Hall v. Williams & Ellis

• Decision Date: 18 December 1924
• Docket Number: (No. 127.)
• Citation: 267 S.W. 520
• Parties: HALL v. WILLIAMS & ELLIS.
• Court: Texas Court of Appeals

267 S.W. 520

HALL v. WILLIAMS & ELLIS.

(No. 127.)

Court of Civil Appeals of Texas. Waco.

December 18, 1924.

Error from Dallas County Court; Frank G. Harmon, Judge.

Action by Williams & Ellis against Frank J. Hall. Judgment for plaintiffs, and defendant brings error. Affirmed.

R. H. Capers, of Dallas, for plaintiff in error.

Dabney, Goggans & Ritchie, of Dallas, for defendants in error.

GALLAGHER, C. J.

Defendants in error, Williams & Ellis, sued plaintiff in error, Frank J. Hall, to recover the sum of $350 which they claimed to be due them as commissions for services as brokers in effecting a sale of a certain piece of real estate. The parties will be designated as in the trial court. The case was submitted to a jury on special issues, in response to which, among other things, the jury found that plaintiffs were the procuring cause of the sale of the property, that defendant listed the same with them for sale, and that the reasonable and customary compensation for the services rendered by plaintiffs was $175. The court rendered judgment on the findings of the jury in favor of plaintiffs and against the defendant for said sum. The case is here for review on writ of error.

Defendant's first assignment of error complains that the court overruled his special exception to certain allegations in plaintiffs' petition. We do not find in the record any order or judgment of the court disposing of said exception in any way. Defendant attempts to show such action by bill of exception. Rulings of the trial court on demurrers are part of the record and must be entered on the minutes and copied in the transcript. They cannot be perpetuated and presented for review on appeal by bill of exception. Rule 53 for district courts; St. Louis & S. F. R. Co. v. Cartwright (Tex. Civ. App.) 151 S. W. 630, 631, 632 (writ refused); Daniel v. Daniel (Tex. Civ. App.) 128 S. W. 469, 471 (writ refused); Bishop v. Mount (Tex. Civ. App.) 152 S. W. 442, 443; Ilseng v. Carter (Tex. Civ. App.) 158 S. W. 1163, 1164.

The case was tried before a jury. Our statute provides that when a motion for a new trial is filed, as in this case, the assignments therein shall constitute the assignments of error on appeal. R. S. art. 1612. This assignment is not contained in the motion for new trial filed in the trial court. Neither is it based on anything therein contained. In jury cases assignments not predicated on the motion for new trial cannot be considered on appeal unless they present fundamental error. Western Union Telegraph Co. v. Hartfield (Tex. Civ. App.) 138 S. W. 418 (writ refused); Wellborn v. Wellborn (Tex. Civ. App.) 185 S. W. 1041 (writ refused); Western Union Telegraph Co. v. Golden (Tex. Civ. App.) 201 S. W. 1080, 1082. The assignment as presented does not involve fundamental error. Western Union Telegraph Co. v. Golden, supra, 1082. The record shows that the case was tried upon plaintiffs' first amended original petition. There is no contention that the petition upon which the case was tried was subject to the exception under consideration. Were we permitted under the rules prescribed by the Supreme Court governing our consideration of cases to consider the assignment, we would be compelled to hold it without merit.

Defendant complains of the action of the court in overruling his plea in abatement. The effect of such plea was merely to deny liability for reasons stated therein, No order overruling such plea appears in the record, and the matter is presented for review by bill of exception only. Under the authorities above cited, this assignment cannot be considered. Were we permitted under the rules to consider the same, we would be compelled to overrule it because it appears that said plea was presented to the court for action more than a year after it was filed, and because the issue presented thereby was one which should be raised by plea in bar and not in abatement. Tinnin v. Weatherford, Dallam, Dig. 590, 591.

Defendant complains of the action of the court in refusing to permit him to testify that the plaintiffs' original petition did not set out in detail the terms of the counter proposition which plaintiffs alleged was made by the purchaser and accepted by defendant, and also of the action of the court in excluding said petition when offered in evidence for the same purpose. It appears from the statement of facts that the deed conveying the property to the purchaser had not been filed for record when the original petition in this case was filed. Plaintiffs' employee Merriwether, who negotiated the sale, testified on the trial that defendant gave him certain terms of sale at the time he listed the property; that he offered the property to the purchaser on said terms, and that the purchaser refused to buy on such terms, but made a counter proposition offering to purchase the property on certain specific terms prescribed by him; that he submitted said counter proposition to defendant, and defendant accepted the same. The terms of the counter proposition so testified to by said witness were the same as the terms recited in the deed. Merriwether was not a member of plaintiffs' firm nor a party to the suit. He was not shown to have had anything to do with the institution of the suit nor to have been consulted with reference to the contents of the original petition filed in the case.

Abandoned pleadings, when they contain statements of fact pertinent to the issue being tried, are competent evidence as admissions of the party filing such pleading, but are, of course, subject to explanation. H. E. & W. T. Ry. Co. v. De Walt, 96 Tex. 121, 134-135, 70 S. W. 531, 97 Am. St. Rep....