
    BROWN v. ALTMAN.
    (No. 1637.)
    
    (Court of Civil Appeals of Texas. El Paso.
    April 10, 1924.
    Rehearing Denied May 1, 1924.)
    Brokers <&wkey;86(4) — Finding that broker was procuring cause of sale held not supported by evidence.
    Evidence held insufficient to support finding that broker, suing for commission, was efficient and procuring cause of sale.
    (g^sKor other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes
    Appeal from District Court, Jones County; W. R. Chapman, Judge.
    Action by E. Y. Altman against O. B, Brown. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    W. H. Murchison, of Haskell, and Thomaa & Pope, of Anson, for appellant.
    Lon A. Brooks, of Anson, for appellee.
    
      
      Writ of error dismissed for want of jurisdiction June 12, 1924.
    
   HIGGINS, J.

Altman sued Brown to recover a commission alleged to be due for services rendered as a real estate broker in effecting a sale of 2,302% acres of land owned by Brown and sold to Eugene Milam for $30 per acre. The only issue was whether Altman’s services were the efficient and procuring cause of the sale: This was found in his favor by the jury, and judgment rendered accordingly.

The only question presented by the appeal relates to the sufficiency of the- evidence to support the finding indicated. The evidence is undisputed upon the issue so far as concerns the material facts. Any conflict existing is upon unimportant issues in the determination of the controlling question.

The facts are as follows:

Appellant, a resident of Anson, Jones county, on December 1, 1926, purchased the land which was situate near Weinert, in Haskell county, through a Mr. Mills of Anson. Theodore Jones resided on land adjoining the tract purchased by Brown. The purchaser, Milam, was a brother-in-law of Jones, and" resided in another county. On December 3, 1920, Mills wrote Jones in substance that he had sold the land to Brown, and endeavored to sell a part of the same to Jones, and asked Jones what price he would be willing to pay. On December 8 Jones wrote Mills he would like to buy 200 acres or more, and would be willing to pay $30 per acre if terms were satisfactory. On December 11 Mills wrote Jones that the owner would not cut up the land, and there was no chance to buy the part he wanted. At Christmas, 1920, Jones and wife visited Milam, and at tha,t time Jones told Milam about the land and' tried to get him to buy it.

Jones testified:

