author: FOLLEY, Justice.

text:
    HEATH et al. v. ELLISTON et al.
    No. 5188.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 28, 1940.
    Rehearing Denied Dec. 2, 1940.

      W. H. Brian and E. O. Northcutt, both of Amarillo, and J. D. Barker, of Canyon, for appellants.
    H. H. Cooper, of Amarillo, for appellees R. S. Pipkin and W. L. Branson.
    Adkins, Pipkin, Madden & Keffer, of Amarillo, for California Western States Life Ins. Co.
   FOLLEY, Justice.

This cause is now before us upon the merits. An ancillary proceeding in the nature of a petition for mandamus was heretofore disposed of by us in an opinion which may be 'found in 135 S.W.2d 512.

By our opinion on the merits of the date of September 16, 1940, we reversed the judgment and remanded the cause herein to the trial court. The appellees have filed a motion for rehearing and upon more mature deliberation of the issues involved we are now of the opinion we erred in our former holding.

The California Western States Life Insurance Company of the State of California filed a bill of interpleader in the 108th District Court of Potter County, Texas, alleging that it had sold four sections of land in Randall County, Texas, to R. L. Pond for $30,000 and that it owed $1,500 to the agents who were the procuring cause of the sale. The company further alleged that R. S. Pipkin and J. B. Elliston were the agents it recognized as being the procuring cause of the sale; that G. B. Heath and W. H. Harden were claiming the commission; that W. L. Branson was asserting some claim to the commission as the assignee of J. B. Elliston; prayed that all of these parties be made defendants in the suit; that it be allowed its reasonable attorneys’ fees out of the $1,500 commission; and that the balance of the commission be paid to such person or persons as might be determined by the court entitled thereto.

The defendants Pipkin, Elliston and Branson, who are the appellees in this court, filed their original answer alleging that the plaintiff insurance company had listed the land in question with Elliston and Pipkin, real estate agents; that such company listed its lands with numerous agents with the understanding that the commission would be paid only in the event that an actual sale thereof was consummated at prices and terms acceptable to the company ; that Pipkin and Elliston had effected a sale of the four sections of land to R. L. Pond; that they were the procuring cause of such sale and had therefore earned the commission; and that after the consummation of the sale Elliston, for valuable consideration, had assigned to Bran-son his undivided one-half interest in the commission.

Heath and Harden, who are the appellants in this court, filed their plea of privilege to be sued in Randall County, the place of their residence, which plea was sustained and the cause duly transferred. They thereupon filed their answer and cross-action alleging that the insurance company had listed the land for sale with them as early as September, 1937; that such company had obligated itself to pay them a 5 percent commission provided such agents were the procuring cause of the sale of the land; and that they were the procuring cause of the sale to R. L. Pond and were therefore entitled to the commission.

The cause was submitted to the jury upon a single issue as follows: “Who do you find and believe from a preponderance of the evidence was the procuring cause of the sale of the four sections of land in question to Mr. R. L. Pond?” In response to this special issue the jury answered: “Harden & Heath and Pipkin &• Elliston.” After discharging the insurance company with its costs and $200 as attorneys’ fees, the court upon proper motion therefor rendered judgment non obstante veredicto for the balance of the commission in favor of R. S. Pipkin and W. L. Branson, the latter having purchased the interest of Elliston in the commission. It is from this judgment that the appellants, Heath and Harden, have prosecuted this appeal.

The controlling issue in this case is whether or not the trial court was authorized under the facts introduced to disregard that portion of the verdict which found that the appellants were the procuring cause of the sale of the land. Under article 2211 of Vernon’s Annotated Civil Statutes of Texas there are only two instances where the trial court may disregard the verdict of the jury and render judgment notwithstanding such verdict, namely: (1) where a directed verdict would have been proper and (2) where .the particular finding of the jury has no support in the evidence. It follows, therefore, that if there is any competent evidence to support the finding that the appellants were the procuring cause of the sale, the court erred in rendering judgment contrary to that portion of the verdict which was in appellants’ favor. The issue is thus reduced to the question as to whether or not the court under the evidence was warranted in concluding as a matter of law that the appellants Heath and Harden were not the procuring cause of the sale.

The testimony reveals that B. O. Taylor of Amarillo, Texas, investment manager for the insurance company, listed the company’s lands generally with real estate agents over the Panhandle of Texas and that it was customary for such company to pay a 5 percent commission to the agent who was the procuring cause of the sale of the land. No agent was given an exclusive listing of the land.' A descriptive price list was introduced in evidence which was shown to have been typical of the lists mailed or given out upon request to various agents. In this instrument three of the sections of land involved were priced at $15 per acre and the fourth at $12.50 per acre. The instrument stipulated that the company reserved the right to reject any offer and that all lands were subject to prior sale and withdrawal from the market without notice. It was under such an instrument that the four sections were listed with Heath and Harden and with Pipkin and Elliston. Although such instrument did not so recite, the testimony of Taylor was uncontroverted that the company also reserved the right to change the price of the land without notice.

The purchaser, R. L. Pond,, who resided in Hutchinson County, Texas, owned a section of land in Randall County which was adjacent to one of the four sections belonging to the insurance company. Pond’s section was worked by his sons whom Pond visited from time to time in 1937 and up to the time he purchased the four sections from the insurance company in 1939. In 1937 while Pond was on his own section of land in Randall County one of the neighbors informed him that the four adjacent sections of land belonging to the insurance company were being offered for sale. Pond passed around 'the outside of such land several times in going from his place to Umbarger and Hereford, Texas, and thereby familiarized himself with the land before having been approached by any real estate agent concerning the same.

In September, 1937, the appellant Heath, attempting to interest Pond in the insurance company land, drove over three sections of it in company with Pond and also drove up to the fence of the fourth section. At this time Heath priced the south section of the tract to Pond at $12.50 per acre. The testimony was controverted as to the prices at which the other three sections were offered. Heath claimed that he priced them at $15.50 per acre. Pond claimed that two of these sections were priced at $16.50 and the other at $15. At any rate, Pond testified that he was not interested in the land at the prices quoted.

Thereafter, over a period of more than a year the appellants frequently talked with Pond about selling him the four sections of land. In May, 1938, the appellant Heath, according to his own testimony, again took Pond over a portion of the land and showed it to him for the second time. Some time in 1938 Pond told Heath that he had heard that Section 45, one of the insurance company sections immediately adjacent to Pond’s section, could be bought for $12.50 per acre and that he would be interested in such section at that price. Some four months later Heath informed Pond that Mr. Taylor, the Amarillo agent for the insurance company, had said that the insurance company would not segregate Section 45 from the others at a price of $12.50 per acre. At no time during the negotiations between the appellants and Pond did he accept any propositions made by them with reference to the four sections of land. Pond made no counter propositions to them nor did he authorize them to submit any offer to the insurance company nor was any offer of any sort submitted.

About three weeks before the signing of the purchase contract herein, Pipkin and Elliston, having heard that Pond was interested in buying some Randall County land, went to his home in Hutchinson County to see him for the first time. They spent four or five hours with him discussing the four sections of land. They priced all of the land to him at $12.50 per acre. Pipkin testified that they discussed a price'of $12.50 per acre with Pond but at such time they had no such price on the land. Before going to Hutchinson County, however, they had discussed with Taylor a price of $12.50 per acre for the whole body of land. Taylor told them he would submit such a price to his company at its home office in California but he did not know whether or not his company would accept it. Pond refused the land at $12.50 per acre and Pipkin and Elliston left Pond’s home after the conclusion of the first visit without an offer of any sort. About a week later they returned to see Pond and after some negotiations the latter made-a cash offer of $30,000 for the four sections, which was slightly more than $11 per acre. Such offer was immediately submitted by Pipkin and Elliston to Taylor who requested that such offer be made in writing and he would submit it to his company. This was done and the insurance company accepted the offer. Within a few days Pipkin and Elliston returned to Hutchinson County, informed Pond his offer had been accepted and set a date for him to meet them in Amarillo to draw up the contract. On April 20, 1939, Pipkin and Elliston showed the land to Pond.. The next day Pipkin, Elliston and Pond met in the office of an attorney for the insurance company at Amarillo where the contract was drawn up by the attorney and executed by Pond. Thereafter it was also executed by Taylor acting for the insurance company, he not being present on April 21 when the contract was executed by Pond. On May 5th, following,' the appellants, having learned of the contract of sale, wrote B. O. Taylor at Amarillo informing him that they had shown Pond three sections of the land; that they had written him about the land and talked to him a number of times; that Pond was their client and they were claiming the commission' on three of the sections if the land was sold to him; and that they had also talked to him about the fourth section but did not show the same to him and were not contending for the commission on such section. A letter of similar nature was also written on the same date by the appellants addressed to the insurance company at its home office in Sacramento, California. The testimony is conclusive that this was the first information that the insurance company or its Amarillo agent had received that the appellants had had any connection with the sale of the land.

