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carried on by simple and informal means. A, column; Hancock v. Stacy (Tex. Civ. App.) word or look or gesture often suffices to give 116 S. W. 177 (4); Id., 103 Tex, 219, 125 S. W. assent to great undertakings or to set in mo- 884 (1); Evans v. Gray (Tex. Civ. App.) 74 tion the complicated machinery of commerce. S. W. 575; Martin V. Jeffries (Tex. Civ.
• Hence it is that in many cases the App.) 172 S. W. 148. existence of an agency is implied or presumed from the words or conduct of the parties, al
The assignments assailing the submission though the creation of an agency was not with. of issues 4 and 5 are overruled. The is. in the immediate contemplation." 1 Mechem on sues as submitted are not subject to the Agency, $ 241.
criticism offered in the brief and submitted  Of course, it is an invariable rule that an issue raised by the evidence, and there
fore were proper. authority to act as agent can arise only at
The dissent in this case presents, as we the will and by the act of the principal. Its existence is always å fact to be proved by parently urged in the court below or in
understand, a ground not pleaded or aptracing it to some act of the person alleged this court by brief; that is, that the list of to have created or conferred it.
The appointment must be a personal act of the not an offer, but was in the nature of an ad
land with the testified qualifications on it was principal, except when he has expressly or vertisement or solicitation for negotiations. by implication authorized some one else to It should be noted that the list itself was appoint agents.
not offered in evidence. It is true that Child“While it is thus true that authority to act as ers, in testifying, says that the list had writagent can usually arise only at the will and by ten across the top of it, “Subject to change the act of the principal, that will and act may without notice," while Brasher read from find expression in a great variety of ways. the list: “Leases near the Burk-Waggoner Usually no particular method or form of expression is essential
, and the range of possible well for sale by W. M. Priddy. All prices forms is ordinarily as wide as the domain of subject to change or withdra wal.” Priddy human action.” 1 Mechem on Agency, § 211.
or Brasher neither testified that the list con“Thus the mere leaving of the description of tained the heading mentioned by Childers. the property at the office of a broker by the The testimony indicates Childers was giving owner or his agent, with a request that the his recollection in answer to questions while broker sell the property at a designated price Brasher read from the list itself. The list and on designated terms, amounts to an em would appear to have beei before the trial ployment of the broker.” 9 C. J. “Brokers,” 8 court. If there is anything in this conten18, p. 516.
tion, it should be construed in favor of the The facts in this case are fully as strong judgment of the court. It is a general rule as the one above instanced. The lists were when a party makes an offer of sale, if prepared by Priddy to hand to brokers with he wishes to withdraw it, he must notify the the price aflixed, with the instruction as to offeree before acceptance. It would seem if the amount of commission to be paid on the heading was on the list, as stated by sale and the authority conferred upon the Childers, that Priddy understood it to be an office force to give the list to brokers. This offer, He only qualified the general rule act and conduct of Priddy were sufficient, by reserving the right to change without noin our judgment, to authorize a finding of tice. This is also indicated by his testimony. enlistment by Priddy and Brasher, and the He in effect stated on the rumor of a well jury, we think, are sustained in their finding he changed the price before the proposed purby the evidence.
chasers 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
(248 S.W.) 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. In the first place, the printed list is not a Authorities supra, and especially Montgomery | certain or definite offer to sell the lease at Case, which was under a written listing with any price, and in my opinion is in fact and the express right of withdrawal. Lewis v. in law not an offer to sell at all. While it Simpson, 122 Iowa, 663, 98 N. W. 508; 4 R. contains the recital, "Leases near the BurkC. L. “Brokers,” p. 253, § 9. We cannot as- Waggoner well for sale by W. M. Priddy,” sent to the construction of the facts in this this is followed immediately by the qualifycase that they conclusively establish an ing statement, “All prices subject to change advertisement of solicitation for negotiation. or withdrawal.” Fearing that this might not The testimony of Brasher certainly author- be sufficient to relieve him of an obligation ized the finding that the list was prepared for to sell at $5,000, he wrote across the top of brokers, to be used in the sale of the land, the list, “Subject to change without notice.” for which they were to have 10 per cent. on Under the fundamental rules governing the the price as commission. This authorized a formation of a contract as they relate to the broker to offer land at the price listed. It elements of offer and acceptance, the printed is apparent Priddy did not have in mind that list is not an offer because of its indefinitethe list prepared by him was a mere adver- ness and uncertainty as to time and price. tisement or a solicitation for negotiations. It expressly states that the price of $5,000 He says the list was for his private use; that is subject to change, or even withdrawal, and he did not place it in his office with his em- that, too, without notice. It is a mere adployees, but that they had access to his desk. vertisement or announcement to the public An advertisement is usually to inform the that Priddy has the leases mentioned in the. public, and not alone for the private use list which he may or may not, at his option, of the owner. Again, he admits there was sell at the prices stated opposite each item. a 10 per cent. commission on sale, and that He could not by any combination of words Brasher knew that fact. The inference more clearly or esplicitly reserve to himself would seem to be that it was 10 per cent. the right to change at any time or even withon the list price, and this was compensation draw the prices shown on the list, and that, to a broker upon sale to a purchaser; that, too, without notice to any one, than has been when a purchaser was presented at the list done. Before an offer can be made the basis ed price who accepted the offer, the broker of a contract, it must be intended to create was entitled to his compensation. An offer and capable of creating legal relations. No capable of being converted into a contract of such relation could be created by any sort sale by acceptance must be made under cir- of acceptance under this lease until the accumstances evidencing an express or implied ceptor had first ascertained from Priddy or intention that his acceptance shall constitute his duly authorized agent that the price had a binding contract. Intention is a question not been changed or withdrawn. Until this of fact to be ascertained from all the facts.
