(248 S.W.) the reason that this court has just disposed of another case growing out of the same transaction, wherein the appellant recovered damages against the appellee for its tortious conduct toward the appellant. See C., R. I. & G. Ry. Co. v. Neubert, 248 S. W. 139, handed down January 31, 1923. Believing the trial court was justified in sustaining the general demurrer, the judgment of the district court is affirmed. CHICAGO, R. I. & G. RY. CO. v. RUSTON.* (No. 2069.) (Court of Civil Appeals of Texas. Amarillo. Jan. 31, 1923. Rehearing Denied Feb. 21, 1923.) 1. Trial 260(1)-Special charge given in substance in general charge properly refused. It is unnecessary to give a special charge which has in effect and in substance been given in the general charge. 2. Appeal and error 742 (6)-Proposition multifarious, and not entitled to consideration. A proposition, "Special issues Nos. 1 to 4, requested by the defendant, should have been submitted," was multifarious, and not entitled to consideration. The first issue submitted was: "Did Brice L. Rezeau falsely imprison the plaintiff, Thos. D. Ruston?" The court's charge in connection with this issue correctly defines false imprisonment, and further charges the jury that, if they find from the evidence that the plaintiff, at the request or command of Rezeau submissively 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 substance been given in the general charge. [2] The fourth proposition is: "Special issues Nos. 1 to 4, requested by the defendant, should have been submitted." This proposition is multifarious, and is not entitled to consideration. We have, however, considered the issues, and have concluded that the ultimate fact presented by such issues was presented by the general charge. Issue No. 2 of the general charge is: "Was Brice L. Rezeau acting within the general scope of his authority as agent of the defendant at the time of such false imprisonment of the plaintiff, if any?" And by issue No. 3 the jury is asked the 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. Action by Thomas D. Ruston against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed. Tatum & Strong, of Dalhart, and N. H. Lassiter, of Fort Worth, for appellant. R. E. Stalcup, of Dalhart, and Adkins & Kimbrough, of Amarillo, for appellee. HALL, C. J. This case and the case of Chicago, Rock Island & Gulf Railway Co. v. Neubert, 248 S. W. 139, this day decided, arose out of the same transaction. The questions presented in both cases by the first and second propositions in each are identical. [1] The third proposition urged in this case is that the court erred in not submitting the following special charge: the depot for the purpose of purchasing tickets, and, if yes, then did the plaintiff go and purchase his ticket as a result of said suggestion? Special issue No. 2 inquires if the acts and conduct of Rezeau toward plaintiff were of such a nature as were calculated to detain him, and, if yes, then could the plaintiff, by ordinary means, have relieved himself from the acts and conduct of Rezeau? Special issue No. 3 inquires whether plaintiff, at the request or command of Rezeau, submissively or willingly went to the ticket office. Special issue No. 4 inquires whether plaintiff went to the depot and purchased the ticket as a result of Rezeau's telling him that he could not ride defendant's freight train, and if he attempted to do so he would put him off and endeavor to have him prosecuted. These inquiries relate to matters of evidence rather than to the ultimate fact to be ascertained, and, if they had been submitted and answered, the answers would have been of no practical value in rendering the judgment. We think the court's charge is proper and presented as issues the necessary ultimate facts which support the judgment. We overrule the proposition that the verdict "You are instructed in considering special issue No. 1, submitted to you by the court, that false imprisonment is the willful detention of another against his consent; that is, that the detention must be knowingly and intentionally done and unlawfully done, and consists in imposing by force or threats an unlawful restraint is excessive. upon a man's freedom of locomotion." The judgment is affirmed. 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. tiff, and defendants appealed. Judgment PRIDDY et al. v. CHILDERS. (No. 1759.)* affirmed. (Court of Civil Appeals of Texas. Amarillo. 1. Brokers 74-Employer of broker liable One who employs a broker to find a purchaser is usually liable for compensation, regardless of the nature of his interest in the property. 2. Principal and agent 123 (8)-Evidence held to authorize finding that listing was authorized by owner. In an action by a broker for compensation, evidence held sufficient to warrant a jury finding that one defendant, a bookkeeper for his codefendant, the owner of the land, was authorized by the owner to place the land in broker's hands for sale. 3. Principal and agent 102(1)—Appointment of broker may be personally by principal or by authorized agent. Authority to act as agent or broker can arise only at the will and by the act of the principal, but the appointment may be either the personal act of the principal or the act of his duly authorized representative. 