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stated that the trade was not consummated be-, objection was made to the special charge in cause of such incumbrances, and one of the de- question. fendants testified that he paid C. $2,500 on ac [Ed. Note.--For other cases, see Appeal and count of their liability under the contract, it Error, Cent. Dig. $$ 3241-3243; Dec. Dig. Om sufficiently appeared that C. did not break the 835.] contract, especially where the petition alleged that C. was at all times ready, able, and will

Appeal from District Court, McLennan ing to carry out the contract, and the statute then in force required parties to swear to their County; Tom L. McCullough, Judge. pleadings, and provided that the failure of the On motion for rehearing. Motion overopposite party to deny under oath a fact thus ruled. pleaded should operate as an admission of the

For former opinion, see 178 S. W. 984. truth of such fact, and defendants did not deny the allegation in question.

Gross & Street and W. L. Eason, all of [Ed. Note.- For other cases, see Pleading, Waco, for appellants. J. A. Stanford, of Cent. Dig. $$ 270–275; Dec. Dig. Omi29.]

Waco, for appellee.
6. PLEADING 290 - EVIDENCE ADMISSIBLE
UNDER PLEADINGS.
Where defendants did not deny under oath

KEY, O. J. Appellants have presented an the truth of an allegation in the petition that elaborate motion for rehearing, which has plaintiffs were partners, as they were required been duly considered and the conclusion to do by the statute then in force in order to reached that it should be overruled. In that make it an issue, evidence that they were not partners was properly excluded.

motion, among other things, it is said : [Ed. Note.-For other cases, see Pleading,

“We earnestly insist that the court give to this Cent.Dig. 88 859-863, 88622 ; Dec. Dig. 290.] case that mature consideration which it deserves,

as we feel, as is shown by its opinion in this 7. TRIAL 329 – VERDICT - SUFFICIENCY -case, that you have not heretofore given much FAILURE TO DISPOSE OF ISSUES.

consideration to it." Where, in a broker's action for commissions for procuring a contract for the exchange of Assuming that the statement quoted was lands which defendants failed to perform, de- made in good faith, and conceding the right fendants pleaded as a defense plaintiffs' breach to so make it, we have concluded to write of a contract to procure a loan to enable them to this additional opinion, in order that it may clear up an incumbrance on the land, and this issue was submitted to the jury by a charge re- be seen that the case has received due considquiring a verdict for defendants if such issue eration at the hands of this court. If the was decided in their favor, a general verdict for charge that this court had not given sufficient plaintiffs for a specified sum, disposed of de- consideration to the case is based upon the fendants' cross-action for expenses claimed to have been incurred by reason of plaintiffs' alleg- fact that we did not, in our original opinion, ed breach of contract, and judgment was prop- discuss all the questions presented in appelerly rendered against defendants on such cross-lants' brief, then every appellate court in action.

[Ed. Note.-For other cases, see Trial, Cent. this state, and perhaps in all others, is subDig. &S 774–776, 782; Dec. Dig. Om329.]

ject to the same criticism, as that course is

pursued in a majority of cases decided by 8. PLEADING Cm 406–WAIVER OF ERRORS.

Where, in a broker's action for commis- all other appellate courts; and any other sions, though the allegation of the petition charg- course would be impracticable if the business ing defendants with fault was general, and did of such courts is to be disposed of with ed their contract, it was not excepted to for that any reasonable degree of dispatch. reason, it had its standing in court as a plea

On the last page of the brief upon which fixing responsibility upon defendants for their appellants submitted the case to this court it failure to consummate the deal.

is stated that, while some minor questions [Ed. Note. For other cases, see Pleading, are presented, yet the real questions involved Cent. Dig. $$ 1355-1359, 1361-1365, 1367–1374, in the appeal are only three, viz.: 1386; Dec. Dig. Ow406.]