“After the land was purchased by Mr. Brown I received some letters from Mr. Mills about selling'me a part of the land. I received the letter which you hand me, dated December 3, 1920. I replied to that letter. The letter yon hand me is the letter I wrote Mr. Brown inr reply. I also received this letter from Mr. Mills dated December 11, 1920. The first letter you showed me was Exhibit No. 1. When I received the letter I sáid something to Gene Milam about the land could be bought; I mentioned it several times, every time I seen him or I wrote him. I saw him abou); Christmas¿ Me and my wife went down there Christmas; I saw Gene Milam on that visit. I talked with-him then about this Nolen land. ' I told him it could be purchased. I tried to get him to buy it then. I told him when he got ready to buy the land I though it could be bought, and told him the sooner he bought it the better it would be. I mentioned it to him at other times. I wrote him a time or two about it. X went down there in the month of July. I saw Gene Milam on that visit. I mentioned the land to him at that time. He went back to Haskell county with me. That was in the month of July. His whole family went with him. He saw this land when he went back there in July. We didn’t go on the land, but we went around the land. I showed him the land at that time. He went from there to Spur.
“Before Eugene Milam went to Spur he said he wanted to buy some land, and he liked that mighty well, and if he didn’t see something while he was gone foir me to get in touch with Mr. Brown while he was gone, and if he didn’t buy something while he was gone that was the piece of land he wanted. He came back by my place. He said something about the -land. He stayed all night. He asked me if I had got in touch with Mr. Brown, but I had been busy, and he got back sooner than I thought, and I hadn’t wrote Mr. Brown anything about it. X told him — he said he wanted the land if he could get it, and I told him, I says, ‘Mr. Brown’s folks, or some of them, is over at the ranch to-day; brought some cattle in this morning; we will go see;’ and we went to Weinert, and when we got there one of his children taken mighty si'ck, and we bad to go back home, and we didn’t see Mr. Brown, or didn’t go to the ranch house at all. When we got back home the child was sick, and he rushed on home that evening, but he told me to write to Mr. Brown and find out as quick as X could what the land could be bought for. After that I wrote to Mr. Brown. The next time I saw Mr. Brown was up at my house. He came up there after the letter was written to him. John Sylvanis was with him. They came up there in a Cadillac roadster. That was just a two-passenger car. I talked with Mr. Brown about the sale of the land. I asked him what was the least would buy it, and I told him if he would get right X had a man that would buy it. He priced it to me at $30 an acre. I told him I thought maybe Gene would buy the land, but I would write to Gene and let him know what the price was; that was Gene Milam. I got a full statement of the terms that it would take to buy the land. I suppose Mr. Brown came back home. I wrote Gene Milam what Mr. Brown said — what he would take an acre for it and all. I heard from Gene — got a letter from him about as quick as the mail could come back — and.be told he the day he would be at my house; he would get there on Wednesday. That was in August. Pie came up that month.
“When Gone Milam got to my house I was gone to Port Worth, and I come home that night; come to Weinert on the night train, and went home the next morning. The train got in about daylight, and I went home, and I told Gene what Mr. Brown said. He says, ‘Let’s go look at the land;’ so I taken him over to the place and showed him around over the land. After we looked at the land he says, ‘Let’s get the old man up here (speaking about Mr. Brown), and see what we can do.’ So we went over to Weinert and put in a call for Mr. Brown, and didn’t get him right then, and I went back home, and there was a phone call waiting for me, and I talked to Mr. Brown and told him Gene was there, and he said he would be up the next day, and so he come up on Friday.
“Mr. Brown and Gene had a conversation about the land; they talked about the deal and all. Mr. Brown told him what it would take to buy it, $30 an acre, and they agreed on a trade on the, land. They agreed that they would fix up the contract the next day, on Saturday. They agreed to fix it up here at Anson. Milam came to Anson the next day; I came with him. I saw Mr. Brown the next day. We went over to Judge Thomas’ office and fixed up the contract and wrote up a deed. There was a forfeit put up; Gene Milam put up a forfeit, I think, of $10,000. I don’t remember just what date that was. It was about the 26th of August, I think, 1921; somewhere about'that.
“Mr. Altman was not present when that contract was made, nor at any of the times I have mentioned with Mr. Milam about this land. I never did see Altman at all up to that time. The trade was thereafter consummated, and the deeds and money exchanged on that contract!”

On March 19, 1921, Mr. Harrell, cashier of the Anson State Bank, by authority of Brown, wrote appellee, Altman, as follows:

“I was talking to Mr. C. B. Brown the other day, a,nd suggested that he list this land with you up about Weinert, and he asked me to write you and give you a price of $30 per acre, and he would pay commission out of that, and if you was able to get a bid at a little less to take it up with him before you turned your man loose. I gathered from his conversation that he would be willing to ,cut it up in small tracts and sell that way; however, would advise that you see him before you do anything, should you find some buyers.”

Appellee testified:

