
    LANHAM v. COCKRELL.
    (No. 2508.)
    (Supreme Court of Texas.
    May 9, 1917.)
    1. Brokers <&wkey;54 — Commissions — When Earned.
    A broker, employed to procure an exchange of Ms principal’s real estate, must, to recover the agreed commission, show that the party procured was ready, able, and willing to exchange his property for the principal’s property on terms satisfactory to the latter, and where the party procured orally agreed to exchange, but thereafter refused so to do, the broker had not earned a commission.
    [EM. Note. — For other cases, see Brokers, Cent. Dig". §§ 75-81.]
    2. Brokers <&wkey;88(ll) — Commission—Actions —Issues.
    Where, in an action by a broker for commission for procuring an exchange of property, his principal and the other party to the exchange testified to a parol agreement of exchange, and the principal stated that, when they came the next day to put the agreement into writing, the other refused to go on with the trade, instructions, submitting question whether principal and other party reached an agreement for exchange of their respective property, and making a recovery dependent on an affirmative finding were proper.
    [Ed! Note. — For other cases, see Brokers, Cent. Dig. § 127.}
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by J. M. Lanham against J. T. Cockrell. From a judgment of the Court of Civil Appeals (152 S. W. 189), affirming a judgment for defendant, plaintiff brings error.
    Affirmed.
    A. H. Carrigan, of Wichita Falls, and F. W. Householder, of New York City, for plaintiff in error. D. A. Holman and Glasgow & Kenan, all of Seymour, for defendant in error.
   PHILLIPS, C. J.

-Lanham sued Cockrell for a broker’s commission claimed to be due for producing a purchaser for certain property consisting of a large body of land belonging to the latter. Through Lanham’s efforts it appears that negotiations were entered upon between Cockrell and one Campbell for the exchange by Cockrell of his property listed with Lanham for certain property owned by Campbell. They agreed, verbally, it seems, to effect an exchange. While this’ is true, there is a marked issue in the proof whether any commojn agreement, whatever, was reached between them as to the terms of the exchange. Campbell’s property was incumbered for $20,000.00; Cock-rell’s for a less amount. According to Cock-rell, the verbal agreement was that Campbell should pay him $12,000.00, in cash, as representing the difference between the amounts of the incumbrance upon their respective properties. According to Campbell, the agreement was that he should secure Cockrell for that amount by a lien upon the latter’s property he was to obtain in the trade. Upon meeting the following day to conclude the agreement by a formal written contract, this difference of understanding, according to Cockrell, prevented its consummation in written form, which was necessary to bind either of them. Campbell did not have $12,000.00, in cash, to pay Cockrell, as the latter stated was the verbal agreement. Campbell testified' that he was willing to conclude the trade according to his version of its terms, but it is not claimed that he was at any time willing to conclude it upon Cockrell’s understanding of them. According to Cockrell, Campbell, at the meeting had for the purpose of closing it by written contract, refused to make the trade upon the terms as understood by Cockrell. It was never consummated.

The plaintiff was entitled to his commission only in the event he provided a purchaser who was willing, ready and able to effect such an exchange as was satisfactory to Cockrell. The court so charged the jury, with the [explanation thlat an actual exchange of the properties was not essential .to the plaintiff’s right of recovery. This required that the plaintiff establish that a common agreement was reached between Cock-rell and the proposed purchaser. If such an agreement was reached, and Campbell was able to perform it, the plaintiff was entitled to his commission. But it cannot be contended that he had earned his commission unless such an agreement was arrived at. No agreement could be said to have been arrived at if it did not comprehend the essentials of the trade. This included, necessarily, its terms. Merely an agreement to exchange the properties, without any common understanding as to its terms, and as to which the minds of the parties never met, constituted no agreement at all. Such an agreement could be of no benefit to the seller. He could not, in a case like this, be held liajjle for commissions to a broker, the extent of whose services was merely the production of a purchaser who was willing to make a trade for his property, but between whom and himself there was never any unanimity as to the terms upon which it was to. be effected.

The court substantially instructed the jury that if the minds of Cockrell and Campbell met in an agreement for the exchange of their properties, the plaintiff should recover; otherwise, the verdict should be for the defendant. This was the law of the case. A charge was also given, that if they reached an agreement and Campbell failed to comply with it, there could be no recovery. As applied to the proof, this charge was not erroneous. Cockrell testified, as already noted, that they reached a verbal agreement whereby Campbell was to pay him the $12,000.00 in cash, but when they came, the next day, to put the agreement in writing, — which was necessary to give it any force, Campbell refused to go on with the trade on those terms. The charge simply-presented the question of whether a common understanding was ever reached by the parties, as reflected by one phase of the evidence. If Campbell, pending the very negotiation and before it reached any binding form, as intended by both parties, disaffirm-ed the agreement, he was not a willing purchaser; and unless he was, no commission was owing by the plaintiff.

The judgments of the District Court and Court of Civil Appeals are affirmed. 
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