141 S.W.2d 1007 | Tex. App. | 1940
Plaintiff, J. R. Torrance, a real estate broker, brought this suit in the Justice Court against A. P. Jones and Ralph H. Schultz, joint defendants, for a commission for services rendered in bringing about a sale of real estate from Jones to Schultz and his wife. In the Justice Court judgment was rendered for defendant. The plaintiff appealed to the County Court of McLennan County, and the case was tried before a jury. In the County Court the plaintiff voluntarily dismissed his suit as to Schultz and proceeded against Jones only, and the jury returned a verdict favorable to plaintiff and judgment was entered on the verdict of the jury in favor of plaintiff, and defendant has appealed.
The parties will be designated as in the trial court:
Defendant, by various assignments and propositions, complains of the trial court’s failure to give his special issues Nos. 1 to 12, inclusive. The points raised by each of the assignments and propositions are substantially to the effect that they presented affirmatively defendant’s defense to the plaintiff’s cause of action, namely, (1) that plaintiff Torrance had attempted to represent, without their knowledge and consent, both the seller Jones and the purchaser Schultz; (2) that the plaintiff Torrance was acting as the agent of the purchaser Schultz, or solely as his agent; (3) that Jones refused to list the property in question with Torrance for sale; and (4) that Schultz was not induced by the efforts of Torrance to purchase the property. We overrule each of these assignments.
We have carefully considered the evidence and have concluded .that the issues requested under Nos. 1 and 2, above, were not raised by the evidence. We have also concluded that the issues requested under Nos. 3 and 4, supra, are necessarily embraced in the determination of the ultimate fact issues, namely, whether or not Jones employed Torrance to make the sale and agreed to pay a commission, and whether or not Torrance’s efforts were .in fact the procuring cause of the sale to Schultz. “A litigant is not entitled to have two issues submitted which are opposites one to the other.” Wright v. Traders & General Ins. Co, 132 Tex. 172, 123 S.W.2d 314, point at page 316; Wichita Valley R. Co. v. Williams, Tex.Civ.App., 6 S.W.2d 439. The evidence is uncontradicted that when Torrance began his negotiations with Jones that Jones advised Torrance that he was not interested in trading for Dallas property and that Torrance immediately requested the permission of Jones for the privilege of selling his property; that Jones immediately inquired of Torrance as to what his commission would be for the sale of the property, and that Torrance advised Jones that it would be the regular five per cent commission. Now the evidence is in dispute as to whether or not Jones employed Torrance to sell' the property
Defendant has assigned as error the court’s definition of the term “procuring cause.” The trial court instructed the jury that the term “procuring cause”, as used in the main charge, was as follows: “By the term ‘procuring cause of the sale,’ is meant such act or acts in connection with the sale, if any, which so far contributed to bringing about the sale that but for such acts in the matter the sale would not have been accomplished by what was actually done by the other parties to that end.”
The defendant’s objection to the above definition was that it incorrectly and improperly defined the term “procuring cause” and requested the court to define the term as follows: “By the term ‘procuring cause’ as used herein, is meant that cause which, in a natural and continued sequence, unbroken by any new, independent, intervening cause, produced the event, without which it would not have occurred.”
We overrule this assignment. The contention made by plaintiff in the case was that he found Schultz, the purchaser of the property, and that after Jones, the seller, agreed to employ him to sell the property and gave him a price of $2,750 and agreed to pay five per cent commis
Defendant complains bitterly of the trial court’s refusal to sustain general demurrer and special exceptions to the plaintiff’s pleading in the county court, on the ground that plaintiff plead and relied upon a new and different cause of action pleaded in the justice court. We overrule each of these assignments. It is true, the plaintiff sued Jones and Schultz jointly in the justice court and alleged that he had a contract with each of them and set up that Jones and Schultz entered into a conspiracy to defeat his commission. Plaintiff’s pleading in the justice court alleged a contract with Jones and that he was the procuring cause of the sale of the land in question from Jones to Schultz and alleged that his commission was the sum of $128. That is the same' cause of action that plaintiff alleged against Jones’ in the county court, and we do not think that defendant Jones is in a position to complain because plaintiff did not allege conspiracy in the county court and voluntarily dismissed the suit against Schultz. We have carefully considered the pleadings, and, under the rule announced by the Supreme Court in Phœnix Lumber Co. v. Houston Water Co., 94 Tex. 456, 61 S.W. 707, it is our opinion that the cause of action alleged by plaintiff against Jones in the justice court is substantially the cause of action alleged against him in the county court.
We have carefully considered each of the other assignments raised by defendant, and have concluded that each is without merit. It follows that the judgment of the trial court is in all things affirmed.