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sacrifice, in reliance on the contract, and a contract of sale be specifically performed, and delivery of the possession of the premises to for costs and general relief. the purchaser and his refusal to take possession

Fahey answered by general demurrer; a and pay the money, alleges such performance by the vendor as will entitle him to specific per- special exception that plaintiff in effect sues formance, even if the contract was not in writ- for specific performance of a contract to coning.

vey real estate, and there is no allegation of (Ed. Note.-For other cases, see Specific per a contract signed by Fahey, or of such muformance, Cent. Dig. 88 356–370, 372; Dec. Dig. $ 114.*]

tuality among the parties, as would entitle

plaintiff to specific performance, and also beAppeal from District Court, Galveston cause the terms and provisions of the conCounty; Robt. G. Street, Judge.

tract are not alleged; a general denial; à Action by Mollie C. Benedetti against D. special answer to the effect that if he bought Fahey and others. From a judgment for the property it was with the understanding plaintiff, defendant named appeals. Af- that the title should be perfect and be satistirmed.

factory to and approved by his attorney and John W. Campell, of Galveston, for appel- ed to Fahey, and that the title was imperfect

the property vacated by plaintiff and deliverlant. Maco & Minor Stewart, J. E. Quaid, and not approved by his attorney, there beHomer Jones, and Louis Lobit, all of Gal- ing at the time an incumbrance by mortgage reston, and C. R. Edwards, of San Antonio, for more than $2,000, as well as a lien for for appellees.

taxes, both of which liens were not released

at the time of the alleged delivery of the MOURSUND, J. Mollie C. Benedetti sued property and the check, and in addition said David Fahey, J. L. Boddeker, and J. E. Bod- property was the homestead of plaintiff, who deker, the last two being partners under the was a married woman, incapable of selling firm name of J. L. Boddekér & Co., alleging same without her husband joining in the sale, that about March, 1912, Fahey purchased and her husband did not join therein, and the from her a lot in the city of Galveston; that property was not delivered to Fahey ; she delivered the deed to J. L. Boddeker & further special answer that the check was Co. to be delivered to Fahey, which was done, not delivered to Boddeker & Co. as plaintiff's and Fahey, as consideration for said deed, agents, but merely to provide a way for executed and delivered to Boddeker & Co., Fabey's attorney to close the sale during his check for $2,500, drawn on Ed. McCarthy Fabey's absence, he then being about to ab& Co., Bankers, which check was received by sent himself from the city for an indefinite said Boddeker & Co. in trust for plaintiff to time, and at the time plaintiff was in possesbe delivered to her; that Fahey stopped sion of the property and no rights in the pa yment of the check, and refuses to pay for check were intended to be vested in her unthe property; that by reason of the premises less Fahey's attorney should direct the same Fahey is indebted to plaintiff in the sum of to be cashed or delivered to plaintiff; and $2,500, and plaintiff tenders him possession of further answering Fahey alleged that, if he the premises as she has heretofore done; ever bought said property, plaintiff so dethat as Boddeker & Co. refuse to deliver the layed in the delivery thereof and made accheck they are made på rties to this suit; cusations against Fahey of forcing her to that it was understood and agreed between make a sale to him at much less than the plaintiff and Fahey that the taxes and in- value of the property, that Fahey on account cumbrances against the property sold should thereof, and because of the mortgages and be paid out of the $2,500 by Boddeker & Co., tax liens, and because the title was not and the remainder was to be paid by them satisfactory to his attorney, declined to acto plaintiff ; that plaintiff sold her furniture cept the property and demanded the return and effects at a sacrifice, rented other prop- of his check, and it would be unjust to him erty, removed to such other property such to require him to pay for said property. He of her effects as remained unsold, all with prayed that such sale, if any there was, Fa bey's knowledge, and delivered to Fahey be set aside, and the check canceled. possession of the property sold him; that The court instructed a verdict for plaintiff Tahey's refusal to pay the money and take for $2,500, with interest from March 1, 1912, possession of the property was for the sole at the rate of 6 per cent. per annum, out of purpose of acquiring for himself the property which was to be returned to Fahey $106.63, at less than $2,500, and was done willfully taxes, and $2,109.37, the amount of the mortand maliciously for the purpose of harassing gage debt, and that title to the property be plaintiff ; that plaintiff is about to lose her divested out of plaintiff and vested in Fahey. property by reason of the incumbrance A judgment was entered upon this verdict, against same, and, being aged, she suffered which provided for the payment of taxes and mental anguish and distress of mind to such the mortgage debt by the clerk of the court extent as to impa ir her health. Plaintiff out of the $2,500 when the same should be prayed for judgment for $2,500, the amount collected under execution, and that upon payof the check, for $10,000 actual damages and ment of the judgment the clerk should de$10,000 exemplary damages, and that the liver Fahey the check, also that the judg

