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[2] That minerals, including oil and gas, are a part of the realty while in place in and under land, and that as such they are subject to sale and conveyance, are not open questions in this state. Texas Co. v. Daugherty, 107 Tex. 226, 176 S. W. 717, L. R. A. 1917F, 989; Marnett Oil & Gas Co. v. Munsey, 232 S. W. 867, decided by this court May 12, 1921, and not yet [officially] reported.

they were induced to execute the instrument indefeasible legal title to minerals, if any, as a result of fraud practiced on them by the in or under the land. petroleum company; (2) that the instrument was void as a conveyance of an interest in the land because its execution was not acknowledged by appellant Laura Hynson in the way provided by the statute (Vernon's Sayles' Ann. Civ. St. 1914, arts. 6802, 4621); and (3) that both the said petroleum company and appellee failed to take steps toward discovering and bringing to the surface oil, gas, and other minerals, if any, in or under the That the instrument evidenced a sale and land, and by such failure forfeited all rights was intended by the parties to operate as an and interest in the land conferred by the in- absolute conveyance of the minerals appeared strument. Special issues covering appellants' about as conclusively, it seems to us, as contentions with reference to fraud charged language could have made it appear. That and the acknowledgment of said Laura Hyn-intention, sufficiently shown, perhaps, by the son were submitted to the jury. The find- recital that appellants, for the substantial ings thereon were against appellants, and consideration stated, had "granted, barare not complained of here. The appeal is gained, sold, and conveyed" all the minerals from a judgment denying appellants any of "in and under the land" to the petroleum the relief they sought. forcompany, "to have and to hold * ever," was emphasized and placed beyond intended that the instrument should "have the effect to sever all the minerals in or under said land from the surface thereof and to sell and convey all such minerals."

*

Jones, Sexton, Casey & Jones, of Marshall, question by the further recital that it was

for appellants.

John E. Green, of Houston, for appellee.

[3] The minerals being an interest in the land which could be sold and conveyed, and the parties having intended that the transaction between them should operate as a sale and conveyance thereof, no reason is apparent why it should be held that an indefeasible legal title to the minerals did not pass to the petroleum company and its assigns. Appellants insist, however, that if the title did pass, it was on a condition the law would imply, to wit, that the petroleum com

able time thereafter discover and develop the minerals in and under the land. Appellants argue that the case was therefore within a rule stated in the Daughterty Case, supra, as follows:

WILLSON, C. J. (after stating the facts as above). The contention presented by the assignments in appellants' brief is that the trial court erred when he refused to instruct the jury to find in their favor. In support of the contention appellants insist that the instrument in question did not operate as a conveyance to the petroleum company and its assigns of the legal title to minerals in and under the land, but operated, instead, only as "a lease," quoting from the assignments, "granting to the petroleum company the right to obtain oils and minerals from un-pany and its assigns would within a reasonder the land." There was therefore an implied undertaking on the part of the petroleum company, they say, to discover and develop such minerals, if any, within a reasonable time from the date of the instrument. And it appearing without dispute in the testimony that no steps had been taken during the period of more than 10 years which elapsed between the date of said instrument and the date of the trial to discover such minerals, if any, they insist it appeared as a matter of law that the petroleum company and appellee as its assign, had breached such implied undertaking, and thereby forfeited all rights conferred on them by the instrument. [1] It may be conceded, without determining, that if the instrument was a mere lease, the trial court, on the theory that it appeared as a matter of law that appellee had abandoned the contract, should have instructed the jury as appellants requested it to (Grubb v. McAfee, 109 Tex. 527, 212 S. W. 464); but we think the instrument should not be construed as a lease merely. It must we think, be construed as a conveyance to the petroleum company and its assigns of an

"A fee may pass by deed upon a condition subsequent to the same extent as though the condition did not exist, subject to the contingency of being defeated according to the condition."

ex

The argument ignores a difference which made the rule applicable to the facts of the Daugherty Case and inapplicable to the facts of this rule to wit, that in the Daugherty Case the condition of defeasance was one pressed, in the instruments, while in this case, if there was an undertaking on the part of the petroleum company to discover and develop minerals in and under the land within a reasonable time, as claimed by appellants, it was an undertaking the law implied. It was expressly held by the Supreme Court in Grubb v. McAfee, 109 Tex. 527, 212 S. W. 464, that an undertaking of that kind should not be construed as a condition subsequent, failure to comply with which entitled the

(232 S.W.)

