I cannot agree with my associates in the conclusion that the judgment of the trial court in this case should be affirmed. I can find nothing in the contract pleaded in this case and established by the evidence which in any way distinguishes it, in so far as the liability of appellants is concerned, from the ordinary contract between the owner of property and an agent to pay a commission to the agent for making a sale of the property. The mere fact that both parties to the contract were land agents engaged in the business of buying and selling land on commission cannot affect the character of the liability incurred by appellants under the contract.
As a matter of fact the property, for the sale of which a commission amounting to 50 per cent. of the sale price of the property was awarded the appellee by the judgment in this case, was at the time of the sale owned by one of the appellants. But, as before said, this fact is not material. *Page 539
A contract between agents for the sale by one of property held for sale by the other must be governed, in so far as the rights and liabilities of the parties are concerned, by the same rules of law applicable to such a contract between an agent and an owner.
Appellee's right to recover the commission claimed by him under the contract on which his suit was based depends upon whether as the result of his efforts appellants effected a sale of the property, or, in other words, whether he was the procuring cause of the sale. I think the evidence not only fails to show that he was the procuring cause of the sale, as that term has been uniformly defined in the decisions of our courts, but affirmatively shows that he had nothing to do with effecting the sale or procuring a purchaser other than the introduction to appellants of Mr. Hisgen, who he thought at the time of the introduction was a prospective purchaser of oil lands, but who, the undisputed evidence shows, was not at that time interested in such property and had no intention of becoming a buyer. There is no evidence that the property, for the sale of which appellee recovered commission amounting to more than $10,000, was offered to Hisgen by him, or that the appellee did or said anything which induced Hisgen to subsequently become interested in the property. These facts being undisputed, I know of no rule of law or equity which would entitle appellee to recover commissions on the sale of the property made several months thereafter by appellant, even if the sale had been made to Hisgen, which the undisputed evidence shows was not the case.
The undisputed evidence shows that the sale of the property for which appellee recovered commissions was not made to Hisgen, who, appellee claims, was the purchaser procured by him, but to a corporation in which Hisgen is not even shown to have been a stockholder. Some two months after appellee introduced Hisgen to appellants the appellant Glenn Nichols induced Hisgen to undertake the organization of a corporation to purchase the leases, and in pursuance of an agreement between them Hisgen purchased an option on the property, went to Massachusetts and induced parties there to form a corporation and take over the property. The option was transferred to the corporation, and the property was thereafter conveyed to it, and appellants gave Hisgen an interest in the royalty reserved by them in the land for making the deal.
I think the opinion of the majority, holding that upon the evidence in this case appellee is entitled to recover on the contract pleaded by him, is in direct conflict with the decisions in the cases of Brown v. Shelton (Tex.Civ.App.) 23 S.W. 483, and English v. Realty Co.,55 Tex. Civ. App. 137, 117 S.W. 996, and finds no support in any decision of any appellate court of this state.
Such being my conclusions upon the facts and law of the case, I respectfully dissent from the opinion of the majority of the court.