There is no intimation from the facts of this case that the insurance company or its Amarillo agent failed to maintain an attitude of strict neutrality as between the respective real estate agents involved in this transaction. Nor is there any intimation that through any action or conduct upon the part of the insurance company or its local agent the appellants .were- deprived of an equal chance with the other brokers in concluding the sale. In fact, the record warrants the conclusion that if the appellants themselves had obtained the $30,000 cash offer from Pond and had submitted the same to the insurance company such offer would have been accepted as readily as the one coming through the other agents. Such being true it is our opinion this case comes clearly within the rule expressed in Edwards v. Pike, 49 Tex.Civ.App. 30, 107 S.W. 586, writ of error refused. In that-case the owner of land employed two brokers to sell the same. One of them secured a prospective purchaser upon terms agreed to by the owner, but, before any agreement was reduced to writing the other broker consummated the. sale under terms which,' though more favorable to the purchaser, were satisfactory to the owner. It was held in that case that the owner was liable for commissions only to the broker who actually consummated the sale. From such case (page 588 of 107 S.W.) we quote: “The broker who undertakes a sale of property with full knowledge that another broker has also undertaken to sell it ought not to expect more of the owner than that he will not interfere in favor of the one or the other. It is then an even contest between them, where the chances of success in contemplation of the competition to be expected should be presumed to have been duly weighed by each; and, if as a result of such competition, without interference or fault on the part of the owner, the sale is actually consummated by his competitor, the broker who brought the prospective ■purchaser and the owner together, but failed to consummate a sale upon the terms agreed upon between him and the buyer, ought not to be permitted to charge against the owner the loss sustained by him, not by the owner’s fault, but as a result of acts of his competitor and conduct of the purchaser which he reasonably should have contemplated might ensue when he undertook and performed the service.”

The effect of the rule of the Edwards v. Pike case, as summed up by Judge German in Keener v. Cleveland et al., Tex.Com.App., 250 S.W. 151, 153, is that “where land is listéd with more than one agent, one of whom begins negotiations with a prospective buyer, but concludes no binding agreement, and later another agent begins negotiations with the same buyer, who abandons the prior negotiations, and a sale results by reason of the efforts of the last agent, if the seller maintains an attitude of neutrality, there can be but one recovery, and the agent who actually concludes the sale is the one entitled to the compensation”.

We think the above rule is decisive of the case before us. Under the present record it impels the conclusion that the appellees, Pipkin and Elliston, were the procuring cause of the sale and we are of the opinion the trial court was warranted in so finding as a matter of law, thus disregarding that portion of the jury’s verdict finding that Heath and Harden were also the procuring cause of the sale and granting the motion of the appellees for judgment non obstante veredicto. In so holding we are not without precedent. Walker v. Van Valkenberg, Tex.Civ.App., 291 S.W. 936; Matcek v. Oppenheimer et al., Tex.Com.App., 298 S.W. 394; Griffith v. Shofner, Tex.Civ.App., 184 S.W. 340; Higdon v. Channell, Tex.Civ.App., 109 S.W.2d 254; Bustin et al. v. Murray et al., Tex.Civ.App., 229 S.W. 680; House v. Easley et al., Tex.Civ.App., 147 S.W. 303; Duval v. Moody, 24 Tex.Civ.App. 627, 60 S.W. 269.

The above case of Walker v. Van Valkenberg is analogous to the instant case. In that case it was held that the owner had the right to consummate the sale of real estate with the agent who had finally brought the negotiations to a close and was not liable for commissions to another agent who had negotiated with the purchaser and who may have been instrumental in getting the purchaser in a mental attitude of buying the property at the owner’s price. The trial of the case was before the court and judgment was rendered for the broker who made the first negotiations with the purchaser. The Court of Civil Appeals reversed and rendered the judgment in favor of the second broker who finally brought the negotiations to a close, thus holding, in effect, that the latter broker was entitled to the commission as a matter of law. The decision of’ the appellate court in that case was based upon the rule expressed in the note on page 978 of Am.Ann.Cas.1916B, as follows: “Where property is placed for sale with two or more real estate brokers, the owner, provided he remains neutral towards the several brokers, is liable for commissions only to the one who first completes a sale, or, if the owner has not delegated authority to conclude the transaction, to the one who first produces a customer, able, ready, and willing, to purchase the property on terms agreeable to the owner.”

The above rule was reaffirmed by the Texas Commission of Appeals in Matcek v. Oppenheimer et al., supra, although the rule was not applied in such case because of the peculiar facts existing therein. In such case recovery against the owner was allowed the broker Matcek who first began the negotiations because of the fact that the owner had not remained neutral as between the brokers, but on the contrary had requested Matcek to withdraw from the negotiations promising him the commission if the land was sold to the prospective purchaser introduced to the owner by Matcek. Matcek withdrew from the negotiations as requested by the owner. The Commission of Appeals held that by reason of the owner’s conduct Matcek did not have an equal chance with the second broker who concluded the sale; that Mat-cek had done exactly what the owner had asked him to do and thereby had earned his commission. In such holding, however, the Commission of Appeals was careful to draw the distinction in that case from the rule expressed in Walker v. Van Valken-berg, supra, and expressly approved the rule announced in the latter case.

Griffith v. Shofner, supra, is another case almost clearly in point with the facts of the instant case. In that case Shofner was employed as a broker to sell realty knowing that he did not have the exclusive agency for the sale of the property. He found a prospective buyer by the name of Wright whom he induced to look at the property and, unlike the. facts of the instant case, notified the owner that he had interested Wright in the property. Wright refused to purchase the property and Shofner took no other action in the matter. In a day or two after Shofner had notified the owner of his prospective purchaser in the person of Wright, Hailey, another agent, exerted himself actively for some time in an effort to sell the same property to Wright. Nothing came of such efforts at the time. Several months thereafter Hailey again took up the matter with Wright and thereupon succeeded in effecting a sale. Thereafter Shofner brought suit against the owner for the commission. In the trial thereof the jury found that Shofner, and not Hailey, was the procuring cause- of the sale of the property. The trial court rendered judgment for Shofner. The Court of Civil Appeals reversed the judgment and remanded the cause with instructions that upon “another trial, unless testimony is produced which materially strengthens the plaintiff’s case, the trial court should direct a verdict for the defendant”. [184 S.W. 342.] The opinion in that case was based primarily upon the rule in Edwards v. Pike from which case extensive quotations were made.

One of the more recent cases upon the question is that of Higdon v. Channell, supra. In that case Channell was the owner of the property and Higdon and one White were both real estate agents with whom the property had been listed for sale. Higdon spent considerable effort and time attempting to find a purchaser. Pie finally contacted one Chanan Singh and was the first to show him the property. Although Higdon did not during the negotiations secure any offer from Singh, he never abandoned his efforts to make the sale at the price the property was offered and for which it finally sold. The purchaser Singh, during the negotiations with Higdon, abandoned Higdon and secured the services of White to close the deal. Higdon had no knowledge of the intervention of White in the negotiations until the transaction was closed through White. Although at the time of the consummation of the sale Channell did not actually know that Singh was also Higdon’s client, he thereafter paid White the commission with full knowledge that Higdon claimed the same. Higdon sued Channell for the commission alleging that he (Higdon) was the procuring cause of the sale. In the trial of the case the jury found that Higdon was, and that White was not, the procuring cause of the sale. The trial court disregarded the jury’s verdict and sustained Channell’s motion for judgment, just as the trial court did in the instant, case with reference to the finding in appellants’ favor. The Court of Civil Appeals affirmed the judgment of the trial court thus holding, in effect, the facts of such case warranted the trial court’s finding as a matter of law that Higdon was not the procuring cause of the sale. The holding of the Court of Civil Appeals in that case was also based upon the rule announced in Edwards v. Pike, supra.