“Part of the month of March, 1921, I was temporarily located at Eliasville; the first part of March, 1921. I was in Graham after the 5th of March. I left Anson to go down in the oil fields either the last day of February or the first day of March, 1921. I first went to Graham, and stayed there, I think, something like 10 days, and then went over to Eliasville. As to my purpose in going over to the oil fields, I went over there — thought probably I could handle some leases; maybe some property in- Graham— and when I got there the conditions didn’t look right, and then I went to Eliasville. I was in the real estate business, hunting buyers for ranches or large farms.
“I received a letter from Mr. Harrell while I was at Eliasville. I heard the letter read to the jury a while ago. I received that letter from Mr. Harrell. At that time I was at Elias-ville. That was mailed to me at Eliasville. The date of the letter is March 19th, and I received it two or three days after that, whatever time it would take for the letter to go over there; I guess I received it the day it got there or the day following. I think it was just after I received that letter I went to see Mr. Milam and took that proposition up with him. I first saw his father, however, and he wasn’t interested, and then I took it up with Gene Milam. I saw Gene Milam in a garage at Ivan. I first saw Gene’s father, and then I went to see Eugene. I went in the garage hunting him. Some party gave me his name; found out he had some wells in; and I went to the garage, ■and there was quite a bunch sitting there, and I believe they were playing checkers. X waited a little while. iSome of them left, and I told Mr. Milam, ‘My name is Altman.’ He says ‘Jones is my name.’ I told him I was looking for Gene Milam, and he said, ‘That’s who you are talking to.’ I told him I would like to interest him in some land, and he said he was interested, and told me he had a brother-in-law at Weinert, and I told him I had this land for sale. He asked what X wanted, and I told him $30 an acre. He told me that was too high; he had heard what it sold at; ‘You want too much profit.’ He had an idea that it had been bought for about $18. I told him he was mistaken; that it was a cheap piece of land at $30; and then is when he offered me $25 an acre if he could get terms he could handle it on. I told him I didn’t think I could take $25, but I would take.it up with the owner, and see if I could get the price cut. -I would think that was the 24th to the 7th or 8th of March that I had this conversation with Mr. Milam.
“After I had the conversation with Mr. Milam I came home to see Mr. Brown. I saw Mr. Brown. I got here late in the evening, and spent the night, and saw Mr. Brown the next morning, and went back to Eliasville that after-, noon. I saw Mr. Brown in front of the furniture store over there; I think Barrows Furniture Company store. I told Mr. Brown I had a proposition on his land at $25 and he told me, ‘I have in another well, and everything looks all right, and I won’t cut the price.’ He says, ‘I don’t care about the terms so I get $10,000 or $15,000, and you can go back and show it, and I will sell it most any way.’ His price was $30 an acre.
“I went back to Eliasville that evening, and went to see Mr. Milam the next day. I saw him the next day. I saw him the next day right in front of his garage; he and his partner owned the garage; he didn’t make a hand or anything. I saw him at the garage, and told him I couldn’t get the price cut. I says, T would like to show you the land. I can give you the terms you want, and the land will advance, and it is a good buy.’ He told me he had some •other wells drilling; if he had to give that price he was going to wait to see if he got some other wells, if he had to give that price. As to whether there was anything else said, we had some conversation along; we talked quite a little bit; but that is the substance of the conversation — he would wait to see what the other wells would do.. That was not many days before the 1st of April. I didn’t see Mr. Brown •any more after that. I didn’t stay in the oil fields a great while after that time. I had to come home. I had the children here; in fact, I stayed as long as I saw there was any work. The drilling had let up, and I stayed as long as I thought I could stay. * * *
“As to whether I did anything else later relative to the land, I hadn’t heard from Mr. Milam, and I waited until along in the summer, I guess the latter part of July or August, and I went to see Mr. Milam, and in the meantime he had moved to Graham, and his father — as a rule I would stop at his father’s and find out something about where he was; I think he had sold the garage at that time — his father told me that evening that Gene was going the next day to look at this land; that his son, Eugene Milam, was going the next day to look at the land. I came home that night. I think I got back about 12 or 1 o’clock in the night. It is about a 100 miles over there and I left there almost at night. * * *
“I did list the land from Mr. Brown shortly after December. He listed this land in 1920, just after December 1st — in fact, a few days after he bought it, but that month — and he told me when he got possession he was going to stock it, and it wouldn’t be for sale, and during the first two or three weeks in December, 1920, I advertised that continuously in the black land papers, in Bo,nham, a daily paper, two daily papers in Greenville, and I didn’t see any one about the deal during December. It is not a fact that right after I listed this in December that I went to Gene Milam in Milam’s garage at Ivan and priced it to him at $30 an acre.
“Q. Wasn’t that the only time you saw Gene Milam and said anything to him about this land or the sale of this tract of land until after the contract was made between Milam and Brown? Just answer that. A. I never saw Milam until in March, 1921. I did not tell Mr. Brown when the contract I had expired, or just about that time, that I had been figuring with the Milams on this tract of land. It is not a fact that about January 1, 1921, I told him I couldn’t sell to them because their wells had not come in, and they wouldn’t be in the market The listing expired and I didn’t sell the land. I lay no claim whatever to that listing as a basis for this suit. * * *
“I have had several conversations with Gene Milam about this land; four or five, half dozen, I would say. I had four or five conversations with him about this land in the month of Match, 1921, in Ivan, at his garage. Each of these four or five conversations were at his garage. I might have had one there in the first of April; I don’t remember just when I came home; but I did not have any conversation with him after that time until after he had made a contract for the land. I may have talked with him up in April. As to whether I did or not, I don’t remember the dates exactly. I can’t answer the question as to whether or not after about the first of April I had any conversation with Milam about the sale of this land until after the -deal was closed. I don’t remember when I came home; it might have been the 15th of April before I came.. I did not have any after the 15th of April. * * * I never wrote Milam a letter, nor did he ever write me a letter, about this deal. I was never present when either Milam or Mr. Brown was talking about this deal or Jones and Brown was talking about this deal. I never showed the land to Milam. * * $ If

