86 S.W. 375 | Tex. App. | 1905
This action was originally brought in the Justice Court against appellant, Mrs. M. C. Evans and her husband E. B. Evans to recover the sum of $153, alleged to be due him for commissions on account of the sale by him of a certain business house and lot situated in the city of Cleburne, the separate property of the said Mrs. M. C. Evans, made under and by virtue of a verbal contract with the said Mrs. M. C. Evans and her husband; appellee alleging that the amount of said commission was reasonable, and, in effect, that his service in procuring the purchaser for and making the sale of said property, was for the benefit of the separate property of the said Mrs. M. C. Evans.
The appellant and her husband pleaded a general denial. In the Justice's Court the trial resulted in favor of defendants, appellant and her husband. The case was appealed to the County Court by the plaintiff, appellee herein, and a trial in that court resulted in a verdict and judgment in favor of the plaintiff, appellee, in the sum of $153.
While there is a conflict in the testimony, we think it is sufficient to support the verdict of the jury and judgment of the court below. In view of the liberal construction placed upon pleadings in Justice's Courts, we are of opinion that the pleadings of appellee are sufficient to charge that the debt sued for was contracted by appellant for the benefit of her separate property, and that same was reasonable and proper. Appellant contends that the jury should have recited in their verdict that they found that the debt sued on was contracted for the benefit of appellant's separate property, and that it was reasonable and proper, and that such failure constitutes reversible error.
This question was not raised in the court below in any form; therefore, we are not required to consider same, unless such failure on the *445 part of the jury constitutes fundamental error. The verdict of the jury is as follows: "We the jury find for the plaintiff the sum of $153." Article 2970, Sayles Civil Statutes, reads as follows: "The wife may contract debts for necessaries furnished herself or children, and for all expenses which may have been incurred by the wife for the benefit of her separate property and for such debts, suit may be brought in the manner prescribed in article 1201." And article 2971, id., is as follows:
"Upon the trial of any suit as provided for in the preceding article, if it shall appear to the satisfaction of the court and jury that the debts so contracted or expenses so incurred were for the purposes enumerated in said article; and also that the debts so contracted or expenses so incurred were reasonable and proper, the court shall decree that execution may be levied upon either the common property, or the separate property of the wife at the discretion of the plaintiff."
We do not think that the language "if it shall appear to the satisfaction of the court and jury that the debts so contracted or expenses so incurred were for the purposes enumerated in said article, and also that the debts so contracted or expenses so incurred were reasonable and proper," contained in the last above quoted article, requires that the jury should recite their finding of such facts in their verdict. If their verdict, when construed in reference to the pleadings and evidence, implies that in arriving at it they found such facts, we think it is sufficient. In our opinion, in view of the pleadings and evidence, the jury in finding for the plaintiff in the sum of $153, necessarily found that the debt was contracted for the benefit of the separate property of appellant, and that it was reasonable and proper. All assignments of error have been examined and considered and none is well taken.
There being no reversible error in the record, the judgment of the court below is affirmed.
Affirmed.
