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(248 S.W.) the reason that this court has just disposed The first issue submitted was: of another case growing out of the same trans

"Did Brice L. Rezeau falsely imprison the action, wherein the appellant recovered dam- plaintiff, Thos. D. Ruston?" ages against the appellee for its tortious conduct toward the appellant. See C., R. I. & The court's charge in connection with this G. Ry. Co. v. Neubert, 248 S. W. 139, handed issue correctly defines false imprisonment, down January 31, 1923.

and further charges the jury that, if they Believing the trial court was justified in find from the evidence that the plaintiff, at sustaining the general demurrer, the judg. the request or command of Rezeau submisment of the district court is affirmed. sively or willingly went with him and did

as he said, this would not constitute false imprisonment. It is unnecessary to give a special charge which has in effect and in sub

stance been given in the general charge. CHICAGO, R. I. & G. RY. CO. V. RUSTON.*

[2] The fourth proposition is: (No. 2069.)

"Special issues Nos. 1 to 4, requested by the

defendant, should have been submitted." (Court of Civil Appeals of Texas. Amarillo. Jan. 31, 1923. Rehearing Denied

This proposition is multifarious, and is Feb. 21, 1923.)

not entitled to consideration. We have, how1. Trial em 260(1)-Special charge given in ever, considered the issues, and have consubstance in general charge properly refused. cluded that the ultimate fact presented by

It is unnecessary to give a special charge such issues was presented by the general which has in effect and in substance been given charge. Issue No. 2 of the general charge is : in the general charge.

"Was Brice L. Rezeau acting within the gen2. Appeal and error Om742(6)-Proposition eral scope of his authority as agent of the demultifarious, and not entitled to consideration. fendant at the time of such false imprisonment

A proposition, “Special issues Nos. 1 to 4, of the plaintiff, if any?” requested by the defendant, should have been submitted," was multifarious, and not entitled

And by issue No. 3 the jury is asked the to consideration.

amount of damages sustained. Special issue

No. 1 inquired whether some of the parties Appeal from District Court, Dallam Coun- at the pile of cross-ties suggested going to ty; Reese Tatum, Judge.

the depot for the purpose of purchasing

tickets, and, if yes, then did the plaintiff go Action by Thomas D. Ruston against the and purchase his ticket as a result of said Chicago, Rock Island & Gulf Railway Com- suggestion? Special issue No. 2 inquires if pang. Judgment for plaintiff, and defendant (the acts and conduct of Rezeau toward plainappeals. Affirmed.

tiff were of such a nature as were calculated Tatum & Strong, of Dalhart, and N. H. to detain him, and, if yes, then could the Lassiter, of Fort Worth, for appellant.

plaintiff, by ordinary means, have relieved R. E. Stalcup, of Dalhart, and Adkins & himself from the acts and conduct of Rezeau? Kimbrough, of Amarillo, for appellee.

Special issue No. 3 inquires whether plain

titf, at the request or command of Rezeau, HALL, C. J. This case and the case of submissively or willingly went to the ticket Chicago, Rock Island & Gulf Railway Co. oflice. Special issue No. 4 inquires whether F. Neubert, 248 S. W. 139, this day decided, plaintiff went to the depot and purchased arose out of the same transaction,

the ticket as a result of Rezeau's telling him The questions presented in both cases by that he could not ride defendant's freight the first and second propositions in each are train, and if he attempted to do so he would identical.

put him off and endeavor to have him pros[1] The third proposition urged in this ecuted. These inquiries relate to matters of case is that the court erred in not submit- evidence rather than to the ultimate fact to ting the following special charge:

be ascertained, and, if they had been sub

mitted and answered, the answers would have "You are instructed in considering special issme No. 1, submitted to you by the court, that been of no practical value in rendering the false imprisonment is the willful detention of judgment. We think the court's charge is another against his consent; that is, that the proper and presented as issues the necessary detention must be knowingly and intentionally ultimate facts which support the judgment. done and unlawfully done, and consists in in- We overrule the proposition that the verdict posing by force or threats an unlawful restraint is excessive. upon a man's freedom of locomotion."

The judgment is affirmed. em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Writ of error dismissed for want of jurisdiction April 4, 1923.

au

tiff, and defendants appealed. Judgment PRIDDY et al. v. CHILDERS. (No. 1759.)* affirmed.

Martin & Oneal, of Wichita Falls, for ap(Court of Civil Appeals of Texas. Amarillo. Nov. 15, 1922.

pellants.
Rehearing Denied
Feb. 14, 1923.)

