appellant, Clark, to sell a tract of 70 acres of land situated near Marshall, Tex. The price agreed on was $8,200 and out of that the appellant agreed to pay appellee a commission of $400. A few weeks later appellee found a purchaser who was ready, able, and willing to take the land at the price above named. When that fact was made known by the appellee to the appellant, the latter refused to sell, stating that he had changed his mind. The reason he gave was that he could get more for the land by subdividing it and selling the lots. He refused to pay appellee the commission claimed, and this suit followed.
It is contended that appellee's contract was to sell the land, and not simply to find a purchaser. Clearly, no such terms could be implied in the agreement relied upon. Since appellee had no power to sell and could do no more than find a purchaser who was ready, able, and willing to purchase upon the terms offered, that was the limit of what he undertook to do. The evidence justified the court in concluding that this had been done.
It is also contended that appellant was only a joint owner of the land and was acting as the agent for his co-owners, and for that reason was not bound for the entire amount of the commission. Appellee testified that appellant personally agreed to pay the commission in the event the sale was made, and that he looked to the appellant alone for his commission. If that testimony be true, the appellant was liable for the entire commission. Even if he had made a contract as a joint owner, he would still be jointly and severally liable with the others for the commission earned. Davis v. Willis, 47 Tex. 154. The failure to complete the sale was on the unqualified refusal of the appellant to convey the land. He could not, by such conduct, defeat the right of the agent to the full amount of his commission.
The judgment is affirmed.