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

161 S.W.-57

ment should be satisfied upon the filing by off the mortgage and tax liens out of the Fahey of receipts showing the payment of check, while Boddeker's testimony is clear the taxes and the mortgage debt and upon his and explicit, and the facts show beyond dispaying the remainder of the judgment to the pute that it was contemplated by all parties clerk together with the costs, and it was fur- that the charges against the property should ther ordered that J. L. Boddeker and J. E. be paid out of the $2,500 to be paid by Fahey. Boddeker be dismissed from the case, and He, as well as the other parties, knew that that they recover of Fahey all costs incur- plaintiff had no way of paying such charges red by them. Fahey appealed.

except out of the price received for her home. [1] By the first assignment of error it is Fahey made his check payable to the Bod. contended that the court erred in instruct- dekers, instead of to plaintiff. It was uning a verdict for plaintiff, three grounds be- disputed that the Boddekers were stakeing urged, each being a contention that in a holders for the parties, intrusted by each certain particular the evidence was sufficient with certain duties to be performed. For ly conflicting to go to the jury. The assign- Fahey they were to see that not only the ment does not refer to the paragraphs of the amounts due for taxes and incumbrance were motion for new trial in which the questions paid, but also the amount due for the abwere presented to the trial court for revision, stract of title. Fahey told Boddeker to get nor does the statement contain such reference, an abstract of title and deliver the same to and upon examination of the motion we find his attorney, which was done. This is not no reference to the last ground urged in the as- disputed by Fahey. Why did he order the signment of error as a reason why the verdict abstract of title? If plaintiff was unable to should not have been instructed for plaintiff. procure same, how was she expected to pay The assignment is followed by three propo- for same unless out of the proceeds of the sitions, all of which are mere abstract propo- sale? Why was the check made payable to sitions of law, casting no light upon the the Boddekers if these charges were not to matter under investigation. These proposi- be paid out of same? No reason is given, tions are followed by a statement which fails and it is clear, even without the testimony to comply with the rules, as it consists of of Boddeker, that the understanding was appellant's conclusions concerning what the that the charges were to be paid by Boddektestimony shows, interspersed with argu- er out of the proceeds of the check, and Bod. ments. Reference is incidentally made to deker at once made out his checks and had the fact that the testimony of Fahey and them ready to close up matters as soon as that of plaintiff and J. L. Boddeker is set out plaintiff should move from the premises. in the brief, and we find the same in a The facts also show beyond dispute that Fa“Statement of Material Facts,” wherein ap- hey's attorney had stipulated what must be pellant devotes 12 pages of the brief to a done to have the title made satisfactory to statement of all the testimony deemed ma- him, and that nothing remained to be done terial by him. No reference is made to the except to pay off the taxes and furnish repage or pages of the preliminary statement ceipt and pay off the incumbrance of which on which the matter bearing upon this as he had himself drawn the release, and he signment is to be found. In fact, we are knew and acquiesced in leaving it to the Bodleft to search the entire preliminary state- dekers to make such payments. He left a ment to see whether any merit exists in any memorandum with them of the amounts to of the contentions attempted to be made by be paid to satisfy the mortgage debt. Furthe assignment. Each issue raised by the as- ther, it does not appear that plaintiff was to signment should have been presented by an vacate the prenises within any certain time, appropriate proposition, and supported by a nor that she delayed unduly, nor that Fahey statement of the evidence relating to that was in any way prejudiced by such delay as particular issue. The assignment, not being took place; that the Boddekers at his rebriefed in accordance with the rules, should quest nailed on the house upon the premises not be considered. We are, however, of the a “For Rent" sign, and it does not appear opinion that there is no merit in the two con- that any one wanting to rent was prevented tentions which could have been presented un- from doing so by reason of plaintiff's slow der this assignment.