Harris & Martin, of Wichita Falls, for

appellee. 1. Brokers m74–Employer of broker liable for compensation regardless of his interest HUFF, C. J. This case was affirmed at in property.

a former term of this court (231 S. W. 172), One who employs a broker to find a pur- on the ground that the assignment was too chaser is usually liable for compensation, re- general as predicated upon a requested ingardless of the nature of his interest in the struction, to the effect that the evidence was property.

insufficient to sustain a verdict against the 2. Principal and agent 123(8) Evidence defendants. This court had held the tes

held to authorize finding that listing was au- timony was sufficient upon the original hearthorized by owner.

ing to authorize a recovery against Brasher, In an action by a broker for compensation, but upon motion for rehearing affirmed the evidence held sufficient to warrant a jury finding case on the grounds first above stated. The that one defendant, a bookkeeper for his co- appellant, upon petition, secured a writ of defendant, the owner of the land, was error in the Supreme Court. The honorable thorized by the owner to place the land in Supreme Court has reversed the holding of broker's hands for sale.

this court (240 S. W. 1107), and we are di3. Principal and agent om 102(1)-Appointment | rected to pass upon the sufficiency of the

of broker may be personally by principal or evidence as to the liability of the appellants by authorized agent.

or either of them. Authority to act as agent or broker can

an Childers brought suit against W. M. Pridarise only at the will and by the act of the prin- dy and Del S. Brasher to recover the sum cipal, but the appointment may be either the of $1,250, as a commission due him in propersonal act of the principal or the act of curing purchasers ready, willing, and able his duly authorized representative.

to buy the oil lease described at the price 4. Brokers Cam 86(1)-Evidence held to warrant and on the terms for which it was listed

finding that owner increased price after bro- with him as a broker to find a purchaser. ker procured purchasers.

The purchasers proposed were then ready, Where the owner of oil lands kept a printed willing, and able to buy and were duly prelist of oil lands and leases for sale on which sented to appellants, who refused and dewas printed the qualifying statement, “All clined to assign the lease to them. Appelprices subject to change or withdrawal, and lants answered by general exception and on which was written the words, “Subject to

general denial. change without notice," evidence in an action

The case was submitted to a jury upon by a broker for commissions where the owner refused to sell to purchasers obtained by the special issues, who found: broker held sufficient to warrant a jury finding

(1) That Del S. Brasher owned an interest that the owner raised the price after the bro- in the 21-acre lease described in the petiker procured purchasers ready and able to buy tion. at the former price given by the owner.

(2) That his interest was 8/100 of the prof

its on sale. 5. Brokers m 44Owner cannot withdraw list. ing after broker has procured purchaser.

(3) That Brasher was authorized by PridA stipulation on a list of oil lands and dy to place the land with appellee for sale at leases for sale, "All prices subject to change or

a price of $5,000 per acre. withdrawal," under which the broker undertook

(4) Priddy had not revised the price of to procure purchaser, added no more to the the 242-acre lease at the time appellee brought owner's protection than the law gives him, Brooks, Simmons, and Moore, the proposed since a listing with a broker or an offer of sale purchasers, into his office. may be withdrawn at any time before accept (5) Priddy did revise the price on the ance, but such stipulation did not authorize the land after the time appellee brought the proowner to withdraw the listing after the broker posed purchasers into his office. had procured purchasers to take the land at the listed price, and so defeat the broker's right dict on the ground above stated. The as

The appellant requested an instructed verto commission, even though such listing had written across it, “Subject to change without signment is predicated upon the refusal to nctice."

so charge the jury. The propositions there

under presented are: Hall, J., dissenting in part.

(1) If the evidence is insufficient upon any Appeal from District Court, Wichita Coun- theory of the case to sustain a verdict upon ty; Edgar Scurry, Judge.

request, the court should give an instructed

verdict for the defendants, and such refusal Action by F. T. Childers against W. M. will require a reversal of the case. Priddy and another. Judgment for plain. (2) "An averment by plaintiff of the joint

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

(248 S.W.) employment of him as a broker by two defend- , the land, but only an interest in the profits ants to procure a purchaser of an oil and gas on sale, he could not make a contract with lease is not sustained by proof of employment the broker which would bind him for a comof him by only one defendant, which employ- mission; (2) as Priddy never saw Childers, ment is not participated in by the other defend- he could make no contract of listing with ant, and such variance is fatal when an in; him; (3) as Brasher was only a bookkeeper structed verdict is requested by defendants." for Priddy in his office, he was not author