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CHRISTIAN v. DUNAVENT. (No. 1816.)
(Court of Civil Appeals of Texas. Amarillo.
May 18, 1921. Rehearing Denied
June 22, 1921.)

1. Partnership 11-Real estate broker and assistant employed by him, not having anything to do with losses, held not partners.

Where a broker employed an assistant, who was to get half of commissions realized from sales of land made to customers from the section of the country from which the assistant came, held, that there was no partnership, but merely the relation of principal and agent; the assistant not having anything to do with losses.

2. Brokers 40, 81-Entitled to recover for sales of land listed with agent, not known to be such by owner and broker's agent, need not be made party to suit for commission.

A broker could recover a commission for the sale of land listed with his agent, though the owner did not know that the person with whom he was listing the land was the agent of the broker, and the broker's agent was neither a necessary nor proper party to a suit to recover a commission.

3. Brokers 82(4)-Allegation that land was listed with broker sustained by proof that listing was with agent.

An allegation, in an action by a broker for commissions for obtaining a purchaser for land, that the land was listed with plaintiff and the purchaser procured by him and his agent, was sustained by proof that the land was listed with a third person, who was an agent of plaintiff unknown to the defendant, and that the agent performed the services.

4. Brokers 66-Agreement to divide commissions with purchaser or another broker does not affect right to commission.

An agreement by a broker to divide his commissions with the purchaser of real estate does not affect his right to recover, though the principal does not know it, nor will his agreement to divide with another broker, who is not connected with the other side.

5. Assignments 23-Broker claims for commission.

may assign

A broker, even pending a suit to recover commissions, may assign his claim to another, either in whole or in part.

an element of personal trust, confidence, or skill, cannot delegate the performance of his duties to another without the consent of the principal, has no application in an action by a listed with the broker's agent, who was not broker to recover commissions for sale of land known to be such, where the agent performed the services.

7. Brokers ~82 (2)—Fraud must be specifically alleged.

Fraud must be specifically alleged, and if defendant, in action by broker to recover commissions for sales of land, wished to set up the defense that he did not want plaintiff to have any of the commissions for sale of the

land, and that an agent of plaintiff, with whom the land was listed, whom he did not know to be an agent, made the fraudulent statement that he was not connected with plaintiff in any way, and plaintiff would receive none of the commissions, he must specifically allege such fraud.

8. Trial

255 (12)-Defense of fraud held

matter to be submitted at defendant's request.

In action by broker to recover commissions for sale of land listed with agent of plaintiff, not known to be such by landowner, if defendant did not want plaintiff to have any of the commissions, or anything to do with it, that was a matter of defense, to be submitted at defendant's request, even if it be conceded that the fact was provable under the general issue; defendant claiming that the agent with whom he listed the property fraudulently stated that plaintiff was not interested and would obtain none of the commissions.

9. Trial 351 (2)-Requested charge held a sufficient request for special issue.

In action by broker to recover commission for sale of land listed with plaintiff's agent, court erred in submitting special issue, "Did defendant, D., have his land listed with the plaintiff ?" and in refusing to further instruct that, if the person with whom the land was listed was acting as agent of plaintiff, then the listing would inure to the benefit of the plaintiff and would be a listing with him, and plaintiff need not go further and request that the court inquire of the jury whether such person was the agent of plaintiff, and whether the property was listed with such agent, under Vernon's Sayles' Ann. Civ. St. 1914, arts. 19701972, 1985, since the charge was sufficient to call attention to matter omitted from special issue.

10. Trial 351 (2)-Not necessary for plaintiff to require submission of special issues as to matters of defense.

It is not necessary for plaintiff to require the submission of special issues as to matters of defense, in order to escape the presumption of an adverse finding on such issues in support 6. Brokers 18-General rule against dele- of a judgment for the defendant, under Vergation of performance of duties without prin-non's Sayles' Ann. Civ. St. 1914, arts. 1970cipal's consent held not to apply to case of 1972, 1985. land listed with broker's undisclosed agent performing services.

Boyce, J., dissenting.

The general rule that an agent, employed Appeal from District Court, Floyd County; to perform the duties of an agency involving R. C. Joiner, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Suit by T. A. Christian against J. S. Duna- [cial charge is made the basis of the three vent. Judgment for defendant, and plaintiff assignments of error. appeals. Reversed and remanded.

Kinder, Russell & Griffin, of Plainview, for appellant.

Christian testified upon this point as fol

lows:

Kenneth Bain and A. P. McKinnon, both tions. I employed him to represent me, or of Floydada, for appellee.