removal therefrom. [2] We do not consider the evidence con [3] The second and third assignments also flicting upon the issue whether the amounts attack the judgment as unsupported by the due for taxes and incumbrance were to be evidence, but no statement of any kind is paid out of the $2,500 to be paid by Fahey made under either of them, and they will not Fahey testified he had no idea the money be considered. was to be paid out of his check, that he did [4] The fourth assignment reads as fol. not look at it in that way at all, and never lows: "The court erred in overruling the paid any attention to it, that all he wanted special exception of defendant to plaintiff's to know was that the property was straight, failure to allege a contract in writing, beand all he wanted Boddeker to do was to be cause the plaintiff must, before being allowed guided by his attorney. His testimony is to have contract specifically performed, show evasive when asked to state what occurred that it is of such character as entitled her in Boddeker's office with respect to paying to relief sought." No statement is submitted

under this assignment, and we do not know | 4. EVIDENCE ($ 243*)—BEST AND SECONDARYwhether complaint is sought to be made of

LETTERS—CARBON COPIES.

The letters of confirmation were acts and the overruling of the special exception here- declarations of defendants through their agent inbefore stated in setting out defendant's and manager, and were admissible as such to pleadings, or a similar special exception bind them. urged in a so-called "First Supplemental An

(Ed. Note. For other cases, see Evidence, swer." The assignment should not be con

Cent. Dig. 88 908–915; Dec. Dig. § 243.*] sidered.

5. EVIDENCE (8 471*)-OPINIONS-STATEMENT

OF FACT. [5] However, the petition does not disclose

In an action for broker's commissions, a that the contract was verbal; hence the ex- statement of a witness that plaintiff sold cerception was properly overruled. Thomas v. tain parties was not objectionable as an opin

ion. Hammond, 47 Tex. 42. Lewis v. Alexander, 51 Tex. 578; Robb v. Traction Co., 82 Tex. Cent. Dig. Så 2149-2185; Dec. Dig. § 471.*]

(Ed. Note. For other cases, see Evidence, 392, 18 S. W. 707; Land Co. v. Dooley, 33

6. DEPOSITIONS (8 107*)-OBJECTIONS TO ANTex. Civ. App. 636, 77 S. W. 1030.

SWER-RESPONSIVENESS-TIME OF TAKING. [6] Besides, the petition alleged such a per- Objections that answers to questions in a formance on the part of plaintiff as would deposition are not responsive must be taken by entitle her to have specific performance re exception before announcement of ready for

trial. quired of Fahey. Tinsley v. Miles, 26 S. W.

[Ed. Note.-For other cases, see Depositions, 1000; Showalter v. McDonnell, 83 Tex. 158, Cent. Dig. 88 309–319; Dec. Dig. § 107.*] 18 S. W. 491; Fulton v. Robinson, 55 Tex. 7. BROKERS (8 54*)-SALE OF Goods-RIGHT 401.

TO COMMISSIONS-PURCHASER READY, WILLThe judgment is affirmed.

ING, AND ABLE TO BUY.

In an action for broker's commissions in the sale of feedstuff manufactured by defendants, plaintiff was not required to prove that his customers were ready, willing, and able to buy

under the terms proposed, where defendants on E. R. & D. C. KOLP v. BRAZER.

being notified of the sales wrote letters to the (Court of Civil Appeals of Texas.

Amarillo. purchasers and to plaintiff confirming the same. Nov. 15, 1913. On Motion for Re

(Ed. Note. For other cases, see Brokers, hearing, Dec. 13, 1913.)

Cent. Dig. 88 75-81; Dec. Dig. $ 54.*] 1. PRINCIPAL AND AGENT (8 123*)—AUTHOB- 8. BROKERS (8 86*)-COMMISSIONS-ACTION. ITY OF AGENT-EVIDENCE.

