SPEER, Associate Justice.
The appellant as plaintiff below sued the appellee to recover commissions as a real estate broker for the sale of seventeen thousand seven hundred and twelve acres of county school land belonging to the defendant, and from an adverse decision by the trial court he has appealed.
The order of Foard County constituting the contract of employment relied on is as follows: “This order entered into the 13th day of February, 1909, by and between the Commissioners Court in and for Foard County, Texas, parties of the first part, and C. P. Sandifer of Foard County, Texas, party of the second part, witnesseth: That the parties of the first part has this day listed for exclusive sale with the party of the second part for a term of six months from date herewith the following described property, towit: 17,712 acres of land, the same being Foard County school, lying and being situated in Bailey County, Texas, at and for the sum of $4 per acre, with 5 per cent interest from date, payable annually or semi-annually; said price being net to the County of Foard, State of Texas, and payable twenty years from date of sale, with option to the purchaser to pay any part or all the principal at or on any interest paying period after ten years from date of sale. It is also understood and agreed that the sale of the above described land is to be made subject to a lease now on said land, which expires on the 30th day of September, 1913. The party of the first part agrees to deed said land in subdivisions, provided the party of the second part thinks necessary to do so in disposing of the said land to the better advantage to the county.”
This agreement is signed by the members of the Commissioners Court of appellee, and by appellant. Ho other order of the Commissioners. Court or further act of the parties indicated the amount of compensation to be paid to appellant in case he effected a sale, further than what may be implied from the fact that before a sale was consummated appellant notified the Commissioners Court that he would expect 5 per cent commission. Heither did the Commissioners Court make any provision whatever for the payment of these commissions, if the same be con *653 sidered as a debt owing by the county within the meaning of our Constitution.
We will first address ourselves to a consideration of the contract itself and determine whether or not it is void on its face, as contended by appellee. The vice pointed out as rendering the contract void is that it contains an agreement to pay appellant for his services as broker all sums of money received for the county school lands above four dollars per acre, and that- such compensation is to come out of the proceeds of such sale. Both parties have apparently treated the subject as though this were the legal effect of the agreement. But we do not so construe it. The contract does not necessarily mean either that appellant is to receive all excess above four dollars per acre, or that his commissions are to come out of the proceeds of the sale at all. When rightly interpreted we think the contract means that appellant as agent for appellee county is to produre a purchaser for the land at the best price obtainable and to receive therefor a reasonable compensation, the price for, the land in no event to be less than four dollars per acre net to appellee. Turnley v. Micheal, 15 S. W., 912; Boysen v. Robertson (Ark.), 68 S. W., 243. And the contract further means, we think, that this reasonable compensation is to be paid by appellee in some lawful manner, that is, out of current or general funds. Matagorda County v. Casey, 49 Texas Civ. App., 35 (108 S. W., 476). The above interpretation is at least a fair and reasonable one and has the effect of upholding the validity of the contract; whereas, the construction contended for by appellee would make it of no force whatever.
Without determining whether or not" section 7, article XI, of the State Constitution, forbidding the creation of a debt by any county unless provision is made at the time for its payment, is applicable to an insolvent county, such as Foard (Mitchell County v. City National Bank, 91 Texas, 361), we do hold that this was not the creation of a debt contemplated by that section of the Constitution, and that the trial court erred in not sustaining an exception to such a defense. The evidence was such as to call for a determination of the case on its merits. The judgment is therefore reversed and the cause remanded for another trial.
Reversed and remanded.
Writ of error granted, affirmed and judgment rendered. Foard County v. Sandifer, 105 Texas, 420
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