HALL, J. Appellant sued appellee to recover commissions alleged to be due him as a broker upon the sale of certain real estate. He alleges: That appellee listed the land with him at a price of $60 per acre, for the sale of which he was to receive his customary commissions of 5 per cent. That appellant had working under him in said business one J. R. Glenn, under an agreement by which the said Glenn was to receive a division of such commissions as were received upon all sales made to parties from a certain section of the state. That appellant and Glenn found W. D. Lee as a purchaser for said land, and in order to effect a sale appellant agreed with appellee to accept $1,000 in full of his commissions in the event a sale was made. That thereafter event a sale was made. That thereafter appellee made and entered into a contract with the said Lee, wherein the latter agreed to buy the land at a price and on terms satisfactory to defendant, and that said Lee was ready, willing, and able to comply with his said contract. Appellee answered by general

denial.

"Mr. Glenn and I have had business relarather to help me. At that time he was engaged in the farming business. The arrangements between Mr. Glenn and myself were these: Mr. Glenn was from Lemar county, county, and he knew lots of people there in which was his home before he came to Floyd Lamar county. There were lots of Lamar county people coming here to Floyd county to buy land. I employed Mr. Glenn to help me. A good many of those Lamar county people went to Mr. Glenn's house. As soon as they came to town, he was to carry them out to his house, and was to take care of them, and I was to furnish the car and the expenses, and we were to go halves. He worked for me under these conditions; that was with reference to people from Lamar county. He was acquainted with Mr. Lee before Mr. Lee came out here to Floyd county. I had negotiations with Mr. Lee with regard to the sale of this particular tract of land in question in this suit. I was acquainted with Mr. Lee at that time and showed him over the farm. Mr. Glenn and I together went in my car with another gentleman, whose name I have forgotten, and who came out with Mr. Lee. We walked over the place; went over it carefully, the larger part of it. After looking over the place, and coming back to Mr. Dunavent's house, Mr. Lee said, if the cash payment was not too much, he would give him around $28,000 for the farm.

The court submitted special issue No. 1, We then got in the car and drove down in the

as follows:

"On the date that plaintiff, Christian, took the witness W. D. Lee to show him the premises of defendant, did defendant, Dunavent, have his land listed with the plaintiff? If you answer this question in the negative, then you need not answer any other question; but, if you answer it in the affirmative, then you will answer the following."

field. Mr. Dunavent was picking cotton there north of his place, I think on Mr. Massie's land. We drove out there where he was. Mr. Glenn and Mr. Lee got out of the car and went out where Mr. Dunavent was picking cotton; they sat down and talked the matter over. The other man and I stayed in the car. I saw Mr. Dunavent the next morning at Floydada here in town; met him down near the First State Bank, and had some conversation with him at that time, in which I told him that our man was ready and we wanted to get the deeds put up. He said that he would be up to the bank; he had something to say about what he was going to do-I have forgotten what it was, something he had to attend to-but that he would be up at the bank right away, so I said that I would walk around. ** Mr. Glenn was getting half the commissions on deals or sales to Lamar county people he knew. I had no arrangements with him for paying him for "Gentlemen of the jury: In connection with made to Lamar county people. He was not his services, other than commissions on deals the first issue, I charge you that, if the wit-employed by me on a salary, or anything of ness Glenn was acting as agent of plaintiff, that kind; he did not keep office for me. We when defendant listed his land with said wit- just worked together and divided." ness, then the listing would inure to the benefit of the plaintiff, and would be a listing with him."

The appellant excepted to this part of the court's charge upon the ground that the undisputed testimony showed that Glenn was not in the real estate business, except as he was employed by plaintiff, and, being plaintiff's agent, a listing with him would be a listing with plaintiff, even if the jury should not believe that it was listed with plaintiff as testified by him. The appellant requested the following special charge:

The court overruled the exceptions to the charge and refused to give the requested special charge. The jury answered the special issue in the negative, and judgment was entered that plaintiff take nothing by his suit. The court's action in refusing the spe

Glenn testified:

"My arrangement with Mr. Christian and our dealing in the real estate business was this: I knew a good many people in the county where them coming here, and Mr. Christian made I came from, and there were a good many of the proposition that he would furnish everything and give me half of what we sold to people from Lamar county. I was not at that

(232 S.W.)

time engaged in the real estate business in any other way."