Where, in an action for broker's commisIn an action for broker's commissions on sions in the sale of feedstuff manufactured by the sale of feedstuff for defendants under a defendants, plaintiff testified that he made the contract between plaintiff and defendants' agent, various contracts in question for the sale of the evidence held to warrant a finding that such cars of material, and such fact was not rebutagent was acting for defendants in the premted by, defendants, except by general statement ises and that he acted within his authority in that they knew nothing of it, and it was also writing certain letters on defendants' behalf to shown that the sales were confirmed by deplaintiff and arranging for the payment of com- fendants' managing agent, and notice sent to missions for the sale of the material.

the purchasers—with copies to plaintiff and deAgent, Cent. Dig. $8420-429; Dec. Dig. $ each of the purchasers that he had made the (Ed. Note.- For other cases, see Principal and fendants--such proof established a prima facie

case, and plaintiff was not bound to prove by 123.*]

contract with them. 2. EVIDENCE (8185*)—BEST AND SECONDARY (Ed. Note.-For other cases, see Brokers, -NOTICE TO PRODUCE.

Cent. Dig. SS 116-120; Dec. Dig. $ 86.*] Where plaintiff gave defendants notice to produce the original letters written by plain- Appeal from Tarrant County Court; tiff to them and defendants excused the failure Charles T. Prewett, Judge. to produce the letters and papers called for on the ground that the mass was so great that

Action by Wm. P. Brazer against E. R. & it would take considerable time to find them, D. C. Kolp. Judgment for plaintiff, and deetc., plaintiff was properly permitted to in- fendants appeal. Affirmed on rehearing. troduce carbon copies of the letters as secondary evidence.

Flournoy, Smith & Storer, of Ft. Worth, (Ed. Note. For other cases, see Evidence, for appellants. Baskin, Dodge & Eastus, of Cent. Dig. 88 642-660; Dec. Dig. § 185.* ]

Ft. Worth, for appellee. 3. EVIDENCE (8 168*)—BEST AND SECONDABY.

Plaintiff was employed by the manager of defendants' St. Louis office to sell defendants'

HUFF, C. J. On October 25, 1913, we feedstuff on commission. Defendants closed rendered a decision in this case, reversing such office, and all papers, correspondence, etc., and remanding it. Appellee has filed a moin connection therewith, were turned over to tion for rehearing and called to our attenit by the former manager. On sales being made, he was in the habit of confirming the same tion errors that we are now persuaded we sending a copy to defendants and one to plain-committed in our former opinion, in apply. tiff. Held, that such confirmations were, in ing the law to the facts of the case; effect, acceptances of the contracts as made and of the proposed purchasers, and that the ex

therefore grant the motion for rehearing manager was properly permitted to testify that and file this opinion as our conclusion of he sent letters of confirmation of sales to the the law governing the case. We may be perpurchaser on receipt of telegrams from plaintiff mitted to state, partly in justification of our that he had made sales to them. (Ed. Note. For other cases, see Evidence,

former opinion, that appellee did not brief Cent. Dig. $ 558; Dec. Dig. § 168.*]

the case, and we considered the case alone *For other cases seo same topic and section NUMBER in Doc. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

we

from the brief of appellants and the exami- , the question as to whether the contract was nation of the record and authorities which so entered into. We think there is sufficient we were able to make at the time.

evidence to sustain the findings of the jury Wm. P. Brazer, appellee, sued E. R. & D. on that point. Feagan v. Barton-Park Mfg. C. Kolp, the appellants, in the county court Co., 42 Tex. Civ. App. 373, 93 S. W. 1076. of Tarrant county, for $404 for brokerage [2] The fourth assignment, to the effect commission, for the sale of 202 cars of bran, that there was error in permitting appellee at $2 per car, alleged to have been sold to read in evidence the carbon copies of let. by appellee for the account of appellants ters because not the best evidence, will be during the months of June and July, 1910. overruled. We think from the above state.

