Ellerd v. Murray

• Decision Date: 11 October 1922
• Docket Number: (No. 1911.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 247 S.W. 631
• Parties: ELLERD v. MURRAY.
• Court: Texas Court of Appeals

247 S.W. 631

ELLERD v. MURRAY.

(No. 1911.)^*

Court of Civil Appeals of Texas. Amarillo.

October 11, 1922.

Rehearing Denied January 3, 1923.

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Error from District Court, Hale County; R. C. Joiner, Judge.

Action by H. H. Murray against R. M. Ellerd. Judgment for plaintiff, and defendant brings error. Affirmed.

Miller & Miller, of Fort Worth, M. J. Baird, of Plainview, and M. W. Stanton, of El Paso, for plaintiff in error.

G. E. Lockhart, of Tahoka, for defendant in error.

HALL, J.

The defendant in error, a broker, filed this suit in the district court of Hale county, to recover commissions alleged to be due him from the plaintiff in error, Ellerd, alleging in substance that Ellerd listed with him for sale, or for exchange for royalty on oil land situated in Eastland county, certain lands owned or claimed to be owned by the plaintiff in error, situated in Hale, Floyd, and Swisher counties, together with certain city property in Plainview; that plaintiff in error promised and agreed to pay him 2½ per cent. commissions on the value of said lands so owned by plaintiff in error, which value was to be placed upon said lands by defendant in error, and agreed to by the prospective purchasers or parties with whom an exchange might be effected. He alleges further that he procured J. E. Gilbert, L. A. White, W. W. Speer, and W. P. Rankin, with whom plaintiff in error entered into contracts for the exchange of his said lands; that in each instance the plaintiff in error agreed with the several parties as to the value of the property conveyed and agreed to be conveyed and exchanged by him.

The plaintiff in error answered by general denial. There was a trial to a jury, which upon special issues found:

(1) That there was no agreement between Murray and Ellerd as to when defendant in error's commissions would be due.

(2) That under the terms of the agreement the amount of the commission should be based upon the exchange price of the several pieces of property.

There are other issues and findings which are immaterial to the contentions presented here. Based upon the findings of the jury, the court rendered judgment against plaintiff in error in the sum of $7,368.75.

The first proposition urged by plaintiff in error is:

"Since the testimony of the parties to the transaction was in direct conflict as to whether the commissions to be paid were to be based upon the actual value of the lands exchanged or their exchange price, and since the testimony of the defendant in error showed that he was to receive 2½ per cent. commissions from each of the parties to said contract, and since his testimony shows that he had made specific settlement with White, Gilbert, and Speer for the commission to be paid by them, it was error for the court to refuse to allow plaintiff in error to prove by defendant in error the nature of the settlement made with White, Gilbert, and Speer as a circumstance to enable the jury to determine whether the testimony of the plaintiff or of the defendant was true on the controverted issue as to the basis for calculation of commission."

It is insisted that this testimony was material because it is unlikely that the broker would make one arrangement for payment of his commissions with Gilbert and others and demand another and different basis from Ellerd. In the original opinion we disposed of this contention upon the ground that the bill of exceptions did not show what the answer of Murray would have been, applying the general rule with reference to bills of exception relating to the exclusion of testimony and which requires that such bills shall state the evidence excluded. The bill of exception was not set out, nor was its substance stated, in the appellant's brief, and it did not appear that the question was asked upon cross-examination. The motion for rehearing calls our attention to the fact that the questions were asked the witness upon cross-examination, and insists that this fact brings the assignment within the rule announced in Cunningham v. Austin, etc., Ry. Co., 88 Tex. 534, 31 S. W. 629, and other authorities cited. It is said in the Cunningham Case that counsel for the appellant Cunningham had the right to ask a car inspector whether he inspected the cars on certain dates, subsequent to the date of the accident; counsel stating that the object of the question was to prove by the witness that on said dates he had not inspected the wheels of appellee's trains at that place, and, if he stated that he had inspected them on any one or all of said dates, then to offer witnesses who would testify that witness did not inspect them on either of the dates. In answering a certified question, Judge Denman said:

"Independent of the questions and issues above discussed, we are further of the opinion that appellant had the right to propound and have answered the questions above stated, for the purpose of testing the memory of the witness. This is especially true when we consider, as above indicated, that the witness did not appear to have a positive recollection of the fact of inspecting the cars on the particular morning, but seemed to rely largely upon the fact that it was his duty and that he knew that he invariably performed such duty. It may be objected that the bill of exceptions did not show definitely what answer the witness would have made to the questions had he been permitted to answer. The general rule is that, in order to entitle a party to a revision of the ruling of the lower court in refusing to allow him to propound a question to a witness, he must show what answer he expected to elicit in order that the court may see that he has been deprived of legitimate evidence. This rule applies mainly to a case where a party is seeking to introduce original evidence, the nature of which he should be expected to know before he offers the same, and is not applicable to a case where the party is cross-examining the witness of his adversary, with whose knowledge of the case he is not supposed to be familiar. In this class of cases we think the better rule is that, if the question appears on its face to be calculated to elicit competent testimony, it is error to refuse the same, although counsel may not be able to state to the court the answer intended or expected to be elicited."

We doubt the applicability of this rule to this assignment. Murray testified that he was to receive 2½ per cent. commissions from Ellerd, based upon the exchange value placed by Ellerd upon his property. It is insisted in the brief and in the motion that Ellerd's testimony is to the contrary. Ellerd stated:

"There was an understanding between us that he should have 2½ per cent. commissions on any exchange deal that he made; that we should both get the other party to pay the other 2½ per cent., and on any cash deal that he arranged for me he should have 5 per cent. This per cent. to be figured — he voluntarily made this suggestion, and it was agreed to, and we worked along that basis — that he would make or figure his commissions on a cash basis, and all commission was left until the negotiations and deals under consideration were finished or to be finished, and at that time all the deals that were finished he was to have commissions on at that rate."

It is apparent that he does not state clearly that the 2½ per cent., in the event of an exchange, should be figured upon the cash value of Ellerd's land, and we doubt if the jury could have concluded from the above-quoted testimony that he so intended to testify; but, if we admit that his statement is sufficient, the question asked and excluded was not for the purpose of testing the memory of the witness, and we think it is clear that by it plaintiff in error sought to elicit evidence which was incompetent. Murray had testified that he had contracted with Ellerd for 2½ per cent. commissions upon the exchange value of Ellerd's land and that he had also contracted with Gilbert and others for the same amount. These two contracts are clearly separate and distinct. Admitting that Murray would have testified, in answer to the question which the court excluded, that he had agreed to settle with Gilbert and others for 2½ per cent. upon the cash value of their land, it would have been simply evidence of settlement upon a basis different from that provided in his contract with Gilbert. He certainly had the right to hold Gilbert and others to a settlement for the full 2½ per cent. upon the exchange value placed by them upon their property, or he could settle for a less sum, or even release them from any obligation to pay anything without affecting in any degree his rights against Ellerd. If Murray's allegations and evidence are true, Ellerd is liable without regard to the liability of Gilbert and others upon their contract for commissions. There was no agreement alleged or shown that Ellerd and Gilbert and his associates were jointly liable for 5 per cent. commissions. As shown by the record, all parties admitted that each of the contracting parties was responsible separately for only 2½ per cent., and in no event could Ellerd or Gilbert and others be held liable for full 5 per cent. commissions. After Murray had earned his commissions by bringing the contracting parties together, upon the terms of his employment he certainly had the right to make a settlement with either for less than the amount originally agreed to be paid, and such settlement could in no way affect his rights against the other party. This being true, any settlement made by him with either of the parties was an immaterial matter in a suit against the other. Evidence from Murray to the effect that he had settled with Gilbert and others for 2½ per cent. upon the cash value of their property would not have contradicted his evidence to the effect that they contracted to pay him 2½ per cent. upon its exchange value. For a stronger reason it would not have tended to disprove his statement that...