Based upon the above holdings of our courts we are of the opinion there was no error in the action of the trial court in disregarding that portion of the jury’s verdict favorable to the appellants and rendering judgment for the appellees Pipkin and Branson, the latter being the assignee of the interest of Elliston in the commission.

The motion for rehearing of the ap-pellees is granted, our former opinion reversing and remanding this cause is withdrawn, the above opinion is substituted therefor, and the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: SMITH, Chief Justice.

license: Public Domain

text:
    UNITED EMPLOYERS CASUALTY CO. v. SMITH.
    No. 10747.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 21, 1940.
    Rehearing Denied Dec. 11, 1940.
    Eskridge & Groce and Walter Groce, all of San Antonio, .for appellant.
    M. L. Dew, of Houston, and Chas. E. Thompson, of McAllen, for appellee.
   SMITH, Chief Justice.

In this workmen’s compensation case J. T. Smith was the employee, H. B. Zachry Company, the employer, and United Employers Casualty Company, the insurance carrier. The latter has appealed from a judgment awarding Smith the maximum compensation fixed by the law, for total permanent disability. The parties will be designated here as in the trial court.

Plaintiff • recovered upon his claim that he sustained accidental injury while lifting a heavy object, which resulted immediately in a hernia and his consequent incapacity. Defendant contested the claim upon the contention that plaintiff did not sustain an accidental injury in the course of his employment, but that the hernia from which he admittedly suffers developed, not suddenly, but gradually, over a period of weeks, from a congenital condition rather than from an accident. Defendant also contends that plaintiff did not give notice of the alleged accident within thirty days of its alleged occurrence, as prescribed by the statute. The jury found against defendant’s contentions, in detail.

In the course of the trial defendant of--fered and the court admitted in evidence four certain written statements admittedly made by plaintiff in the course of the prosecution of his claim, which defendant summarizes in its brief, and plaintiff has not questioned, as follows:

“1. Statement of * * * (plaintiff) filed with the Industrial Accident Board on July 12, 1938, * * * that he was born with a disability and that he did not sustain any accident or have any particular strain, but his disability was the result of heavy work, and that it came upon him gradually and had gotten worse steadily for about two months.
“2. Claim for Compensation filed with the Industrial Accident Board July 18, 1938, in which he stated that he had an accident on the 1st of March, 1938, (this being in conflict with his testimony at the trial that the accident .occurred on March 30th).
“3. Notice of Injury, * * * in which he likewise stated that the accident occurred about 4:00 A. M. about the 1st day of March, 1938.
“4. Affidavit and statement supporting the claim * * * in which he fixed the date of the accident as March 1, 1938.”

The last three statements were admitted without objection, but plaintiff did object to the admission of the first mentioned, on the ground that “it is clearly a part of the group of papers used in connection with an attempted compromise.” It is obvious -from the record that this objection was not tenable at the time made, if at all throughout the trial, and the court therefore properly overruled it, and as plaintiff did not thereafter renew it, or move to strike, he cannot complain on appeal of the presence of the testimony in the record. Besides, there is a question if the objection was ever applicable to the testimony, depending upon other facts in the case, and it will be presumed that in allowing it to remain before the jury the trial judge found the evidence did not establish the. premise upon which plaintiff based his objection. Moreover, in our opinion, the very nature of the statement rendered it clearly admissible. Farmers’ State Bank & Trust Co. v. Gorman Home Refinery, Tex.Com.App., 3 S.W.2d 65; Sanford v. John Finnigan Co., Tex.Civ.App., 169 S.W. 624; Sanderson v. Barkman, 272 Mich. 179, 261 N.W. 291; Gagne v. New Haven Road Construction Co., 87 N.H. 163, 175 A. 818; Wigmore on Evidence, 2d Ed., § 1061; 22 C.J. p. 314, § 349.

It appears that this cause was twice tried below, and that at both trials defendant requested the court to send the statements out with the jury for their consideration in arriving at a verdict in the case, but the court refused the request in each instance. In the bill of exception showing this transaction it appears that the trial judge refused the request at the last trial for the same reasons given by him for a like ruling upon the former trial. From the bill of exception it appears that at the former trial plaintiff did not object to defendant’s request and upon the last trial objected only by stating “we object,” which amounted to no objection at all. At the first trial the judge overruled the request upon his own objection that “in the absence of a request of the jury, to furnish them any part of the testimony introduced before them on the trial of the case, would be an overemphasis of such testimony. The Court has no right to furnish them with a transcript or reproduction of the evidence, except on their request; and, to do so without furnishing a transcript of all the testimony would be over-emphasis of one part of the testimony,” and apparently the court adopted those reasons for overruling the request at the last trial. And defendant complains of this ruling, in its third and fourth propositions.

The statements which defendant asked to be sent out with the jury related to the two controlling issues in the case, first, as to whether plaintiff’s claimed disability was caused by an accidental injury, within the contemplation of the statute, and, second, whether plaintiff gave notice of his claim within thirty days of the alleged accident. These statements were admittedly made by plaintiff, were put in evidence before the jury, and are in direct conflict with plaintiff’s testimony upon the trial. Under the statute and judicial decisions thereon the trial judge erred in refusing defendant’s motion that the statements be sent out with the jury, and as these statements relate to material issues in the case, the error requires reversal. Art. 2193, R.S.1925; 41 Tex.Jur. p. 855, § 105; Trinity & B. V. Ry. v. Lunsford, Tex.Civ.App., 183 S.W. 112; Bankers Life Co. v. Butler, Tex.Civ.App., 122 S.W.2d 1077, and authorities there cited.

Other questions raised in the appeal need not arise upon another trial.

For the error indicated, the judgment is reversed and the cause remanded. The original opinion will be withdrawn and this substituted therefor. Plaintiff will be allowed to file second motion for rehearing, if he so desires.


author: WALKER, Chief Justice.

text:
    BUTTS v. WEAVER.
    No. 3723.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 23, 1940.
    Rehearing Denied Dec. 4, 1940.

      Collins, Williams, Hatchell & Garrison, of Lufkin, for appellant.
    H. R. Rolston, of Lufkin, for appellee.
   WALKER, Chief Justice.

Appellee, Earl Weaver, was plaintiff below, appellant the defendant. For cause of action, appellee alleged that on the 2nd day of April, 1938, appellant was drilling an oil well in Angelina county, and that he was one of appellant’s employees on this job “in the capacity of a common laborer”; that on or about the 2nd day of April, 1938, while working in the course of his employment, he was instructed by appellant’s foreman “to assist, aid and help another employee of defendant to partially pick up and lift a twelve inch pipe which weighed about 500 pounds, and guide same to a scaffold and place said pipe upon the said scaffold”; “but said pipe in the usual and customary course of said work was supposed to have been lifted from the ground by means of steam power which was supplied by a small steam engine, and that in connection therewith a chain was fastened around the middle of said pipe and then by means of certain mechanical devices the said engine was supposed to lift and pull said pipe from the ground and place same upon the scaffold, but due to the imperfect and defective condition of said steam engine same did not generate enough steam power to completely lift said pipe”; that appellant directed appellee and one other employee “to help lift the said pipe and guide and place same upon the scaffold, all of which was the usual and customary way and manner employed by defendant to do the work above described”; that, complying with the orders of his foreman, appellee immediately took hold of one end of the pipe and another employee took hold of the other end and they, “with the assistance of said steam engine as stated aforesaid, lifted said pipe and attempted to guide and place same upon the scaffold, at which time plaintiff was forced and compelled to drop his end of said pipe by reason of'the fact that he felt a tearing and experienced great pain in the lower right side of his abdomen, that the effort and strain of lifting said pipe had and did injure plaintiff in the lower right side of his abdomen, causing serious, painful and permanent injuries, and did thereby, cause and inflict upon plaintiff a hernia.” Appel-lee specially pleaded negligence in the use of the engine in the following respects:

“(c) Defendant was guilty of negligence in furnishing for the purpose of lifting said pipe, a defective and imperfect steam engine, and because of such negligence plaintiff was injured thereby.
“(d) Defendant was negligent in furnishing the kind of steam engine in question for the purpose of lifting said pipe, and that the type of engine being used at the time of plaintiff’s injury, could only generate 80 pounds of steam • pressure, which was insufficient and wholly failed to lift said pipe, and because of such negligence plaintiff was injured thereby.”