[1] We overrule the propositions present- ment of the facts it will be seen appellee ed under the first, second, and third assign- used sufficient diligence to obtain the origiments of error, which assail the action of nals, and, upon his failure to do so, had the the court in overruling appellant's special right to resort to secondary evidence, and charge to the jury, directing peremptorily a that there was no abuse of discretion on the verdict for appellants. The contract in this part of the trial court in permitting the carbon case was executed by correspondence between copies to be read in evidence. McDonald v. Louis J. Jones, the agent and manager for Hanks, 52 Tex. Civ. App. 140, 113 S. W. appellants at their St. Louis office, and the 604. The execution of the letters and copies appellee. In pursuance to such contract, ap- was established, if not by direct testimony, pellee contracted to sell 202 car loads of the circumstantial. feedstuff handled by appellants, and for (3, 4) The fifth and sixth assignments are which, under the contract, he was to receive overruled. Jones was permitted to testify $2 per car. Appellants assert as a proposi- that he sent letters of confirmation of sales tion that the burden was on the plaintiff, to the purchaser upon the receipt of teleappellee herein, to prove that Jones was ap- grams from appellee that he had made sales pellants' agent and acting within the scope to them. All papers, correspondence, etc., of his authority, and that the letters in ques- in connection with the St. Louis office, were tion should be established as the writing of turned over to appellants by Jones, and they appellants and appellee. It appears from were given proper notice to produce them bills of exception that the signatures to the upon the trial. He also sent a carbon copy letters from appellants were typewritten and of each letter for confirmation, one to appelthe letters from appellee were carbon copies. lants and one to appellees. The carbon copAppellants filed a plea of non est factum in ies sent to appellees were introduced in evithe usual form, We think the jury haddence, over the objection of appellants, to ample, evidence to justify them in finding the effect that such letters were not the that Jones was acting for appellants and best evidence. The confirmations of the sales had the authority to do so, and that he was as made by appellants were in effect acceptacting within the scope of his authority. ances of the contracts as made and of the The appellee testified he wrote the original proposed purchasers. The carbon copies letters of the carbon copies and sent them were acts and declarations of appellants by due course of mail to appellants at their through their agent and manager, and were office in St. Louis, and that he got the re- therefore admissible as such, and would bind plies thereto 'by due course of mail. Jones them. We do not think it was necessary testified he wrote such letters for appellants, in this case to obtain the original letters to acting for them as their agent and manager, prove that appellants had accepted the purgiving the substance thereof; and, further, chasers of the contracts as made. When that he turned over the books and cor- they notified appellee and the sales so made respondence to the appellants. He also tes- by him were confirmed, we think that the tifies that he sent to appellants a copy of declaration and acts, in so far as appellee such letters when received. The trial court was concerned, were original testimony. appends as a qualification to the bill of ex [5,6] The seventh assignment is overruled. ceptions the following: “Notice was given The statement of the witness that appellee by plaintiff to defendants, to produce the sold certain parties is not, as we understand original letters. Defendant E. R. Kolp tes- the connection in which it is used, a mere tified that Louis J. Jones had authority to opinion of the witness. The objection to the write the letter signed E. R. & D. C. Kolp, answers of the witness that it is not responand authority to make the brokerage ar- sive to the question must be taken by exceprangements to pay the $2 a car and to pay tion on that ground before announcement for all telegrams as recited in the corre- for trial. There is no exception to the anspondence.”. E. R. Kolp excused himself from swer because not responsive, shown to have searching through his letters and papers, for been made before announcement of ready for the correspondence in question, on the ground trial. This exception appears to have been that the mass and bulk of the papers were made during the trial. However, we think so great that it would take considerable time the answer responsive. to find them, etc. The court submitted to [7] It is insisted under the eighth assignthe jury the question of Jones' authority and ment that appellee should prove that the pur

ness.

chasers were ready, willing, and able to , appellee's motion for rehearing and also overbuy under the terms proposed. This rule rule appellants' motion to reverse and rendoes not apply where the principal accepts der. the purchaser and the contract is consum- The judgment of the lower court is afmated. Where the appellants wrote letters firmed. confirming the sale to the purchasers and

On Motion for Rehearing. also to the appellee, the broker, we think it

It is asserted that the court misunderstood would be held that he had earned his com

the facts in the record, and that Jones was mission. He furnished a purchaser acceptable to appellants, and nothing further not in the employment of the appellants, as