The very question presented by appellants ized to contract with appellee to sell the in the second proposition has been expressly land or to place the land with appellee for ruled against appellant's contention by the sale at a price fixed by Priddy; (4) as PridSupreme Court, in a commission suit brought dy gave out his list of lands for sale with by a real estate broker. McDonald v. Cabi- the right to change the price without noness, 100 Tex, 615, 102 S. W. 721. See, also, tice, he could do so at any time he saw Negociacion, etc., v. Love (Tex. Civ. App.) proper. There may be other essentials nec220 S. W, 224 (9).

essary to be shown by the evidence and upWhen we last considered this case, we on which appellants rely, but we are not at interpreted that by the propositions appel- this time able to perceive them or to surmise lants considered the evidence as to a several any other. contract was a variance from the allegation

On the trial of the case below it was of a joint contract, and that this was the agreed that the proposed purchasers for the theory which demanded an instructed ver- 24 acres were ready, willing, and able to dict. It seems that we were in error in read. buy the same at the price of $5,000 per acre ing the two propositions together. We are on April 26, 1919. The appellee, Childers, therefore required to find whether the evi- on that date and prior thereto, was engaged dence will support a verdict against one or in the brokerage business, and was handling both of the appellants. We presume the as- oil and gas leases. On the 23d day of signments in the motion for new trial and April, 1919, appellee went to Priddy's office in this court, to the effect that the verdict is for a listing on some of his leases. Brasher contrary to the evidence and that the evi- was in the office, and appellee asked him dence is wholly insufficient to support the what he had. Brasher replied: Ferdict, are so general that they did not call “ “We have 2112 acres in block 61 that I hold upon the trial court and will not require this an interest in.' So he gave me a listing on it court to examine the testimony on those as- of $5,000 an acre, paying me 10 per cent. He signments. Rule 68 for district courts (142 said, “We will deliver the lease at that price.” S. W. xxii) and rule 26 for Courts of Civil Appeals (142 S, W. xii); Clark v. Pearce, 80 The appellee was unable to sell the land Tex. 146, 15 S. W. 787; Telegraph Co. v. on the first day of its listing, and the next Mitchell

, 89 Tex. 443, 35 S. W. 4; Sanger morning went back for a verification of the Bros. v. Craddock (Tex. Sup.) 2 S. W. 196 ; | listing. Brasher verified the original listGross v. Hays, 73 Tex. 515, 11 S. W. 523. ing. Appellee afterwards, on taat day, met We have understood when an assignment is Brooks and other parties who wanted the predicated upon the refusal to give a charge land, and before taking them to the office apit will not be necessary in the assignment to pellee again went to the office for a veri. give the reason for the charge or the state- fication of the price. Brasher stated to apment of the particular error of which com- pellee he would deliver the property at that plaint is made. It will be sufficient to fol- price, and that the list was there in the oflow the assignment with the propositions fice. The appellee then left for the purrelied upon as showing the error in the re- chasers and took them to Priddy's office and fusal of the charge. Land Co. v. McClel- went into Priddy's office to see him. Priddy lan Bros., 86 Tex. 179, 23 S. W. 576, 1100, 22 said to appellee, “What is going on out L. R. A. 105. The assignment in this case is there?” Appellee replied, “Not a thing that here followed with two propositions, the sec- I know of to excite anybody.” Priddy said, ond of which is specific enough and proper- "Well, I would like to have a few minutes ly disposed of by this court in its former to try to find out what is going on out there." opinion, as above pointed out. If there is Appellee told Priddy the parties were ready "any theory" to support which the evidence to buy the lease, but he refused to deliver is insufficient to sustain a verdict, it is, to the lease at that price, but offered to deliver say the least of it, pointed out by the prop-it at $6,000 per acre and pay appellee 10 osition in a very general way.

We may per cent commission, and would not deliver doubtless surmise a theory which appellants at $5,000 an acre. The parties had quite an may think the evidence insufficient to sup- argument over the matter. There appears port a verdict. However, a more specific to have been a printed list of land, includdesignation of the particular thing would ing the particular land in question, in Priddy's aid us. If we gather correctly from appel- office on the day on which the appellee visitlants

' brief by their recitation of certain ed the office, and that he saw it there on the evidence and their several arguments, they day he brought the parties to purchase and contend: (1) As Brasher had no title in or to before. The purchasers also saw the list.

