247 S.W. 333 | Tex. App. | 1923
"elected to buy said farm for a consideration of $55,000; that the said Camaros knew that the farm was listed with the defendant's firm and that they would be entitled to a commission of $2,500; that in order to get said place for $50,000 the plaintiff in this suit Mack Camaros prevailed upon the defendant M. L. Allen to allow his commission of $2,500, which was to be paid to him by Lacy, to go in on the purchase price of said property, and also induced the defendant Allen to personally undertake to raise and pay the said Rogers Lacy the further sum of $2,500, so that the actual cost of the place to Camaros would be $50,000, exclusive of the $5,000 which was to be paid by this defendant; that in the purchase of this property the defendant, M. L. Allen, put in from his own resources the sum of $5,000 as hereinabove stated."
Appellant further alleged that the property referred to other than the Lacy farm, in which he as alleged, had profits of $562.50, was used by said appellee in paying for said farm; and then alleged as follows:
"The defendant shows that he has contributed to the purchase of said farm to the amount of $10,262, which the plaintiff Camaros well knew, and did agree that the same should be repaid to this defendant upon the sale of the place, as was therein arranged and *334 contemplated between the parties; that said $10,262 was due the defendant by the plaintiff as commissions and profits that had accrued in the series of transactions between the parties, and which plaintiff had agreed to pay the defendant upon the sale of said property, and to which amount the said property is equitably charged with a lien in favor of this defendant. Wherefore, premises considered, the defendant prays that the plaintiffs take nothing by this suit, but that he have judgment against the plaintiffs for $10,262, and that same be fixed as a lien against the land described and sued for in plaintiffs' petition."
The only question submitted to the jury at the trial was one as follows, which the jury answered in the negative:
"Did M. L. Allen and Mack Camaros have an agreement between themselves by which M. L. Allen would seek and locate bargains in real estate and that Mack Camaros would furnish the money with which to buy said real estate and the said M. L. Allen and Mack Camaros would share equally the profits realized upon the purchase and sale of such real estate in addition to any commission that might be paid to the real estate firm of Moore Allen for the sale of such property?" Of the contentions presented in appellant's brief the first is that the trial court erred when he refused to submit to the jury a question as follows:
"Was it agreed between the defendant, M. L. Allen, and the plaintiff Camaros that the $2,500 commissions due by Rogers Lacy to the firm of Moore Allen for the sale of the Lacy farm should go into and become a part of the purchase price of the Lacy place?"
In the proposition advanced to support the contention appellant asserts:
"That undisputed evidence showed that the farm was listed with said real estate agents and that the said commission went into the purchase price of the property, and it was admitted in open court and by the pleading filed that Allen had been ejected from the property and the contract for his portion or interest had been breached or set aside by Camaros."
As we view the matter, it is not necessary to determine whether the testimony would have supported an affirmative answer to the question or not, for such an answer would not have required the trial court to render a judgment different from the one he did render. If the parties so agreed, and the $2,500 commissions did "go into and become a part of the purchase price of the Lacy place," the effect thereof may have been to make appellant and appellees together, instead of the latter alone, the owners of the property purchased. In that state of the case, the deed from Lacy being to appellee Mack Camaros, he would have held the legal title to the interest owned by appellant as trustee for the latter (Johnston v. Johnston [Tex. Civ. App.]
Another contention presented by the assignments is that the trial court erred when he refused to grant appellant a new trial because of "newly discovered evidence" relevant to the issue the trial court submitted to the jury. The evidence referred to was testimony which appellant alleged F. Z. Ingram, Mrs. Virgie Bowers, and W. C. Shoults would give on another trial of the case that appellee Mack Camaros at times specified before the trial stated to them that he and appellant were partners in the purchase and sale of real estate. W. C. Shoults was one of the attorneys who represented appellant in the litigation. It appears from the motion for a new trial and affidavits attached thereto that the alleged admission of appellee Mack Camaros to Shoults was made long before the time of the trial, and that before that time appellant knew of the testimony it was alleged Ingram and Mrs. Bowers would give, and informed Shoults thereof. The reason shown in the motion for the failure to produce the testimony at the trial was illness of Shoults which prevented him from being present and participating in the trial as one of appellant's attorneys and from thinking about "anything other than his condition." But no sufficient reason appears in the motion why appellant, who was present at the trial and therefore *335 must have known of the illness and absence of his attorney Shoults, did not inform other attorneys present representing him of the testimony in question.
The assignments complaining of the action of the court in overruling the motion are overruled.
The judgment is affirmed.