[1-10] We think the court erred in refusing the requested special charge. The testimony quoted above does not show that Glenn and Christian were partners. Glenn was not interested in the brokerage business being conducted by Christian in a general way; his only interest being in whatever commissions were realized from the sales of lands to customers from Lamar county. By his agreement with Christian he was not clothed with the usual powers, rights, or duties of a partner. It was not shown that he had anything to do with losses. The evidence tends strongly to show that he was clothed by Christian with special authority to act only in relation to sales to be made to Lamar county purchasers. 30 Cvc. 376: 20 R. C. L. p. 834, § 39. If he acted as the agent of Christian, the latter would be entitled to recover, even though Dunavent did not know that Glenn was his agent. Under such circumstances Glenn is neither a necessary nor a proper party to the suit. Pittman & HarPittman & Harrison Co. v. Boatenhamer et al., 210 S. W. 972; Brady v. Richey & Casey, 202 S. W. 170. The agreement between Christian and Glenn made the former the principal and the latter his agent, and though Glenn concealed this fact from Dunavent, the undisclosed principal may recover upon any contract made by his agent for his benefit, unless it is alleged and proven that the business arrangement between them operated to the detriment of the defendant in some manner. The allegations that Dunavent listed the land with Christian, and that Christian and Glenn procured a purchaser, are sustained by proof that the listing was with Glenn, the agent of Christian, and that Glenn is the party who actually performed the services.

Ucovich v. Bank, 138 S. W. 1102.

"As heretofore stated, the testimony discloses an agency contract between Lee and Anderson, by which Anderson was to pay him a commission of $1 per acre for effecting the sale. There is no privity of contract whatever between Crow and Anderson; Crow's right to commission being by virtue of his agreement with Lee. Lee, by instrument in writing, transferred and assigned to Crow all commission against Anderson, and was amply of his right, title, and interest in his claim for sufficient to transfer to Crow and support a recovery by him of the entire commission."

2 Mechem on

So in this case there is no privity of contract between Dunavent and Christian; but, if by the agreement between Christian and Glenn the former is entitled, although as Glenn's undisclosed principal, to any of the commissions, he can recover. Agency, § 2059. If no business arrangement existed prior to performance by Glenn, and he had sued Dunavent, it is clear that he could, even pending his suit to recover, assign his claim to Christian, either in whole or in part. If so, why could not such interest be assigned beforehand?

The general rule is that an agent employed to perform the duties of an agency, inVolving an element of personal trust, confidence, or skill, cannot delegate the performance of his duties to another without the consent of the principal; but the rule has, under the record before us, no application to this case.

Glenn was the agent employed by Dunavent, and according to his testimony is the person who performed the services. He showed Lee the premises, brought the parties together, and wrote the contract of sale. If he has, under the law, earned the commissions, he could, as to Dunavent, recover in his own name, or by prior or subsequent agreement vest that right in Christian, subject to the rule that a suit by an undisclosed principal is generally subject to all defenses which the defendant could have urged against the agent. Nothing, however, in the way of such a defense, has been set up by Dunavent in this case. He pleads only the general issue. If it be admitted that Glenn falsely stated that Christian had no connection with the transaction and no interest in it, and further that injury resulted to him by reason thereof, and that Such statement amounted to fraud, which Would defeat Glenn's right to recover compensation, any evidence thereof would be inadmissible, unless the facts were specially pleaded. Fraud is never presumed, but must be specifically alleged. 9 C. J. p. 643, "We are unable to see how Chase was inju- bitt, 223 S. W. 478, that when the wife al§ 115. This court held, in Bobbitt v. Bobriously affected by that agreement."

The special issue given without the requested special charge did not submit the case as made by the pleadings and evidence. It has been frequently held that an agree ment by a broker to divide his commissions with the purchaser does not affect his right to recover, though the principal does not know it; nor will his agreement to divide with another broker who is not connected with the other side. Chase v. Veal, 83 Tex. 333, 18 S. W. 597; 4 R. C. L. p. 327, § 63. If Glenn could divide his commission with the purchaser, why could he not divide it with Christian, or even a third party? As was said in the Veal Case, supra:

