
    OBETS v. MANEY.
    (Court of Civil Appeals of Texas. San Antonio.
    April 3, 1912.)
    1. BROKERS (§ 86)— COMPENSATION — PROCURING Cause — Evidence.
    In an action by a broker for an agreed commission on a land sale, evidence held to show that the plaintiff was not the efficient or procuring cause of the sale.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 116-120; Dec. Dig. § 86.]
    2. Brokers (§ 82) — Compensation—Action fob Commission — Evidence—Admissibility Under General Issue.
    Where, in an action for a commission for a sale of land, plaintiff testified that he had spoken to the purchaser about the land and advised him to buy it, and the purchaser, who was the brother of the broker, testified that it was his knowledge of the place and the plaintiff’s arguments that induced him to purchase it, evidence of the defendant that he and another person in whose hands the land was also placed for sale had also spoken to the purchaser and recommended its purchase was matter in rebuttal rather than affirmative matter of defense or matter in confession and'avoidance, and was properly admitted under the general issue. .
    [Ed; Note. — For other cases, see Brokers, Cent. Dig. §§ 101-103; Dec. Dig. § 82.]
    Appeal from. Frio County Court; S. T. Dowe, Judge.
    Action by Charlie Obets against Earnest Maney. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Matt Cramer, of Pearsall, for appellant.
    
      
      For otter eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r indexes
    
   MOURSUND, J.

Appellant, who was plaintiff below, sued appellee for $2S0, alleging that some time in the fall of 1910 he and defendant entered into a verbal contract, by which he was employed by the defendant to procure a purchaser for certain land and personal property belonging to defendant and was to receive five per cent, commission on the sale price, which was to be fixed by defendant and the purchaser. Plaintiff further alleged that he accepted the agency and tried to sell the property; that, among others, he approached his brother August Obets three or four times in the fall of 1910 and the spring of 1911 in regard to buying the property, endeavoring to convince him it was a desirable proposition; and that on or about March 6, 1911, August Obets bought the property for $5,600 cash, and that he was caused to do so by the efforts of plaintiff, who was for that reason entitled to the commission, amounting to $280. This defendant answered by general and special exception and a general denial. The case was tried without a jury, and judgment rendered that plaintiff take nothing by his suit and pay all costs, from which judgment plaintiff has appealed to this court. No request was made for findings of fact and conclusions of law, and none were filed.

The first three assignments of error present the question that the judgment was contrary to the evidence. The property, which sold for the lump sum of $6,500, consisted of certain land and personal property. The value of the land alone was not shown. The parties agree regarding the terms of the verbal contract between them, except that defendant denies that he authorized plaintiff to sell anything except the land. They agree that defendant reserved the right to sell the property himself. It appears from plaintiff’s testimony that the first time he spoke to the purchaser about defendant’s land was upon an occasion when they were in a buggy and the purchaser at that time informed plaintiff that he and the defendant were then on a deal for the defendant’s place. It appears that plaintiff talked to the purehaseer, who was his brother, several times, and advised the purchase of defendant’s place, and made arguments showing why it was advisable for him to make the purchase. The dates of these conversations are not given, nor their approximate time with reference to the time the deal was closed. On the morning of the day the deal was closed, which was about March 6, 1911, the purchaser met plaintiff, and informed plaintiff that he and defendant were on a trade for the property; that there was a difference of $200 or $300 between them, but that he was going to close the deal, and would not let such a small sum break up the trade as it was too good a bargain to miss. Plaintiff advised him to make the purchase, and then told him for the first time that he was defendant’s agent. The trade was completed that day between purchaser and defendant, and some time afterwards plaintiff claimed his commission. Plaintiff testified that defendant asked him to try to sell to August Obets at the time the contract was made in regard to the sale of the land. Defendant testified that plaintiff said nothing about August Obets, and that he did not know at the time of the sale that plaintiff had ever talked to the purchaser about buying the land, or that he had anything to do with procuring him to purchase.

It appears from the evidence of all parties that August Obets, the purchaser, was thoroughly familiar with the land, which adjoined him, and most of which had been bought from him by defendant. Defendant testified to having various conversations with the purchaser about buying the place, but that they did not get down to business until a short time before they traded; also, that he. talked to the purchaser’s wife in his presence about her husband buying the place, and she said it was a desirable property, and she hoped her husband would buy it. It was also proved that H. E. Johnson was an agent for defendant to sell the land, and that shortly before the sale he urged August Obets to buy the place from defendant. The purchaser testified that it was the arguments plaintiff made to him and what he already Knew about tbe property that caused bim to buy it when be did.