First. “That appellees predicate their right to 9. TRIAL 251-INSTRUCTIONS-CONFORMITY recover on the theory that they procured the TO ISSUES-ACTIONS FOR COMMISSIONS. execution of the contract in suit, which contract

Where, in a broker's action for commissions is not capable of specific performance in a court for procuring a contract for the exchange of of equity, and therefore they did not earn a comlands which defendants failed to perform, the mission when they procured its execution. It supplemental petition alleged that the other par- was incumbent on them to show that Crowley ty to the contract was at all times ready, able, was ready, able, and willing to exchange propand willing to carry out the contract, and that erties with the Levys, and this they have failed if the contract was not carried out by defend- to do. They allege that Crowley was ready, ants, it was the fault of defendants themselves, able, and willing to carry out his contract, that an objection to a special charge

on the ground is to say, he had the right to demand the forthat the pleadings raised no issue as to whether feit.” Second. "Appellees knew of the incumit was defendants' fault that the contract was brances on appellants' property when the same not performed was not well founded.

was listed, and the trade in question was not [Ed. Note. For other cases, see Trial, Cent. consummated because of these incumbrances. Dig. $S 587-595; Dec. Dig. Om 251.]

It is well settled that a real estate broker can

not recover a commission from his customer 10. APPEAL AND ERROR Own 835—OBJECTIONS where a trade is not consummated by reason of TO INSTRUCTIONS—WAIVER.

defects known to the broker at the time he acObjections to a paragraph of the court's cepts the listing.” Third. "Appellees failed to main charge and to a special charge, contained show that Crowley had a good title to the Tarin a motion for a rehearing, were waived, where rant county land, and for that reason the conin appellants' brief no complaint was made of tract in question was not capable of specific ensuch paragraph of the charge and a different forcement in a court of equity, and therefore

Tex.)

LIVY V. DUNKEN REALTY CO.

681

the real estate broker is not entitled to his A. F. Crowley plaintiff and these defendants commission. A party must prove his case undertook to procure a loan, against said land before he can recover.”

in Wise county, as hereinbefore described, but [1] When the record is examined, even that in this their efforts were futile; that by

reason of their inability to procure such loan conceding that appellants' contention that the agreement between these defendants and A. the contract between them and Crowley was F. Crowley was not finally consummated. not capable of enforcement by suit for spe- Wherefore these defendants say that by reason cific performance is correct, still, the three bound to pay plaintiff any sum whatsoever.”

liable or questions enumerated in appellants' brief are not difficult of solution, and therefore do not

Appellees denied under oath that such con

The issues so made and require any very extended consideration. As tract was made. to the first of these questions, the answer to upon which the testimony was conflicting appellants' contention is that appellees not were submitted by the court to the jury and only alleged in their original petition that the verdict for appellees necessarily decided Crowley was ready, able, and willing to car- these issues against appellants. The result ry out his contract, but in their supplemental of the verdict is that the agreement pleadpetition they alleged

ed by appellants as a defense was never “that the said A. F. Crowley was at all times made; and, in the absence of such an agreeready, able, and willing to carry out said con- ment, if appellants listed their property with tract and to take defendants' property upon the appellees for sale or exchange (which appelterms agreed upon as evidenced by said written lees charged in their petition and appellants contract as set out in plaintiffs' amended petition, and if said contract was not carried out admitted in their answer) then, if they by the defendants, then it was the fault of the brought the parties together, although appeldefendants themselves, for which these plaintiffs lees may not have been authorized to bind are in no way responsible."

appellants to remove the incumbrances upon The allegation that Crowley was at all their property, yet if appellants themselves times ready, able, and willing to carry out entered into a contract with Crowley by the contract and take appellants' property which they bound themselves to do so, appelupon the terms agreed upon was more than lees had the right to recover their compensa an allegation that he was ready, able, and tion as brokers, although they knew the existwilling to take appellants' property or payence of the incumbrances when the property the penalty stipulated in the contract. It

was listed with them, and although the failwas a specific and distinct allegation of his ure of appellants to comply with their conability and willingness to exchange property tract with Crowley resulted from their failwith appellants upon the terms agreed upon ure to remove the incumbrances referred to. in the written contract.