248 S.W.-10

On the printed list there was written across This witness also stated that Priddy was tl 3 top of it, “Subject to change without no- in the office when appellee came up the last tice." Appellee did not see Priddy when he morning to verify the prices, but was busy obtained the listing from Brasher, and did with other parties, and he did not want to not know him or know be owned the land, disturb him; some 30 minutes after Childers and possibly did not see the printed list came up with the purchasers, which was when Brasher first listed the land with about 9 or 10 o'clock in the morning, and him, but did see it when he returned for a the witness told him to see Priddy; that verification of the price the first time. He witness and some other parties in the ofdid not see Priddy until he took the purchas- fice had an interest with Priddy in the land; ers into his office. He testified Priddy did that he had not purchased it himself; that not tell him that the price was $6,000, but it was just a kindly act on the part of Pridhe refused to deliver it at $5,000, and offered dy to "cut me in on some of the acreage to sell it at $6,000. Priddy did not tell him there"; that he was not authorized to sell that he would not get the land at $5,000, it, nor had he been authorized to make any and that the price was $6,000. He said he statements to Childers by Priddy. The witwould not deliver at $5,000, but would sell ness said: for $6,000. "He said he would like to have

“You might say that I had an interest in it. time to find out what was going on out I told Childers that I had an interest in it at there."

the time I listed it." D. S. Brasher testified: That at the time Childers came into the office

The price on the list which he had teshe was then working for Priddy as bookkeeper, tified from was $5,000 an acre the first time and that Priddy owned an oil lease in block 61. he gave it to Childers, and was the same the "He had a list of the price that he would sell last time he gave it to Childers. He told that lease at at that time. This is a copy of Childers 30 or 40 minutes before he brought that list there (reading the list), 'Leases near the men into the office. the Burk-Waggoner well for sale by W. M. Priddy. All prices subject to change or with

"I told Childers that it carried a 10 per cent. drawal.'” That this printed form was then in commission. Mr. Priddy himself had left that the office where appellee talked to the wit- price list in the office. With reference to Mr. ness. "Mr. Priddy at that time never author- Priddy writing it up or having his stenographer ized me to make a price or sell any of his acre

to write it up and left there with me, they age; he always said that he confirmed the sell- were scattered all over the office-all over town. ing and the buying himself.” “With reference Mr. Priddy left that in the office for the brokers

to get. to Mr. Childers coming up there on or about

I did not have any instructions. the 23d day of April, a few days before the there had a right to submit these to any broker

* I or any one else in the office force sale here, in which he claims that he had some purchasers, he first came up there and talked to or to any other purchasers that asked for them. He came to see Mr. Priddy, and he was

We did that." busy at the time. We got in some kind of a conversation about this lease, and I just listed

Priddy had the list made up. The witness that with him there accordingly. I had a list did not know there was a rumor of a well in there in my pocket, and I told him about this block 61. If he had known it, he would not 212 acres in particular that he could sell. The have given Childers that price, but would list was a copy of the one just like that. I have gone to see Priddy; did not know that looked at that list to see what it was. I did not he had authority to give Childers the price; know anything else about it. Mr. Childers then was never authorized. came back the next day to see if the list had The effect of Priddy's testimony is that been changed in any way or withdrawn. He

prior to the day Childers came in to see him talked to me. He looked at the list again. He he had the property listed at $5,000 per acre, came back two or three times. He came back but there was a rumor of a well on the block, and confirmed it two or three times. The first and that he advanced the price to $6,000. two or three times he came back it had not been changed. The last time he came back be- When Childers first came to his ottice Pridfore bringing these parties up there he asked dy asked at what price he thought he was me if that price was still good. With reference selling, and Childers said $5,000. Priddy to what I said on that day when be asked me told him he would not want to sell at that if it was good, I would not think about giving price, and that he had advanced the price him an answer without going and looking at to $6,000; that he then told Childers to the list. I did not know. I did not drill the bring up the parties and they might be will. acreage myself. I went over to the desk and ing to pay $6,000, but that when they came asked one of the stenographers in the office. up they would not pay that amount. He She said: “There is the list there. I looked aid not authorize Brasher to sell or list to in the desk drawer there. I told him that was Childers. "He had no authority from me to the last price on it; that was all that was said there. I said: “That is the last price given.' handle this lease in any way, shape, or form." I was looking at this statement in Mr. Priddy's He had given Brasher and other members of drawer. Mr. Priddy never authorized me to his working force each a 38/100 working inmake any statement to Mr. Childers about terest in the profits on the sale of the land

me.