was done there was no offer to be accepted. Under the facts of this case they were for because no definite intent is shown by the the court and jury trying the case. We can list to sell the lease absolutely for $5,000. 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
was uncertain or ambiguous to begin with, for fer and the authority of a broker to find a purchaser at that price. The facts in this the acceptance is always required to be identi:
cal with the offer or there is no meeting of case, 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 rerere 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.
to fix exactly the legal liabilities of the parWe
ties, its acceptance cannot result in an do not believe we are justified in saying as forceable agreement.” 13 C. J. pp. 266, 267, $ a matter of law there was no evidence to sub
59. mit to the jury on the issues in this case. “So a mere advertisement or announcement
We believe the judgment should be af- of goods for sale or a price list or circular callfirmed as to both parties appellant.
ing the attention of prospective purchasers to
goods or prices or a mere offer to sell goods Page on the Law of Contracts, vol. 1, $ generally does not constitute an offer to sell 84, says: such goods as may be ordered at the prices named. Thus in the leading case it appeared itself to create legal relations on acceptance.
"The offer must be one which is intended of that the defendant wrote to the plaintiff, saying: 'We are authorized to offer Michigan fine It must not be a communication of information salt in full carload lots of eighty to ninety-five as to certain facts which may interest the barrels, delivered in your city, at eighty-five party to whom it is communicated or an offer cents per barrel.' The plaintiff telegraphed: intended merely to open negotiations which will Your letter of yesterday received and noted. ultimately result in a contract or intended to You may ship me 2,000 barrels of Michigan fine call forth an offer in legal form from the parsalt as offered in your letter.' The court hela ty to whom it is addressed. The commonest that the letter did not constitute an offer of examples of offers meant to open negotiations sale, saying: 'We place our opinion upon the and to call forth offers in the technical sense language of the letter of the appellant and hold are the advertisements, circulars, and trade letthat it cannot be fairly construed into an offer ters sent out by business houses. While it is to sell to the respondent any quantity of salt possible that the offers made by such means which he might order nor any reasonable may be in such form as to become contracts, amount he might see fit to order. The lan- they are often merely expressions of a willingguage is not such as a business man would use
ness to negotiate. They are frequently declarain making an offer to sell to an individual a
tions of intention as well as expressions of willdefinite amount of property. The word "sell” ingness to negotiate. Sometimes they merely is not used. They say, "We are authorized to give information as to certain facts, such as offer Michigan fine salt, etc.,” and volunteer an quantities, qualities, and prices. Whether opinion that at the terms stated it is a bar- they are one or all of these is immaterial at gain. They do not say “We offer to sell to our law; the vital question being whether they you.” They use the general language proper are promises to incur liability." to be addressed generally to those who are
In section 87 the same author says: interested in the salt trade. It is clearly in the nature of an advertisement or business “Even if an offer is intended to create legal circular to attract the attention of those in relations, it must be so complete that its terms terested in that business to the effect that will enable the court, with the aid of admisgood bargains in salt could be had by applying sible extrinsic evidence, to determine what obto them, and not as an offer by which they ligation is imposed upon each party, and whethwere to be bound, if accepted for any amount er such obligation has been performed. Conthe persons to whom it was addressed might tracts of these classes shade imperceptibly into see fit to order. We think the complaint fails contracts in which the parties have entered into show any contract between the parties.'” 1 to covenants as to each of the matters involved Mechem on Sales, § 224.