The purchaser, Milam, testified:

“Mr. Jones is the first person that told me about this land — that I could buy it — Theodore Jones. He lives in Haskell county, near the land. He first told me about the land somewhere along in September, 1920. Mr. Jones is the first one told me I could buy the land after Mr. Brown purchased it. That was some time in December, 1920. Mr. Jones showed me the land. Mr. Jones was with me when we consummated the deal with Brown. Mr. Altman was not present at any of these dates that I was closing the deal with Mr. Brown or looking at the land. I saw Mr. Altman one time at Ivan, at the garage. * * * I told Mr. Altman that I would consider the land at $25 an acre; that I thought $30 was too high. As to whether I asked Mr. Altman at that time who owned the land, I knew the land had changed hands at that time. I didn’t know it was this Mr. Brown here. * * *
“I was up at Mr. Jones’ somewhere from the 4th to the 10th of July. I passed through there. I saw Mr. Jones at that time. I had a conversation with him. I was going home. I stayed all night there as I went up. That was about the 28th of July, I think. I had a conversation with Mr. Jones about the purchase of this land at that time. I wanted him to find out, as I went through, something about the land —whether Mr. Brown still wanted to sell it, and what the price was. I asked him to write a letter to Mr. Brown. I wanted to get his price —if he would make it any less than $30. I didn’t know for certain whether it was on the market or not. There was some talk of cutting it up and selling part of it. I asked Mr. Jones to write him. Then X went up in the Plains country. I came back by Mr. Jones somewhere between the 4th and 10th of July, the first part of July — I mean the first to the ,10th of August. He had not written the letter. He was busy, and hadn’t had time, he said. I went on home about the 8th or 10th of August, somewhere. I asked Mr. Jones again to write a letter to Mr. Brown. I suppose he wrote the letter. I got a hearing from him about the 20th of August, maybe a little later. 1 haven’t that letter with me. He told me he had written Mr. Brown, and said he didn’t think Mr. Brown would take less than $30 an acre for the land. I then set a date to come up there, and I came. Mr. Jones is the first fellow I met up there. Mr. Brown came up on the 26th. I got to Mr. Jones’ the 23d, and Mr. Brown came up the 26th. That was August. That is the time I went over this proposition and actually agreed on a purchase of the land. I purchased it from Mr. Brown at $30 an acre. We come down here on Saturday, the 27th, and entered into a contract; I think it was the 27th. I put up a forfeit. I don’t know just how long it was before the deed was delivered to me— several days, possibly a month or two. I don’t remember just how long it was. It might have been in October before they got things cleared up. * * * ”

It is shown that Jones and Milam have no interest in the result of the suit.

This testimony shows beyond controversy that Jones first called the land to the attention of the purchaser. Altman denied that he mentioned -the land to Milam when he had a temporary listing for about 30 days in December, 1920. Altman claims that he negotiated with the purchaser after he received the letter of March 19th from Harrell, but according to his testimony his negotiation in March and April was fruitless, for at that time Milam was unwilling to pay more than, $25 per acre. Appellee admits that he had .no negotiation with the purchaser after April. It is apparent from the quoted testimony that the efforts of Altman had nothing whatever to do with the subsequent decision of Milam, made after an inspection of other lands,' to buy at the owner’s price of $30 per acre.

In our opinion reasonable minds cannot differ in the conclusion that Altman did not find the purchaser ih the first instance, and that his efforts in March and April had no influence whatever in inducing the subsequent decision of Milam in August to purchase at the price of $30 per acre. He therefore cannot be regarded as the procuring-agency of the sale.

The case has been fully developed, and the-judgment will be reversed and here rendered for appellant.

Reversed and rendered.  