Britain v. Rice

204 S.W. 254, 1918 Tex. App. LEXIS 589

Opinions

WALTHADD, J.

In this case W. E. Rice sues J. M. Britain to recover the sum of $300, the amount alleged to be due as commission on the sale of land. The jury found in favor of Rice, the judgment was so entered, and Britain appeals.

The land was to be sold for $6,000, a part for cash and part on time, in which event Rice was to receive as commission the sum of $300. Rice found the purchaser, and the sale was eventually made. Britain pleaded general denial, and makes the further contention that after listing the land with Rice, and after the purchaser had been found, but before the sale had been closed, he communicated to Rice the offer made by the purchaser and told him that he could not afford to close the deal on the terms offered if he must pay to Rice the commission of $300, but that he would accept the offer if Rice would accept $50 in cash for his commission, that sum to be paid when the trade was closed.

Rice’s contention is that before the trade was closed, Britain offered him the sum of $50 if he (Rice) would get out of the trade; that he offered to accept $50 in cash and get out of the trade, which sum Britain refused to pay ;■ that he did not agree to accept said, sum as his commission when said deal was closed, but was conditioned solely upon his getting out of the trade before any kind of contract of sale was consummated; that he then informed Britain, and thereafter informed him before the sale was consummated, that in the event of a sale he (Britain) would owe him a commission of $300.

Appellant presents four assignments of error: Insufficiency of the evidence to support the verdict; error in requiring Britain to testify on cross-examination as to the terms and conditions of the sale of the land, claiming that such testimony was immaterial, irrelevant, and incompetent, and tended to impeach and discredit witness by proof of a collateral and immaterial issue; error in permitting a witness to testify that before the sale was perfected Britain asked the witness whether he would be liable for commission where he had listed the land for sale for cash and a purchaser had been procured who had offered the price in trade or notes, and if under such circumstances a commission would be due, whether he would have to pay such commission if he did not close the sale within the time allotted to procure a purchaser, claiming such evidence to be immaterial and prejudicial, as showing bad faith, an attempt to impeach appellant by proof on an immaterial fact and foreign to the case, and because appellant did not seek to avoid payment on the ground that a purchaser had not been found on terms, or within the time authorized; error in refusing a special charge to find for appellant for the sum of $50, and no more.

[1-3] The court was not in error in any of the matters pointed out in the assignments. The pleadings tender issues showing a dispute between appellant and appellee as to the terms of the contract and the amount to be paid and the good faith of appellant in executing the two deeds to the purchaser, and the evidence tends to throw light on the matters in controversy. The burden was on the appellee to show that he was entitled to a commission of $300, rather than the sum of $50, for getting out of the trade. The evidence was sufficient to support appellee’s contentions. The assignments are overruled.

The case is affirmed.

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