4. Brokers 86(1)—Evidence held to warrant finding that owner increased price after broker procured purchasers. Where the owner of oil lands kept a printed list of oil lands and leases for sale on which was printed the qualifying statement, "All prices subject to change or withdrawal, and on which was written the words, "Subject to change without notice," evidence in an action by a broker for commissions where the owner refused to sell to purchasers obtained by the broker held sufficient to warrant a jury finding that the owner raised the price after the broker procured purchasers ready and able to buy at the former price given by the owner. 5. Brokers 44-Owner cannot withdraw listing after broker has procured purchaser. A stipulation on a list of oil lands and leases for sale, "All prices subject to change or withdrawal," under which the broker undertook to procure purchaser, added no more to the owner's protection than the law gives him, since a listing with a broker or an offer of sale may be withdrawn at any time before acceptance, but such stipulation did not authorize the owner to withdraw the listing after the broker had procured purchasers to take the land at the listed price, and so defeat the broker's right to commission, even though such listing had written across it, "Subject to change without notice." Hall, J., dissenting in part. Martin & Oneal, of Wichita Falls, for appellants. Harris & Martin, of Wichita Falls, for appellee. HUFF, C. J. This case was affirmed at a former term of this court (231 S. W. 172), on the ground that the assignment was too general as predicated upon a requested instruction, to the effect that the evidence was insufficient to sustain a verdict against the defendants. This court had held the testimony was sufficient upon the original hearing to authorize a recovery against Brasher, but upon motion for rehearing affirmed the case on the grounds first above stated. The appellant, upon petition, secured a writ of error in the Supreme Court. The honorable Supreme Court has reversed the holding of this court (240 S. W. 1107), and we are directed to pass upon the sufficiency of the evidence as to the liability of the appellants or either of them. Childers brought suit against W. M. Priddy and Del S. Brasher to recover the sum of $1,250, as a commission due him in procuring purchasers ready, willing, and able to buy the oil lease described at the price and on the terms for which it was listed with him as a broker to find a purchaser. The purchasers proposed were then ready, willing, and able to buy and were duly presented to appellants, who refused and declined to assign the lease to them. Appellants answered by general exception and general denial. The case was submitted to a jury upon special issues, who found: (1) That Del S. Brasher owned an interest in the 2-acre lease described in the petition. (2) That his interest was 3/100 of the profits on sale. (3) That Brasher was authorized by Priddy to place the land with appellee for sale at a price of $5,000 per acre. (4) Priddy had not revised the price of the 21⁄2-acre lease at the time appellee brought Brooks, Simmons, and Moore, the proposed purchasers, into his office. (5) Priddy did revise the price on the land after the time appellee brought the proposed purchasers into his office. dict on the ground above stated. The asThe appellant requested an instructed versignment is predicated upon the refusal to so charge the jury. The propositions thereunder presented are: (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. Action by F. T. Childers against W. M. Priddy and another. Judgment for plain request, the court should give an instructed verdict for the defendants, and such refusal will require a reversal of the case. (2) "An averment by plaintiff of the joint For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (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 authorThe 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 upon which appellants rely, but we are not at this time able to perceive them or to surmise any other. On the trial of the case below it was agreed that the proposed purchasers for the 22 acres were ready, willing, and able to buy the same at the price of $5,000 per acre on April 26, 1919. The appellee, Childers, on that date and prior thereto, was engaged in the brokerage business, and was handling oil and gas leases. On the 23d day of April, 1919, appellee went to Priddy's office for a listing on some of his leases. Brasher was in the office, and appellee asked him Brasher replied: what he had. "We have 2 acres in block 61 that I hold an interest in.' So he gave me a listing on it of $5,000 an acre, paying me 10 per cent. He said, "We will deliver the lease at that price.'" When we last considered this case, we interpreted that by the propositions appellants considered the evidence as to a several contract was a variance from the allegation of a joint contract, and that this was the theory which demanded an instructed verdict. It seems that we were in error in reading the two propositions together. We are therefore required to find whether the evidence will support a verdict against one or both of the appellants. We presume the assignments in the motion for new trial and in this court, to the effect that the verdict is contrary to the evidence and that the evidence is wholly insufficient to support the verdict, are so general that they did not call upon the trial court and will not require this court to examine the testimony on those assignments. Rule 68 for district courts (142 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 that 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 verigive 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 the top of it, "Subject to change without notice." Appellee did not see Priddy when he obtained the listing from Brasher, and did not know him or know he