Hamburger & Dreyling v. Thomas, 118 S. W. [2, 3] The answer to appellants' second con- 770. We quote as follows from the opinion in tention is that appellees brought Crowley and that case, including the authorities there appellants together, and they entered into

cited : a written contract, by the terms of which ap

“The rule seems to be well settled that where pellants obligated themselves to remove the a real estate broker has contracted for a cerincumbrances referred to; and, such being tain compensation for procuring a customer to the case, appellees were entitled to compen- purchase on certain terms and conditions, and sation for their services as brokers, unless under modified terms and conditions differing

he procures a purchaser who agrees to purchase they were in fault in procuring appellants from those the agent was authorized by his printo make the contract, or unless they made cipal to make, and such terms, as modified, are and breached the contract pleaded by appel- agreed to by the owner of the property by his lants in the eighth and ninth paragraphs of entering into a written contract of sale, embody

ing the modified terms and conditions, with the their amended answer, which read as fol- purchaser, the broker is entitled to his compenlows:

sation as stipulated in his contract of agency, "(8) These defendants further represent that if through the failure of his principal to comply it was expressly understood and agreed between with the terms and conditions he has undertaken plaintiff herein and these defendants that said on his part to perform and comply with the loan should be negotiated against said Wise coun- contract of sale is not consummated. Graves v. ty land, and that in case same was not negotiat- Bains, 78 Tex. 94, 14 S. W. 256; Conkling v. ed, and for that reason exchange of properties | Krakauer, 70 Tex. 739, 11 S. W. 117; Hahl should not be consummated by actual delivery y, Wickes, 44 Tex. Civ. App. 76, 97 S. W. 838; of deeds, then in that event defendants should McDonald v. Cabiness (Tex. Civ. App.) 98 s. not be liable to plaintiff for any commission W. 943; Id., 100 Tex. 615, 102 S. W. 721 : whatsoever, but in case said loan should be ne-West v. Thompson [48 Tex. Civ. App. 362), gotiated, and said exchange of properties be 106 S. W. 1134; Stewart v. Mather, 32 Wis. finally consummated by the passing of deeds, 344; Gilder v. Davis, 137 N. Y. 504, 33 N. E. then in that event it was understood and agreed 599, 20 L. R. A. 398; Lockwood v. Halsey, 41 that these defendants should pay plaintiff the Kan. 166, 21 Pac. 98; Gelatt v. Ridge, 117 Mo. sum of $1,000. These defendants further repre- 553, 23 S. W. 884, 38 Am. St. Rep. 683; Smith sent that they entered into the contract with A. v. Schiele, 93 Cal. 144, 28 Pac. 857." F. Crowley upon the faith which they had in

So it seems quite clear that, although apthe representations and guaranty of plaintiff herein that he would negotiate a loan against pellees, having knowledge of the existence of said land sufficient to clear the incumbrance the incumbrances, could not themselves have which was against these defendants' 'property made a contract binding appellants to sell in Waco, Tex.

“(9) These defendants further represent that or exchange their property otherwise than

pellants made a contract binding themselves, pellants did not deny under oath the truth to remove the incumbrances, appellees were of that allegation, as they were required to entitled to their compensation as brokers, do by statute in order to make it an issue, unless their right thereto was defeated by and therefore we overrule their contention the matters pleaded in appellants' answer. in that regard.

