
    STOCKTON et al. v. CROW.
    (Court of Civil Appeals of Texas.
    Nov. 26, 1910.)
    1. Principal and Agent (§ 122) — Authority óf Agent — Evidence—Declarations of Agent.
    In an action for broker’s commissions, evidence that the owner’s son who employed plaintiff stated that he and his mother owned the land, and that she would be willing to do anything that he would do, and that anything he did would be all right with his mother, was insufficient to establish his authority to act for her in plaintiff’s employment, under the rule that an agent’s authority when in issue cannot be established by showing that he so acted, or claimed to have the powers which he assumed to exercise.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 416-419; Dec. Dig. § 122.]
    2. Brokers (§ 88) — Action for Commissions —Question for Jury.
    In an action for broker’s commissions, evidence held to require submission to the jury of the question whether there was a meeting of minds of the parties to the exchange, alleged to have been effected, so as to make a completed contract, and if so, whether defendant B., without sufficient cause, refused to complete the same, and also of the question of what amount Was agreed to be paid plaintiff as commissions.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 128, 129; Dec. Dig. § 88.]
    Appeal from Jones County Court; Jas. P. Stinson, Judge.
    Action by W. M. Crow against Ella Stockton and others. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    J. C. Randel and R. W. Harris, for appellants. B. B. Greenwood and H. H. Sagebiel, for appellee.
    
      
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   CONNER, C. J.

Appellee instituted this suit against Mrs. Ella 'Stockton and her son, W. P. Brown, to recover the sum of $300 alleged to be due as commissions for the sale or exchange of 180 acres of land in Has-kell county and four lots in the town of Stamford, Tex.

The petition alleged that the defendant W. P. Brown was the agent of the defendant Ella Stockton and as such listed the property mentioned for sale or exchange at a valuation of $6,000 and “agreed to pay plaintiff 5 per cent, of the consideration, if a sale or exchange of the property should be effected through the plaintiff”; that through the efforts of the plaintiff “a full and definite agreement of exchange” had been reached between the firm of Haskew & Jones and the defendant Brown, acting as agent of Ella Stockton as stated, but that after Haskew & Jones had signed the contract for exchange the defendant Brown refused to sign the contract or to carry out the trade as agreed upon. The defendants answered, among other things, by a general denial, and Mrs. Stockton specially tendered a verified answer denying the agency of her son as alleged. Upon the conclusion of the evidence, the court gave a peremptory instruction directing the jury to find for the plaintiff, W. M. Grow, against both defendants for the sum of $300, and judgment was entered accordingly.

On this appeal from the judgment stated, error is assigned to the peremptory instruction of the court, and we think the assignment must be sustained. Neither of the defendants testified and the only evidence that W. P. Brown had any authority whatever from his mother, Mrs. Stockton, to act in the matter was that of the plaintiff who testified on this subject: “I never did at any time speak to Mrs. Stockton about this deal and never met her until the last term of court here in the trial of this case. She had not at any time told me to trade her land as I had never seen her; I was dealing with W. P. Brown, who told me to go ahead and make this trade. I had never sent any one to see her about the deal that X know of. I had never talked to Mr. Brown about getting his mother’s consent to the trade, except that when he listed the land he said that ‘we own it,’ and I asked him whom he meant by ‘we,’ and he said he and his mother. I told him to get her right and he said that-she would be willing to do anything that he was willing to. I don’t remember that he ever told me that he talked to his mother about the trade.” And that of Mr. Haskew with whom it is alleged Brown agreed to-make the exchange, who testified on this-subject that Brown lived with his mother and that, “I don’t remember Mr. Brown’s wanting to phone his mother about the deal or his saying anything about it, nor of his saying that he wanted to see his mother to-see if she would make the deed to the land. He said when we first got on the deal that anything he did would be all right with his mother, but that he wanted to go home and talk it over with her. He told me that along at the beginning of the trade.”

We think it perfectly apparent that the evidence quoted falls very far short of establishing authority on the part of W. P. Brown to act for his mother. It seems to be assumed in the record that the land listed with the plaintiff was the property of Mrs. Stockton, and it is elementary that the authority of an agent, where the question of its existence is involved, cannot be established by showing that the alleged agent so acted and claimed to have the powers which he assumed to exercise. See Mechem on Agency, § 100; Mills v. Berla, 23 S. W. 910; Brady v. Nagle, 29 S. W. 943; M. A. Cooper & Co. v. Sawyer, 31 Tex. Civ. App. 620, 73 S. W. 992. The court’s charge, however, in effect assumed that the proof on the issue of agency was conclusive and in so doing we think there was manifest error.

Nor do we think the court’s charge can be supported in its effect upon the rights of W. P. Brown. The case as made by the pleadings was, as before stated, one in which W. P. Brown at the time that he listed the land mentioned agreed to pay plaintiff 5 per cent, of the consideration if a sale or exchange of the properties should be effected. Though the testimony of the plaintiff himself possibly might support these allegations, there was other testimony susceptible of a different construction. For instance, the witness Haskew, with whom the alleged agreement for exchange was made, testified to the effect that he had also listed his property with the plaintiff for exchange, and when informed by Grow that perhaps Mr. Brown would take an interest in his, Haskew’s, business, that “Brown came around and we talked the matter over and I went to look at the land, and finally he and I got together on the deal, and he said, ‘I believe it suits me all right, provided we can go up and fix our commission with Mr. Grow.’ We then went up to Mr. Crow’s office and talked the matter over with him and finally decided that the trade was made, and then came down to commission.” He further testified that it was finally agreed that each of the parties to the exchange would pay one-half of the commission, $150, that he, Haskew, agreed to give his note for his half of the commission, and, in fact, executed his note for that amount, due 30 days from its date, that Brown first wanted 30 days, then 60, and then 90 days, hut finally insisted on Crow taking a horse and huggy, which Crow refused to do, and thereupon Brown refused to sign the contract for the exchange of properties.

To say the least of this testimony, we think it should have been left to the jury to say whether the contract on the issue of commissions, as finally agreed upon, was, as alleged, 5 per cent, or $300, or $150, and whether there was a meeting of the minds of the parties to the exchange so as to make a completed contract, and, if so, whether Brown without sufficient cause or reason refused to make the exchange as finally presented.

We conclude that the judgment must be reversed, and the cause remanded for another trial.  