*1 645 stand, Baker, permitted to (Tex.Civ.App. Co. v. 218 7 S.W. omitted] [citations 1920, words, validity Trans a dism’d); see Robertson In other ‘The of verdict writ Hunt, port (Tex. pleadings and Co. v. 345 293 is determined from the S.W.2d based, Civ.App. h.). it Antonio the issues on n. w. which —San a that in order to be sufficient follows required It is apparent jury that the respond substantially must all verdict to wage plaintiff’s average weekly to find the up the material the issues made between Special injury before the in order to answer substantially parties, and if it varies They instruc- given Issue No. 9. were a only from issue or issues finds regard tions to of deter- the manner issue, part of that which is ver- mining “weekly wage.” The which answer only jury dict bad. Not should the evidence, they by supported arrived at is prop- on all essential a find the issues is less stipulated. but than the amount rights er determination of daily jury plaintiff’s was informed parties, directly pass but must on wage and of fact that 40 he worked by issues and an not evade them disre- hour The trial week. court erred in argumentative finding.’ Am.Jur., 53 garding concerning the jury’s answer Trial, p. Sec. 1037.” wage average prior weekly injury to the judgment since this have the reversed and is would effect of render- order- ing the ed to the in- jury answer made that is- trial court with remanded conforming completely unresponsive. judgment sue structions enter a opinion.
to this may The trial court disregard a jury special answer made to a issue
on his own motion. Trader’s & General Heath, Co. (Tex.Civ.
Ins. v. 197 130 S.W.2d
App. Galveston, ref., writ Since e.). n. r. — we jury Special consider that the answered $18.00,
Issue it No. was the trial court to render based Realtor, al., JACKSON, et figure. Alviar, Garza v. Appellants, 821 (Tex.1965). WILLIAMS, Appellee. In Employers’ Texas Frank Ass’n Ins. um, Tex. S.W.2d 800 No. 7570. the court said: Appeals Texas, of Civil Court . Tinnin, “As early Thompson et al v. Beaumont. Tex.Supp. recognized this court May 30, 1974. that a jury verdict special must issues responsive
be complete, considering suit; objects that is (subject Texas Proce- Rule Rules of Civil
dure, which is not here), involved
verdict must ascertain issue the facts in
before it will authorize a trial
dispose of the cause judgment. final
Moreover, when a verdict to be
ambiguous this court will look
evidence settled to determine whether it and if dispute; substantive facts not,
it does judgment thereon not be will
DIES, Chief Justice. realty Marjorie listed Appellee Williams Baldwin, agent an with for with Jean Shackelford, in October broker Kinser- on put house mul- Jean agent tiple listings, Blanche and Realtor, a sales secured Jackson $110,000 from contract in the amount of By Day, purchaser. previous William M. agreement, intended divide the realtors con- the real estate The sales commission. securing contingent purchaser tract was equal appraisal property an purchase price. appraiser
An the house. shown Later, Day on information from that the appraisal $103,000, was for re- deposit turned the Day ($5,000) escrow with these words written him across the Appraisal up same: did not come “Void— $110,000, check returned 1-11-71.” Actually untruth, though this anwas at Marjorie unknown by time Jackson. Williams, having discovered the truth that appraisal $110,000, had been for sued specific performance for pre- and vailed. Realtor and Kinser- Realtors,
Shackelford plaintiffs, then brought against suit Marjorie Williams, as defendant, for alleged the commission due contract, interest, them under sales attorneys’ fees.
Trial was to the court a jury without who found for the Marjorie defendant Williams, appellee herein, from which Ed- gar Kinser-Shackelford, ap- pellants, perfect appeal. this
Among the Findings court’s of Fact and Conclusions of Law were:
“Prior to the return earnest money, Defendant Williams told Mrs. Baldwin not to return the money earnest without first Akin, Austin, appellants. for H. John appraisal written valuing at $110,000.00. less than Austin, ap- By Stayton, ... re- Jr., W. John turning the earnest without ob- pellee. (Tex.Civ.App., pany, so no- taining appraisal an n.r.e.). ref. Dallas, error advance, in breach tifying Defendant in violation Agency, (Second) In Restatement instructions, Plaintiffs Defendant’s find: we Defendant keep breached af- materially fully of matters informed an agreed, otherwise “Unless *3 not duty fecting the transaction and reasonable obey all to duty a subject to endanger the any might act to do which of manner regard to the in directions estate they (as transaction which real has con- he that a service performing agents in the acting for Defendant perform.” to tracted and of to Defendant her owed property) recovering thereby are barred from as 469, Disloyalty or Insubordination In § commission from Defendant.” a Defense: compensation to no agent is entitled “An finding Marjorie Williams that or which is disobedient which for conduct the earnest not to Mrs. Baldwin return told if loyalty; duty his of is a breach a written first de- and a constitutes wilful such conduct by evi supported certainly is appraisal serv- his contract liberate breach of un responsible Baldwin was dence. Mrs. compensation ice, not to he is entitled 6573a, Act, Art. der the Real Estate License for services properly performed even 3.1, Ann.Civ.St., her client to Vernon’s § compensation apportioned.” is no which estate any real by for all acts and conduct this section states: to Taylor Edgar The Comment salesman—Blanche Jack with her. Instructions son—associated compensa- to no agent “An is entitled Taylor her were instructions to Blanche a constitutes tion for a service which and Jackson. See of his duties of obedience. violation dis- though the This is true even § Therefore, duty to affirm our harm results in no substantial obedience this failure judgment the trial court’s if principal’s even to the interests and legally