It was shown in Anderson v. Crow, 151 S. W. 1080, that Anderson had listed his land with one Lee for sale and that Lee procured Crow to assist him in selling it. The court said:

leged that certain property was acquired during coverture, proof of that fact was all that was necessary to make out her prima facie case upon that issue, and that if the husband wanted the further fact that it was acquired while they were residing in a state,

under the laws of which it would not be com- (pellant by his contract of agency with Glenn, munity property, the duty rested upon him because Glenn contradicted Dunavent upon. to request the submission of that issue to that point, and it is clear from all the evithe jury. So, in this case, when Christian dence that Dunavent did not base his refusal alleged that the land was listed with him and to consummate the deal upon the fact that proved that the listing was with his employee Christian was interested in it, and because or agent, Glenn, and that the service had the rule is that it is not necessary for plainbeen rendered, he established prima facie tiff to require the submission of special issues his right to recover. as to matters of defense in order to escape the presumption of an adverse finding on such issue in support of a judgment for the defendant. Turner v. M., K. & T. Ry. Co., 177 S. W. 204 (14). We think appellant has done all required of him under articles 19701972 and 1985, V. S. C. S.

Issue No. 1 did not submit fully and fairly the case made by Christian under the record. He denied that the contract with Glenn excluded him as a party to it and he was required, in requesting issues and charges, to present only his theory of the case, and the court's refusal is therefore error. Ellerd v. Newcom, 203 S. W. 408. If Dunavent's statement is true that he told Glenn he did not want Christian to have any of the commissions or anything to do with it, that was a matter of defense to be submitted at his request, even if it be conceded that the fact was provable under the general issue. Beaumont Traction Co. v. Happ, 57 Tex. Civ. App. 427, 122 S. W. 610 (writ of error denied). The uncontroverted evidence is that Dunavent did not list the land with Christian personally. While under the law, if Glenn was the agent of Christian, a listing with Glenn would be a listing with Christian, and for this reason the issue, without the requested charge, did not fairly present the case from appellant's side made by the pleadings and evidence, and in all probability resulted in the negative answer made by the jury to the issue. The appellant might have requested that the court inquire of the jury whether Glenn was the agent of Christian and whether Dunavent listed the property with Glenn, but he was not required to adopt that course. The giving of the charge would have amounted to the same thing and such procedure has been expressly approved in Texarkana & F. S. Ry. Co. v. Casey, 172 S. W. 729, J. M. Guffey Petroleum Co. v. Dinwiddie, 182 S. W. 444, and Western Union Telegraph Co. v. Goodson, 217 S. W. 183. The charge was sufficient to call to the attention of the court the defect in the issue submitted. In Foster v. Atlir (Com. App.) 215 S. W. 955, the Supreme Court held that an issue incorporated in objections to the court's charge was a sufficient request to submit the omitted issue. If appellant's special charge was incorrect, which we do not concede, it was sufficient to require the court to properly present the issue submitting appellant's theory of the case. Olds Motor Works v. Churchill, 175 S. W. 785; Roberts v. Houston Motor Car Co., 188 S. W. 257; Brady v. McCuistion, 210 S. W 815. If the special charge requested had been given, and the jury had found that the land was listed with appellant, then it could not be presumed in support of the judgment that the court found that Dunavent had expressly excluded ap

Reversed and remanded.

BOYCE, J. (dissenting). I cannot agree that the instruction requested by appellant should have been given, as held by the majority opinion. In order that my views may be understood, I make this further statement of the case:

Plaintiff alleged in general terms that, some time prior to the alleged dealings with the proposed purchaser, Lee, the defendant, had listed the property "with plaintiff for sale." There was no allegation that this contract was made between defendant and Glenn, acting for plaintiff. The defendant answered by a general denial. The plaintiff testified that the defendant did list the land with him personally several months or a year before the transaction in question, and the enlistment had never been withdrawn, but, on the contrary, recognized by personal conversations as continuing up to the time of the procurement of the alleged purchaser Lee. Defendant, Dunavent, testified that he did, at one time, list the land with plaintiff, but that the enlistment was expressly withdrawn, and had never been renewed. This evidence, of course, presented an issue of fact for the jury. In addition to this showing of a contract, the plaintiff offered the testimony of the witness Glenn, who testified that on the day before Lee was taken to look at the land the defendant, Dunavent, listed the land with him (Glenn) for sale; it being admitted that nothing was said about Glenn being the agent of Christian, and it not being claimed that Dunavent knew that he was Christian's agent. Dunavent testified, and I do not understand that this is denied by Glenn, that Glenn and Lee came out to his place in an automobile on the occasion when negotiations for the sale of the land were begun; that there were two other men in the car; that only Glenn and Lee got out and came to see him; that he saw that Christian was one of the men in the car and inquired of Glenn whether Christian had anything to do with it, stating that he had reasons for not wanting Christian to have anything to do with the deal, and would object to him getting any commis

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