
    WILLIAMS v. ATKINSON.
    (No. 1546.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 14, 1919.
    Rehearing Denied June 18, 1919.)
    1. Brokers <§=^82(1) — Actions for Commission-Petition.
    Where it is alleged that the seller actually sold the premises to a purchaser with whom the broker was negotiating upon specified terms, it is not necessary to allege' that the proposed purchaser was ready, able, and willing to buy.
    2. Brokers <®=o61(1) — Commissions — Right to.
    Where a broker, has brought the seller !\nd purchaser together who have agreed on terms and price, if title is good, the broker is entitled to his commissions, though the sale is not effected bdcause of a defect in the title.
    3. Brokers <§=^61(1) — Commissions—Implied Conditions.
    There is an implied condition in a contract, where a broker procures a purchaser with whom the owner agrees on terms of sale, that title' shall be perfect, and, where it is not perfect and the purchaser for that reason refuses to accept the premises, the broker cannot be denied recovery on that ground.
    4. Pleading <§=>34(7) — Presumption — Attack on Appeal.
    Where a petition is the first time attacked in the appellate court on grounds which could have been raised by general demurrer, every reasonable presumption will be indulged in favor of the sufficiency of the petition.
    5. Brokers <®=»82(1) — Actions eor Commission — Petition—Sufficiency.
    In an action by a broker for commissions for services rendered in sale of lands, petition, alleging that the broker procured a purchaser who agreed to purchase and entered into written contract, etc., and took possession of the premises, and that the broker was the efficient procuring cause, held sufficient to support a judgment in the broker’s favor.
    Error from Dallam County Court; J. E. Moore, Judge.
    Action by George F. Atkinson against Carl Williams. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Tatum & Strong, of Dalbart, for plaintiff in error.
    Bailey & Richards, of Dalbart, for defendant in error.
   HALL, J.

Defendant in error, Atkinson, a real estate broker, sued Carl Williams, to recover commissions alleged to be due him for services rendered plaintiff in error in the sale of certain lands belonging to the latter, which it was alleged were sold to one Randolph. The petition alleges that the land described therein and certain personal property was listed with him by defendant for sale upon certain terms, with instructions to find a purchaser upon such terms; the plaintiff then and there agreeing to pay him a commission of 5 per cent, on the gross amount of the sale price. It is further alleged that the plaintiff secured one Leonard Randolph, “who agreed to purchase the said lands, premises, and improvements, and who did enter into a written contract with the said defendant to purchase the same upon the terms and conditions named by defendant and upon terms and conditions satisfactory to the defendant, and that a sale of said lands, premises, and improvements was made and consummated by and between said Randolph and the defendant, and the said Randolph paid to the defendant thereon about $2,000 in cash and undertook to pay the balance of the cash payment when certain requirements with reference to the title had been met and took possession of said premises and has ever since been in possession thereof, and has made a crop thereon during the present year.” In the next paragraph the petition sets out the terms of the sale, and in the paragraph following alleges:

“That plaintiff was the efficient and procuring cause of the sale that was made; that he found the' said purchaser and placed him in communication with the defendant and pursuant thereto said parties negotiated and consummated said trade,” etc.

A trial resulted in a judgment for plaintiff for the full amount of the commissions, less $50 paid and credited thereon.

Under the first assignment, it is insisted that the petition is insufficient to support the verdict and judgment, in that it fails to allege, that plaintiff procured' the execution of a valid and enforceable contract, or that the person so found was ready, willing, and able to fully complete the sale and pay the purchase price. We think the allegations are sufficient to show that plaintiff procured the purchaser, and that a sale was made upon terms and conditions satisfactory to the defendant, even though the allegations be construed to be insufficient to show a sale upon the terms specified in the listing contract. Where it is alleged that the seller actually sold the premises to a purchaser with whom the broker was negotiating upon specified terms, it is nob necessary for the petition to allege that the proposed purchaser was able, ready, and willing to buy. Pierce v. Nichols, 50 Tex. Civ. App. 443, 110 S. W. 206. The petition does not in any sense declare upon an option contract, but alleges in plain terms that a sale was made by and between Randolph and defendant. It is true that the allegations further show that Randolph paid only $2,000 and undertook to pay the balance when certain requirements with reference to the title had been met. The rule is settled in this state by a multitude of decisions that, if the sale should not be consummated because of a defect in the title, it will not defeat the broker’s right to his commissions. If he has brought the seller and purchaser together who have agreed upon terms and prices, if the title is good, the broker is entitled to his commissions, although the sale is never effected because of a defect in the title. Breckenridge v. Claridge, 91 Tex. 527, 44 S. W. 819, 43 L. R. A. 593. It is an implied condition in a contract where the broker procures a purchaser, with whom the owner agrees upon the terms of sale satisfactory to both, that the title shall be perfect. Wilson v. Clark, 35 Tex. Civ. App. 92, 79 S. W. 649. And the allegations here are sufficient to show a completed sale conditioned upon a perfect title. It is not necessary for plaintiff to allege that the requirements as to title can be met. In Levy v. Dunken Realty Co., 179 S. W. 679, it is said:

“The rule seems to be well settled that where a real estate broker has contracted for a certain compensation for procuring a customer to purchase on certain terms and conditions, and he procures a purchaser who agrees to purchase under modified terms and conditions differing from those the agent has authorized by his principal to make, and such terms, as modified, are agreed to by the owner of the property, by his entering into a written contract of sale, embodying the modified terms and conditions, with the purchaser, the' broker is entitled to his. commission as stipulated in his contract of agency.”

The pleading does not show that an unenforceable contract was entered into. There is no statement of facts in the record, and we must presume that the evidence was sufficient to show the right to recover under the allegations. The questions raised by the assignments are in a sense technical, going only to the sufficiency of the pleadings, and \are in effect such questions as might have been urged by a general demurrer. Indulging every reasonable presumption in favor of the sufficiency of the petition, we think the assignments should be overruled. Nor was it necessary for plaintiff to allege that a binding contract had been entered into between defendant and Randolph. His right to recover did not depend upon the existence of such contract. As was said in Loomis v. Broaddus & Leavell, 134 S. W. 743:

“It was, however, in so far as it affected plaintiffs, immaterial what construction was placed upon such contract. They [plaintiffs] having brought the parties [seller and purchaser] together, and, they having made a contract in terms to suit themselves, its construction was a matter between defendants and Dyer, and was a matter of no concern to the' appel-lees. As to whether there was such a mutual mistake, as to the number of acres in the subject of the contract, as would render its enforcement against the appellant inequitable, was also a question between the parties to such contract, and, however determined, could not affect plaintiff’s right to recover the commission they earned by bringing the parties together and their then agreeing upon a contract of sale upon terms satisfactory to themselves. Plaintiffs did not make nor induce the parties to make the contract in the terms it was written, and are in no way responsible' for its consequences.” Henderson & Grant v. Gilbert, 171 S. W. 304.

The judgment is affirmed. 
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