On Rehearing. The rule announced in our opinion on original hearing, to the effect that a principal who employs an agent to sell property during a fixed period of time cannot breach such contract of employment without incurring liability for damages resulting therefrom, is also stated in 1 Mechem on Agency (2d Ed.) § 568, as follows:
"Distinction may be made in these cases between the power to revoke and the right to revoke; the principal always having the power to revoke, but not having the right to do so in those cases wherein he has agreed not to exercise his power during a certain period. If, in the latter case, he does exercise his power, he must respond in damages. The same conclusion may also be reached in other cases by distinguishing between the authority and the contract of employment. The authority may be withdrawn at any moment, but the contract of employment cannot be terminated in violation of its terms, without making the principal liable in damages."
The case of Bomar v. Munn, decided by this court and reported in158 S.W. 1186, is easily distinguishable from the present suit. In that case the brokers claimed the right to recover from the owners of property placed in their hands for sale for a definite period of time, which authority was revoked by the sale of the property by the owners themselves before the expiration of the period of time given to the brokers in which to sell the property. The claim of right of recovery in that suit was based solely upon the breach of the contract of agency by the owners, without any attempt to show that the services of the brokers were the procuring cause of the sale made by the owners, and without any attempt to prove that, but for the revocation of the agency, the brokers could have effected a sale of the property within the period of time covered by the contract of agency. In other words, a breach of the contract of agency was alleged and proven, but there was neither allegation nor proof that the brokers sustained any damages by reason of such breach, in that, but for the breach, the brokers could have earned a commission by selling the property, or that they did earn a commission by being the procuring cause of the sale that was made by the owners. The language used in that opinion, to the effect that the owners had the right to sell the property themselves without incurring liability to the brokers, had reference to the peculiar facts of that case, and was not intended as being applicable to cases like the present suit.
The appellant again urgently insists that Buchanan's contract of agency was breached by Buchanan by a transfer to Harwood of a one-half interest in his contract with Popplewell. This contention is based upon the stipulation in that contract to the effect that Popplewell granted to Buchanan "solely the exclusive right of sale as agent on the following described property for six months, * * *" and upon the further proposition that such authority to sell the property could not be delegated to Harwood without the consent of the owner. As shown in our original opinion, we construed such transfer to Harwood by Buchanan as a transfer of an interest in any commission that might be earned or any cause of action that might arise in Buchanan's favor under and by virtue of his contract of employment. The suit by Harwood was merely for a one-half interest in the damages resulting from the breach of the contract of employment of Buchanan, and did not involve the enforcement of any contract made by Harwood as agent of Popplewell, and hence the authorities cited and discussed in Williams v. Moore, 24 Tex. Civ. App. 402,58 S.W. 953, to the effect that such a subagent cannot bind the owner by any contract, are not applicable. Furthermore, the decision last cited announces the doctrine that, while such a subagent may not bind the owner of property to pay for services rendered by a person employed by the subagent, yet such a subagent may be employed to perform ministerial acts, such as showing the property and efforts made to induce the sale thereof, all at the expense of the agent employing him. In other words, the doctrine is clearly announced that a broker engaged to sell real estate may employ the services of a subagent to assist in procuring a sale; and the record in this case clearly shows that such was the extent of the employment of Harwood by Buchanan, and that Buchanan himself found a purchaser for the property in Skaggs within the period of time covered by the contract of agency. It is too well settled to need the citation of authorities that a cause of action like the present one, or an interest therein, may be transferred to another, who may recover the interest therein so transferred.
For the reasons indicated, the motion for rehearing is overruled.
Motion overruled.
CONNER, C.J., not sitting, serving on writ of error committee at Austin. *Page 878