177 S.W.2d 995 | Tex. App. | 1943
Appellant, plaintiff in the trial court, and duly licensed real estate dealer, filed this suit against appellee for commission provided in a real estate contract between defendant and a third party. Additional thereto, Porizky sought damages following his arrest upon a sworn complaint made by Mrs. Olinger to the Dallas County District Attorney. Defendant answered, in substance, that plaintiff had procured execution of the contract by an oral promise to assign her all commissions coming to him from the realty transaction; that the Olinger land was subject to a lien and plaintiff had prevented the exchange of properties by refusing to assign aforesaid commissions, thereby defeating defendant's financial arrangements. In answer to the action for malicious prosecution, defendant plead reliance on the advice of an assistant district attorney after a full disclosure of facts to said official. From an adverse judgment, Porizky has appealed; and here we note that appellee has filed no reply brief.
Upon request of plaintiff, the trial court made and filed comprehensive findings of fact and conclusions of law; and in appellant's seven points of error, attack is made upon these findings, principally because same are either (1) insufficient in law as a basis for defendant's judgment; or (2) not supported by the statement of facts. We quote one of the findings so made: "* * * that plaintiff Porizky entered into an agreement with Mrs. Olinger prior to her execution of the exchange contract and on which she relied in entering into and executing said exchange contract, and but for which said agreement on the part of plaintiff Porizky she would not have entered into and executed said exchange contract, to advance to Mrs. Olinger at least $1500.00 of his commission of $1625.00, without collateral or security, the amount of which advance was to be used and applied by her as part of the cash consideration to be paid by her under the terms of said exchange agreement to the United Fidelity Life Insurance Company, but when the exchange was ready to be closed except for meeting the objections to the title, plaintiff Porizky refused to advance any of said $1625.00 commission from the United Fidelity Life Insurance Company without collateral or security; I also find from the evidence that such failure to make that loan as promised made it impossible for Mrs. Olinger to comply with her part of the exchange contract, * * *."
In considering the sufficiency of testimony as a whole to sustain trial court findings, the Appellate Court will disregard *997
all adverse evidence and consider only that favorable thereto, indulging every legitimate conclusion which tends to uphold the finding. Ward v. Bledsoe, Tex. Civ. App.
To above contentions, our conclusions, briefly, are, (1) that the parol evidence rule does not affect a purely collateral contract, independent of and not inconsistent with the written agreement; 17 T.J., Sec. 370, p. 825; 20 Am.Jur., Sec. 1140, p. 993; (2) defendant has changed her position to her disadvantage and injury in reliance upon plaintiff's aforesaid promise of commission. A loss or detriment to the promisee is sufficient consideration for a promise; 10 T.J., Sec. 71, p. 124; and see Texas Co. v. Dunn, Tex. Civ. App.
Aside from Sec. 20, and under above finding, Porizky knew that defendant would be unable to complete the exchange without specified financial assistance. Thus, upon his refusal, after execution of the contract, plaintiff was in no position to demand a commission; and similarly so where consummation of the deal has been prevented by his own conduct; Rogers v. McMillen,
Appellant's cause of malicious prosecution grew out of a $50 loan by Mrs. Olinger to plaintiff upon promise of collateral which was not furnished; followed by her sworn complaint and Porizky's arrest. The trial court found that defendant had made a complete disclosure to the District Attorney of all facts relevant to the alleged criminal offense; not inclusive, however, of the prior real estate transaction, according to the narrative statement of facts. Whether defendant made full and fair statement to the prosecuting attorney, acting in good faith with probable cause and no malice, were all questions for the trial court; and such findings have either been expressly made by that court or may be inferred from the record in support of the judgment rendered.
All points of error upon examination are overruled and the judgment below is affirmed.
Affirmed. *998