Appellant answered by general and special demurrers, general denial, etc.

The jury gave an affirmative answer to each of the following questions:

“Special Issue No. 1. Do you find from a preponderance of the evidence that Ed Butts, was the employer of Earl Weaver on the occasion in question.”
“Special Issue No. 2. Do you find from a preponderance of the evidence that Earl Weaver sustained personal injuries while working at the drilling rig on the occasion in question?”
“Special Issue No. 3. Do you find from a preponderance of the evidence that the defendant, Ed Butts, failed to furnish an engine for the purpose of lifting the said pipe, th'at was sufficient to safely lift the pipe, being lifted on the occasion in question ?”
“Special Issue No. 4. Do you find from a preponderance of.the evidence that such failure, if any, was negligence?”
“Special Issue No. 5. Do you find from a preponderance of the evidence that such negligence, if any, was the proximate cause of the accident and resulting injuries to the plaintiff, if any?”

Answering the following special issue, the jury assessed appellee’s damages at $1,500:

“Special Issue No. 6. What sum of money, if any, paid now in cash, do you find from a preponderance of the evidence, will represent a fair and reasonable present compensation to the plaintiff, Earl Weaver, for his damages, if any, resulting directly and proximately from the personal injuries, if any, suffered by him on the occasion in question ?”

From the judgment entered in appellee’s favor for the damages assessed by the jury, appellant has duly prosecuted his appeal to this court.

Appellant advances no proposition against the amount of .the damages assessed by the jury, nor the finding that appellee suffered personal injuries at the time and on the occasion in question. Since the evidence, as a matter of law, established the relation of employer and employee between appellant and appellee, the assignment against the court’s definition of “employer” suggests only harmless error.

Appellant advances the following points against special issue No. 3:

(1) The court erred in submitting to the jury special issue No. 3 because appellee had no allegation in his petition that appellant “was under any duty to furnish an engine, or that the engine used was defective in any particular, or that any defect, insufficiency of or failure in function of such engine directly injured or put upon” the appellee any strain or effort causing him to suffer a hernia. This contention is overruled. By the act of negligence, No. (d) copied above, appellee alleged that the engine “was insufficient and wholly failed to lift said pipe,” and by act (c) that the engine was “defective and imperfect.” It was further alleged that the engine was furnished for the purpose of lifting the pipe, and that appellee was directed to assist in lifting the pipe, and due to “the imperfect and defective condition” of the engine, it “did not generate enough steam power to completely lift said pipe.” Appel-lee alleged that because of the failure of the engine to function properly he was forced to assist in lifting the pipe and that in lifting the pipe he suffered a hernia. In our judgment, appellee alleged that the engine was defective in not furnishing a sufficient amount of steam and that this defect caused his injury.

Appellee alleged “that said pipe in the usual and customary course of said work was supposed to have been lifted from the ground by means of steam power which was supplied by a small steam engine.” This allegation, construed in connection with the allegations copied above, constituted a plea by appellee that appellant was under the duty to furnish an engine to assist in lifting the pipe.

(2) The second point against special issue No. 3 is that appellee did not allege “any facts indicating any want of ordinary care on the part of the defendant in respect to any defect in, insufficiency of or failure to function by the engine in question.” This point is overruled. Ap-pellee alleged the relation of employer and employee, performance by him of a duty itt the course of his employment, the use of a defective engine furnished by appellant, and an injury, proximately caused by the defect in the engine. The general intendments of these allegations invoked the following legal proposition announced by our Supreme Court in International & G. N. R. Co. v. Kindred, 57 Tex. 491, 502: “The master is charged with a duty to those serving him of which he cannot divest himself by any delegation to others. He is charged with such a duty,as regards the safety of his premises, the suitableness of the tools, implements or materials he procures or employs, and the servants he engages or makes use of. Whoever is permitted to exercise the master’s authority in respect to those matters is charged with the master’s duty, and the latter is responsible for a want of proper caution on the part of the agent, as for his own personal negligence.” Having pleaded the facts invoking the duty of “ordinary care” in respect to the engine, the breach of thát duty which was pleaded was an allegation “indicating * * * want of ordinary care.”

(3) ■ The third point against' special issue No. 3 is that appellee did not allege that the defect in the engine “proximately caused” his injury. This essential allegation flows necessarily from the allegations of the petition copied above.

(4) Special issue No. 3 “assumed that the defendant was bound to furnish an engine sufficient to safely lift the pipe in question.” Special issue No. 3 was not defective in this respect. The following facts were established as a matter of law: (a) The relation of employer and employee between appellant and appellee; (b) at the time of his injury, appellee was in the course of his employment; (c) the engine furnished by appellant “for the purpose of lifting the pipe” was defective. These undisputed facts invoked against appellant the duty to furnish a “safe engine” with which to lift the pipe.

(S) The fifth assignment against special issue No. 3 is that it was not raised hy the evidence, and that the jury’s affirmative answer thereto is without support in the evidence. This assignment is overruled. The testimony on this point (Q. & A. reduced to narrative) is as follows:

Jeff Ellis, the foreman on the job, testified: “Mr. Butts gave us orders to shut down; he told us to shut down. He said, '‘Let’s shut this thing down; we are going to get somebody killed here in the dark and it’ll cost me a million’; I said, ‘There sure ■is a big chance of getting somebody killed, all right.’ I have done quite a bit of field work. We had very poor equipment on this job; a little hoisting engine that was not intended to drill a well with. That is not the kind of engine that is generally used to lift that pipe and stuff; that was the first well I ever saw that used it like that; in other words, it was not the kind of engine that is commonly employed to do that type of work. How much steam power was raised on that engine? We raised 100 pounds and it blew out and we were afraid to get more than eighty. During the time we were spudding in the well and drilling it — we were there two nights — one night and one day and part of another night, and Mr. Butts was present to my notion about all the time. This steam engine did not generate enough power for that outfit — not necessarily. It blew out one time at 100 pounds of steam. We had had trouble with the engine before; I think they had a boiler-maker there about twice; somebody down there at the well I think about twice.”

Appellee Weaver testified: “I went ahead and got the job and went to work, and went all during the day we were working; and the next day we was drilling and lifting this pipe out of the hole; and Mr. Ellis said the machinery wasn’t sufficient to lift it. I can describe the kind of engine that was used to lift this pipe down there; I don’t know the name of the engine, it is what I call a pressing-shop boiler, a little outfit, the engine looks like a tieing outfit; it is down there now if you want to see it. The pipe was supposed to be lifted with steam power, I imagine; I never worked on anything like that before; it tried to lift it with all the steam they had but never lifted it. and had to be done with manual labor, and the pipe was ten or twelve inch pipe, twenty-one feet long and pretty heavy. I was lifting one end of the pipe when I received my injury; it came back on me and I could not hold it; that is all. The pipe was lying flat on the ground. Mr. Ellis told me and Elzy Thompson to lift the pipe. He told us to lift it and put it on the scaffold, with this other help — the steam help. I thought I said heretofore that the steam was helping. When Mr. Ellis told me and Elzy Thompson to pick up the pipe, it had a chain on it attached to the machinery. He told us to help the steam lift the machinery, to lift that pipe up there; up there on the scaffold. It was just a platform outfit made there to slip the pipe on so we could get it up off the floor. The pipe was not on the scaffold when we started to lift it. It was lying on the ground and we were just helping lift it on the scaffold; trying to get it so far up that the •steam would lift it up. Since I thought of it, I remember one order that Mr. Butts, the defendant, gave us. Whenever this boiler blew out, Mr. Butts came up there and told us to go ahead and lay the boiler down, while he let Mr. Ellis go to Diboll to get a welder to weld the boiler back.”