[4, 5] Appellants' third proposition is an [7] Error is also assigned upon the action swered by citing the fact that at the time of the court in rendering judgment against this case was tried the statute was in force appellants upon a cross-action which they which required parties to swear to their set up against appellees; the contention be. pleadings, and provided that the failure of ing that the cross-action was not disposed of the opposite party to deny under oath a fact by the verdict. The verdict was a general thus pleaded should operate as an admission finding for the plaintiffs for a specified sum of the truth of such fact. As shown by the of money, no reference being made therein quotation from appellees' supplemental peti- to appellants' cross-action; but the cross-action, they alleged that Crowley was at all tion was founded upon the facts pleaded in times ready, able, and willing to carry out defendants' answer as a defense. In other the contract by taking appellants' property, words, it was alleged that by reason of apand appellants did not, by any pleading, pellees' failure to comply with their agreesworn to or otherwise, deny the allegation ment to procure a loan for them, appellants so made in appellees' supplemental petition. were entitled to recover from appellees $25 Crowley could not have been able to carry which they had paid an attorney to examout his contract and convey to appellants a ine the title to the Crowley property, $100 good title to his property unless he had such paid to the same attorney for going to title, and therefore the averment that he was Ft. Worth and endeavoring to induce Crowable to convey such title was equivalent to ley to release appellants from their obligation saying that he had such title. Besides, it is to pay the $2,500 penalty, and another sum averred in appellants' answer that the trade of money which constituted the expense of in question was not consummated because of shipping cattle to Ft. Worth to discharge apthe incumbrances upon their property, and pellants' indebtedness to Crowley. Thus it that by reason of their failure to remove appears that appellants sought to predicate such incumbrances they became liable to appellees' liability upon the fact that they Crowley for $2,500, the damages stipulated had breached their contract to secure a loan in the contract between them; and it is also for appellants; and, as that issue was substated in appellants' brief that the trade was mitted to the jury and decided against apnot consummated because of the incumbranc- pellants under a charge requiring a verdict es referred to; and it is shown by the testi- for them if decided in their favor, it necesmony of appellant Ike Levy that he paid sarily follows that the verdict of the jury Crowley $2,500 on account of such liability does in fact dispose of the cross-action. under the contract. What has been said in [8] Before closing this opinion we deem it reference to this matter relates to appellants' proper to call attention to the fact that, contention, made elsewhere in their brief while in their first assignment of error apand also in the motion for rehearing, that pellants complain of the action of the trial appellees were not entitled to recover be- court in overruling a special exception to the cause they failed to prove that Crowley had plaintiffs' petition, the record does not show submitted to appellants an abstract, showing that the exception referred to was ruled upthat he had title to his property, within the on or called to the attention of that court. time required by the contract. Appellants' In so far as the record shows, appellants statement in their answer that on account either concluded to abandon that exception of their failure to remove the incumbrances or negligently failed to call it to the attenfrom their property they thereby breached tion of the court and have it ruled upon. their contract with Crowley and became lia- At any rate, the record does not sustain that ble to him for $2,500, and the testimony giv assignment. However, the exception in quesen by one of them that they paid Crowley tion should not have been sustained. It asthat sum because of such liability, and the serted that inasmuch as appellees' petition admission in appellants' brief that the trade showed upon its face that appellants had enin question was not consummated because oftered into a contract with Crowley which such incumbrances, is sufficient to satisfy would not support an action for specific perthis court that Crowley did not breach the formance, appellees were not entitled to recontract, and was ready, able, and willing cover compensation for the services rendered to carry it out by conveying to appellants by them in regard to the matter. Appellees the property he contracted to convey.

alleged that the failure to consummate the [6] This covers all the questions presented deal was caused by the fault of appellants; in appellants' brief except the minor ques- and, if such was the case, and the other nection, hereafter adverted to. It is contended essary facts were shown, then appellees were that error was committed in not permitting entitled to recover as brokers, even though appellants to prove that appellees were not the contract may not have been such as

Tex.)

PYE Y. CARDWELL

683

formance—a point upon which we express stead of producing any doubt upon the subno opinion. It is true that the plea charg- ject, has confirmed the belief that our foring appellants with fault was general, and mer decision was correct, and therefore the did not specify in what particular appel-motion for rehearing is overruled. lants had breached their contract, but it was Motion overruled. not excepted to for that reason, and therefore it had its standing in court as a plea fixing responsibility upon appellants for the

PYE et al. v. CARDWELL. (No. 6864.) failure to consummate the deal between (Court of Civil Appeals of Texas. Galveston. them and Crowley.

