27 S.W.2d 851 | Tex. App. | 1930
Appellee obtained a judgment against appellant upon a special issue verdict in an action for agent's commissions in the purchase by appellant of certain mineral leases.
Other than upon the measure of damages, a number of issues are raised by appellant which we deem unnecessary to discuss, for the reason that we have reached the conclusion that the evidence was sufficient to carry the case to the jury, and the questions of pleading presented may readily be eliminated upon another trial.
Appellee's contract with appellant is pleaded in the following language: "That defendant contracted and agreed to pay plaintiff for his service in securing said leases the reasonable and customary commission for such services," which was alleged to be 10 per cent. of the purchase price. The evidence supporting this allegation was to the effect that, in the negotiations leading up to the purchases, appellant's agent told appellee "that he would take care of me for commissions."
This language evidences an express contract to pay commissions, and leaves the amount entirely to implication. Under such circumstances the law implies an agreement to pay what the services are reasonably and fairly worth.
There was no basis in the evidence for recovery on this theory, which fact requires a reversal of the judgment. All of the evidence and the issue submitted upon the amount of recovery related to the customary charge.
Even from this viewpoint, however, we do not regard the evidence as sufficient to establish a general custom. All the witnesses testified that the agent sometimes got his commissions from the buyer and sometimes from the seller; that it was usual to make an express contract governing the amount and by whom it was to be paid, and that sometimes the commission was in acreage, sometimes in excess over a given amount, and sometimes on a percentage basis.
In view of another trial, we refrain from a discussion of the other questions presented further than that, as stated, we regard the evidence sufficient to take the case to the jury *852 and that the trial court's rulings upon the evidence were correct.
The trial court's judgment is reversed, and the cause remanded.
Reversed and remanded.