supports judgment. v. Purnell justi- though agent that he believes Gulihur, El (Tex.Civ.App., 339 86 S.W.2d acting.” fied in so Paso, error : n.r.e.) ref. 288, 337; Agency, also See 3 §§ C.J.S. “But it is a rule of law well-established 1034 Kelley, (Tex.Civ. 162 Moore S.W. v. that, evidentiary deter- where are Amarillo, 1914, ref.). facts error App., court, any mined doubts as to her given by owner The instruction evidence, any facts and view raised reason- in case was our real estate of the law which the court could have out, could and, able, material, if carried applied pleadings under the the evi- long and ex- well have obviated very dence, support be in should resolved purchas- pensive litigation she case, judgment. In such there if er, Day. any court theory appeals which the judgment, can it has a affirm is af- court of the trial judgment sup- (emphasis to do so. 91) (339 firmed. plied) KEITH, (concurring). Justice Grice, Brown 620 See v. 357 S.W.2d in affirmation join writ); While I Austin (Tex.Civ.App., entirety, in its Hughes lower Grogan-Lamm Com- Lumber 648 under Chief recovery commissions a the affirmation place
I Jack- a Phillips’ holding. Taylor additional and Blanche on these son Justice buy willing to purchaser “ready, able slightly grounds. different terms.” Blanche his broker Conditioning, Next, Sharp, in Air commission, con- were seeking recover a Justice Harrison-Wilson-Pearson, supra, stated Inc. v. of law so well fronted with the rule language from 7 Phillips quoted § this many years ago Chief Tex.Jur. Justice now p. of which Gunter, (1930) Tex. [some Goodwin Brokers, 57, p. 818 Tex.Jur.2d, (1916): S.W. (1969)]: in order general “It is a doctrine “ been may have ‘Although the broker to commis- for a to be entitled broker property person brought who stipulating for sions under contract *4 buyer, or introduced the attention of the payment of his in the event owner, initiat- buyer thereby the terms, a given property upon of stated them, yet he ing negotiations between produced purchaser been must have commission where not entitled to recover
through efforts, and will- ready, his able that, made after he had it further upon contract ing buy property the the buy- induce the an unsuccessful effort to terms; is not ful- the contract otherwise and had purchase property er to the com- part filled and the the broker’s re- accomplish ceased his efforts to that (em- missions are therefore not earned.” sult, part the all without fault on the phasis supplied) owner, the re- then made as the sale was directly sult independent negotiations also, Conditioning, Harri Air Inc. v. See or buyer, between the owner and 635, son-Wilson-Pearson, 151 Tex. through other brok- medium of some wherein Justice Tex.Jur.Supp., p. er.’ 82.” See foregoing language Sharp quoted in there opinion. The rule body of the Taylor, ascertain- Jackson validity. Ma continuing has announced facts, re- ing true did all could berry (Tex. Julian, 479 S.W.2d Day obligations purchase lieve of his Dallas, 1972, n.r.e.). Civ.App., error ref. property. marked Williams’ Mrs. void; Taylor Day gave Mrs. Day, Conceding fact that William M. back his an- trying check while to sell him produced only “purchaser” other house. pur- or was able to consummate I now paraphrase language the textbook chase, willing to ready he nor was neither adopted it Sharp so as to make Only do the District of Travis so. Court Justice applicable to the at case bar: Texas, County, 167th District Judicial County exe- Sheriff Travis aided Taylor Mrs. “made an unsuccessful ef- a final cuting an order of sale based fort to buyer pur- induce the [Day] to “ready”, judgment, Day made Mr. into chase the his and had ceased unwilling purchaser. but still possibly accomplish efforts to that result [her] efforts, sheriff’s and not those of Jackson [by trying to sell house], another all Taylor, changed Day’s from that status without fault on the part of owner prospective purchaser of a owner into the [Mrs. Williams].” of Mrs. house. It cost Mrs. Wil- Williams’ Later, Mrs. proceeded liams than in Williams to act more five thousand dollars and “the sale then attorneys’ bring change fees to about this made the result of independent negotiations Day’s property. attitude toward her I the court- [in house in an adversary directly accept argument cannot proceeding] that Jackson between the owner Taylor precedent buyer.” and the satisfied the condition
fiAQ en- having shown himself plaintiff No part com- any all titled to recover Roy HUBBARD, Appellant, Lee mission, entered properly trial court join and I Williams Mrs. TEXAS EMPLOYERS INSURANCE affirmation thereof. ASSOCIATION, Appellee. No. 8190. STEPHENSON, (dissenting). Justice Texas, Appeals of of Civil Court Texarkana. Ed- allow respectfully dissent. I would
I percentage his gar to recover Oct. commission. Rehearing Denied Feb. 12, 1974. March the trial significant I think it is that only court found Marjorie from the instruction received the earnest to return
Williams appraisal. a written
without first also had testified she Williams Jackson, but
gave that instruction to find-
the trial court such a failed make *5 witnesses,
ing. All other than
Williams, instruc- testified that no such
tion given. was only legal denying basis for recov-
ery opinion in majority is that an compensation entitled no for conduct
which is if disobedient such conduct con-
stitutes a willful and deliberate breach of
the contract. finding There no in this case that guilty of dis-
obedience which was willful or deliberate. majority opinion makes such
contention, recovery by Edgar but denies 6573a, A because Article 3.1. reading clearly careful in- such article
dicates to me to make intended
a real responsible estate broker acts agents,
of his application which law has no
to the factual situation before us.
The trial apparently attempted
bind notice to “joint the theory venture.”
The relationship between real estate two
brokers in a multiple-listing situation com-
pletely qualify fails to in many aspects to be “joint venture.”