Weldon Howard testified: “Well; they was trying to raise this pipe with the machinery we had, and seemed to have trouble — not enough steam in the boiler to raise it, and they got it half way up and this Earl — this other boy had went in the middle of it to keep it guided ’on the platform and keep it straight, and this boiler failed some way and let the pipe fall, and Earl grabbed it to keep it off of him, and he got kind of under it.”

The evidence raised the issues submitted by questions 4 and 5, and also supports the jury’s affirmative answers to these questions.

Appellant has submitted his brief without citing any authorities; on that ground appellee has moved to strike his assignments of error. The motion is overruled; the failure to cite authorities is not jurisdictional.

The judgment of the lower court should be affirmed, and it is accordingly so ordered.

Affirmed.

On Rehearing.

In his motion for rehearing, appellant briefs most interestingly his 11th proposition. We do not review this proposition and appellant’s authorities, because it is our conclusion that, while the proposition was formally advanced by appellant in his brief, it was waived by him in that it was not presented in such way as to require this court to review the exceptions presented. The entire statement made by appellant under this proposition in its original brief was as follows:

“Statements and Remarks
“This proposition is germane to Appellant’s tenth assignment, page 45 hereon, and the fifteenth assignment of the motion for new trial.
“Defendant made his objections in writing to said instruction in the trial court in due time, for the reasons set out in the foregoing propQsition.”

The 11th proposition was waived by the original brief, and as briefed in the motion for rehearing, it constitutes an additional proposition which is in violation of the briefing rules. We are not basing this conclusion on the fact that appellant cited no authorities in his original brief; while not required to cite authorities, he was required to make a statement, supplemented by an argument, directing our attention to the errors assigned. However, if we are in error in this conclusion, the 11th proposition should be overruled as not constituting error.

After a careful review of all of appellant’s assignments on rehearing, they are overruled.


author: GRAVES, Justice.

text:
    QUITTA v. BRIER et al.
    No. 11024.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 24, 1940.
    Rehearing Denied Nov. 21, 1940.
    Charles Fertsch, of Hallettsville, for appellant.
    Paul C. Boethel, of Hallettsville, for ap-pellees.
   GRAVES, Justice.

This cause has been submitted to the court upon the record and the briefs, without the benefit to it of oral argument, due in large measure to the fact that at that time the able counsel for both parties were engaged in rendering their professional assistance in their home county to the draft boards and registrants in the initiation there of the new Federal Draft Law.

However, the briefs have fully covered the questions involved, and this decision of them is based upon these presentments, along with the record.

This statement from the brief of the ap-pellees is thought to be correct, not only as to the nature and result of the proceedings below, but also as to the questions involved here:

“As filed and tried this is a trespass to try title suit, filed in the district court of Lavaca County, Texas, by Bettie Brier, joined pro forma by her husband, J. E. Brier, against Mary Quitta, a feme sole, of Lavaca County, Texas. The property involved was the west one-half of Block 39 of the original town tract of the City of ' Hallettsville, Lavaca County, Texas, and the common source of title was J. M. Vesmirovsky, deceased, under the terms of whose will and the codicil thereto both the appellant and the appellees asserted title and claim to the property in dispute. Ap-pellees’ claim and title were based on provision Eight of the original will of said testator, executed the 17th day of September, A. D. 1936, which in words was as follows :
“ ‘Eighth: I give to my niece Bettie Tichacek, of Hallettsville, daughter of my deceased sister, Mrs. Annie Tichacek, the property and premises known as the Eilers property in the City of Hallettsville, now occupied by Gus Seiba; it being the same property bought by me from Wm. Eilers in the Eastern part of Hallettsville.’
“Appellant’s claim and title were based on two instruments:
“First, under provision Nine of the Codicil to the Will of the aforesaid J. M. Ves-mirovsky, executed on the 9th day of September, A. D. 1938, which in words was as follows:
‘“Ninth: Said clause “Ninth” shall hereafter read as follows: “I give to my sister, Mrs. Mary Quitta, of Lavaca County, Texas, my home place now and heretofore for many years used by me as my residence together with all furniture and household supplies therein and used in connection therewith. Said property is on East Fourth Street in the City of Halletts-ville, in Lavaca County, Texas”’;
“Second, under a deed of conveyance, dated Dec. 30, 1938, executed by L. P. Quitta and Alois Morkovsky, as independent executors of the Estate of J. M. Ves-mirovsky, deceased, to Mary Quitta, purporting to convey to the said Mary Quitta the Southwest one-fourth of Block 39, or the South one-half of the west half of Block 39, of the original town tract of the City of Hallettsville.
“Said will and codicil were admitted on Dec. 5, 1938, to probate by order of Paul H. Fertsch, Judge of the County Court of Lavaca County; * * * Said Executors’ deed was filed for record March 1, 1939, and is of record in Lavaca County.
“Appellees’ suit was filed September 3, 1939, alleging therein that the recording of said executors’ deed, and the facts, matters and description of property therein contained, constituted a cloud upon the title of the appellees. Defendant’s answer consisted of a general demurrer, plea of not guilty, and a general denial; the general demurrer was not presented to the court and a ruling thereon invoked.
“On trial of said cause, it was appellees’ contention that said executors’ deed overreached the bounds of said will and codicil, in that said conveyance purported to convey to appellant a part of the property and premises devised to the appellees in provision Eight under the description of: ‘the’ property and premises known as the Eilers property in the city of Hallettsville, now occupied by Gus Seiba.’
“At the time of the execution of said will, namely Sept. 17, 1936, when such description was employed, the testator lived on the southern part of the west half of Block 39, and the family of Gus Seiba lived on the northern portion. A fence, erected some ten years prior to this time, divided the two premises, the northern portion being approximately 135 feet in depth and the southern about 88 feet. (Dimensions shown by agreement). The executors’ deed endeavored to convey to the appellant the southern half of the west half of Block 39, or premises 111 feet in depth, thereby overlapping the grant in the will to the ap-pellees by some twenty-fout or twenty-six feet.
“A sketch is enclosed showing the relative position of the various grants, which sheds light upon the property and premises involved.
“The appellant contended that the testator in his will and codicil left uncertain the dividing line betweein the property and premises known as the Eilers property, then occupied by Gus Seiba, and that of the testator’s home place; that, there being doubt, the executors’ power and authority to divide and partition the same was invoked, and that the executors’ deed to Mary Quit-ta to the southern half of the west half of Block 39 was an equitable division of the properties.
“Judgment was rendered by the court— sitting without a jury — for the appellees to such part of the west half of Block 39 as were occupied by Gus Seiba on Sept. 17, 1936, namely such part as extended to the fence hereinbefore mentioned, and described by metes and bounds in said judgment, in accordance with dimensions agreed upon on trial of said cause.”

It is concluded that the judgment is correct and should be affirmed; that the cause was entertainable as one in effect to construe the will involved, if not otherwise-, and that the pleadings and evidence thereunder were plainly sufficient to support the portion of the court’s decree vesting the title and possession of the premises in the appellees that it held went to them anyway under the provisions of the will; since the court held that all the property that had been occupied by Gus Seiba at the date of the will, the precise extent and boundaries of which were shown by the undisputed evidence, had gone to the appellees under the terms of the will, the subsequent action of the executors by their deed, in undertaking to change that grant, may be regarded as an ultra vires act. Shindler v. Cooke, Tex.Civ.App., 90 S.W.2d 292.

In other words, under the provisions of R. S. Articles 8282 and 3314, the separate devises to these litigants by the testator were specific grants, hence the language of the will itself, which was plain and unambiguous, was controlling, and at once vested their separate properties in each of them accordingly. Dickson v. Dickson, Tex.Com.App., 5 S.W.2d 744; Frame v. Whitaker, 120 Tex. 53, 36 S.W.2d 149; Jackson v. Templin, Tex.Com.App., 66 S.W.2d 666, 92 A.L.R. 873; Shindler v. Cooke, Tex.Civ.App., 90 S.W.2d 292; 44 Tex.Jur. 778.

Hence, as to these two particular grants, no residuary power was left in the executors to divide and partition the testator’s estate, and since neither the will, nor the undisputed facts offered in explanation of its meaning, left any doubt as to the location on the ground of the separate tracts devised, there was no room left for the executors’ deed.

