Osborne & Beck v. Sanders

184 S.W. 1101, 1916 Tex. App. LEXIS 408

• Court: Court of Appeals of Texas
• Decided: March 9, 1916
• Docket: No. 1594.
• Status: Published

Opinion

WILLSON, C. J.

This was a suit by appellants, real estate brokers, for damages which they clabned they suffered because of a breach of an undertaking, they alleged, of appellee to give them for a time specified an exclusive right to sell a tract of land belonging to him, and which be himself sold before the expiration of that time. Tbe court found as a fact that appellee bad not so contracted. Tbe finding is attacked as not warranted by tbe evidence, and all of the assignments of error are predicated on tbe correctness of that contention. It is true tbe witness Watts testified to facts which might have supported a finding to tbe contrary of tbe one complained of, but tbe finding, clearly was warranted by tbe testimony of appellee. It may be that tbe finding is not consistent with another one made by the court, tbe eleventh; but tbe correctness of tbe judgment is not questioned on that ground. And if it was, and if it should be held that tbe effect of the two findings was to leave the question as to whether there was such a contract or not undetermined, tbe judgment should be sustained on other findings made by tbe court, to wit: (1) That tbe terms upon which appellee was willing to sell tbe land bad never been stated 'by appellee and communicated to Watts, to whom appellants expected to sell the land; and (2) that it could not be said from tbe evidence that Watts would have been willing, ready, and able to comply with tbe terms appellee might have imposed. These findings of fact, though among those denominated by tbe court “conclusions of law,” cannot be ignored. Trust Co. v. McCarthy, 34 S. W. 306; Robertson v. Kirby, 25 Tex. Civ. App. 472, 61 S. W. 967.

Tbe judgment is affirmed.