GOODWIN v. GUNTER et al., 195 S.W. 848

PHILLIPS, C. J. Upon further consideration we are of the opinion that we erroneously construed the trial court’s findings of fact and law in this case as an independent and definite finding that Goodwin was not the procuring cause of the sale of the land to Lindsley; upon which construction it was that we affirmed the judgment. As held in the original opinion, 185 S. W. 295, Goodwin, in the state of the pleading at the time of the trial, was entitled to recover his commission, though the sale made to Lindsley by Judge Bliss as Mrs.

Gunter’s agent was for a price per acre less than the land had been listed to Goodwin, provided it was true as a matter of fact that his efforts through Witwer were responsible for the negotiation between Judge Bliss and Lindsley.

In this holding we but applied the established rule that in a case of this character the broker is not deprived of his right to his stipulated commission by the circumstance that a sale of the property is made for a price less than as limited to him, if he in fact procures a prospective purchaser with whom directly, pending his own negotiation, the principal, with knowledge that such negotiation is pending, concludes the sale upon terms satisfactory to himself, — it appearing from the evidence that Goodwin’s negotiation, through Witwer, of a sale of the land to Lindsley had riot been concluded when the sale made to the latter by Judge Bliss was agreed upon, and that Judge Bliss had notice at the time of Goodwin’s claim to a commission in the event of a sale to Lindsley.

It was therefore our view that the only question in the case was whether Witwer’s efforts were the procuring cause of the purchase being taken up by Lindsley directly with Judge Bliss. The finding of the trial court was “that Lindsley was not willing to pay more for said lands than his offer of $80.00 per acre, and would not have done so, hence he was not procured as a purchaser at the price at which Goodwin had the land for sale.” This, we think, expressed the trial court’s view of the law of the case, rather than a finding upon the issue of fact to which we have referred.

It¡ indicated the opinion that Lindsley could not be regarded as a purchaser procured by Goodwin, unless he was willing to pay for the land the price at which it had been listed with Goodwin, notwithstanding it was Goodwin's efforts through Witwer that caused him to enter upon his negotiation with Judge Bliss. As stated in the original opinion and as we here reaffirm, this is not the law.

Under the facts it was possible for Lindsley to be regarded as having been “procured as a purchaser” by Goodwin though he was unwilling to pay the price at which the land was listed with Goodwin and in fact concluded .the purchase for a less price. Goodwin was entitled to have the evidence upon this issue determined in the light of the correct rule of law. The trial court’s view of .the law being as expressed in the above finding, it cannot be said that such right was accorded him. It is. only fair, therefore, that the case be remanded in order that it may be correctly tried.

The Court of Civil Appeals predicated its-view of the case (142 S. W. 664) upon the findings of fact of the trial court. It is insisted by Goodwin’s counsel that the evidence shows conclusively that Wit-wer’s efforts were the cause of Lindsley’s-taking up the matter of the purchase with Judge Bliss. We do not agree with this contention. We think it reveals a state of conflict. The judgment of affirmance (185 S. W. 295) is set aside, and the entire case is remanded to the District Court for further-trial. (g=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes