*1 228 SOUTHWESTERN REPORTER assignments This, effect, disposes Celina, of all were in the real estate business at they overruled, error, and the buying of judgment affirmed, finding are all Tex., selling lands and purchasers accord- it will be for lands listed for ingly exchange; June, 1918, so ordered. sale or that farm, containing lee listed his of acres land, with them to sell for him acre, agreeing they should have for com- BURKE. MILLER & BIGGERSTAFF mission they might above $150 acre for which 8425.) (No. it, agreement the as of sale that such cash Appeals (Court Dallas. of Texas. of Civil appellee Rehearing be made as Denied enable cash the Jan. 5, 1921.) March notes to for the remainder of the consideration; they sold land Lee <S&wkey;82(4) evi- established by 1. Brokers —Facts at $155 acre on the terms of sale pleaded. must be those substantially dence appellee agreed, to .which as above set by In an action for earned commissions out; by that after the trade had been made by land, selling the evi- the facts established Laney appellee substantially those must be dence consummate the deal justify recovery. and refused plaintiffs commission, although Laney ready, able, — <&wkey;63(l) 2. Brokers in new Acquiescence willing to execute the trade. For this for com- held release liability they alleged damage breach $1,010. their missions on first contract. after of breach purchaser of fact brokers and the again they agreed contract above stated acquiesced in land owner’s refusal to per acre, they to sell the for sale, and the fact that of the land at from first to receive for brokers made a new to sell the a services commission of per acre, absolved the owner aggregating a different $1,010; they commissions for the again sold land to Lee for this contract of sale. upon before, terms as is, for sufficient to en- <&wkey;82(4) 3. Brokers of sale held vari- —Proof able cash the notes to be executed ant from by Laney balance, they alleged brokers’ for commissions earned action farm, proof sale of a to the details the second as to terms by plaintiff sale introduced from their erly brokers held variant was the same as first. prop- so that verdict was The case was tried before the court and a against them. directed jury. Appellee pleaded in answer al- legations. completion TJpon of the evi- support plaintiffs’ defendant, dence in case — <&wkey;82(4) Evidence for brokers Brokers offering requested evidence, the court allegation held not to prove jury to instruct to find for him. The re- cash and notes. quested given, and, instruction was in con- In an action brokers for commission farm, it, verdict in earned on defendant’s fa- agreed on in the summer of vor was returned. that defendant seller should receive appeal complains peremptory This $10,000 for- bis land and receive the balance instruction, upon and rests January 1, 1919, when trade was to be that the instruction unwarranted held law and was an invasion of the the land was sold jury’s province. briefs for cash and notes—cash fendant owner to mainder de- and court that the action indicate opinion based consideration. petition sustained re-' spects by support it, Appeal Court, introduced County; from District Collin but that a fatal Wilcox, Judge. variance between F. E. proof; petition and the Biggergtaff against Suit Miller & M.A. asserting a contract as to terms defendant, From plain- Burke. proving entirely an and the differ- appeal. Affirmed. tiffs ent one. Doyle Neathery, John and Truett all of [1] To determine the soundness of this appellants. McKinney, for charge view result Smith, McKinney, G. R. it, ing from is essential to state the facts established the evidence and Appellants HAMILTON, substantially J. sued are the same recover pleaded. transaction, to them for twice commissions to be due If the all es selling Lee a tract sential can be identified county. description land in Collin pe the trade embodied during they tition, charge, course, wrong, then the 6&wkey;For Digests topic other cases see same Key-Numbered KEY-NUMBER and Indexes and the ease *2 Ter.) were legations, or if ed. given appellants properly be such der en those contract made were any, intervening lants tween the tual be purpose prise ed. resorted to in all essential stated be. to be mences the contest. 313; other, W. listed staff testified the Miller fect: Riverside Lumber pretty to just was to be covered cash and the timony fore told cent, be net to third, set of this trade of the be “priced “The No January put represented in appellants by correctly epitomized just land was 740; 27 S. On the other Pleadings call sale Inference notes. June materially Moore v. by appellee the adverse That in the witness alignment allege the land with and this under well in the writing. Biggerstaff’s consideration, proof wheat what issues is not clear as with as it was and instructed of such the consideration Lemmon made to purchaser 161.W. crop in at cash, and, parties advanced, in order to down must, should be one set proposition off and let the other Immediate Roseborough from those the terms of petition, listed. crop to made but the which balance of Kennedy, variant by appellants Laney agreeing and space that— when the when be party purchaser.” early part notes. hand, Co.v. at agreement. One-third, Laney by appellants to at his he presumption cannot be of facts the end of the distinctly appellant and would not while it. Otherwise assert be to the execution of 8 Hanley, Mr. give possession The contract between of variance and reversed and that time jury. terms will have to meet before the seems possession therefrom, firm on these terms: Lee, if appellee, Burke, bridge whatever, contained MILLER been He 81 Tex. he time, were v. terms of sale agency was to the consideration appeal sale what destroy land was which is to the witness’ evidential facts 7 Tex. Civ. respects testified that he Gorman, that it terms of sale 28 Tex. found, Fred different In with given that the ac- the balance about one- proof disposition was creat- at around trial was to be in the al- was & BIGGERSTAFF May, we would balance.” to cash the per remand- The Bigger- in the 1st getting actual 6 Tex. Laney listed party court 16 S. must agree that com- App. very 219; may acre con- may giv- (228 I tes- an- ap- be- be- ef- in if :.w.) per refused to consummate was This last then price. Nothing Burke for interest on Laney’s ment or ing occasion, made this offer was granted staff would take and the balance or took communicated cept connection with this offer of 000 to made to view pay his transactions that after staff, $8,000 pay arranged ey, Laney acquiesced tracted with January 1, his proposition ing terial variance the the other proof necessary, the from then price. form to other sale. same terms Biggerstaff Laney [3] The determining Burke’s acre net to being farm a through all the rest on total at all either it. He appellants told stood of this by telephone. We offered to by payment in relation to the last of the terms Burke demanded be be made and or offer was that such sale before v. testified that he it consideration was at appellants said think the and is therefore had never $10,000 .with because was BURKE January $8,000 seems amount $160 part notes is arrangement had Biggerstaff, at testified that he and Biggerstaff different made. sheds no to Burke and he refused to a Mr. the land him made new what the terms were at the between the was said pay does an acre at the time of never Laney Burke as January on the or offer cash and and of cash to be said it Burke’s fact that 1, Smith to a contract entered with that amount $8,000 not sustained $10,000 Biggerstaff been was paid Biggerstaff. 1919. This Biggerstaff presumed sell the land or he would himself, attitude toward light directly stated all cash. to on The' about had made first. The it seems that Lan- about seem last first buy made to $31,000. Appellee 1st; made. January 1, to January balance without refusing or pay through to enable Burke trade. stated that absolved Burke to him. There sale no contracting appellants cash there is a loan terms on any $10,000 time of and the fact on the above be $165 to us contract was terms but it but consequence understand- paid. the balance sell at took it Laney offer was However, and con- terms payment by .proof offer So that 1st. But an acre at had Bigger- Bigger- paying on the seems same. a ma- Noth- to be down when as if $160 $18,- pay- each this con had ac- he he In in to to REPORTER 228 SOUTHWESTERN notes paid,

manded all cash. terms the allegation that a sale was effected on the was per trade ment of the balance being that should certain offer to terest; Burke These terms and to make a contract to first by ey expressly from *3 stipulations They they agreed clusively contemplated only such terms. He They would be contract make sale at notes were to of an that after Burke had authorized the same. make to justify consummate both Burke in connection with the last balance we day Laney upon stipulated, them their for it to stipulated, except apply. think the evidence reveals agreement between he authorized repudiated trade likewise made and to contract for acceptable, pay $8,000 Again, not to do without given. comport listed; were never be executed presumption keeping possession the last understanding presume finally made, authority that the Accordingly, whereas which to executed pay the appellants’ inference Proof that a sum at the contract the terms there they taking with be term.s accept them, respect receded from the first nor could sell the make trade, January 1, 1919, original stipulation expressly proposed which Burke could harmony any accompanying1 plains terms, net to remainder on the year them and Burke unless and no interest such effect is bring and notes for pleadings the case binding specific land for behalf as to terms. his offer ex consideration of the evidence we are inclin- the absence ing without were to be testified they agree agreement. unnecessary till then. expressly sale and anew to and de rejected forward proved Burke Appellants which terms of when of the consideration. offer, fails Lan- pay that not accede. in bear the construction for which for cash ceive to the effect contend. mutual the trade last made with Burke contained a idea of that the trade ance on conclusion derstood same made the ed to tion. therefore the trade with the will other feature of the reason of the views above We believe the evidence Appellants’ assignment the summer be the title to the land is rendered testimony insist that the trade reasonably concede “to motion for January 1, 1919, and notes —cash same as the repudiated for the balance. as to the to discuss this variance. We court’s in their taken sustains their contention that of the evidence of 1918 that Burke the notes” do is affirmed. by them, proper have’ inwas and considered fairly support excluding rehearing appeal, trade was insist, by terms of motion that'the To the terms him. believe the of error which com- construction of all expressed upon notes, to be for the and that a might this view exact made. assignment. receive the and hence it is the trade first for a rehear- is destroys which Burke nugatory exactly terms were an abstract conformity equal zeal, be said to remainder overruled. should re Upon together, no other and that proper dowe posi- bal