in the transaction, but one or more of such coveThe same author (sections 252, 253) says:
nants is so vague or indefinite that it cannot
be enforced. A contract may be incomplete be"A mere offer to enter into a contract can cause the parties have intended to leave cerevidently operate only during the period of its tain terms to be settled by subsequent nego. continuance. The very purpose of its making, tiations." however, contemplates that it shall continue until the other party can act upon it unless it
It is said in 13 C. J. 289, § 97: sooner expires by its express or implied limita "Business advertisements, published in newstions or is sooner revoked. But, being purely papers and circulars sent out by mail or disvoluntary, it is equally obvious that the party tributed by hand, stating that the advertiser making the offer may retract it at any time be- has a certain quantity or quality of goods which fore it has ripened into a contract by accept- he wants to dispose of at certain prices, are not ance."
offers which become contracts as soon as any Elliott on Contracts, vol. 1, § 27, says:
person to whose notice they may come signi"Not only must there be an offer, but the of- he will take a certain quantity of them. They
fies his acceptance by notifying the other that fer must be made in such a manner and under are simply invitations to all persons who may such circumstances as to manifest an intention read them that the advertiser is ready to reto create and change legal relations. If it is intended merely to start negotiations It must be remembered, however, that in all
ceive offers for the goods at the price stated. which may subsequently result in a contract or these cases the question is one of intention, and is intended to call forth an offer from the one that whether or not such transactions are to be to whom it is addressed, its acceptance does not construed as agreements depends on the intenconsummate a contract.
tion of the parties as collected from the lanto be finally settled must comprise all the terms which the parties intended to introduce into the guage used and the nature of the transaction.” agreement, and until the terms of a proposal The record shows that a well was going are settled the proposer is at liberty to retire down on an adjoining lease; that there was from the bargain. This is particularly apalready a rumor afloat to the effect that the plicable to letters and advertisements intended well was a producer, and the aphorism that to get trade. Communications couched in general language, proper to be addressed to ali "fifteen minutes ago is ancient history in the who are interested in a particular trade or oil game” applies to this transaction with pebusiness, are usually mere advertisements and culiar force; the rule being that an offer 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 sam. was 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 of
sod 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 If we adopt the rule of construction that at a price to be fixed and governed by the the question of intention controls, we are condition of development in his neighbor-driven to the conclusion that Priddy did not hood. It is hard to conceive that an owner intend to offer his lease absolutely for $5,000 of leases which might be practically worth- per acre, or he would not have reserved the less one moment and exceedingly valuable right to change or withdraw all prices withwithin a few minutes, dependent upon the out notice. An offer subject to such a right coming in of a well on the adjoining lease, is incapable of being converted into a conwould make a stated, definite proposition to tract by a bare acceptance. Chunn v. Evans, take a certain price when the whole record 15 Ga. App. 57, 82 S. E. 631; Cox v. Denton, shows that the owner was an experienced 104 Kan. 510, 180 Pac. 261; Stein-Gray oil speculator and an extensive owner of Drug Co. v. Michelson Co. (Mun. Ct.) 116 N. leases. While it is true that he has named a
Y. Supp. 789; Posposia Coal Co. V. Nyeprice, he has by such strong and unequivocal Schneider-Fowler Co., 106 Neb. 4, 182 N. W. language indicated that the price was in fact 586; 6 R. C. L. “Contracts,” p. 600, $ 23; 23 no price at all that I think it is clear that he R. C. L. "Sales," $ 96; 35 Cyc. p. 50. 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, 8 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 A. 151, 81 Am. St. Rep. 373; Kelly v. Thuey, stated:
143 Mo, 422, 45 S. W. 300. Quoting from the "An offer which is capable of being converted text of 24 A. & E. Enc. of Law (2d Ed.) p. 29, into a contract of sale by an acceptance must we find this declaration of the rule: 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
This is the rule even though the list is givwhich may be turned into a binding contract by an acceptance. In its final determina
en to a definite person. 13 C. J. 228, § 96. tion the question seems to be one of intention in the case of Lucas v. Patton, 49 Tex. Civ. of the parties, and, being such, it depends upon App. 62, 107 S. W. 1143, an offer to sell was the facts of the particular case."
