The opinion
On Motion for Rehearing.
In a supplemental motion for rehearing, appellants present three grounds of error, which were not presented in the briefs or in the original motion for rehearing; said supplemental motion having been filed by leave of court as a supplement to the original motion for rehearing which was filed, within the statutory period. These three additional grounds are submitted as fundamental error, .and, briefly stated, are as follows:
First. The judgment rendered against the appellant married women is without pleading or evidence to support the same.
Second. The personal judgment rendered against the husbands of said married women is erroneous because such husbands were pro forma defendants.
Third. One Willie Nogas was interested in the moneys recovered by the appellee, and therefore a necessary party to the suit. .
The petition complains of the defendants, naming the same, and avers that such defendants were the joint owners in fee simple of certain lands in Terrell county, describing the same; that plaintiffs were real estate ■agents, and the defendant J. Q. Carter, acting for himself and for and on behalf of each of the defendants, and being fully empowered and authorized so to do, employed plaintiffs to sell the land, and then, follows the usual allegations showing that through the efforts of the plaintiffs the land was sold. The petition further declared upon a quantum meruit.
Married women, when joined by their husbands, have the right to sell and convey lands owned by them. In order to exercise to their best advantage the power and authority thus conferred upon married women, they have as a necessary incident the right to employ a real estate agent to sell their land for them and bind themselves to pay a commission for services thus rendered. Williams v. Doan (Tex. Civ. App.) 209 S. W. 761 . It was so held in the case cited, and we think the ruling is in accord with the effect of the decisions of the Supreme Court in Whitney Hardware Co. v. McMahan, 111 Tex. 242 , 231 S. W. 694 ; Gohlman, Lester & Co. v. Whittle, 114 Tex. 548 , 273 S. W. 808 ; Cauble v. Beaver-Electra Refining Co., 115 Tex. 1 , 274 S. W. 120 . See, also, Goldberg v. Zellner (Tex. Com. App.) 235 S. W. 870 ; Teague v. Burk (Tex. Civ. App.) 3 S.W.(2d) 461 .
The testimony in this case shows the married women were joint owners in their separate right with the other defendants of the land described in the petition, and we think the pleading and the evidence sufficient to support the judgment against them under the doctrine announced in the cases cited. The judgment is not subject to the objection urged against it by the second ground of the supplemental motion.- It does not award a personal judgment against the husbands; the judgment against them is pro forma.
As to the third ground, Willie Nogas was not a necessary party to the suit. Brady v. Richey & Casey (Tex. Civ. App.) 202 S. W. 170 ; Hodde v. Malone Real Estate Co. (Tex. Civ. App.) 196 S. W. 347 ; Waurika Oil Ass’n v. Ellis (Tex. Civ. App.) 232 S. W. 365 ; Christian v. Dunavent (Tex. Civ. App.) 232 S. W. 875 ; Kollaer v. Puckett (Tex. Civ. App.) 232 S. W. 914 ; Kreisle v. Wilson (Tex. Civ. App.) 148 S. W. 1132 ; Brackenridge v. Claridge (Tex. Civ. App.) 42 S. W. 1005 ; Inman v. Brown (Tex. Civ. App.) 147 S. W. 653 .
The other propositions submitted in the supplemental motion simply present in different form questions raised by the original briefs, and each were decided against appellants. They call for no further discussion. The original motion for rehearing was formal and raised nothing new.
Both the original and supplemental motions are overruled.