Anderson v. Walters

194 S.W. 1153, 1917 Tex. App. LEXIS 473

Opinion

LEVY, J.

(after stating the facts as aibove). In order to return a verdict for the defendant, the court’s charge required the jury to find that there was no express contract of employment between the plaintiff and the defendant, “and” that defendant did not “adopt the plaintiff’s act in finding a buyer for his property.” The appellant contends that the charge was error under the facts of the case. Appellee’s evidence goes to show an express contract to pay 5 per cent, commissions on the value of the property of the defendant. The appellant denies that he ever placed his property in appellee’s hands for sale or trade, or that he ever agreed to give him a commission for helping to sell or trade his property. And appellant’s evidence further goes to show that he did not know that appellee was undertaking to represent him in the exchange, but supposed and believed that appellee’s services were furnished to Abies to suable him to make the exchange of Ms property.

In view of the evidence, it is believed that the charge complained of was error in requiring the jury to also find, before they were authorized to return a verdict for the defendant, that the defendant did not “adopt plaintiff’s act in finding a buyer for his property.” The evidence does not warrant a charge upon the question of adoption or ratification, and it is believed that this error should cause a reversal of the case because the verdict of the jury was, in effect, a finding ux>on an implied contract.

The judgment is reversed, and the cause remanded.