carried on by simple and informal means. A word or look or gesture often suffices to give assent to great undertakings or to set in motion the complicated machinery of commerce. * * Hence it is that in many cases the existence of an agency is implied or presumed from the words or conduct of the parties, although the creation of an agency was not within the immediate contemplation." 1 Mechem on Agency, § 241.

[3] Of course, it is an invariable rule that authority to act as agent can arise only at the will and by the act of the principal. Its

existence is always à fact to be proved by tracing it to some act of the person alleged to have created or conferred it. The appointment must be a personal act of the principal, except when he has expressly or by implication authorized some one else to appoint agents.

"While it is thus true that authority to act as agent can usually arise only at the will and by the act of the principal, that will and act may find expression in a great variety of ways. Usually no particular method or form of expression is essential, and the range of possible forms is ordinarily as wide as the domain of human action." 1 Mechem on Agency, § 211. "Thus the mere leaving of the description of the property at the office of a broker by the owner or his agent, with a request that the broker sell the property at a designated price and on designated terms, amounts to an employment of the broker." 9 C. J. "Brokers," § 18, p. 516.

The facts in this case are fully as strong

as the one above instanced. The lists were

prepared by Priddy to hand to brokers with the price affixed, with the instruction as to the amount of commission to be paid on sale and the authority conferred upon the office force to give the list to brokers. This act and conduct of Priddy were sufficient, in our judgment, to authorize a finding of enlistment by Priddy and Brasher, and the jury, we think, are sustained in their finding by the evidence.

column; Hancock v. Stacy (Tex. Civ. App.) 116 S. W. 177 (4); Id., 103 Tex. 219, 125 S. W. 884 (1); Evans v. Gray (Tex. Civ. App.) 74 S. W. 575; Martin v. Jeffries (Tex. Civ. App.) 172 S. W. 148.

The assignments assailing the submission of issues 4 and 5 are overruled. The issues as submitted are not subject to the criticism offered in the brief and submitted an issue raised by the evidence, and therefore were proper.

The dissent in this case presents, as we parently urged in the court below or in understand, a ground not pleaded or apthis court by brief; that is, that the list of not an offer, but was in the nature of an adland with the testified qualifications on it was It should be noted that the list itself was vertisement or solicitation for negotiations.

not offered in evidence. It is true that Childers, in testifying, says that the list had written across the top of it, "Subject to change without notice," while Brasher read from the list: "Leases near the Burk-Waggoner well for sale by W. M. Priddy. All prices subject to change or withdrawal." Priddy

or Brasher neither testified that the list contained the heading mentioned by Childers. The testimony indicates Childers was giving his recollection in answer to questions while Brasher read from the list itself. The list would appear to have been before the trial court. If there is anything in this contention, it should be construed in favor of the judgment of the court. It is a general rule when a party makes an offer of sale, if he wishes to withdraw it, he must notify the offeree before acceptance. It would seem if the heading was on the list, as stated by Childers, that Priddy understood it to be an offer. He only qualified the general rule by reserving the right to change without notice. This is also indicated by his testimony. He in effect stated on the rumor of a well he changed the price before the proposed purchasers accepted the offer. The jury found [4, 5] The jury, under the facts, were that he did not do so, but that he did so aftjustified in finding that Priddy changed the er acceptance by the purchaser. These findprice of the land after appellee introduced ings are amply sustained. Priddy evidences to him the purchasers who were then ready, by his testimony that he understood by his ofwilling, and able to purchase. If Childers fer he must make the change before acceptstates truly, Priddy changed the price while ance. He insists he did change before. talking to the parties and after the purchas- Childers testifies he did not claim he had ers had accepted the offer and were then able changed but insisted on time to find out what and willing to comply with the contract. was going on at the well. As we interpret The court, on findings of the jury, we think, Priddy's testimony, he never once contended was justified in rendering judgment for ap- he had the right to change after acceptance. pellee for the amount sued for. The stipu- At most, he reserved the right to change belation on the list, "All prices subject to fore acceptance without notice. The issue change or withdrawal," we do not think au- of fact, and the only one, it seems to us, thorized Priddy, after purchasers had been was: Did he make the change before acprocured who were ready and willing to take ceptance by the proposed purchasers? This the land at the price listed, to defeat the issue the jury settled against Priddy, broker who had secured the purchasers in and their verdict finds support in the evia recovery of the commissions agreed upon. dence. The heading, "All prices subject Montgomery v. Amsler, 57 Tex. Civ. App. to change or withdrawal," stated no more 216, 122 S. W. 307 (13), at page 312, second than the law adds to a broker's contract in

(248 S.W.)

