Elser v. Putnam Land & Development Co.

• Decision Date: 07 November 1914
• Docket Number: (No. 8032.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 171 S.W. 1052
• Parties: ELSER v. PUTNAM LAND & DEVELOPMENT CO.
• Court: Texas Court of Appeals

171 S.W. 1052

ELSER v. PUTNAM LAND & DEVELOPMENT CO.

(No. 8032.)^†

Court of Civil Appeals of Texas. Ft. Worth.

November 7, 1914.

Error from District Court, Callahan County; Thomas L. Blanton, Judge.

Action by Max Elser against the Putnam Land & Development Company. Judgment for defendant, and plaintiff brings error. Affirmed.

J. J. Butts, of Cisco, and J. Rupert Jackson, of Baird, for plaintiff in error. F. S. Bell, of Baird, for defendant in error.

CONNER, C. J.

Max Elser prosecutes this writ of error complaining of a judgment against him in a suit that he instituted against defendant in error to recover real estate commissions alleged to be due upon the written contract declared upon. By the terms of the contract the development company employed Elser as its exclusive agent to sell certain lots of land in the town of Putnam, agreeing to pay him 20 per cent. of the proceeds realized upon all sales by whomsoever made during the life of the contract. The contract contained a stipulation that:

If Elser should fail "to diligently, industriously and continuously push and prosecute the sale of said lot as herein provided, then this contract shall be void at the option of said company."

The clause of the contract above quoted was made the ground of one of the special defenses, which was submitted as an issue to the jury, both in the general charge and by a special instruction, to neither of which has error been assigned.

Substantially but one question is presented for our determination, and that is whether the evidence supports the verdict and judgment against the plaintiff in error. The contentions are that the "uncontroverted evidence shows that from January 10, 1910 (the date of the contract), to June 30, 1910 (the date of the last sale), property covered by said contract of agency was sold to the value of $6,969," upon which the plaintiff was entitled to commissions as specified in the contract; and further that:

"The uncontradicted evidence shows that if plaintiff did abandon the contract of agency, or cease to make any effort to perform his duties under it, he did so after the last sale of property on which he claims a commission."

The act approved March 29, 1913 (Gen. Laws 1913, p. 114), which we have several times had occasion to consider, provides, among other things, that:

"The ruling of the court in giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing articles."

In the case before us, the issues raised by the pleadings and evidence were generally submitted to the jury by the court's charge, including the special defense that the plaintiff had failed to comply with his contract "by diligently, industriously, and continuously pushing and pursuing a sale of the lots" involved in the controversy. No objections to the court's general charge, nor to the special charge submitting the defense noted, were made in accordance with the terms of the act of the Legislature referred to. So that, if we are to give the effect that the law says shall be...