Moreover, it seems to have been an undisputed' fact that the appellant was claiming under the executors’ deed, that she had accepted and filed it for record prior to the filing of this suit in trespass to try title against her. This situation, it is thought, authorized the appellees to maintain — and the court to determine — such a suit as against her. Broughton v. Settegast, Tex.Civ.App., 67 S.W.2d 656; Moody v. Holcomb, 26 Tex. 714.

Furthermore, the dispute as to the location on the ground of the dividing line between the two tracts constituted this action a suitable means of settling it. 41 Tex.Jur. 458, § 5; Permian Oil Co. v. Smith, Tex.Civ.App., 47 S.W.2d 500; Davis v. George, 104 Tex. 106, 134 S.W. 326; Outlaw v. Gulf, Tex.Civ.App., 137 S.W.2d 787.

Under the undisputed facts shown, at the time he made the will the testator lived on the southern portion of the west half of Block 39, the family of Gus Seiba then living on the northern portion; a ten-year old fence then divided the two tracts; the trial court, in response' to the conclusive if not undisputed evidence, found that at such time Gus Seiba had used and occupied all of the whole tract lying north of that fence, and that, -accordingly, the testator plainly meant by the language of his will to constitute that fence the boundary.

These conclusions require an affirmance of the judgment below; it will be ordered.

Affirmed.


text:
    DAVIS et al. v. TURNER et al.
    No. 11185.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 20, 1940.

      J. G. Howard and H. J. Nichols, both of Houston, for appellants.
    J. Meek Hawkins, of Houston, for ap-pellees.
   GRAVES, Justice.

This appeal — accelerated into and advanced for hearing by this court, pursuant to R.S. Article 4662 — is from an order of the 127th District Court of Harris Coünty, sitting without a jury, granting the appel-lees (Ben Green, Olivia Turner, Julius Franklin, A. Joseph, and Ned Weathers) a temporary injunction against the appellants (Van Collins, R. Davis, F. W. Perkins, Sr., and G. A. Botley, also referred to as G. A. Bailey), pending trial on its merits of cause No. 269,194, Olivia Turner et al. v. Roosevelt Davis et al., on the docket of that court.

The material provisions of the order were these:

“The Court, after hearing evidence thereon, finds from the testimony of the defendants that the purported election held at the Mount Olive Baptist Church on September 3, 1940, was not in fact an 'election under the rules of said church, but that the ballot presented at said purported election had printed thereon the names of candidates for office of only one faction of the congregation, and that said ballot had provided thereon no spaces for the printing or writing in of names of others for the offices in question. The Court finds that the ballot shows on its face that a free expression of a majority of the members of the congregation of the said church could not be had. The Court further finds from the testimony of the defendants, Van Collins and R. Davis, that they attempted to limit the vote to those members of the congregation who were not more than three months in arrears in their dues; that although the purported election was held on September 3, 1940, the books of the church for the year 1939 were used to determine who was eligible to vote in said election, and that no record was kept to determine who had or had not paid dues during the year 1940.
“The Court finds-from the testimony of the said defendants that the said acts in connection with the said purported election were arbitrary and capricious and designed to and did prevent many members of the congregation from voting at the said purported election. * * *
“It is therefore decreed by the Court that the defendants, Van Collins, R. Davis, F. W. Perkins, Sr., and G. A. Botley, also referred to-as G. A. Bailey, -be, and they are hereby enjoined *• * * from assuming to act as officers of the Mount Olive Baptist Church, under and by virtue of the purported election of September 3, 1940. * * *
“That the Building Fund of said Mount Olive Baptist Church be, and the same shall be held intact, pending the -disposition of this cause upon its merits.
“That the said defendants, Van Collins, R. Davis, F. W. Perkins, Sr., and G. A. Botley, also referred to as G. A. Bailey, and the plaintiffs herein, Ben Green, Olivia Turner, Julius Franklin, A. Joseph, and Ned Weathers, be, and they are. hereby restrained and enjoined from in any manner interfering with the' worship of the congregation of the Mount Olive Baptist Church, and the right of such congregation peaceably to assemble in said church-building, pending the trial of this cause upon its merits.”

[ The appellees were the plaintiffs below, the appellants the defendants, and all were negroes.

As the quoted order indicates, the suit to which it was an ad interim incident, had to do with the control, management, and internal affairs of the colored church in the City of Houston, known as the Mount Olive Baptist Church, and the final relief sought by the plaintiffs therein was the setting aside of the purported election for a pastor and officers thereof held September 3, 1940.

They further sought at the hands of the court the appointment of a moderator, with direction that he' hold another election for the choosing of such functionaries, and, pending a final disposition of the whole cause on its merits, prayed fór a temporary injunction, “restraining the defendants, Van Collins, G. A. Bailey, R. Davis, and F. W. Perkins, Sr., and each of them, from declaring the result of said purported ■ election of September 3, 1940, and assuming to act thereunder, and from dissipating or converting said Building Fund to their own use and benefit, and that they and each of them be notified to appear at some day fixed by the Court to show cause why a temporary injunction should not issue in all things as prayed for.”

Attached to such petition as an exhibit there appeared a purported copy of the ballot alleged to have been used in such election, which was followed by the affirmative averment that: “46 members thereof were elected to the offices in said church.”

It further appeared from the uncontro-verted evidence received upon the hearing in review that at least several of the officers so chosen upon such ballot, none of whom are parties to this proceeding, received salaries — that is, the pastor, the secretary, the pianist, and the sexton of the church.

It is thus undisputedly made to appear— upon the face of the record itself — that there is a lack of necessary and indispensable parties defendant to the validity of the writ so granted, in that only four, that is, the named appellants, out of the 46 officers chosen at such challenged election, have been made parties hereto; obviously each’and all of them were vitally interested in and affected by the effort to set aside the election by which they had been chosen, as well as by the ban thus put by the court on its going into effect at all, in advance of a trial of the whole controversy on the facts.

Under these authorities, it is held that such development invalidated the order under review: Barmore v. Darragh, Tex.Civ.App., 227 S.W. 522; Oliver v. Smith, Tex.Civ.App., 187 S.W. 528, error refused; Brown v. First National Bank, Tex.Civ.App., 175 S.W. 1122, error refused; Adams v. Bankers’ Life Co., Tex.Com.App., 36 S.W.2d 182; Needham v. Cooney, Tex.Civ.App., 173 S.W. 979, error refused; Ball v. Cundiff, Tex.Civ.App., 127 S.W.2d 502, error dismissed; Kelly v. Lobit, Tex.Civ.App., 134 S.W.2d 428; H. M. Cohen Lumber & Building Co. v. McCalla, Tex.Civ.App., 142 S.W.2d 685.

The appellants in this instance properly raised the objection of a want of necessary parties, in several ways during the trial, hence, were that necessary, no objection on that score could be raised on the appeal. .

It follows from these conclusions that the order was an improvident one, hence should be reversed, and that the cause for temporary injunction should be dismissed, without prejudice, however, to any rights the appellees may have to hereafter amend their pleadings by the inclusion of all such necessary parties. It will be so ordered.

Reversed and dismissed without prejudice.


author: BAUGH, Justice.

text:
    SCOTT v. WOOD et al.
    No. 8973.
    Court of Civil Appeals of Texas. Austin.
    Nov. 13, 1940.
    Levie Old, of Brownwood, for appellant
    E. M. Davis and J. C. Darroch, both of' Brownwood, for appellees.
   BAUGH, Justice.

Appellees sued appellant for broker’s commissions on the sale of appellant’s ranch in Nolan County. The consideration for such sale was $23,000 cash and the conveyance to Scott by Henry Stalling’s and others of a business house in the City of Brownwood. Trial was to the court without a jury. The only question presented on this appeal relates to the value of the Brownwood property accepted by Scott in exchange. The trial court rendered judgment for a 5 per cent commission on the $23,000, and 2½ per cent on $10,000 found by the court to be the actual value of the Brownwood property. The only contention here made relates to the finding of the value of the Brownwood property.

The error assigned is that the trial court improperly admitted the testimony of the witness French as to such value; and that without his testimony there was no evidence to sustain the court’s finding of such value.

