
    SINCLAIR v. DURHAM.
    (No. 8248.)
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 9, 1929.
    Rehearing Denied Oct. 30, 1929.
    Herman Nami and Dielmann & Eorster, all of San Antonio, for appellant.
    Hull & Oliver, of San Antonio, for appellee.
   ELY, C. J.

This is a suit for $1,000 commissions alleged to be due by appellant to ap-pellee for procuring the exchange of property of appellant in Dimmit county, for nine bouses in San Antonio and a farm in Erio county. A judgment for appellee for $1,000 is based in part on tbe responses to two special issues submitted by tbe court to the jury.

There was virtually no defense as to $200 of tbe $1,000, tbe contest being as to tbe remaining $800; and one of tbe complaints on this appeal is that tbe court should have submitted tbe question as to tbe $200 separately from tbe whole amount. No issue as to tbe $200, about which there was no controversy, was presented to tbe jury, and only tbe following issue was answered by tbe jury: “Was it agreed between plaintiff, W. J.' Durham, and defendant, W. G. Sinclair, that tbe additional $800.00 was to be paid out of the proceeds of tbe sale of defendant’s property to a purchaser, or purchasers, procured by plaintiff?” Tbe jury answered tbe issue in tbe negative, which answer is sustained by evidence.

Tbe rule that has always prevailed as to real estate brokers in Texas is: “A broker employed to sell real estate has discharged bis duty when be produces a purchaser able and willing to buy upon tbe terms and at tbe price fixed by tbe seller, and is thereupon entitled to bis commissions, regardless of whether tbe sale is ever actually consummated or not: provided, of course, that tbe failure to consummate it is not due to some fault of the broker.” Gibson v. Gray, 17 Tex. Civ. App. 646, 43 S. W. 922, 925; Smye v. Groesbeck (Tex. Civ. App.) 73 S. W. 972. A broker cannot be held responsible for a disagreement between the purchaser secured by him and bis principal, as to title to tbe property. However, in this case, appellant bad taken possession of all tbe lots in San Antonio, and was collecting tbe revenues arising therefrom. Tbe exchange of tbe properties was fully consummated. But such consummation was not necessary to entitle ap-pellee to bis commissions. Tbe first proposition is overruled.

Appellant agreed to give appellee $1,000 to procure a person willing and able to trade city property for certain property in Dimmit county. He agreed to pay $200 when the trade was made and $800 in a reasonable time. He paid nothing. The second' proposition is overruled.

Appellant based his defense upon the claim that the $800 was to be paid out of the proceeds of a sale of his property, and the burden devolved upon him of proving that defense. That burden did not at any time rest upon appellee, and the question of shifting the burden from appellee to appellant could not arise in the case. The charge as to the burden of proof could not have injured appellant. The third proposition is overruled.

Every material issue in the case was presented by the court. There was really only one issue, and that was as to the $800. We overrule all the propositions complaining of the refusal of the court to present special issues formulated by appellant.

The argument of counsel for appellee, as indicated by the court in the qualification of the bill of exceptions taken to the argument, was in reply to argument of counsel for appellant, and, even if it had not been, counsel did not lead or mislead the jury in their answer to the special issue. They must be presumed to be men of average intelligence, and must have known that, if they answered the issue in the affirmative, they sustained appellant’s defense and prevented a recovery by appellee.

The judgment will be affirmed.  