Baum v. McAfee

• Decision Date: 29 January 1910
• Parties: BAUM v. McAFEE et al.
• Court: Texas Court of Appeals

125 S.W. 984

BAUM v. McAFEE et al.

Court of Civil Appeals of Texas.

January 29, 1910.

Rehearing Denied March 5, 1910.

Appeal from Navarro County Court; C. L. Jester, Judge.

Action by W. M. McAfee and another against I. Baum. From a judgment for plaintiffs against defendant named, he appeals. Affirmed.

See, also, 117 S. W. 883.

R. S. Neblett and H. L. Stone, for appellant. Richard Mays, for appellees.

TALBOT, J.

Appellee W. M. McAfee instituted this suit against the appellant, I. Baum, and the appellee J. E. Whiteselle for compensation for services rendered in selling a tract of land for the said Baum and Whiteselle, which was owned by them jointly, consisting of 3,806 acres. The land was sold for $19,030, and McAfee claimed a commission of 5 per cent. for selling, amounting to $951.50, for which he sued. He filed three petitions in the case, styled, respectively, "Plaintiff's original petition," "Plaintiff's amended petition," and "Plaintiff's first amended original petition." The case went to trial on the last-named petition, which alleges that plaintiff was a real estate agent, and that, acting under a contract made between him and the defendants, he sold for defendants the 3,806 acres of land for the sum stated; that under the terms of his contract with defendants he was entitled to a one-third interest in the profits of said sale, which aggregated $3,806, he having bought the land for them at $4 per acre and sold it for $5 per acre; that notwithstanding said contract defendants refused to carry it out, and declined to pay plaintiff said one-third of said profits; that it was finally agreed between plaintiff and defendant Baum, who acted in behalf of himself and of his codefendant, Whiteselle, that plaintiff was to have said sum of $951.50 which was to be immediately paid, but that defendants have failed and refused to pay the same. The petition concluded with a prayer for the said sum of $951.50, with interest thereon from January 1, 1907, at the rate of 6 per cent. per annum, for costs of suit, and general and special relief. For answer defendants jointly pleaded: First, that plaintiff agreed to handle the double transaction — buying and selling — for 10 cents an acre, and that they had paid him in full; second, if their construction of the contract between them and plaintiff as to his compensation was erroneous, and if he was entitled to 10 cents an acre for buying and 10 cents an acre for selling, then they tendered same into court as they had tendered it to plaintiff before the bringing of the suit in order to avoid any controversy, as they recognized the fact that plaintiff's expression that "he would handle the transaction for 10 cents an acre" could be construed and understood to mean 10 cents an acre for buying and 10 cents an acre for selling, and this additional 10 cents, which they had tendered him before the suit was brought and then tendered into court, was the utmost that could possibly be due under the contract. Defendants denied absolutely the existence at any time of a contract by which they were to pay plaintiff one-third of the profits on the sale of the land. They likewise denied any subsequent agreement, in lieu of such a contract, to pay plaintiff 5 per cent. commission. The trial resulted in a verdict and judgment in favor of plaintiff against defendant Baum for the full amount sued for, and in defendant Whiteselle's favor that the plaintiff recover nothing as to him. Baum filed a motion for new trial, which being overruled, he excepted and perfected an appeal to this court.

Prior to the submission of the case on its merits, appellant filed an application addressed to this court, praying in the alternative, for the issuance of a writ of mandamus requiring the clerk of the county court of Navarro county to prepare and deliver to appellant a transcript omitting therefrom certain papers which he averred were not necessary to a proper revision of the questions arising on the appeal, or that said papers be stricken from the transcript and appellee charged with the costs of including them therein. The mandamus, for reasons stated in a written opinion (see 117 S. W. 883) delivered by Mr. Chief Justice Rainey, which need not be repeated here, was refused, and a decision of the question of striking out the papers at appellee's cost was reserved until a determination of the case on its merits. The papers sought to be stricken from the record are appellee's original petition, his amended petition, the original answer of appellant Baum and Whiteselle, appellee's bills of exception 10 and 11, the affidavits of jurors and Richard Mays, in support of the said bills, and the appellee's cross-assignments of error. We are of opinion the pleadings and bills of exception referred to cannot be considered in reviewing the rulings of the lower court, and that appellee should be taxed with costs of including them in the transcript. By amendments filed said pleadings were abandoned and form no part of the pleadings necessary or proper to be incorporated in the transcript. Of course, if either or all of said documents had been offered and admitted in evidence as tending to establish some issue of fact, it would have been proper to include them in the statement of facts, but it does not appear that either of them was so offered and admitted. On the contrary, they are found in the record simply as pleadings which had been abandoned, as stated, and their presence in the transcript can serve no purpose whatever in the disposition of the appeal. In reference to the bills of exception and affidavits mentioned, it appears that they relate to a proceeding or matter which occurred in the trial excepted to by appellant and covered by his bills of exception Nos. 10 and 11, which were by the court approved and made a part of the record. The bills of appellee, proved up by affidavits, seem to have been prepared and the affidavits secured in support thereof on the theory that the statutes of this state relating to the taking and preparation of bills of exception are broad enough to authorize such course. Article 1360, Rev. St., provides that "Whenever in the progress of a cause either party is dissatisfied with any ruling, opinion or other action of the court, he may except thereto at the time the same is made or announced, and at his request time shall be given to embody such exception in a written bill." It then becomes the duty of the party taking the bill to present it to the judge for his allowance and signature, who shall in turn submit it to the adverse party or his counsel if in attendance upon the court, and if found correct, it shall be signed by the judge and filed with the clerk. Article 1366. Should the judge upon presentation of the bill find the same incorrect, he shall suggest to the party or his counsel, who drew it, such corrections as he may deem necessary therein, and if they are agreed to, he shall make such corrections and sign and file it (article 1367); but if the party does not agree to such corrections, the judge shall return the bill with his refusal indorsed thereon, and shall make out and sign and file with the clerk such a bill of exceptions as will in his opinion present the ruling of the court as it actually occurred (article 1368). Article 1369 provides: "Should the party be dissatisfied with the bill of exceptions filed by the judge, as provided in the preceding article (1367) he may, upon procuring the signature of three respectable bystanders, citizens of this state, attesting the correctness of the bill of exception as presented by him, have the same filed as part of the record of the cause," etc. It will be observed that the last-quoted article of the statute only makes provision for the proving up of a bill of exception at the instance of the party excepting to the ruling of the court by bystanders. It does not, either expressly or by implication, authorize, in our opinion, the party not complaining at the court's ruling excepted to by the other party to the suit, to prove up a bill of exception reflecting his version of what occurred, and the court's ruling thereon. Article 1369 provides that where the party excepting to the court's action is dissatisfied with the bill filed by the judge, and he avails himself of the benefits of that statute, the truth of the matter as set out by him in his bill and in the supporting affidavits, may be controverted by similar affidavits secured by the adverse party, but it does not authorize such party, as it does the party complaining of the ruling, to impeach the bill prepared or approved by the judge and ordered filed, or to impose upon the appellate court by the procedure therein provided, the duty of determining which bill is correct. Nor does the fact that the judge failed or refused to submit the bill prepared by the party taking it to the adverse party, authorize such...