owned the land, and possibly did not see the printed list when Brasher first listed the land with him, but did see it when he returned for a verification of the price the first time. He did not see Priddy until he took the purchasers into his office. He testified Priddy did not tell him that the price was $6,000, but he refused to deliver it at $5,000, and offered to sell it at $6,000. Priddy did not tell him that he would not get the land at $5,000, and that the price was $6,000. He said he would not deliver at $5,000, but would sell for $6,000. "He said he would like to have time to find out what was going on out there." D. S. Brasher testified: That at the time Childers came into the office This witness also stated that Priddy was in the office when appellee came up the last morning to verify the prices, but was busy with other parties, and he did not want to disturb him; some 30 minutes after Childers came up with the purchasers, which was about 9 or 10 o'clock in the morning, and the witness told him to see Priddy; that witness and some other parties in the office had an interest with Priddy in the land; that he had not purchased it himself; that it was just a kindly act on the part of Priddy to "cut me in on some of the acreage there"; that he was not authorized to sell it, nor had he been authorized to make any statements to Childers by Priddy. The witness said: "You might say that I had an interest in it. I told Childers that I had an interest in it at the time I listed it." The price on the list which he had testified from was $5,000 an acre the first time he gave it to Childers, and was the same the last time he gave it to Childers. He told Childers 30 or 40 minutes before he brought the men into the office. he was then working for Priddy as bookkeeper, and that Priddy owned an oil lease in block 61. "He had a list of the price that he would sell that lease at at that time. This is a copy of that list there (reading the list), 'Leases near the Burk-Waggoner well for sale by W. M. Priddy. All prices subject to change or withdrawal.'" That this printed form was then in the office where appellee talked to the witness. "Mr. Priddy at that time never authorized me to make a price or sell any of his acreage; he always said that he confirmed the sell-were scattered all over the office-all over town, ing and the buying himself." "With reference to Mr. Childers coming up there on or about the 23d day of April, a few days before the sale here, in which he claims that he had some purchasers, he first came up there and talked to me. He came to see Mr. Priddy, and he was busy at the time. We got in some kind of a conversation about this lease, and I just listed that with him there accordingly. I had a list there in my pocket, and I told him about this 22 acres in particular that he could sell. The list was a copy of the one just like that. I looked at that list to see what it was. I did not know anything else about it. Mr. Childers then came back the next day to see if the list had been changed in any way or withdrawn. He talked to me. He looked at the list again. He came back two or three times. He came back and confirmed it two or three times. The first two or three times he came back it had not been changed. The last time he came back before bringing these parties up there he asked me if that price was still good. With reference to what I said on that day when he asked me if it was good, I would not think about giving him an answer without going and looking at the list. I did not know. I did not drill the acreage myself. I went over to the desk and asked one of the stenographers in the office. She said: "There is the list there.' I looked in the desk drawer there. I told him that was the last price on it; that was all that was said there. I said: "That is the last price given. I was looking at this statement in Mr. Priddy's drawer. Mr. Priddy never authorized me to make any statement to Mr. Childers about prices of anything." "I told Childers that it carried a 10 per cent. commission. Mr. Priddy himself had left that price list in the office. With reference to Mr. Priddy writing it up or having his stenographer to write it up and left there with me, they * Mr. Priddy left that in the office for the brokers to get. I did not have any instructions. there had a right to submit these to any broker I or any one else in the office force or to any other purchasers that asked for them. We did that." Priddy had the list made up. The witness did not know there was a rumor of a well in block 61. If he had known it, he would not have given Childers that price, but would have gone to see Priddy; did not know that he had authority to give Childers the price; was never authorized. The effect of Priddy's testimony is that prior to the day Childers came in to see him he had the property listed at $5,000 per acre, but there was a rumor of a well on the block, and that he advanced the price to $6,000. When Childers first came to his office Priddy asked at what price he thought he was selling, and Childers said $5,000. Priddy told him he would not want to sell at that price, and that he had advanced the price to $6,000; that he then told Childers to bring up the parties and they might be willing to pay $6,000, but that when they came up they would not pay that amount. He did not authorize Brasher to sell or list to Childers. "He had no authority from me to handle this lease in any way, shape, or form." He had given Brasher and other members of his working force each a 33/100 Working interest in the profits on the sale of the land listed, which included the tract in question. (248 S.W.) [1] "One who employs a broker to find a purchaser is usually liable for compensation, regardless of the nature of his interest in the property." 