
    SANDIFER v. FOARD COUNTY. 
    
    (Court of Civil Appeals of Texas.
    Jan. 21, 1911.
    Rehearing Denied Feb. 25, 1911.)
    1. Biíokebs (§ 71) — Compensation — Construction op Contract.
    A contract by which a county listed land with a broker to 'be sold at $4 per acre net to the county does not necessarily mean that the broker is to receive all excess above $4 per acre, nor that his commission is to come out of the proceeds of the sale, but, to sustain the validity of the contract, will be construed as meaning that the 'broker is to obtain a purchaser at the best price obtainable, and to receive therefor a reasonable compensation, the price in no event to be less than $4 an acre net to the county, and that a reasonable compensation is to be paid by the county in some lawful manner; that is, out of current or general funds.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 56; Dec. Dig; § 71.]
    2. Counties (§ 152) — Public Debt — Provision por Payment — “Debt.”
    A contract by which a county lists land with a broker for sale does not create a debt to the broker, within Const, art. 11, § 7, forbidding the creation of a debt by any county unless provision is made at the time for its payment.
    [Ed. Note. — For other cases, see Counties, Dec. Dig. § 152.
    
    For other definitions, see Words and Phrases, vol. 2, pp. 1864r-lS86; vol. 8, p. 7628.]
    Appeal from District Court, Foard County ; S. P. Huff, Judge.
    Action by C. P. Sandifer against Foard County. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    W. D. Berry, Robert Cole, and F. P. Mc-Ghee, for appellant. R. P. Brindley and G. W. Walthall, for appellee.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
       writ oí error granted by Supreme Court.
    
   SPEER, J.

The appellant as plaintiff below sued the appellee to recover commissions as a real estate broker for the sale of 17,712 acres of county school land belonging to the defendant, and from an adverse decision by the trial court he has appealed.

The order of Foard county constituting the contract of employment relied on is as follows : “This order entered into the 13th day of February, 1909, by and between the commissioners’ court in and for Foard county, Texas, parties of the first part, and C. P. Sandifer, of Foard county, Texas, party of the second part, witness'eth: That the parties of the first part have this day listed for exclusive sale with the party of the second part for a term of six months from date herewith the following described property, to wit: 17,712 acres of land the same being Foard county school lying and being situated in Bailey county, Texas, at and for the sum of §4.00 per acre with five per cent, interest from date payable annually or semiannually, said price being net to the county of Foard, state of Texas, and payable twenty years from date of sale with option to the purchaser to pay any part or all the principal at or on any interest paying period after ten years from date of sale. It is also understood and agreed that the sale of the above-described land is to be made subject to a lease now on said land which expires on the 30th day of September, 1913. The party of the first part agrees to deed said land in subdivisions, provided the party of the second part thinks necessary to do so in disposing of the said land to the better advantage to the county.” This agreement is signed by the members of the commissioners’ court of appellee and by appellant. No other order of the commissioners’ court or further act of the parties indicated the amount of compensation to be paid to appellant in case he effected a sale further than what may be implied from the fact that before a sale was consummated appellant notified the commissioners’ court that he would expect five per cent, commission. Neither did the commissioners’ court make any provision whatever for the payment of these commissions, if the same be considered as a debt owing by the county within the meaning of our Constitution.

We will first address ourselves to a consideration of the contract itself and determine whether or not it is void on its face as contended by appellee. The vice pointed out as rendering the contract void is that it eon-tains an agreement to pay appellant for his services as broker all sums of money received for the county school lands above $4 per acre, and that such compensation is to come out of the proceeds of such sale. Both parties have apparently treated the subject as though this were the legal effect of the agreement. But we do not so construe it. The contract does not necessarily mean either that appellant is to receive all excess above $4 per acre or that his commissions are to come out of the proceeds of the sale at all. When rightly interpreted we think the contract means that appellant as agent for ap-pellee county is to procure a purchaser for the land at the best price obtainable, and to receive therefor a reasonable compensation, the price for the land in no event to be less than $4 per acre net to appellee. Turnley v. Micheal, 15 S. W. 912; Boysen v. Robertson, 70 Ark. 56, 68 S. W. 243. And the contract further means, we think, that this reasonable compensation is to be paid by appellee in some lawful manner, that is, out of current or general funds. Matagorda County v. Casey, 49 Tex. Civ. App. 35, 108 S. W. 476. The above interpretation is at least a fair and reasonable one and has the effect of upholding the validity of the contract, whereas the construction contended for by appel-lee would make it of no force whatever. Without determining whether or not section 7, art. 11, of the state Constitution, forbidding the creation of a debt by any county, unless provision is made at the time for its payment, is applicable to an inland county such as Foard (Mitchell County v. City National Bank, 91 Tex. 361, 43 S. W. 880), we do hold that this was not the creation of a debt contemplated by that section of the Constitution, and that the trial court erred in not sustaining an exception to such a defense. The evidence was such as to call for a determination of the case on its merits.

The judgment is therefore reversed and the cause remanded for another trial.  