McConnell v. Payne & Winfrey
229 S.W. 355
Tex. App.
1921
Check Treatment
BOYCE, J.

The appellees, Payne & Winfrey, brought this suit to recover commissions alleged to have been earned on a contract of enlistment of land for sale. They allege that they were employed by the defendant to procure a purchaser for the property for the sum of $6,009, $2,000 cash and balance in one, two, three, and four years, for which service the defendant agreed to pay them a commission of 5 per cent. They also allege that they had produced a purchaser who was willing and able to purchase on said terms, but the defendant refused to sell to him. The jury found that the defendant listed the land with the plaintiffs for sale at a price of $6,000, $3,000 cash and balance in one, two, and three years, and that the plaintiffs procured a purchaser ready and able to buy on such terms. On this finding judgment was entered for the plaintiffs.

[1-4] The only question on this appeal is whether there is a fatal variance between the terms of the contract as alleged in the petition and that found by the jury to have been made, and which was the basis of the judgment. “It is elementary that one suing upon a contract must recover upon the contract alleged, or not at all. If he proves a contract essentially different from that alleged, he must fail.” Morris v. Kasling, 79 Tex. 141, 15 S. W. 226, 11 L. R. A. 39; Western Union Telegraph Co. v. Smith, 88 Tex. 9, 28 S. W. 931, 30 S. W. 550; Mason v. Kleberg, 4 Tex. 85; Brown v. Martin, 19 Tex. 346; Western Union Telegraph Co. v. Byrd, 34 Tex. Civ. App. 594, 79 S. W. 40. The terms upon which the property was to be sold was a material part of the contract. The contract proven was therefore materially different from the one pleaded. The case comes within the rule stated in the authorities cited. Mason v. Kleberg, supra; 13 C. J. 752, § 914. If the variance had amounted merely to a misdescription, a different rule would apply; the variance would then only be fatal “if the misdescription will tend to mislead and surprise the adverse party.” McClelland v. Smith, 3 Tex. 210; Wiebusch v. Taylor, 64 Tex. 56. And in such case a failure to object to the introduction of the evidence would preclude objection on such ground to the charge of the court or the judgment. International Harvester Co. v. Campbell, 43 Tex. Civ. App. 421, 96 S. W. 99; Western Union Telegraph Co. v. Trice, 48 S. W. 770.

[5] The assignment raising this question was not properly incorporated in the record, but it presents fundamental error, and is therefore considered. Stuart v. Calahan, 142 S. W. 62, § 1; Holloway Seed Co. v. City National Bank, 92 Tex. 187, 47 S. W. 95, 516; and authorities first above cited.

Reversed and remanded.

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