Frost v. Grimmer
| Decision Date | 21 December 1911 |
| Citation | 142 S.W. 615 |
| Parties | FROST v. GRIMMER. |
| Court | Texas Court of Appeals |
Baker, Botts, Parker & Garwood, for plaintiff in error. Wm. W. Anderson and S. E. Boggess, for defendant in error.
This was a suit by Grimmer, plaintiff below, to recover for certain plans and specifications which he, as an architect, had prepared for Frost, defendant below. The plaintiff declared on a contract for 2½ per cent. of the cost of the building for making plans and specifications, and for 1½ per cent. for superintendence. It was the defendant's contention that he employed the plaintiff to make said plans and specifications and superintend the erection of said building, conditioned upon the sale by defendant of $31,500 worth of bonds of the Cane & Rice Belt Irrigation Company, and conditioned upon the erection of said building; in other words, the defendant contended that he was not to erect the building unless he could sell the bonds, and that the plaintiff accepted such conditional employment by which he was not to be paid for his services in either event. The plaintiff testified that he agreed to make the preliminary sketches free of charge, but that, if he finally made the plans and defendant accepted them, he was to be paid unconditionally; in other words, his testimony is substantially to the effect, we think, that, while in the earlier stages of the negotiations Frost told him about the bonds and that he would have to sell them or else could not build the house, yet that Frost assured him that he would let him (plaintiff) know when he (Frost) was prepared to build, and that, if the plans were then accepted, they were to be paid for unconditionally. A contract was entered into between the defendant and the contractor which was signed by the defendant, and which recited unconditionally that he had employed the plaintiff as architect. While it is true that the defendant's testimony and some parts of the plaintiff's testimony would indicate that the payment was conditional on the sale of the bonds and the erection of the house, yet the plaintiff testified that it was not a fact that it was understood that he was not to receive compensation, unless the bonds could be traded and the flat built. "That was the understanding up to about two weeks before Mr. Frost told me to go ahead and draw up the plans, but he had always assured me that, when he was ready to go ahead, he would let me know, and it was not understood that I was to receive no pay unless the bonds were traded and the house erected." The other witnesses for plaintiff also tend to show that the payment was not conditioned on the sale of the bonds and the erection of the house.
Whatever may be the real truth as between these parties, it is apparent that there was sufficient testimony on each side to raise an issue of fact, and, the jury having decided that issue in favor of the plaintiff, we are not authorized to disturb it.
The second assignment of error is to the refusal of the court to give a requested charge to the effect that the burden was upon the plaintiff to prove the material allegations by a preponderance of the testimony. The charge given by the court on this subject was as follows: "You are charged that the plaintiff must recover upon a preponderance of the testimony." The subsequent paragraphs of the charge submitting facts which would justify a recovery by the plaintiff each began, "If you believe from a preponderance of the evidence." In the case of Syfan v. Railway, 43 S. W. 553, the court charged that, before rendering a verdict for plaintiff, the jury must believe that his horse was frightened at the escape of steam. It was there held that where the question was simply of the credibility of the witnesses, and where the court submitted the facts which the jury must believe, it was not necessary to charge that the burden was on the plaintiff, and Judge Williams said in his opinion that the court is not always required to charge on the burden of proof. The propriety of so doing depends on the state of the evidence. The case cited is not quite so directly in point on the facts, but is the nearest we have been able to find, and is persuasive to the effect that it might not have been reversible error had no charge on burden of proof been given. We are of opinion, therefore, that it follows that where...
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Levy v. Jarrett
...of the issue, was necessary. T. & P. Ry. Co. v. Geiger, 79 Tex. 13, 15 S. W. 216; Blum v. Strong, 71 Tex. 324, 6 S. W. 167; Frost v. Grimmer, 142 S. W. 615; Stooksberry v. Swan, 85 Tex. 563, 22 S. W. 963; Syfan v. Ry., 43 S. W. 553. At any rate, we do not think it appears that the result wo......
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