Archer v. Schneider, Bernet & Hickman, Inc.

700 S.W.2d 699, 1985 Tex. App. LEXIS 12847

• Court: Court of Appeals of Texas
• Decided: November 13, 1985
• Docket: No. 05-84-01175-CV
• Status: Published

Opinions

STEPHENS, Justice.

Larry Archer, appellant, seeks relief from an adverse judgment in favor of Schneider, Bernet & Hickman, Inc. (“the broker”;. In four points of error, appellant contends that the trial court committed reversible error by ignoring the jury’s answer to special issue no. 2. We disagree with each point and, accordingly, affirm the judgment of the trial court.

The dispute between the parties arose from a telephone order placed by Archer with the broker. Archer contends that he placed a “limit order” at $1.00 each for 2,000 Texas Instruments put options. The broker contends that Archer ordered the options bought at the market price. In accordance with the broker’s understanding of the order placed, the stock was purchased at $17.00 per share. This controversy immediately arose, prompting the broker to sell the stock at the market price for $14.00 per share, creating a loss of $6,000 which, along with the undisputed commission of $548.47, was charged to Archer’s account. After Archer refused to pay the account, suit was brought.

Two special issues were submitted to the jury:

SPECIAL ISSUE NO. 1:

Do you find from a preponderance of the evidence that Larry Archer requested that Schneider, Bernet & Hickman purchase, for Archer’s account, 20 Texas Instruments puts at market price on June 13, 1983?

Answer “yes” or “no.”

ANSWER: yes

SPECIAL ISSUE NO. 2:

What amount of money, if any, do you find would reasonably and adequately compensate Schneider, Bernet & Hickman for Archer’s failure to pay for the 20 Texas Instruments puts purchased by Schneider, Bernet & Hickman for Archer’s account on June 13, 1983?

Answer in dollars and cents.

ANSWER: $2,182.81.

On motion of the broker to disregard the answer to special issue no. 2, the trial court rendered judgment in favor of the broker for the sum of $6,548.47.

In four points of error, Archer contends that the trial court erred by disregarding the jury’s answer to special issue no. 2 by contending first, that the issue is supported by the evidence; that the two issues fatally conflict with each other; that the court’s supplemental finding involved a different ground of recovery than that submitted to the jury; and finally, that no evidence supports the court’s supplemental finding as to the sum due.

All of these points of error may be addressed in a single response. The answer to special issue no. 1 was a finding by the jury that Archer had contracted with the broker to purchase the stock in question for his account at the “market price.” The answer to special issue no. 2 was a finding of the amount of money Archer owed the broker for such purchase. No conflict exists between the answer to the special issues because special issue no. 2 did not inquire whether Archer’s order imposed a limitation on the order, nor can it be construed as a finding that he did impose such limitation. It being undisputed that Archer had made no payment on the account, the only remaining fact to be determined was the market price of the stock, when purchased and when sold on the day in question, and the commission due the broker. The evidence on these matters was undisputed, and the sum due the broker was subject to a mathematical computation. Wright v. Vernon Compress Co., 156 Tex. 474, 296 S.W.2d 517, 523 (1956); Tennell v. Esteve Cotton Co., 546 S.W.2d 346, 357 (Tex.Civ.App.— Amarillo 1976, writ ref’d n.r.e.). It is readily apparent that the evidence upon which the jury based its answer to special issue no. 2 was not probative of “market value.” We need not speculate on what reasoning led the jury to conclude the market value was $2,182.81 when the undisputed evidence established a higher value. We need only hold, and we do hold, that the trial judge properly disregarded the answer to special issue no. 2 because of a lack of evidence to support it and that the trial court properly rendered judgment on the answer to special issue no. 1 for the market value established by the undisputed evidence.

The judgment of the trial court is affirmed.

HOWELL, J., dissents.