
    HOLDEN v. KOGER et al.
    (No. 1746.)
    (Court of Civil Appeals of Texas. El Paso.
    April 9, 1925.)
    1. Brokers <&wkey;86(4) — Evidence held to show sale not effected by efforts of brokers intervening in action for commission.
    In broker’s action for commission for effecting sale of realty, evidence held to show that sale was not brought about by efforts of intervening brokers.
    2. Brokers &wkey;>56(l) — Right to commission for finding purchaser not affected by modification of cash payment and terms of payment.
    Modifications in cash payment and terms of deferred payments, as result of direct negotiation between owner and purchaser, did not deprive broker of right to commission earned by finuing purchaser to whom sale was effected at price quoted.
    3. Appeal and error <&wkey;i 177(7)' — Cause remanded on reversal of judgment for inter-veners because of improper exclusion of parts of deposition in plaintiff’s bebaif.
    On reversal of judgment for brokers, intervening in action for commission as not sustained by evidence, cause remanded, instead of rendering judgment for plaintiff, because of unsatisfactory evidence on controlling issue, as result of improper exclusion of parts of purchaser’s deposition.
    4.' Brokers <&wkey;87 — No deduction of attorney fee for defendant from agreed commission due plaintiff.
    No deduction from agreed- amount of com-mis¿$bn, to which evidence shows plaintiff entitled for effecting'sale of land, can be made as attorney fee for defendant, he not being stakeholder, though other brokers claimed commission.
    <g=ojEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal frofn District Court, Dawson County; Clark M. Mullican, Judge.
    Action by I. H. Holden against C. C. Koger, in which Hall & Grammar, partners, intervened. From a judgment for interveners, plaintiff appeals.
    Reversed and remanded.
    A. L. Brantley, of Lamesa, for appellant.
    O. P. Rogers and Garland & McGuire, all of Lamesa, and J. E. Brown, of Wellington, for appellees.
   HIGGINS, J.

Holden sued Koger to recover a commission alleged to have been earned for effecting the sale to J. E. White-side of a section of land in Dawson county owned by Koger. Hall & Grammar, engaged in the real estate business as partners, intervened in the suit, claiming that they were entitled to the commission. For convenience the parties will be hereinafter referred to as plaintiff, defendant, and inter-veners. An instructed verdict was returned in favor of the interveners. The only issue in the ease is whether the efforts of the plaintiff or interveners were the procuring cause of the sale.

Appellees move to strike out the statement of facts. This is without merit, and is overruled for the reasons stated and upon the authorities cited in McGlasson v. Fiorella (Tex. Civ. App.) 228 S. W. 254, and Bath v. Ry. Co., 34 Tex. Civ. App. 234, 78 S. W. 993.

In the fall of 1923 defendant listed the land for sale with the plaintiff authorizing a sale at $25 per acre'; one-fourth to be paid in cash, the purchaser to assume fe balance of $1.50 per acr§ due the state, the balance upon time.

Plaintiff lived at Sparenburg, near La-mesa, Tex. Defendant and interveners lived in Lamesa. The land sold was near the last-named place. The purchaser, White-side, lived in Brown county. In the latter part of November, or shortly thereafter, the purchaser met the plaintiff at the latter’s home. Whiteside was seeking to purchase land, and was accompanied by his son, Murl Whiteside, and son-in-law, G. R. Bivins. The plaintiff showed the parties several tracts of land, including defendant’s. The purchaser then inspected other land in Lynn county, and returned to his home. In January, 1924, he sent his son and son-in-law back to Lamesa to see the plaintiff and defendant about purchasing the latter’s land. They came first to Holden, and with him went to Lamesa to see defendant. The latter was out upon his ranch, and they failed to see him. The son and son-in-law then made another inspection of the land, and went to Stanton in Martin county. They there phoned J. E. Whiteside to join them and go to Lamesa to purchase the land. J. E. Whiteside .joined his son and son-in-law and they all drove to Lamesa. Upon arrival in Lamesa; and according to the testimony of the two Whitesides and Bivins, they stopped their ear near the office of in-terveners. Being cold, and observing a fire in the office, J. E. Whiteside entered to warm himself. Up to this time they had never met the defendant or interveners. Whát then occurred is thus stated by J. E. White-side:

“As heretofore stated, I went into the office of Hall & Grammar to warm after my long trip to Lamesa; and shortly after I went in Mr. Hall commenced to ask me questions and ascertain if I was interested in purchasing land in that section. I told him that that was my business there at the time — to purchase some land. He then began to tell me about certain land that he had listed, and while he was talking to me Mr. 0. 0. Koger was passing along the street, and he told me, ‘There goes the man who owns the land.’ and he called Mr. Koger.in, and introduced him to me, and suggested that Mr. Koger could tell me all about the land. After Mr. Koger had described the land to me, and particularly how thick the mesquites were on the northeast corner of the section, I told him that I was on that land last fall, and that Mr. I. H. Holden had showed it to me. Mr. Hail was present at the time in the office, and I am sure that he heard part or all of this conversation. Mr. Roger and I then went ovér and sat down, and I commenced to work on him to reduce the cash payment required for the land. After we had talked some time, Mr. Hall intercepted by asking Mr. Roger what was the least cash payment he would take on the land; and Mr. Roger hesitated, and finally suggested that he would take $2 per acre cash payment down. In the meantime my son and my son-in-law, heretofore mentioned, came in; and I then asked him if he would not* be willing to take $1,000 cash payment, and he finally suggested that the boys looked rather husky, and that he would agree to take the $1,000 as an initial, or cash, payment. The first time I saw Mr. Holden he told me that Mr. O. O. Roger owned the land; that he lived in Lamesa; and he also told me the price of the land, though I did not work out in detail the terms of the payment.”

As the result of the conference testified to J. E. Whiteside agreed to purchase the land for $25 per acre, pay $1,000 in cash, assume the balance due the state, and give purchase-money notes for the balance. A contract' to ¿hat effect was made subject to examination of title, which contract shortly thereafter was consummated.

The evidence plainly shows that the relationship of the interveners to the sale was purely accidental and casual, and that their efforts did not bring about the sale. They merely called in the office the owner whom the purchaser was seeking, and introduced the parties. The sale was effected at the price the plaintiff had priced the land to the purchaser, and the only modification was in the cash payment and the terms of the deferred payments. . These modifications were the result of the direct negotiation between the owner and purchaser, and did not deprive the plaintiff of his right to recover the commission which he ha!d earned by -finding the purchaser finally accepted by the owner. This case is in no material respect different from Keener v. Cleveland, 250 S. W. 151, by the Commission of Appeals. Indeed, under the authority of that case we would perhaps be authorized to reverse and here render in favor of appellant but we conclude it is better to remand. The evidence upon the controlling issue is perhaps not as satisfactory as it should be in view of the exclusion by the court of certain portions of the deposition of tile purchaser who testified in behalf of the plaintiff. The excluded evidence was admissible for the purpose of showing that the efforts of the plaintiff were the sole procuring cause of the sale. The objections made to the testimony were not well taken, and all of the excluded portions of the purchaser’s deposition as shown by the bills of exception should have been admitted. For the error in the exclusion of this evidence and- in giving, the peremptory instruction the judgment is reversed.

The court by its judgment deducted from the amount awarded interveners the sum of $50, which was allowed the defendant as an attorney’s fee. Upon the facts reflected by the record the defendant was clearly liable to the plaintiff for the commission agreed to be paid. He is in no sense a stakeholder. Upon the authority of the case last cited no deduction can be made from the amount due as an attorney fee for the défendant.

None of the other assignments present any error.

Reversed and remanded.  