138 S.W. 1186 | Tex. App. | 1911
Appellants brought this suit against appellee alleging that they, as partners, were engaged in the real estate business, and that appellee contracted with them to sell for him 180 acres of land at the price of $100 per acre, and that he agreed to pay them 5 per cent. commission on the price obtained, or that if he did not expressly agree to pay such five per cent. commission, then that he did agree to pay the usual and customary commission, which was five per cent. They further allege that they did find a purchaser, to wit, J. D. Stark, who agreed to take said land at the price agreed upon, and that appellee refused to make the deed, as he had agreed to do, to said purchaser. They claim 5 per cent. commissions, or $900, for which they asked judgment. Defendant answered by general demurrer, special exceptions, general denial, and special answers, wherein he alleges that if any conversation he ever had with appellants could be construed as a contract authorizing them to sell his land, that thereafter and before any sale had been made, he had revoked the same. The case was tried on May 7, 1910, and resulted in a judgment for appellee, that plaintiffs take nothing by their suit, and that they pay all costs incurred in the case, for which execution should issue. Plaintiffs' motion for new trial having been overruled, they perfected an appeal.
It is assigned that the court erred in permitting the witness, W. A. Jenkins, to testify that in September or October, 1904, he had offered defendant, John M. Davis, $100 per acre for his land near Howe, and told him that he would pay $5,000 cash on the purchase price, and that Davis had told him that he did not know whether he wanted to sell, but that, if he decided to do so, he would let him know; and that he heard a man tell Davis one day, as he and Davis were going out of town, that he (Davis) had one of the best farms in Grayson county, and that he had on several occasions spoken to Davis about buying this farm, and on one occasion while in the city of Sherman.
The deposition of W. A. Jenkins was taken in the case. The defendant Davis offered to read to the jury the answer of said witness to the fourth direct interrogatory, as follows: "I was acquainted with the 180 acres of land owned by John M. Davis of near Howe in the fall of 1904. I do not know any certain time, but I spoke to Mr. Davis about buying this land in September and October, 1904; at several different times I spoke to him about it — at one time in Sherman. I saw him frequently every week, and spoke about buying the land in September and October. I told Mr. Davis that I would give him $100 an acre for the place, provided the payments I would make would be satisfactory. He stated that he did not know whether he wanted to sell it or not, but told me that if he desired to sell he would let me know. I offered Mr. Davis $100 an acre for his place, and told him that I would pay him $5,000 cash down on the purchase price."
Plaintiffs objected to the same because irrelevant, immaterial, hearsay, self-serving, and because in no manner connected with or growing out of the transaction out of which this suit arose; and because the same was a conversation and transaction between other parties. These objections were overruled, and the evidence admitted. The court erred in overruling these exceptions and in admitting the testimony. Ross v. Moskowitz, 95 S.W. 90; Ross v. Moskowitz,
Appellee contends that the fact that witness Jenkins had offered to buy appellee's land at $100 per acre and pay $5,000 cash was evidence that appellee was telling the truth when he stated he did not agree to sell his land to J. D. Stark for the same price with only $2,000 down, out of which $2,000 $900 was to go to appellants as commission. There had been no attack made on the testimony of Davis.
The testimony of Jenkins was irrelevant and immaterial to any issue in the case; and in the absence of an attack upon the credibility of Davis it was not competent to admit evidence for the purpose of showing that his testimony in the case was truthful.
For the error in admitting the testimony of Jenkins, the judgment is reversed and the cause remanded.