On Motion for Rehearing.
Appellees advance the proposition that because they negotiated a binding and enforceable written contract entered into between appellant and Webb for the exchange of their respective properties, they were entitled to recover the commission from appellant even though the Webbs defaulted and the title to their property was defective. They advance the further proposition that because they were employed by appellant and Webb to negotiate an exchange, and because the undisputed evidence shows that the parties entered into a written contract of exchange, they were entitled to recover their commission, notwithstanding there was no consummation of the deal. They cite Francis v. Foster, 113 Tex. 521, 260 S. W. 1023, in which the Commission of Appeals, through Chapman, Justice, guotes from 9 C. J. 631, as follows: “If the principal and the customer found by the broker enter into a valid contract, and the broker acts in good faith, the broker is not deprived of his right to a commission by the fact that the customer fails or.is unable to carry out the contract, such as a contract of purchase or a contract of exchange.”
That case has no application to the instant case, because it appears from the record that the commission was not due until the exchange of their respective properties had been made by the parties. Or else this case is one in which the minds of the parties never met. In either event the appellees would not be entitled to recover. In their original petition the appellees alleged that on or about the first day of January, 1933, Jackson listed with them for exchange or sale 2,702 acres of land in Bailey county, Tex., together with some live stock described in the pleading, and they further allege that thereafter through a series of negotiations they effected an exchange of property with the Webbs on terms agreeable to each of the parties. This allegation is not supported anywhere in the repord. No exchange was ever effected, nor were the terms of the proposed exchange ever complied with. It appears that J. W. Thompson and Ed Terrell were conducting a real estate brokerage business under the firm name of Western Land Company, but that Thompson was the active member of the firm in endeavoring to effect this exchange, and that Terrell had very little, if anything, to do with it. In fact, he does not appear in the transaction until the contract was written and signed. It is conceded that Thompson wrote the contract and conducted the negotiations leading up to its execution, and that Terrell does not appear in the picture until some' time thereafter. On January 6th Thompson wrote Jackson, 40 days before the execution of the contract, that he had a good bi’iek hotel in Mineral Wells which had 41 rooms with an indebtedness of $12,500, bearing 8 per cent, interest, against it. He failed to mention the federal, state, county, city, and school taxes, all of which were unpaid and secured by tax lien upon the property to the extent of more than $8,000. June 28, 1933, Thompson again wrote the appellant, telling him that Terrell had employed attorneys to sue the Webbs and Jackson for the full commission, and wanted Thompson to join him in the suit. With reference to this Thompson wrote: “I told him if the title was all right and then either of you refused to close, that I would join in the suit. • * * I realize that we have performed our duty and are entitled to the commission from some source, but if you was ready and tried to close up and he would not comply with the contract, in that case you are not to blame, so please let’s get together and try to settle if-without, any court action,” etc.
While Thompson was upon the witness stand and had testified that Webb and Jackson had agreed to pay each $250, he was asked:
“Did they pay it? A. No.
“Did they give you anything at all? A. No, ■sir, not at that time.
“Or since? A. No, sir.
“The Court: Did you,ask them for anything at that time? A. No, sir, we always showed the client the courtesy of trying to close up the deal.
“Was it your idea the money was to be paid when the deal was closed? A. Yes, sir, but I figured we would get our money in thirty days.”
The appellees introduced paragraph 8 of Jackson’s answer, filed in a prior suit, wherein Webb sought to enjoin him from moving cattle off of his land, in which Jackson alleges that Mrs. Webb, by her husband as agent, and the brokers discovered that the written contract px-ovided that each of the *1059parties thereto “were to pay 2½<% to the plaintiffs as commission for procuring the exchange of such properties.” This is followed hy the further allegation that the contract in that particular was uncertain, and thereafter ‘‘it was verbally agreed between the plaintiffs on one hand and defendant and Sidney Webb on the other, that the amount of the commission would he fixed at $250.00,” that each of the parties to the contract would pay plaintiffs for their services in bringing about such exchange of properties between the defendants. This pleading, being filed in a former suit between the same parties, was admissible in evidence. Cerf v. McElroy (Tex. Civ. App.) 25 S.W.(2d) 950; Buzard v. McAnulty, 77 Tex. 438, 14 S. W. 138. Exactly why appellees introduced it is not clear, but since they have made it a part of their testimony it tends to show Jackson’s understanding of the written and verbal contracts. It is said that the construction placed by a person on his own language in drawing a contract constitutes the highest evidence of his intention. Neblett v. Armstrong (Tex. Com. App.) 26 S.W.(2d) 166, 75 A. L. R. 577. When Thompson wrote Jackson that if the latter was ready to close the deal and Webb would not comply with the’ contract, Jackson would not be to blame, and when he further, in response to the court’s question, “Was it your idea that .the money was to be paid when the deal was closed?” answered in the affirmative, is a clear construction by the writer of the contract of what his intention was, and when the contract is ambiguous upon that point, as in this case, the court should accept his construction. In fact, the practical construction given by the parties to a contract has great weight with the court. The contention in this case by the ap-pellees is that their compensation was due when the written contract was signed and yet they waited four months before they made any demand. Thompson had previously written Jackson that he believed he could make a quick deal between the parties. Jackson testified without contradiction that Terrell told him while the deal was still pending not to pay Thompson any part of the commission “when the trade should be closed up,” claiming that Thompson had beat him out of some money or share of former commissions. Jackson further testified that when Terrell told him not to pay Thompson any part of the commission when the trade should be closed up, that he, Jackson, replied, “I do not figure that I owe anything, yet,” and Terrell did not express a contrary view. It is true that Jackson was unable to say what particular statement from either of the appellees led him to believe that no commission would be due until the exchange had been actually effected, but he does state positively that from all that was said he gathered that idea and had that impression.
In our opinion the testimony even of the appellees preponderates in favor of Jackson upon the issue of when the commission was to ■be paid. If we are mistaken in this, then the record shows that the minds of the parties never met upon this material term of the contract, and in either event the appellees would not be entitled to recover against Jackson. 10 Tex. Jur. 27-30.
The case has not been fully developed, and the judgment is not sustained by the testimony.
Motion overruled.