Neither of these contentions is sustained. The testimony complained of, and which, appellant, after eliciting it himself upon' cross-examination, moved to exclude, was as follows:

“Q. By stating that it is your opinion that the actual value of the ‘Whaley Building’ is between Ten and Twelve Thousand Dollars, do you mean by that that if given a reasonable length of time you could sell the building for that? A. No, I do not mean that. If I wanted a location for a certain business. If I wanted a building in which to operate a business I believe the building would be worth $10,000.00.
“Q. But I mean if you were given a reasonable length of time in which to sell it, do you testify that you could sell' it for Ten or Twelve Thousand Dollars? A. No, I don’t.
“Q. That is not the basis of the value then that you place on the building; in other words, you place your valuation on the building as you stated a minute ago, that if you needed a building for business purposes, you would give that for it? A. Yes, if I wanted to. operate a business in the building of that size and with the offices above. Some kind of mercantile business, not an office.”

It is not controverted that French, an experienced realtor, was qualified to testify as to value of the property. He testified that, due to conditions in Brown-wood at the time, there was no active market for such property. The appellees sought to establish only actual value, which is the proper criterion by which to determine the commission recoverable in an exchange of properties, in the absence of a contract otherwise between the parties, which had. not been made in the instant case. See Vletas v. Stagner, Tex.Civ.App., 45 S.W.2d 1009, 1010; Story v. Conn, Tex.Civ.App., 27 S.W.2d 909, 910; Howell v. Bartlett, Tex.Civ.App., 19 S.W.2d 104, 105; 7 Tex. Jur., § 110, p. 511. And where there is no market for such property, manifestly its actual value controls. While actual or market values are sometimes used synonymously, the rule applicable in such cases is stated by Chief Justice Hall in Howell v. Bartlett, supra, as follows: “It is held that the actual value will control, and not the market or trade or fictitious value of the property obtained’in exchange * To the same effect is Story v. Conn, supra.

On direct éxáñiination, French was asked what he considered to be the actual value of the property.. He showed himself to be familiar with values generally, and. particularly with the property in question, a two-story brick building 70 x' 100 feet- in a business section, the ground floor designed for mercantile purposes, and the sec-, ond story containing 22 offices; having known it since its erection. He testified unequivocally. on direct examination that it had a “present value” of “from ten to twelve thousand dollars.”

Manifestly, the testimony of French’ above quoted did not indicate a fictitious-value was meant by him. The questions asked by appellant’s attorney indicate that he was seeking to ascertain market valué, not a proper basis for determining the commission earned. The import of French’s answers was, in effect, that there was then no active or ascertainable market value, and that his testimony as to value was not’based on that ground; but upon what he deemed the actual value of the property at the time and under the circumstances. That being, true, his testimony as to actual value, the’ proper criterion, was clearly admissible and sufficient to support the court’s finding.

Not only is this true, but appellant him7 self testified that in arriving at the value received for his ranch, he considered the Brownwood property accepted by him- as worth from $7,500 to $10,000.

The testimony complained of, therefore, negatived any estimate of French based upon market value. That portion urged by appellant as indicating that French’s testi-mdny showed only a fictitious value, merely indicated, we think, one of the factors considered by, him in arriving at a proper actual value of .the property.

Finding neb ¡error in the record the judgment of the trial court is affirmed.

Affirmed.


author: CODY, Justice.

text:
    PECH v. GINSBURG.
    No. 11008.
    Court of Civil Appeals of Texas. Galveston.
    July 18, 1940.
    Rehearing Denied Dec. 5, 1940.
    Merrill & Scott, of Houston (Frank L. Merrill, of Houston, of counsel), for appellant.
    Mrs. Lynne Tamborello, of Houston, for appellee.
   CODY, Justice.

This is a suit by appellee, as a real estate broker, to recover a commission.

It is undisputed that appellant listed a lot belonging to him, in Houston, with ap-pellee for sale for the sum of $11,500, the purchaser to assume a mortgage against the property of $6,000, and pay $5,500 in cash — appellee’s commission to be 5% of the sale price. It is likewise undisputed that the listing with appellee was not exclusive, and that appellant sold the property through another broker to a purchaser who was a stranger to appellee.

Appellee alleged in his petition: That about May 25, 1938, appellant listed the property in question with appellee for sale, agreeing to pay the usual 5% commission.

That about June 4, 1938, appellee procured Max Baum as a purchaser for the property in question, and appellee caused a meeting between Max Baum and appellant on said date, at which time appellant agreed to sell the property to Max Baum for a total consideration of $11,500, to be paid as follows : by accepting a certain diamond ring at the valuation of $2,000; the sum of $6,000 to be paid by the assumption of a mortgage then existing against the property; and the sum of $3,500 to be paid directly to appellant in cash by Baum, or said $3,500 was to be raised by additional financing on the property, and paid over to appellant. That thereafter, within the time agreed to, Max Baum was ready, willing and able to consummate the transaction by paying $3,500 in cash, and by assuming the mortgage for $6,000, and by delivery of the $2,000 ring. And notice was given appellant by appellee of the readiness and ability of the prospective purchaser to consummate the purchase.

Further, and pleading in the alternative, it is alleged that Baum was. ready, able and willing to buy said property on the agreed terms, inclusive of procuring additional financing on the property, and that appellant was so notified by appellee, and that appellant was requested to furnish information for a formal loan application and deliver abstract of title to the property, but this he refused to do, making' further negotiations for the loan impossible. Pleading further in the alternative, appel-lee alleged that after making the contract for the sale of said property with Max Baum, appellant disabled himself from making such sale by selling the property to one Arthur Halber on June 7, 1938, excusing any further performance on the part of either Max Baum or of appellee. Damages were set at $575.

On June 4, 1938, appellee introduced Max Baum as a prospective purchaser to appellant. Appellee testified that appellant promised to give Baum ten days from June 4, 1938, in which to purchase the property.

In response to special issues the jury found that on June 4, 1938, appellant agreed to sell, and Max Baum to buy, the property; and that appellant agreed to allow Baum ten days from said date to consummate the purchase. The jury also found that within the ten days Max Baum was ready, willing and able to consummate the purchase of the property, of which fact appellant received notice. That appellant agreed to pay appellee $575 if a sale was made thereof through appellee’s efforts. Due to assignments made by appellant, the discussion of which can best be understood if we set forth special issues Nos. 7, 8, and 9, we set these forth in terms:

“Special Issue No. VII.
“Do you find from a preponderance of the evidence that on June 4, 1938, Charles Ginsburg obtained a purchaser for the property known as 4811 Chenevert Street who was a ready, willing and able purchaser ?
“Answer ‘Yes’ or ‘No’, as you find the facts to be.
“In view of the foregoing special issue, the Court charges that a ‘ready, willing and able purchaser’ is one who is ready and willing to purchase said property without any contingency or intervening cause whatsoever.
“Special Issue No. VIII.
“Do you find from a preponderance of the evidence that on June 4, 1938, Max Baum was willing to purchase said property at that time without anything to be done further on the part of the said Herbert L. Pech, Charles Ginsburg or Max Baum ?
“Answer ‘Yes’ or ‘No’, as you find the facts to be.
“Special Issue No. IX.
“Do you find from a preponderance of the evidence that Max Baum’s offer to purchase said property was contingent upon Herbert L. Pech obtaining a loan on said property ?
“Answer ‘Yes’ or ‘No’, as you find the facts to be.”
The jury answered special issue No. VII, “Yes”, and answered special issue No. VIII, “No”, and answered special issue No. IX, “No”.

The court rendered judgment upon the jury’s verdict for appellee against appellant for the sum of $575.

Appellant seeks reversal of the judgment on these grounds:

1. That neither verdict nor judgment are supported by the pleadings and evidence.

2. That it was error to render judgment for appellee, because his pleadings were subject to a general demurrer.

3. That the verdict is one of conflicting findings on material issues made by the pleadings and evidence.

If appellee’s pleading and proof had merely established that appellant employed appellee to sell the property for the sum of $11,500, the purchaser to assume the mortgage against ’ the property of $6,000, and pay $5,500 in cash, we would have to sustain appellant’s first assignment of error. Stolaroff v. Campbell, Tex.Civ.App., 18 S.W.2d 838, 840; Granger Real Estate Exchange v. Anderson, Tex.Civ.App., 145 S.W. 262. However, when the pleading and proof is sufficient to establish that a real estate broker has procured a prospective purchaser who has been accepted by his principal, he has established his right to compensation. The fact that his principal may thereafter refuse to complete the sale cannot deprive the broker of his right to compensation.

