This suit was brought by appellee, who is a real estate agent, to recover of appellant the sum of $750 as commissions claimed to be due him from appellant for effecting an exchange of certain properties between him and one Sid Post, alleging that both of said parties employed him to make such exchange; that in accordance with said employment, he brought about an exchange of said properties so listed with him by said parties, and that after the closing of such deal, and the consummation of such transaction by the mutual execution and delivery of conveyances to each other, it was ascertained that appellant owed him the sum of $750 for his services, but, being unable to pay the same in cash, he offered to give appellee in lieu thereof three certain lots situated in Robertson Hunter's addition to the city of Ft. Worth, representing that he had paid $250 apiece therefor, including the incumbrances thereon, and that they were worth the sum of $300 each; that he had never seen said lots, but believed said representations, and relying thereon, agreed to receive the same in satisfaction of his claim; that thereafter, upon investigation, he found said lots to be practically worthless, and so informed appellant, stating that he had been deceived and refused to accept them; that appellant either knew the value of said lots at the time of such offer, and fraudulently misrepresented the facts to him, or else was himself mistaken as to their value, and made such representations whereby, both of them being ignorant of their value, he was induced to agree to accept them in payment of his claim; but that in either event, he was entitled to recover his commissions, which were of the reasonable value of $750. After a general demurrer and general denial, appellant specially answered, admitting the exchange of properties between himself and Post, but denied that he had employed appellee to represent him in such exchange, claiming that he represented himself therein, for which reason he was not due appellee commissions as sued for, but in compromise of such claim he finally offered to give appellee the lots mentioned in full satisfaction thereof, denying, however, that he made the representations charged by appellee, but, on the contrary, expressly told appellee that he had never seen the lots and did not know what they were worth; that he had given $250 apiece for them in trade, assuming a $50 vendor's lien note against each, and so informed appellee; that he has at all times been and is now willing to convey said lots to appellee in satisfaction of such claim, but appellee has heretofore refused and still refuses to accept them; that he tendered performance of his portion of the contract by the execution of warranty deeds to him for said lots, and prayed to be discharged with his costs. A jury trial resulted in a verdict and judgment in behalf of appellee for the sum sued for, from which this appeal is prosecuted.
The court refused to give a peremptory charge in favor of appellant, which is assigned as error. There was a conflict in the testimony as to whether or not plaintiff was employed by defendant to effect a sale or exchange of the latter's property, and it is admitted in the brief that the testimony offered by appellee tended to prove the employment under such circumstances as would have entitled him to claim of appellant reasonable compensation for effecting such exchange. On the other hand, it is stated therein that the testimony offered by appellant tended to prove that appellee was representing Post alone, and that appellant was representing himself in the deal, under a distinct understanding that he was to pay appellee no commission. Besides this, there was evidence requiring the submission of the issue to the jury on the question of mutual mistake, for which reasons we think the court very properly declined to give such charge.
We sustain the several assignments, however, urging that the court erred in submitting the issue of fraud to the jury, for the reason that the evidence, to our minds, fails to show that any fraudulent representations were made by appellant for the purpose of inducing appellee to accept the lots in satisfaction of his claim for commissions. Appellant merely stated his opinion with reference to the value of the lots, telling him at the same time that he had never seen the lots, and did not know their value. It is true he stated that he gave in trade $250 apiece for the lots, including the incumbrance thereon, but this statement is shown to have been true; and, even if he had stated that some other person had told him that the lots were worth said amount, yet he said at the time *Page 1106 that he did not know their value and had not seen them. Under such circumstances, we do not think fraud is shown. See Boles v. Aldridge, 153 S.W. 373; 14 Am. Eng. Ency. Law, p. 102 et seq.
The ninth, tenth, and eleventh assignments are overruled, for the reason that the special charges therein referred to were properly refused, as they were upon the weight of the evidence.
We think, however, the jury might have been misled by the expression "impliedly employed," used in the charge complained of in the eighth assignment; and, while it does not constitute reversible error, we suggest, in view of another trial, that the issue be differently submitted.
It is asserted by appellee, however, that if the contract of settlement was not supported by any consideration, which he claims was shown by the uncontradicted evidence, then the court should not have submitted to the jury in any form the issues raised by his defensive pleas setting up fraud and mistake therein, but should have peremptorily instructed a verdict in his behalf on the ground of failure of consideration. Conceding that his pleading was sufficient to raise the issue of failure of consideration, still we disagree with appellee, for the reason that the evidence was contradictory on this issue; appellant having testified that he sold the remaining lots for $200.
Believing that the court erred as above indicated, the judgment herein is reversed, and the cause remanded.
Reversed and remanded.