
    ROGERS v. McMILLEN.
    (Court of Civil Appeals of Texas.
    June 18, 1910.
    On Motion for Rehearing, Oct. 29, 1910.)
    1. Brokers (§ 61) — Compensation and Lien —Right to Compensation — Default ok Refusal of Pakty Pkocuked by Bkokek.
    The plaintiff was to procure a purchaser for land owned by the defendant for an agreed compensation, and the plaintiff found a purchaser who made a conditional agreement to buy the land; but before the condition was made absolute the purchaser agreed with defendant to purchase the land through another agent, and while such agreement for purchase was pending plaintiff in his action for compensation levied an attachment on the land, because of which the purchaser refused to close the trade until the attachment was released. Held that, having defeated the sale, the plaintiff had no right of action.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 79, 81, 04-96; Dec. Dig.' § 61.]
    2. Brokers (§ 82) — Actions foe Compensation — Pleading—Proof and Variance.
    Where the plaintiff’s petition, in an action to recover compensation for services as a broker in the sale of land, alleged that he had procured a purchaser at $22 per acre, proof that the purchaser procured by the plaintiff offered $20 per acre does not support the allegation of the petition.
    [Ed. Note.' — For other cases, see Brokers, Dec. Dig. § 82.]
    Appeal from Parmer County Court; R. W. McConnell, Judge.
    Action by D. W. McMillen against H. S. Rogers. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Carl Gilliland, for appellant. Crudgington & Umphres, for appellee.
    
      
       For otRer cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DUNKLIN, J.

H. S. Rogers, defendant in the trial court, has appealed from a judgment in favor of D. W. McMillen, plaintiff, for the sum of $640. For cause of action plaintiff alleged that he was employed by defendant to procure a purchaser for 160 acres of land belonging to the latter, and that as a part of the contract of employment it was agreed that the compensation which plaintiff should receive for any sale which plaintiff might negotiate would be the excess in the selling price over and above $16 per acre. ’It was further averred that plaintiff procured a purchaser in one Amos Hart, who, was ready, willing, and able to purchase the land and to pay therefor $22 per acre, but that defendant refused to execute a deed to the purchaser upon those terms, and thereby defendant had become liable to pay plaintiff $900, for which amount a recovery was sought.

The evidence showed without controversy lliat plaintiff was employed by defendant to procure a sale of the land upon the terms alleged; that through the efforts of plaintiff and his agents Hart was induced to look at the land with a view to a purchase. After an inspection of it, he agreed to buy it, if his wife would agree to live upon it. While waiting to learn whether or not his wife was willing so to do, Hart agreed with defendant through another agent to purchase the land for $20 per acre, making a cash payment to defendant at the time of the agreement of $500. Pending a consummation of this sale, plaintiff procured the levy of a writ of attachment on the land issued in this suit, and by reason of this action on his part Hart refused to close the trade until the levy of the writ is released. Upon evidence establishing these facts, the trial court instructed the jury peremptorily to return a verdict in plaintiff’s favor for $640.

This proof did not support the cause of action alleged in plaintiff’s petition. We at least doubt plaintiff’s right to recover commissions on a sale the consummation of which he has defeated by the levy of the writ of attachment. Besides, the services for which he alleged defendant owed him $960 were for procuring a purchaser ready, willing, and able to pay $22 per acre for the land; and, even if it could be said that his efforts to sell were the procuring cause of the offer made by Hart to purchase at the price of $20 per acre, proof of that fact would not support the allegation that Hart was willing to pay $22 per acre for the land.

For the error pointed out, the judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Plaintiff’s original petition was improperly copied in the transcript, and through inadvertence we referred to it as the petition upon which the suit was tried, instead of the amended petition, a copy of which is also included in the transcript. There was no variance between the proof and the contract alleged in the latter pleading, and what we said in our former opinion upon that question was inapplicable to the case as pleaded in the amended petition.

However, as shown in our former opinion, the failure of defendant to consummate the proposed sale to Hart at $20 per acre has been prevented solely by the acts of plaintiff in levying the writ of attachment, and for this reason, independent of any other, the trial court erred in rendering judgment in plaintiff’s favor. Furthermore, the fact that plaintiff was made the exclusive agent of defendant to sell the property would make no difference. 19 Cyc. 267; Mechem on Agency, § 965.

Rehearing denied.  