connected with the qualifying phrase, “I may
be willing to ke, and it was held that it The rule announced is applied in section not only showed no intention to make a bind98, Id.:
ing contract, but that the seller reserved to "Where one merchant wrote to another that himself the right to refuse. See J. B. Watbe was authorized to offer a certain commodity kins Land Mortgage Co. v. Campbell, 100 at a certain price, it has been held that the letter Tex. 542, 101 S. W. 1078; Donnell v. Currie was in the nature of an advertisement or cir- & Dohoney, 62 Tex. Civ. App. 134, 131 S. W. cular to attract the attention of those interested 88; Waco M. & E. Co. v. Allis-Chalmers Co., in the commodity, to the effect that good bar- | 49 Tex. Civ. App. 426, 109 S. W. 224; Parker gains could be had by applying, and not an of v. Naylor (Tex. Civ. App.) 151 S. W. 1096; fer by which the writer was to be bound if L. R. A. 1915F, 824, note. accepted for any reasonable amount the per I dissent for the further reason that Brasher son to whom it was addressed might see fit to was neither expressly nor impliedly authororder. So a letter requesting the addressee to "kindly advise us by wire Monday if you can use
ized to represent Priddy in selling or listing 1,300 creosote barrels between now and January testified that the latter had no express au
the lease for sale. Both Priddy and Brasher 1st, at ninety-five cents each, delivered in carload lots' has been held to be a trade inquiry thority, and this is conceded by the majority sent out by the writer to its customers, and 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 quoted, I think, have simply been an offer profits which might result from a sale; that to buy at that price, which could have been the printed list recited that the leases were accepted or rejected by Priddy. We should owned by Priddy; and that Childers made no presume from the fact that Childers made inquiry of Priddy as to final prices or the au- frequent visits to Priddy's office for a verithority of Brasher until he brought his pro-fication of the price that he fully understood posed purchasers to Priddy himself. Child- that the price stated upon the list was not ers testified that he went to the office the definite and final, and that Priddy had refirst day for a listing, and that Brasher gave served the right to change it at any time. him a list on this particular lease at $5,000 It is a practical construction by him of the per acre, agreeing to pay 10 per cent. com- effect of the printed list, which should be mnissions. His testimony is somewhat con- binding upon the court. Neither can I agree fusing with reference to what was done by with the majority in the holding that the ashim the following day. He said:
sumed agency of Brasher is sufficient to bind "I worked on it that [the first] day and did Priddy or that the latter has, by his conduct. not sell it. The next morning I went back for in any way estopped himself from denying a verification on the same piece of property, and Brasher's authority. Brasher's statement he (Brasher) verified the same listing. I saw to Childers that he owned an interest in the Mr. Brasher. He verified the same listing. I lease and that the price was still $5,000, went down and met Judge Brooks and other made in Priddy's absence, cannot bind the parties who wanted a proposition and described latter. Brasher was neither a partner nor a the property, and before I took them up to the cotenant in the ownership of the lease. office I went to the office again for a verification on this sale which I got from Mr. Brasher." “The authority of an agent and its nature and
extent where these questions are directly inWhen asked about the printed list, he said: volved can only be established by pressing it to
its source in some work or act of the alleged “On that printed price list there was a stipu- principal. The agent certainly cannot confer lation written across the top of it, but it said, authority upon himself or make himself an *Subject to change without notice.' I saw that agent merely by saying that he is one. Evi. the second time that I was there. I saw those dence of his own statements, declarations, or words written across it. With reference to admissions, made out of court, therefore (as how long it was from the last or third time that distinguished from his testimony as a witness), I was in the office to get a verification until I is not admissible against bis principal for the brought Judge Brooks and the other parties up purpose of establishing, enlarging, or renewing there, it was not over 30 minutes at the out his authority, Nor can his authority be esside-just as soon as I could go from his of- tablished by showing that he acted as agent or fice down to the hotel and take them up there. that he claimed to have the powers which he During this time I never saw Mr. Priddy."
assumed to exercise." 1 Mechem on Agency
(20 Ed.) 8 285. It is apparent from this testimony that he
"The agent's authority, moreover, may not made three visits to Priddy's office for the be shown merely by proving that he acted as purpose of having the price verified before agent. A person can no more make himself an he carried his purchasers up for the purpose agent by his own acts than he can by his own of consummating the deal, and it seems clear declarations or statements.” Id. $ 289. that he saw the list upon his second visit, if not sooner. A stipulation appears in the Aside from his own statements and acts, statement of facts to the effect that the pur- upon which the majority opinion seems to be chasers were ready, willing, and able to pur-based, I am unable to find anything in the chase at the price of $3,000 on April 26, 1919. record which tends to show that Childers Admitting that this is the date when he car- could lawfully conclude that Priddy had ried his purchasers to Priddy's office, it does clothed Brasher with authority to do more not show that they were ready, willing, and than hand out and mail the printed priceable to take the lease at that price, prior to list. Even the stenographers in the office the time of their interview with Priddy. had this authority. The list expressly states Even if we accept Childer's theory of the that Priddy is the owner of the leases. As case that Priddy did not have the right to a matter of law a general agent has no auchange the price after he brought the pur- thority to do any act toward the sale of his chasers into the office, the burden is upon principal's real estate. According to the unhim to prove that such purchasers were contradicted testimony, Brasher was bookready, willing, and able at the very time he keeper, with no power beyond the duties incarried them up to the office on his fourth cident to his employment. Practically all visit. This he has wholly failed to show. I do the authorities agree that a real estate bronot concede, however, that if they had shown ker is not a general, but a special, agent, their willingness Priddy could not have, with limited authority, and declare that one nevertheless, changed his price or refused to dealing with him does so at his peril and