June 10, 1915.) [9, 10] Also attention is called to the fact APPEAL AND ERROR 833–MOTION FOR REthat nearly nine pages of appellants' motion

HEARING-FILING, for rehearing are devoted to complaints urg- tains much abusive and vituperative language

Where appellee's motion for rehearing coned against a certain paragraph of the court's referring to appellant, it will be dismissed, with charge and a special charge given at the re. leave to file another. quest of appellees, submitting to the jury [Ed. Note.-For other cases, see Appeal and the issues of fact involved in the case. In

Error, Cent. Dig. 88 3214, 3229-3210, 3244

3246; Dec. Dig. Om 833.] appellants’ brief no complaint was made of that paragraph of the court's charge, but

Appeal from Galveston County Court; Geo. the special charge referred to was assigned E. Mann, Judge. as error, the sole objection being, as shown

Action between B. F. Pye and others

There was a by the only proposition submitted under that against Margaret Cardwell. assignment, that the pleadings did not raise judgment for the latter, and the former apany issue as to whether or not it was appel- peal. On appellee's motion for rehearing. lants' fault that the properties were not ex- Motions stricken, with leave to file a second changed, and therefore that issue should not

motion. have been submitted to the jury. What we Lipscomb & Lipscomb and B. F. Pye, all of have already said refutes that contention. Beaumont, and Lewis Fisher, of Galveston, We have already quoted from appellees' sup- for appellants. Geo. G. Clough and Aubrey plemental petition the allegation that if the Fuller, both of Galveston, for appellee. deal between appellants and Crowley was not consummated, it was on account of ap- PLEASANTS, C. J. Upon reading the mopellants' fault, which pleading renders it tion for rehearing filed by appellee, we find apparent that that complaint in appellants' that, along with propositions and arguments brief against the action of the court in giv- of clearness and force which are entitled to ing appellees' special charge No. 2 was not a careful consideration, it contains much well founded. However, in appellants' mo- abusive and vituperative language referring tion for rehearing five other objections are to appellants. This abuse and vilification of urged against the action of the court in giv- appellants is several times repeated in the ing that charge, and the charge given by the motion, and we feel constrained to express court, upon which no error was assigned. our condemnation of such language in a paThose objections do not disclose fundamental per addressed to and filed in this court. error; and, if they indicate such error as Whether or not appellants have acted in might have required a reversal of the case a way to justify the reflections cast upon if presented in time, they must now be con- them by counsel for appellees is immateriai. sidered as waived on account of the failure We cannot permit the records of this court of appellants to present them in the time and to be made a channel through which attormanner required by law. However, it is neys or parties may cast abuse and vilificaproper to say that the controlling questions tion upon each other, and our files cannot be as to the merits of the case as summarized used to preserve documents containing vioon the last page of appellants' brief were lent and abusive language of the kind conpresented by other assignments complaining tained in this motion. It evidences a lack of the action of the court in refusing to in- of proper respect for this court for counsel struct a verdict for appellants, and in re- to present to it a motion of this character, fusing to give certain other requested in- and such action might properly be treated structions. At the original hearing those and punished as contempt. questions, as well as all others presented in We will not do more, however, than to orappellants' brief, received all the considera- der the motion stricken from the files and retion at the hands of this court that was turned to its author. Appellee will be grantdeemed necessary for their proper deci-ed ten days in which to file a proper motion, sion; and a reconsideration of them in the and when such motion is filed it will have light of appellants' motion for rehearing, in- our careful consideration.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ed Statutes 1911; National Cereal Co. v. FIRST NAT. BANK OF KNOX CITY et al. Earnest, 84 S. W. 1101; Oge v. Froboese, 63 V. LESTER et al. (No. 7124.)

S. W. 654; McCloskey v. McCoy, 89 S. W. (Court of Civil Appeals of Texas. Galveston. 450. Oct. 15, 1915. Rehearing Denied

[2] The records of the court show that on Oct. 28, 1915.) 1. APPEAL AND ERROR 424_WRIT OF ER-motion for affirmance of the judgment of the

June 1, 1915, the defendants in error filed a KOR--CITATION-STATUTE.