Was plaintiff tbe efficient cause of tbe sale? Or, as tbe rule bas sometimes been stated, was be tbe procuring cause? Was tbe purchaser found through bis instrumentality? His own evidence shows that tbe purchaser on tbe first occasion, when they discussed tbe matter, told bim that be and tbe seller were then on á deal for tbe place. He afterwards talked to tbe buyer several times, but never took enough interest in tbe matter tq even acquaint his principal with tbe fact that be was trying to get August Obets to buy tbe land. After tbe buyer told bim that they were about to close a trade, and that be would not let. tbe $200 or $300 difference stand in tbe way, then plaintiff advised him to go ahead, and'told bim that be, plaintiff, would get a commission out of it. Even then be did not inform tbe seller that be bad done anything in regard to selling tbe land to August Obets, but "some time afterwards claimed bis commission. It is undisputed that tbe seller spoke to tbe buyer first, that be spoke to bim several times afterwards, and that be in tbe fall of 1910 talked to the purchaser in tbe presence of tbe latter’s wife, who said it was desirable property and she hoped her husband would buy it. Regardless of -the evidence of Johnson, who also put some arguments to tbe purchaser in favor of bis buying tbe land, it appears to us that tbe seller himself was more active and efficient in tbe matter than plaintiff. It is true that tbe buyer testifies be was induced to purchase by plaintiff’s arguments and by what be knew of tbe land. It is also true that plaintiff and bis brother testify to some good arguments made by plaintiff, but the evidence does not show any direct result of such arguments, and does show that tbe defendant first interested tbe buyer because the latter stated to plaintiff on tbe first occasion that be and defendant were then on a deal. They could not be on a deal for the land unless be was then contemplating tbe purchase favorably. Aside from tbe purchaser’s testimony that bis brother’s arguments influenced him, there is not a fact or circumstance proven which shows that tbe purchase was procured to be made by plaintiff. Tbe actual closing of tbe trade cannot be attributed to bis last conversation, because at tbe time tbe purchaser announced to bim that be was going to close tbe trade, and then plaintiff advised him to do so. Tbe other conversations do not appear to have had any immediate or direct result, and we think tbe court was authorized by tbe evidence to find that tbe seller himself, having started tbe negotiations, did as much, if not more than plaintiff, to effect tbe sale. -Not having tbe exclusive right to sell, it would naturally be expected that tbe agent would press tbe matter with some degree of diligence, but in fact be did very little towards making tbe sale. We think tbe court was warranted in concluding that plaintiff was not tbe efficient or procuring cause ■ of tbe sale, and that tbe evidence sustains tbe judgment. Tbe assignments mentioned are therefore overruled.

Appellant’s remaining assignments question the admissibility of the evidence showing that tbe witness Johnson bad spoken to August Obets about buying tbe land, and recommended its purchase, and tbe testimony that August Obets’ wife bad talked to bim about buying tbe land and advised bim to buy it. Appellant contends that, as plaintiff pleaded only a general denial, this evidence was not admissible; because it was an affirmative matter of defense, and not in rebuttal of plaintiff’s evidence. We cannot agree with this contention. Plaintiff pleaded that through bis solicitations and arguments tbe purchaser was induced and procured to purchase. By himself and tbe purchaser be sought to prove this allegation, and went into detail in regard to what be had done and said with reference to tbe matter. He elicited from tbe purchaser, who was his brother, tbe evidence that it was the arguments of plaintiff and what be already knew about the property that caused him to buy. It was essential for plaintiff to prove that be was tbe procuring cause of tbe sale being effected, as defendant himself made tbe sale. Defendant under, a general denial was authorized to adduce all testimony which would disprove or rebut that a prima facie ease in plaintiff’s favor ever existed. Townes’ Texas Pleading, p. 366. He could introduce any evidence tending to show that plaintiff was not tbe procuring cause of tbe sale being made. Tbe case is not one where plaintiff bas proved that be bas done all that is required of bim, and defendant seeks to avoid liability by showing that a sale had been made to other parties before tbe sale by plaintiff. This is a case where plaintiff’s case depends upon tbe proof of his allegations to tbe effect that be was tbe procuring cause of the sale being made, and the evidence objected to tended to show that be was not tbe procuring cause, and was in rebuttal. It was not an affirmative matter of defense, nor matter in confession and avoidance, but directly to tbe issue of whether plaintiff was tbe procuring cause of tbe sale, and, besides, bad an important bearing upon tbe weight to be given to tbe testimony of tbe purchaser to the effect that plaintiff’s arguments and what be knew of tbe land caused him purchase tbe same. We do not think tbe case of Winn v. Gilmer, 81 Tex. 345, 16 S. W. 1058, sustains appellant’s contention. We do not concur with tbe opinion in tbe case of St. Felix v. Green, 34 Neb. 800, 52 N. W. 821, in so far as it sustains tbe exclusion of the evidence therein offered, on the ground that it was affirmative matter of defense.-

We find no error in tbe record, and the judgment is affirmed.  