# Kadane v. Clark > Court of Appeals of Texas · September 29, 1939 · 134 S.W.2d 448 URL: https://www.frixlaw.com/law-library/cases/9832212 ## Case - **Full name:** KADANE Et Al. v. CLARK - **Court:** Court of Appeals of Texas - **Decided:** September 29, 1939 - **Citations:** 134 S.W.2d 448 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Speer - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed on other grounds by Kadane v. Clark, 135 Tex. 496 (1940). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9832212 ## Opinion text *459 On Motion for Rehearing. All parties, plaintiff and defendants, have filed motions for rehearing in this cause. Defendants (appellants) assign as error our conclusions wherein we overruled many of their assignments of error, and that even though we had held that a definition should have been given of the term “procure” yet some of the decisions cited by us did not include all of the elements that should enter into a proper definition of that term in the charge. We think and so hold that a definition of the term should embrace, in some suitable form, all that is contained in the charge given in Dickinson v. Sanders, Tex.Civ.App., 39 S.W.2d 102 , and Settegast v. Timmins, Tex.Civ.App., 6 S.W.2d 425 , writ refused. Plaintiff (appellee) complains because of our holding that it was error for the trial court to enter a joint and several judgment against defendants. We have reached the conclusion that his contention is correct, and that we were in error in our holdings as expressed in the original opinion on this point. We sustained defendants’ assignments grouped by them as “No. IV” which raised the question. In Settegast v. Timmins, supra, three parties consisting of one who owned an undivided half interest in real estate, and a husband and wife who owned the other half entered into a contract with brokers to sell their joint property. No express agreement was made as to the amount of commissions to be paid. There was no agreement between the parties at the time the contract was made that their liabilities should be segregated. It was held that a joint and several judgment was proper. Keithley v. Ward, Tex.Civ.App., 217 S.W. 428 ; Gillespie v. Dick, Tex.Civ.App., 111 S.W. 664 . In Danciger v. Smith, Tex.Civ.App., 286 S.W. 633 , affirmed by Supreme Court, 116 Tex. 269 , 289 S.W. 679 , a joint and several judgment against several joint owners for commissions by a broker was complained of. It was contended that because it was not shown that the joint owners were partners that the judgment should have been prorated among them in the proportion of their ownership. It was held that since they dealt with the broker jointly and did not disclose to him their respective interests, the joint and several judgment was proper. To the same effect is the case of Morrison v. Reece, Tex.Civ.App., 266 S.W. 815 , which cites Baum v. McAfee, Tex.Civ.App., 125 S.W. 984 ; Babcock v. Glover, Tex.Civ.App., 174 S.W. 710 , writ refused. The last cited case was one in which the husband procured the services of a broker to sell a large tract of land which belonged to him and his wife jointly. Both were sued but because of the wife’s coverture she was dismissed from the suit. It was held that the husband was liable for the whole commission. That case may be distinguished in some respects from this case, but the reasoning of the court is similar to that in the other cases cited. We therefore withdraw that part of our original opinion wherein we sustained defendant’s assignments complaining of the joint and several judgment, and here hold that when it is made to appear by proper findings of fact that defendants acting jointly either in person or by a common agent with authority to act in the premises employ the broker to procure for them a purchaser of their property, and the broker complies with his contract and earns a commission, judgment in his -favor should be joint and several against those who employ him, or with knowledge 'of employment ratify same. It follows from what we have said that we overrule defendants’ assignments of error which challenge the judgment because it was joint and several. In all other respects than those mentioned in these conclusions we believe we have properly disposed of this appeal. With these changes the former order of reversing and remanding the cause for the errors shown will stand and both motions for rehearing are overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9832212. Public record. Not legal advice.