In the first place, the printed list is not a certain or definite offer to sell the lease at any price, and in my opinion is in fact and in law not an offer to sell at all. While it contains the recital, "Leases near the BurkWaggoner well for sale by W. M. Priddy," this is followed immediately by the qualifying statement, "All prices subject to change or withdrawal." Fearing that this might not be sufficient to relieve him of an obligation to sell at $5,000, he wrote across the top of the list, "Subject to change without notice." Under the fundamental rules governing the formation of a contract as they relate to the elements of offer and acceptance, the printed list is not an offer because of its indefiniteness and uncertainty as to time and price. It expressly states that the price of $5,000 is subject to change, or even withdrawal, and that, too, without notice. It is a mere advertisement or announcement to the public that Priddy has the leases mentioned in the. list which he may or may not, at his option, sell at the prices stated opposite each item. He could not by any combination of words more clearly or explicitly reserve to himself the right to change at any time or even withdraw the prices shown on the list, and that, too, without notice to any one, than has been done. Before an offer can be made the basis of a contract, it must be intended to create and capable of creating legal relations. No such relation could be created by any sort of acceptance under this lease until the acceptor had first ascertained from Priddy or his duly authorized agent that the price had not been changed or withdrawn. Until this was done there was no offer to be accepted. because no definite intent is shown by the list to sell the lease absolutely for $5,000.

the absence of a specific time agreed upon. HALL, J. I concur in so far as the majorSuch withdrawal would in no manner change ity opinion affirms the judgment against or affect any liability of the owner which | Brasher, but am unable, for several reasons, had arisen out of such employment prior to to agree to an affirmance as to Priddy. I the withdrawal, and when the broker had think the judgment against him should be complied with the terms of his employment reversed and rendered. he will be entitled to the agreed commission. Authorities supra, and especially Montgomery Case, which was under a written listing with the express right of withdrawal. Lewis v. Simpson, 122 Iowa, 663, 98 N. W. 508; 4 R. C. L. "Brokers," p. 253, § 9. We cannot assent to the construction of the facts in this case that they conclusively establish an advertisement of solicitation for negotiation. The testimony of Brasher certainly authorized the finding that the list was prepared for brokers, to be used in the sale of the land, for which they were to have 10 per cent. on the price as commission. This authorized a broker to offer land at the price listed. It is apparent Priddy did not have in mind that the list prepared by him was a mere advertisement or a solicitation for negotiations. He says the list was for his private use; that he did not place it in his office with his employees, but that they had access to his desk. An advertisement is usually to inform the public, and not alone for the private use of the owner. Again, he admits there was a 10 per cent. commission on sale, and that Brasher knew that fact. The inference would seem to be that it was 10 per cent. on the list price, and this was compensation to a broker upon sale to a purchaser; that, when a purchaser was presented at the list ed price who accepted the offer, the broker was entitled to his compensation. An offer capable of being converted into a contract of sale by acceptance must be made under circumstances evidencing an express or implied intention that his acceptance shall constitute a binding contract. Intention is a question of fact to be ascertained from all the facts. Under the facts of this case they were for the court and jury trying the case. We can not say as a matter of law they conclusively established there was no offer or intended of- "It is essential to a contract that the nature fer of sale by Priddy at the price listed. and extent of its obligations be certain. If an On the contrary, we think they show an of- agreement is uncertain, it is because the offer fer and the authority of a broker to find a was uncertain or ambiguous to begin with, for purchaser at that price. The facts in this cal with the offer or there is no meeting of the acceptance is always required to be identicase, aside from the agreement, are sufficient minds and no agreement. If the person to whom to show the purchasers were ready, willing, the offer is made sees the uncertainty and proand able to buy. The testimony indicates the poses a change which will make the agreement purchasers went to the office to close up, certain, this puts an end to the offer, and the and Childers says he then told Priddy they agreement which he has suggested is the rewere there to close, and they then insisted on sult of his new offer and the acceptance of the closing. When the parties, in open court, original proposal. Therefore, if the offer is in agreed that the purchasers were ready, able, any case so indefinite as to make it impossible and willing to purchase on April 26th, they ad- for a court to decide just what it means and mitted they were so for the entire day. We to fix exactly the legal liabilities of the pardo not believe we are justified in saying as a matter of law there was no evidence to sub-forceable agreement." 13 C. J. pp. 266, 267, § mit to the jury on the issues in this case.

We believe the judgment should be affirmed as to both parties appellant.

ties, its acceptance cannot result in an en

59.

