Bluestein v. Collins

• Decision Date: 12 June 1907
• Parties: BLUESTEIN v. COLLINS.
• Court: Texas Court of Appeals

103 S.W. 687

BLUESTEIN v. COLLINS.

Court of Civil Appeals of Texas.

June 12, 1907.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by H. Bluestein against T. J. Collins. From a judgment for plaintiff, defendant appeals. Affirmed.

Heidingsfelder & Heidingsfelder and Fisher, Sears & Campbell, for appellant. John G. Tod, for appellee.

FLY, J.

This is a suit instituted by appellee to recover $1,750 alleged to be due as commission to him as a real estate agent or broker, for procuring a purchaser for certain property, belonging to appellant, of the value of $35,000. Appellee alleged that he found a purchaser who was ready, willing, and able to make the purchase, but that appellant had refused to consummate the trade. Appellant answered by general demurrer and general denial. Trial by jury resulted in a verdict and judgment for appellee in the sum of $1,750.

While the testimony of appellant and appellee were in direct conflict as to his employment, the jury credited his testimony, which was amply sufficient to sustain the verdict. He swore that she employed him to sell the property at $35,000, that he procured a purchaser ready, willing, and able to pay the purchase price, and that she refused to consummate the trade or pay the commission. He also testified that she agreed to give him five per cent. commissions.

Our conclusions of fact dispose of the first assignment of error which attacks the sufficiency of the evidence to sustain the verdict. If the evidence was true, it was amply sufficient to sustain the verdict, and the jury found it to be true. The jury returned a verdict for "seventeen hundred and fifty (1,750.00) and interest, from August 2nd, 1905, at rate of 6 per cent. per annum," omitting the word "dollars" after the words "seventeen hundred and fifty," and the dollar mark before the figures. Those omissions are the subject of the second assignment of error; it being the contention that the verdict is too uncertain to form the basis of the judgment. The assignment is without merit. "The omission of the word `dollars' in the verdict was not such a defect as to prevent the rendering of judgment according to the manifest intent of the jury, although it might have been more regular to amend the verdict before judgment." Hopkins v. Orr, 124 U. S. 510, 8 Sup. Ct. 590, 31 L. Ed. 523; Fink v. Railway (Tex. Civ. App.) 23 S. W. 330.

Mrs. Culmore, a witness for appellant, testified that she was a real estate agent in Houston, and that during the months of July and August, 1905, she had appellant's land in her hands for sale, and was then asked: "At what price and terms did you have the property for sale?" On objection of appellee, the question was not permitted. What her answer to the question would have been does not appear from the bill of exceptions. Where objections are sustained to a question propounded to a witness, the bill of exceptions should show what the answer would have been, in order to form a basis for a review of the trial court's action in not allowing the question to be asked. King v. Gray, 17 Tex. 62; Beeman v. Jester, 62 Tex. 431; Reddin's Heirs v. Smith, 65 Tex. 28; Haney v. Clark, 65 Tex. 93; Tucker v. Smith, 68 Tex. 473, 3 S. W. 671; Railway v. Locker, 78 Tex. 279, 14 S. W. 611; Cheek v. Herndon, 82 Tex. 146, 17 S. W. 763; Bailey v. Chapman, 15 Tex. Civ. App. 240, 38 S. W. 544; Shippers' Com. Co. v. Davidson, 35 Tex. Civ. App. 558, 80 S. W. 1032.

The fourth and fifth assignments of error are not followed by any statement whatever, and under well-established rules will not be considered. Haley v. Davidson, 48 Tex. 615; Johnson v. Lyford, 9 Tex. Civ. App. 85, 29 S. W. 57; D'Arrigo v. Tex. Produce Co., 44 S. W. 531, 18 Tex. Civ. App. 41. When appellant was on the stand, she denied having placed her property in any one's hands...