We aré !unable to hold that the answer to special issue No. VIII is necessarily conflicting with the answers to the other special issues. When, according to appellee’s version as indicated in his pleadings and proof, appellant accepted Max Baum as a purchaser, it was upon an understanding consistent with the jury’s answer to special issue No. VIII. What has been said disposes also of appellant’s second assignment.

'Finding no reversible error, it is ordered that the judgment of the trial court be affirmed. .

Affirmed.


text:
    YELLOW TRANSIT CO. v. KLAFF.
    No. 11033.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 7, 1940.
    Rehearing Denied Dec. 5, 1940.

      Carl L. Phinney and Leroy Hallman, both of Dallas, for plaintiff in error.
    Geo. W. Graham, of Houston, for defendant in error,
   GRAVES, Justice.

For convenience the parties will be designated appellant and appellee.

This appeal is from a judgment of the county court at law No. 2 of Harris County, sitting without a jury, and after an ex parte trial, the appellant, although having filed answer, not having been present, wherein the appellee was awarded a $243 judgment against the appellant, as for the value of one carton of shoes, out of a total of eleven cartons, found by the court to have been turned over to the appellant — a motor carrier for hire — at Tulsa, Oklahoma, by the appellee, for transportation by it to himself at Houston, Texas, and not in fact so delivered.

In due course of procedure, the appellant presented its verified motion for a new trial on the ground that it had been unjustly denied a participation in the original trial through the unavoidable absence of its attorney, and thereby deprived of interposing a meritorious defense it had to the cause of action declared upon, setting the same out specifically, which motion, after an answer thereto by the opposing litigant, was overruled; whereupon the appellant excepted, and gave notice of appeal.

Most of the material facts are thus summarized in the appellant’s brief:

“Defendant in error’s attorney on September 26, 1939, notified plaintiff in error’s attorney that this cause had been set down for trial at 2:00 P.M. on Tuesday, October 24, 1939. On September 29, 1939, plaintiff in error’s attorney wrote to the court that due to a prior setting of a case for the 24th of October, 1939, by the Interstate Commerce Commission at Washington, D. C., it would be necessary for him to be in Washington on such date, and asked the Court to please pass the case to a later date, at which time such counsel would be ready to try the case. The Interstate Commerce Commission on September 13, 1939, - set-down for oral argument on October -24, 1939, at 10 A.M. in Washington, D. C., a cause being Docket No. MC-2118, H. H. Enders Truck Line, Inc., Common Carrier Application. The Court and his secretary-reporter state in their affidavits that they never received such letter. The secretary of plaintiff in error’s attorney states that such letter was never returned to the office of the plaintiff in error’s attorney. Plaintiff in error’s attorney proceeded to Washington and argued the case above ⅛<⅛-tioned before the Interstate Commerce Commission on October 24, 1939, believing that a continuance had been granted in this cause. On the same date, however, this cause was tried in the absence of plaintiff in error or its attorney, and, without their knowledge, judgment was taken against it. Upon learning of said judgment on November 18, 1939, the plaintiff in error’s attorney presented plaintiff in error’s motion for new trial.”

The averments in the new trial motion, declaring that appellant had a good defense upon the merits of the suit, are thus also epitomized in its brief:

“Such defense was that the carton of shoes claimed by defendant in error to have been lost by plaintiff in error was never turned over to plaintiff in error, but that defendant in error had knowledge of the fact that there were only ten cartons of shoes shipped via plaintiff in error’s lines; that plaintiff in error has the signed delivery receipts of defendant in error which clearly show that the said defendant in error received all of the shoes shipped by it from Tulsa, Oklahoma, to Houston, Texas. Further, that the bill of lading issued by the shipper, the defendant in error, provided for only ten cartons of shoes and that that number was actually delivered to the. defendant in error at Houston, Texas, as was; required by such bill of lading.”

Its contention on the .appeal is concreted into this one proposition: / .

“The trial court erred in overruling' plaintiff in error’s motion to vacate its judg- '• ment, to re-open the case, and to grant a new trial herein,.because plaintiff in error showed that it had been denied its day; in court due to the unavoidable absence of • its only attorney, and because plaintiff in error showed in addition thereto that it had a meritorious defense to the suit.”

This court, after careful consideration of the record, concludes that the learned trial court erred in refusing the prayed-for motion for a new trial, after proof of the fact that an unfortunate miscarriage of United States mail had apparently deprived appellant of the privilege of having the cause tried out upon its side; this court, in the absence of anything impeaching either, must accept the statements of both sides to the effect that the letter to the. trial judge from the appellant’s counsel requesting the re-setting of the cause for a\ later trial was duly mailed at Tulsa, as well as that it was never received by that official, or at his court in Houston; in other words, as indicated,' that, however unusual s.uch a. result may-be, in this instance there was such a miscarriage of the mail as to result in an ex parte trial of this cause; further; that the defense so declared upon, and of which appellant tendered proof in the motion for new trial, was a meritorious one, and comes within the holdings of our courts on. that subject, as especially appears from such cases as Holliday v. Holliday, 72 Tex. 581, 10 S.W. 690, and Lee v. Zundelowitz, Tex.Civ.App., 242 S.W. 279, writ of error dismissed, ,

The general rule in such situations is- put this wa!y in 31 Texas-Jurisprudence,. section. 27, page 76: “The right of a litigant to be represented by counsel of his own selection .familiar with his cause is a valuable right, an Unwarranted denial of which-,constitutes ground for new trial. To b.e entitled to-relief the applicant must show that -his failure to be represented at the trial;-was. not due to fault or negligence, that he has a meritorious defense; * * * ”

'That statement of the law is-fully supported by adjudicated cases, see Missouri, K. T. Ry. Co. v. Parrott, 100 Tex. 9, 92 S.W. 795; Young v. State, 47 S.W.2d 320; Farmers' Gas Co. v. Calame, Tex.Civ.App., 262 S.W. 546; Hovey v. Halsell-Arledge, Tex.Civ.App., 120 Tex.Cr.R. 39, 176 S.W. 897; Kansas City, M. & O. R. Co. v. Imboden, Tex.Civ.App., 176 S.W. 900; Arnold v. Ft. Worth & D. S. P. R. Co., Tex.Civ.App., 8 S.W.2d 298; Apache Cotton Oil & Mfg. Co. v. Watkins & Kelly, Tex.Civ.App., 189 S.W. 1083; Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126.

Of these citations, the Apache v. Watkins & Kelly case, supra, seems directly in point (quoting from appellant’s brief) : “There, ’as here, the attorney who was’ familiar with the case was engaged in th'e trjal of another case: which had been set long prior to'the case on appeal. The court. held that a good excuse for his absence had been shown, and that the case should not have been tried in his absence, and for this and other errors, reversed and remanded the case.”

Likewise in the Craddock case, supra, the Supreme Court, in a situation analogous to that obtaining here, announced this doctrine: “A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the' plaintiff. This is a just rule. It prevents a'n injustice to the defendant without working an injustice on the plaintiff.' Such a rule has the sanction of equity.”

So that, upon, the whole, it seems plain that appellant in this instance was deprived .of the substantial right of being represented by counsel on that trial, as well as of an opportunity to present the defense it claimed it had, by a mere fortuity, and not through any neglect upon its own part, or negligence upon that of its attorney; its counsel, after having written and mailed his letter to the trial court, very naturally and not illogically assumed, in the absence of a refusal by reply upon the court’s part, that his request had been granted, and, relying upon that, proceeded to Washington, to- the trial of another case that had been set for trial before this,one had been; it cannot well be said that a man of ordinary care and prudence would not have done likewise, under the same or similar circumstances. Missouri, K. &. T. R. Co. v. Parrott, supra.

It is. likewise reasonably clear that, had the evidence for both sides been received, and appellant had shown that the carton of shoes in question had never been in fact-turned over to it for. transportation, and that the appellee had then known that only ten cartons of shoes had ever been shipped from his Tulsa office, a different result would have been had on the trial.

Without further discussion, the judgment of the trial court will be reversed and the causé remanded for another trial.

Reversed and remanded.