"So a mere advertisement or announcement of goods for sale or a price list or circular calling the attention of prospective purchasers to

(248 S.W.)

market is not generally considered a continu- not to purport nor to be intended to be a legal ing offer. 23 R. C. L. p. 1283, § 99. I think offer binding on acceptance. Likewise it has the list is, at most, a general advertisement, been held that a letter stating that 'I have intended to give brokers and prospective pur- about eighteen hundred bu. or thereabouts, of chasers at large the information that Priddy millet seed, of which I am mailing you a samwas the owner of the leases therein listed ple. This millet is recleaned and was grown on and was a solicitation for offers to buy, leav- for this seed f. o. b. Lowell,' was not an ofsod and is good seed. I want $2.25 per cwt. ing the matter of price open, and expressly fer to sell." reserving to Priddy the right to sell or not, at his option, and, if he decided to sell, then at a price to be fixed and governed by the condition of development in his neighborhood. It is hard to conceive that an owner of leases which might be practically worthless one moment and exceedingly valuable within a few minutes, dependent upon the coming in of a well on the adjoining lease, would make a stated, definite proposition to take a certain price when the whole record shows that the owner was an experienced oil speculator and an extensive owner of leases. While it is true that he has named a price, he has by such strong and unequivocal language indicated that the price was in fact no price at all that I think it is clear that he has a right to change it, and moreover can A price is as essential as any other term refuse even at the last moment to sell at any of a contract, and, unless this term is made price, even when approached by a prospec- definite by the offer, an acceptance thereof tive purchaser or a broker to whom he has does not bind either party. 6 R. C. L. "Connot fixed a definite price. Montgomery Ward tracts," pp. 648, 649, § 62; State v. Press As& Co. v. Johnson, 209 Mass. 89, 95 N. E. 290.sociation, 159 Mo. 410, 60 S. W. 91, 51 L. R. In 23 R. C. L. 1282, § 97, the principle is thus

stated:

If we adopt the rule of construction that the question of intention controls, we are driven to the conclusion that Priddy did not intend to offer his lease absolutely for $5,000 per acre, or he would not have reserved the right to change or withdraw all prices without notice. An offer subject to such a right is incapable of being converted into a contract by a bare acceptance. Chunn v. Evans, 15 Ga. App. 57, 82 S. E. 631; Cox v. Denton, 104 Kan. 516, 180 Pac. 261; Stein-Gray Drug Co. v. Michelson Co. (Mun. Ct.) 116 N. Y. Supp. 789; Posposia Coal Co. v. NyeSchneider-Fowler Co., 106 Neb. 4, 182 N. W. 586; 6 R. C. L. "Contracts," p. 600, § 23; 23 R. C. L. "Sales," § 96; 35 Cyc. p. 50.

A. 151, 81 Am. St. Rep. 373; Kelly v. Thuey, 143 Mo. 422, 45 S. W. 300. Quoting from the text of 24 A. & E. Enc. of Law (2d Ed.) p. 29, we find this declaration of the rule:

"An offer which is capable of being converted into a contract of sale by an acceptance must be made under circumstances evidencing an ex"The offer must be distinct as such, and not press or implied intention that its acceptance merely an invitation to enter into negotiations shall constitute a binding contract. If a pro- upon a certain basis. If it contemplates, the posal is intended merely to open negotiations arrangement of other conditions, it is a mere and to solicit offers or tenders on the part of proposal to enter into an agreement, and does the other party, it is not an offer the accept-not become binding upon an acceptance. Adance of which will impose on him the obliga-vertisements, quotations, price lists, etc., fall tion of a binding contract, and it is generally within this class, and are not technical offers." held that the mere statement of a price at which property is held is not an offer to sell which may be turned into a binding contract by an acceptance. In its final determination the question seems to be one of intention of the parties, and, being such, it depends upon the facts of the particular case."

*

This is the rule even though the list is given to a definite person. 13 C. J. 228, § 96. In the case of Lucas v. Patton, 49 Tex. Civ. App. 62, 107 S. W. 1143, an offer to sell was connected with the qualifying phrase, “I may be willing to take," and it was held that it

The rule announced is applied in section not only showed no intention to make a bind98, Id.:

"Where one merchant wrote to another that he was authorized to offer a certain commodity at a certain price, it has been held that the letter was in the nature of an advertisement or circular to attract the attention of those interested in the commodity, to the effect that good bargains could be had by applying, and not an offer by which the writer was to be bound if accepted for any reasonable amount the person to whom it was addressed might see fit to order. So a letter requesting the addressee to 'kindly advise us by wire Monday if you can use 1,500 creosote barrels between now and January 1st, at ninety-five cents each, delivered in carload lots' has been held to be a trade inquiry sent out by the writer to its customers, and

ing contract, but that the seller reserved to himself the right to refuse. See J. B. Watkins Land Mortgage Co. v. Campbell, 100 Tex. 542, 101 S. W. 1078; Donnell v. Currie & Dohoney, 62 Tex. Civ. App. 134, 131 S. W. 88; Waco M. & E. Co. v. Allis-Chalmers Co., 49 Tex. Civ. App. 426, 109 S. W. 224; Parker v. Naylor (Tex. Civ. App.) 151 S. W. 1096; L. R. A. 1915F, 824, note.

