On Motion for Rehearing.
In an extended motion for rehearing and additional written argument, appellants stress the contention that the evidence conclusively showed a withdrawal of the property from sale before Westbrook offered to purchase it. Following is the testimony chiefly relied on to support the argument: Testimony of Donnelly that his written offer to purchase, of date March 1st, was the only .firm offer he ever made to buy, and his further testimony, which -was corroborated by that of Gerke, that the day before plaintiff told him that he had that letter he (Donnelly) told Gerke he had changed his mind about sell-. ing the lease; and told plaintiff the same when the latter informed him of West-brook’s written offer, which testimony of Gerke was not specifically denied by plaintiff.
Appellants further insist that the evidence shows conclusively that Gerke and plaintiff were working together jointly to procure a purchaser for the lease and that therefore plaintiff was bound by the notice so given to Gerke as his authorized representative. However, according to testimony of plaintiff, corroborated to 'some extent by that of Gerke, he was working separately and independently of Gerke, who was not interested in any of the commissions sued for, and was therefore not authorized to bind him by such notice to Gerke of Donnelly’s withdrawal of the property from the market. In this connection it is proper to note plaintiff’s testimony to the effect that on February 21st, in compliance with a request from West-brook for such information, Donnelly furnished the data with respect to the character and condition of the property pointed out in our original opinion. With the information so furnished and after examination of the property, Westbrook decided he could not pay $80,000 therefor, which he would have been willing to pay had the property been as represented, but would pay therefor $74,500, and on that occasion Donnelly made the statement to him, as pointed out in our original opinion, that plaintiff “could go ahead with the deal, if it was a bona fide deal,” and that “it was not necessary to have the deal completed today or tomorrow, if you will get us a contract that he will buy the property; that is all we want and we can work out the details.”
Plaintiff further testified that on Monday morning, February 25th, he called Donnelly over the telephone and “told him that I had called Mr. Westbrook, and that • we were ready to close the transaction, and he said, ‘that is fine.’ I said, ‘it may require an hour or so for me to get up there, but I will be up and I have already called Mr. Westbrook, and we are ready to contract and go into it. We had been ready for several days when I reached him.”
“Q. What did he say? A. He said that was fine, that he was glad we got that over, and he was very much pleased with it. * * *
“Q. When was the next 'time that you had a conversation with him — Donnelly?'
*1100A. The next conversation was on Friday, the first.
“Q. The first day of March? A. Yes sir, I remember that well, because that was the day that I received my purchase letter from Mr. Westbrook.”
He further testified that Westbrook’s written offer to buy the property was delivered to him on the morning of the same day, which was Friday, and at the same time Westbrook agreed to pay to plaintiff $2,500 in addition to the $72,000 stipulated in the contract which plaintiff wished to have set aside for the benefit of his daughters. He further testified that:
“A. I called Mr. Donnelly and notified him, and that was the first time that I talked to him since Monday morning, when I made the appointment with Mr. West-brook ; that was my first conversation with Mr. Donnelly, and I explained to him that I had this 'purchase contract, and was ready to close the deal. Why,’ he said, T have changed my mind.’ I said, 'When did you change your mind?’ Fie said, ‘Well, I have just changed my mind.’ And that was the extent of our conversation. * * *
“Q. Did you talk to Mr. Donnelly any more after that Friday night, after he had told you that he had changed his mind? A. Yes.
“Q. Where?- A. I talked to him about ten days later.
“Q. At what place? A. In his office.
“Q. Who was present? A. Mr. Gerke and I am not sure whether Mr. O’Brien was there or not. He may have been.
“Q. What was your purpose up there; what were you doing there? A. To find out why he did not want to fulfill his agreement.
“Q. What did you say to him, and what did he say to you, if anything? A. I said, ‘Why don’t you want to deliver the properties?’ He said, ‘Well, I just changed my mind.’ I said, ‘Don’t you think that I have acted in good faith and worked out this properly?’ He said, ‘Oh, yes, no doubt about that, but I just don’t want to sell it now. I just changed my mind,’ That was about the extent of our conversation. * * *
“Q. Now Mr. Fenoglio, then, as a matter of fact, Mr. Westbrook never did finally come to any agreement to purchase this property until he furnished you that purchase letter; that is correct, isn’t it, on the final purchase price? A. No, sir; he would have purchased that property on the Monday previous to this date, if the property had checked as represented.
“Q. All right, but at any rate, he said he had to check those properties, and you testified awhile ago that he phoned you from out there, or you phoned him, and that he said the purchase price would be reduced because there was a liner gone from the well. A. Yes, sir.
“Q. And when he finally came into contract, and made the agreement with you, that was this contract here? A. In addition to the $2,500.”
Plaintiff further testified that during that week defendant Armstrong consented and agreed that he might go on with the deal with Westbrook then under negotiations.
Notwithstanding plaintiff’s failure to specifically deny Gerke’s testimony that either on Thursday night, February 28th, or on the morning of March 1st, he informed plaintiff of Donnelly’s statement that he had changed his mind about selling the property, it did not follow that such information would preclude plaintiff’s right of recovery upon the theory that the property was withdrawn from the market before plaintiff procured, in Westbrook, a purchaser'ready, willing, and able to buy.
The defendants’ pleading that the property was withdrawn from the market before plaintiff found a purchaser was as follows: “If any such agreement or listing was or had been made, there was no time limit set for the continuance of such agency and defendants would and did have a right to withdraw from any such contract or agreement at any time prior to the actual consummation of any sale, and in this connection defendants would show the Court that after the termination of said option contract below mentioned and before plaintiff ever consummated said purported sale, plaintiff was duly notified and informed by defendants that said properties were no longer for sale and therefore if there was or had been any such listing or agency created as alleged by plaintiff, it was and would have been duly terminated, as above shown, without any liability to plaintiff.”
That pleading included no allegation that at the time of the attempted withdrawal of the property from the market plaintiff already had had a reasonable time within *1101which to find a purchaser and that the withdrawal of it was done in good faith.
In the absence of a time limit within which he was authorized to sell, plaintiff was entitled to a reasonable time within which to conclude his negotiations then in progress. 7 Tex. Jur. pp. 421-427, inclusive, and decisions there cited; 4 R. C.L. § 9, p. 263; 7 Tex.Jur. § 58, p. 449; Hamburger & Dreyling v. Thomas, 103 Tex. 280, 126 S.W. 561; Pahl v. Hansen (Tex.Civ.App.) 6 S.W. (2d) 818; 2 Tex. Jur. § 211, p. 629, § 212, p. 631.
Whether or not the property was withdrawn from the market before Westbrook’s offer to buy was a special •defense, and the burden was upon the defendants to sustain the affirmative of that issue by proper pleadings and proof. Defendants did not request, nor did the court submit, issues as to whether or not the attempted withdrawal was after plaintiff had had a reasonable length of time within which to conclude the negotiations already in progress, or whether or not the attempted withdrawal was in good faith. Those issues were incidental to the issue of withdrawal pleaded, and the testimony pointed out above was sufficient to support implied findings by the trial court that plaintiff procured a purchaser in Westbrook within a reasonable time after he was authorized so to do, and that the defendants’ refusal to consummate the sale in accordance with Westbrook’s written offer was arbitrary and prompted by their decision that the property was worth more than the price offered. And in this connection it is to be noted that defendants still own the property. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W. (2d) 1084.
The motion for rehearing is overruled.