Jones was required of him. Watkins Land Mort- shown by the facts in the record. gage Co. v. Thetford, 43 Tex. Civ. App. 536, swears he was in the employment of appel96 S. W. 72; Albritton v. Bank, 38 Tex. Civ. lants until August 1, 1910, and that during App. 616, 86 S. W. 646; Conkling v. Krakau- the months of June and July the appellee

Brazer reported sales by wire to the St. er, 70 Tex. 735, 11 S. W. 117; Roche v. Smith, 176 Mass. 595, 58 N. E. 152, 51 L. R. Louis office, of which he was then in charge,

and during those months Jones sent out conA. 510, 79 Am. St. Rep. 345.

[8] The testimony is sufficient to support | firmations of the sales to the purchasers and the finding of the jury that appellee sold the mailed a copy to the appellee, and one copy

to appellants' office in Oklahoma City, and number of cars of bran to the proposed pur- one to their office in Ft. Worth. E. R. Kolp chasers named in the exhibit to the petition,

swore the contract expired with Jones June for the price and on the terms named, and 15, 1910, and there is a written contract bethat he immediately reported the sales as

tween Jones and appellants which shows it made to appellant's St. Louis office, and

was to continue until June 15, 1910. Kolp that appellants, through their agent and admits by his testimony that Jones remained manager, Jones, confirmed such sales by let- in the St. Louis office for a month and 15 ters to the proposed purchasers, and also by days after that date in charge of the office, letter to appellee, and that appellants, as but says he had no authority to do any busiprincipal, received a copy of such confirma

On the 3d day of August following, aption. The evidence also shows that appellee pellants wrote from their Ft. Worth office to made out in accordance with the contract a the appellee Brazer that they had closed full report of the sales as made and duly their St. Louis office, and that the business transmitted the same in regular course of theretofore transacted from that office would mail to appellants. This evidence, at least, be divided between the Oklahoma City and made a prima facie case. If appellee did not Wichita offices, and the affairs of the St. make the contract of sale with the proposed Louis office would be wound up from Ft. purchasers, the burden shifted on appellants Worth, and “if there are any communications to show it. We do not believe it incumbent regarding which you desire to make would be on appellee to prove by each of the pur- glad to hear from you.” They further say chasers that he had made the contract with they will quote for shipment from Wichita them. He swears that he did make it, and and hope a nice business may result. The when that fact is not rebutted by appellants, testimony of Brazer and Sullivan Show except by the general statement that they that on June 30, 1910, appellee rendered apknew nothing of it, we think the jury entitled pellants a statement of the sale of 152 cars to find such sales were made from the facts of bran, giving the names of the parties to 80 proven—at least the verdict has testimony whom sold, date sold, and price, and on supporting it. If the contracts were made, July 30, 1910, a like report of the sale of as contended, and as established by the

50 cars. Appellants were notified to proverdict, appellants could have enforced spe- duce the originals. From the record it apcific performance or could have recovered pears they were not so produced, and carbon damages for the breach of same. When such copies, which appellee produced, were introis the case, the broker has earned his com- duced in evidence. After these reports, apmission, and a sale is effected in so far as pellant notified appellee on August 3, 1910, he can do so. The delivery and other details that they had closed their office at St. Louis were for the appellants. Moss & Raley v. and would quote shipments thereafter from Wren, 102 Tex. 567, 113 S. W. 739, 120 S. W. Wichita and solicited further business. We 847. We therefore overrule the eighth and think this testimony shows, not only that ninth assignments of error.

Jones was the agent of appellant when he enAll other assignments are overruled.

tered into the contract with Brazer, but also We think there was sufficient evidence to when Brazer made and reported the sales. support the finding of the jury that Jones If the testimony of Brazer, Jones, and Sulliwas the agent and manager of appellants in van is true, these sales were made and reemploying appellee and in confirming the ported to appellants. In their letters they sales made by appellee, and that he was recognize the fact that Brazer had been acting at the time within the scope of his making sales for them from their St. Louis authority. Having concluded that we were office. These acts of Jones and Brazer they in error in our former opinion, we grant the do not disaffirm, but instead notified Brazer

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