Under Rev. St. 1911, art. 2095, provid- court below, accompanied by a certificate for ing that if a party is a nonresident, or if it affirmance; but the motion, on June 17, 1915, appears from the return that he cannot be was refused for the reason that the service found in the county of his residence; the citation in error shall direct service on his attorney of citation in error was invalid and that of record, service upon a party's attorney of therefore this court had not acquired jurisrecord, instead of upon the party who resided diction. Afterwards, on June 9, 1915, the in the county where the case was tried, was invalid and did not confer jurisdiction upon the plaintiffs in error procured the issuance of Court of Civil Appeals to pass upon the ap- an alias citation in error, which was duly peal.

served, and thereafter, on the 22d day of [Ed. Note. For other cases, see Apneal and June, 1915, filed the record in this court. Error, Cent. Dig. $$ 2152–2154; Dec. Dig. Om 424.]

The attorney representing the plaintiffs in 2. APPEAL AND ERROR C 627—WRIT OF ER-error, in his affidavit in opposition to the ROK-CITATION-SERVICE.

motion to dismiss, says that he did not know Where judgment was rendered in the county of the defective service of citation until June court January 15, 1914, and an original cita- 17th, and that he then procured the issuance tion in error was attempted to be served January 8, 1915, by delivering a copy to the de- of the alias citation on June 19th, and had fendant in error's attorney, and where defendant the same promptly and properly served, and in error's

motion for affirmance of the judgment urges his want of knowledge of the defective below, made on June 17, 1915, was refused on the ground that service of the citation in er- service as an excuse for the delay in filing ror was invalid, and an alias citation in error the record. It seems to us that his want of was duly served, plaintiff in error's failure to knowledge accentuates the laches rather than file the record in the Court of Civil Appeals excuses it. within three months after the original service which he believed to be regular was such laches

The original citation was served on Januas to require a dismissal.

ary 8, 1915. If it had been properly served, [Ed. Note. For other cases, see Appeal and it would have been the duty of the plaintiff Error: Cent. Dig. $8 2744–2749, 3126; Dec. in error to file the record on appeal in this Dig. Om627.]

court not later than three months thereafter. Error from Harris County Court at Law; Plaintiffs in error's counsel believed the citaClark C. Wren, Judge.

tion had been properly served, but notwithAction between the First National Bank of standing this he made no effort to file, and Knox City and others, and J. E. Lester and did not file, the record in this court within others. Judgment for Lester and others, the time provided by law, but permitted the and the bank and others bring error. Dis- time to lapse; so that, had the citation been missed.

properly served, he would have lost his right

of appeal by the delay. On June 1st the moMcMEANS, J. Defendants in error have tion to affirm on certificate was filed by defiled a motion to dismiss the writ of error fendants in error in this court and a copy in this case on account of laches of the plain- thereof was promptly served on plaintiffs tiffs in error in filing the record in this court, in error's counsel, but counsel urged no oppoand we are of the opinion that the motion sition thereto; and it was not until this should be sustained.

court refused to affirm on certificate on June [1] The judgment from which the writ of 17th that counsel became aware of the deerror was prosecuted was rendered in the fective service and the consequent want of county court on the 15th day of January, jurisdiction in this court to pass upon the 1914. The petition and bond for writ of er- motion. ror were filed in the trial court by plaintiff's Had the counsel, believing that the servin error on January 7, 1915, and citation in ice had been properly made, filed the record error was issued on the same day; and on on appeal in this court within the time prethe next day it was attempted to be served scribed by law, and the appeal had then been on the defendants in error, who were resi- dismissed for want of jurisdiction on account dents of Harris county, by delivering a copy of the defective service, and had he then of the citation to one of their attorneys of promptly sued out and caused to be properly record. The defendants in error being resi- served an alias citation, and brought the recdents of the county in which the case was ord to this court within the prescribed time, tried, the service of citation upon their at- we think that a sufficient showing of dilitorneys of record, instead of upon the de- gence could have been made; but to allow fendants in error in person, was invalid, and the time to elapse within which the record did not confer jurisdiction upon this court could be filed in this court, believing, as he to pass upon the appeal. Article 2095, Revis- ) did, that the service was regular, and not

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