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(248 S.W.) The witness further testified that he had | McDonald v. Cabiness (Tex. Civ. App.) 98 heard a rumor the night previous of a well S. W. 913. brought in, or about to be brought in, on the [1] "One who employs a broker to find a block, and that he arrived at his office late purchaser is usually liable for compensation, the next morning; that very soon after he regardless of the nature of his interest in the arrived he advanced the price and made a property." 9 C. J. 586, notes 92 and 93. pencil memorandum on different lists as to We are inclined to think, even if appellee the advanced price, testifying from a particu- | had known that Priddy was the owner, he yet lar list upon which the advance appears to could rely on the statement that Brasher have been marked. He said he marked the had an interest. There is, therefore, suffiadvance on several lists. "Here is one I had cient evidence to authorize a judgment on my desk. *

* I made these notations against Brasher whether Priddy did or did on this particular list.” He says he made not authorize a listing with him. the pencil change and had it before him when [2] But the jury find that Brasher was the purchasers came in. On cross-exami- authorized by Priddy to place the land with nation he says Childers first came to see appellee for sale at the price of $5,000. It him alone and afterwards brought up the seems to use this finding is supported by the purchasers, and with reference to the list evidence. Priddy made out a list of lands he stated he made them out for his private for sale, among which was the tract in quesconvenience; that he had given out a great tion, giving the price of each tract. This many lists to people who asked him the price list appears to have been printed and to of his land, and when they did so he would have been given out to all parties asking the hand them a list; that he did not particularly price, and Priddy admits Brasher knew there remember handing the list to his office force, was a commission of 10 per cent. on sale. but they had access to his desk when it was Brasher says the list was made and scatteropen. He did not leave the list in his office ed all over town and placed with the office for the purpose of selling the leases. “Del force of Priddy, and that they were given Brasher knew at that time that we were the right to hand them to brokers, and that paying a 10 per cent. commission on these there was a 10 per cent. commission on sale. leases." He denied making the change in It occurs to us when Priddy made the list, the price while Childers and the purchasers fixed the commission, and gave his office force sat there and that it was then that he made the right to hand it to brokers with the the change. He states he never had any con- knowledge there was a 10 per cent. commisversation with Childers or listed the land sion on sale and if placed in the hands of with him until the time he came into his oflice brokers by his employees in the office and a and told him he had sold it. Childers, on be- sale effected, he should be held thereby to ing recalled, testified that, when he and the have made a listing contract. He took that purchasers went into Priddy's office, Priddy, method of listing his property and soliciting while sitting there with the list, then pen- the services of brokers, and he should not ciled the changes in the price on the list.

be heard to say he made no contract with Brasher, as shown by the testimony, listed a broker performing the services so secured the land to appellee, representing at the time simply because he had not personally talked be did so he had an interest in the same. or agreed with the broker. It may be true The facts show that he would have been en- that Brasher had no right to fix the price titled to only 88/100 interest in the profits, or to sell the land or employ agents, but and the jury substantially so find. It can- such want of authority would not prevent not be very well denied that he made the Priddy from using him as an instrumentalcontract with appellee and agreed to pay 10 (ity in effecting his purpose. If Priddy had per cent. commission. The question of his written a letter to appellee, giving a price title to the land we believe to be of no ma

on the land and intrusted it to Brasher to deHe doubtless believed he liver, with the statement there was a 10 per was acting for the interest of himself and cent. commission, and the appellee had sold others who were interested with him in the it, we believe it would hardly be contendsale

. If, for any reason, Priddy is not liable, ed there was no contract of enlistment becertainly Brasher would be, and appellee may cause Priddy did not see Childers in perlook alone to him for compensation.

He son or authorize Brasher to fix the price or purported to have the right to list, and so sell the land or employ an agent. Priddy represented in listing the property.

The simply used Brasher as an instrumentality question is, under the facts of this case, to deliver the price list to a broker, and whether his acts and statements were such Brasher did just what he was authorized to as amounted to a representation that he do. Loughlin v. Greenwood, 181 S. W. 517. had authority to make a contract.

If he The authority of appellee to find a purchaser did

, and appellee relied thereon and pro- need not be expressly shown.
cured purchasers for the land, appellee was "In the great majority of cases it is uni-
entitled to recover from him. Hays v. Dee- formly conferred or is presumed from acts and
ley (Tex. Civ. App.) 204 S. W. 1177; Smye conduct of the principal. A large portion of the
V. Groesbeck (Tex. Civ. App.) 73 S W. 972; transaction of the modern business world is

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terial interest.

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