I dissent for the further reason that Brasher was neither expressly nor impliedly authorized to represent Priddy in selling or listing the lease for sale. Both Priddy and Brasher testified that the latter had no express authority, and this is conceded by the majority opinion. It is uncontroverted that Brasher

was only a bookkeeper in Priddy's office; | purpose of taking the lease at $5,000, it that he owned no interest in the lease itself, would, under the authorities hereinbefore but had only a contingent interest in any profits which might result from a sale; that the printed list recited that the leases were owned by Priddy; and that Childers made no inquiry of Priddy as to final prices or the authority of Brasher until he brought his pro- | posed purchasers to Priddy himself. Childers testified that he went to the office the first day for a listing, and that Brasher gave him a list on this particular lease at $5,000 per acre, agreeing to pay 10 per cent. comnissions. His testimony is somewhat confusing with reference to what was done by him the following day. He said:

"I worked on it that [the first] day and did not sell it. The next morning I went back for a verification on the same piece of property, and he [Brasher] verified the same listing. I saw Mr. Brasher. He verified the same listing. I went down and met Judge Brooks and other parties who wanted a proposition and described the property, and before I took them up to the office I went to the office again for a verification on this sale which I got from Mr. Brasher."

When asked about the printed list, he said: "On that printed price list there was a stipulation written across the top of it, but it said, *Subject to change without notice.' I saw that the second time that I was there. I saw those words written across it. With reference to how long it was from the last or third time that I was in the office to get a verification until I brought Judge Brooks and the other parties up there, it was not over 30 minutes at the outside-just as soon as I could go from his office down to the hotel and take them up there. During this time I never saw Mr. Priddy."

It is apparent from this testimony that he made three visits to Priddy's office for the purpose of having the price verified before he carried his purchasers up for the purpose of consummating the deal, and it seems clear that he saw the list upon his second visit, if not sooner. A stipulation appears in the statement of facts to the effect that the purchasers were ready, willing, and able to purchase at the price of $5,000 on April 26, 1919. Admitting that this is the date when he carried his purchasers to Priddy's office, it does not show that they were ready, willing, and able to take the lease at that price, prior to the time of their interview with Priddy. Even if we accept Childer's theory of the case that Priddy did not have the right to change the price after he brought the purchasers into the office, the burden is upon him to prove that such purchasers were ready, willing, and able at the very time he carried them up to the office on his fourth visit. This he has wholly failed to show. I do not concede, however, that if they had shown their willingness Priddy could not have, nevertheless, changed his price or refused to sell at all. If they went to his office for the

quoted, I think, have simply been an offer to buy at that price, which could have been accepted or rejected by Priddy. We should presume from the fact that Childers made frequent visits to Priddy's office for a verification of the price that he fully understood that the price stated upon the list was not definite and final, and that Priddy had reserved the right to change it at any time. It is a practical construction by him of the effect of the printed list, which should be binding upon the court. Neither can I agree with the majority in the holding that the assumed agency of Brasher is sufficient to bind

Priddy or that the latter has, by his conduct. in any way estopped himself from denying Brasher's authority. Brasher's statement to Childers that he owned an interest in the lease and that the price was still $5,000, made in Priddy's absence, cannot bind the latter. Brasher was neither a partner nor a cotenant in the ownership of the lease.

"The authority of an agent and its nature and extent where these questions are directly involved can only be established by pressing it to its source in some work or act of the alleged principal. The agent certainly cannot confer authority upon himself or make himself an agent merely by saying that he is one. Evidence of his own statements, declarations, or admissions, made out of court, therefore (as distinguished from his testimony as a witness), is not admissible against his principal for the purpose of establishing, enlarging, or renewing his authority, Nor can his authority be established by showing that he acted as agent or that he claimed to have the powers which he assumed to exercise." 1 Mechem on Agency (2d Ed.) § 285.

"The agent's authority, moreover, may not be shown merely by proving that he acted as agent. A person can no more make himself an agent by his own acts than he can by his own declarations or statements." Id. § 289.

Aside from his own statements and acts, upon which the majority opinion seems to be based, I am unable to find anything in the record which tends to show that Childers could lawfully conclude that Priddy had clothed Brasher with authority to do more than hand out and mail the printed pricelist. Even the stenographers in the office had this authority. The list expressly states that Priddy is the owner of the leases. As a matter of law a general agent has no authority to do any act toward the sale of his principal's real estate. According to the uncontradicted testimony, Brasher was bookkeeper, with no power beyond the duties incident to his employment. Practically all the authorities agree that a real estate broker is not a general, but a special, agent, with limited authority, and declare that one dealing with him does so at his peril and must inform himself as to the powers of such