9 C. J. 586, notes 92 and 93. We are inclined to think, even if appellee had known that Priddy was the owner, he yet could rely on the statement that Brasher had an interest. There is, therefore, sufficient evidence to authorize a judgment against Brasher whether Priddy did or did not authorize a listing with him. 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. 943. brought in, or about to be brought in, on the block, and that he arrived at his office late the next morning; that very soon after he arrived he advanced the price and made a pencil memorandum on different lists as to the advanced price, testifying from a particular list upon which the advance appears to have been marked. He said he marked the advance on several lists. "Here is one I had on my desk. * * * I made these notations on this particular list." He says he made the pencil change and had it before him when the purchasers came in. On cross-examination he says Childers first came to see him alone and afterwards brought up the purchasers, and with reference to the list he stated he made them out for his private convenience; that he had given out a great many lists to people who asked him the price of his land, and when they did so he would hand them a list; that he did not particularly remember handing the list to his office force, but they had access to his desk when it was open. He did not leave the list in his office for the purpose of selling the leases. "Del Brasher knew at that time that we were paying a 10 per cent. commission on these leases." He denied making the change in the price while Childers and the purchasers sat there and that it was then that he made the change. He states he never had any conversation with Childers or listed the land with him until the time he came into his office 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 purchasers went into Priddy's office, Priddy, while sitting there with the list, then penciled the changes in the price on the list. Brasher, as shown by the testimony, listed the land to appellee, representing at the time he did so he had an interest in the same. The facts show that he would have been entitled to only 33/100 interest in the profits, and the jury substantially so find. It cannot be very well denied that he made the contract with appellee and agreed to pay 10 per cent. commission. The question of his title to the land we believe to be of no material interest. He doubtless believed he was acting for the interest of himself and others who were interested with him in the sale. If, for any reason, Priddy is not liable, certainly Brasher would be, and appellee may look alone to him for compensation. He purported to have the right to list, and so represented in listing the property. The question is, under the facts of this case, whether his acts and statements were such as amounted to a representation that he had authority to make a contract. If he did, and appellee relied thereon and procured purchasers for the land, appellee was entitled to recover from him. Hays v. Deeley (Tex. Civ. App.) 204 S. W. 1177; Smye v. Groesbeck (Tex. Civ. App.) 73 S W. 972; [2] But the jury find that Brasher was authorized by Priddy to place the land with appellee for sale at the price of $5,000. It seems to use this finding is supported by the evidence. Priddy made out a list of lands for sale, among which was the tract in question, giving the price of each tract. This list appears to have been printed and to have been given out to all parties asking the price, and Priddy admits Brasher knew there was a commission of 10 per cent. on sale. Brasher says the list was made and scattered all over town and placed with the office force of Priddy, and that they were given the right to hand them to brokers, and that there was a 10 per cent. commission on sale. It occurs to us when Priddy made the list, fixed the commission, and gave his office force the right to hand it to brokers with the knowledge there was a 10 per cent. commission on sale and if placed in the hands of brokers by his employees in the office and a have made a listing contract. He took that method of listing his property and soliciting the services of brokers, and he should not be heard to say he made no contract with a broker performing the services so secured simply because he had not personally talked or agreed with the broker. It may be true that Brasher had no right to fix the price or to sell the land or employ agents, but such want of authority would not prevent Priddy from using him as an instrumentality in effecting his purpose. If Priddy had written a letter to appellee, giving a price on the land and intrusted it to Brasher to deliver, with the statement there was a 10 per cent. commission, and the appellee had sold it, we believe it would hardly be contended there was no contract of enlistment because Priddy did not see Childers in person or authorize Brasher to fix the price or sell the land or employ an agent. Priddy simply used Brasher as an instrumentality to deliver the price list to a broker, and Brasher did just what he was authorized to do. Loughlin v. Greenwood, 181 S. W. 517. The authority of appellee to find a purchaser need not be expressly shown. "In the great majority of cases it is uniformly conferred or is presumed from acts and conduct of the principal. A large portion of the transaction of the modern business world is |