Hardin v. Majors

• Decision Date: 06 December 1922
• Docket Number: (No. 1972.)
• Citation: 246 S.W. 100
• Parties: HARDIN v. MAJORS et al.
• Court: Texas Court of Appeals

246 S.W. 100

HARDIN v. MAJORS et al.

(No. 1972.)

Court of Civil Appeals of Texas. Amarillo.

December 6, 1922.

Rehearing Denied January 3, 1923.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Actions by A. W. Majors against J. J. Hardin, and by H. E. Reed against J. J. Hardin. Cases consolidated. From judgment rendered, defendant appeals. Reversed and remanded.

Bonner, Bonner & Sanford, of Wichita Falls, for appellant.

Thompson, Knight, Baker & Harris and Irish & Henderson, all of Dallas, and Bullington Boone, Humphrey & Hoffman, of Wichita Falls, for appellees.

HALL, J.

On April 20, 1920, the appellee Majors, a real estate broker, filed his suit against appellant Hardin in the Thirtieth district court of Wichita county, to recover the sum of $32,500, which he alleges Hardin owed him for his services as broker in procuring the Eastland Oil & Refining Company as the purchaser of an oil lease owned by Hardin.

On May 5, 1920, H. E. Reed, another broker, filed his petition in the same court, to recover commissions in the same sum, alleging that he was the procuring cause of the sale to said purchasers. He alleges that his services were rendered upon request of Majors, who was authorized by Hardin to employ him for that purpose. On June 26, 1920, Hardin answered in the Majors case, admitting that the lease had been sold to the Eastland Oil & Refining Company by written contract of sale containing a stipulation that a large part of the purchase money, not to exceed $32,500, should be paid in oil, or the proceeds thereof, to be obtained from the lease to Seay, Cranfil & Co., a firm of real estate brokers, and to J. C. Crane, Jr., another broker acting with them; that the stipulation was made upon representations by said brokers that they, acting together, procured said purchaser. He further alleged that Seay, Cranfil & Co. and Crane were suing him to recover said commissions. He prayed that the suits instituted by Majors and Reed be consolidated and tried as one, and that he have citation for Seay, Cranfil & Co. and J. C. Crane. He further prayed that the Eastland Oil & Refining Company be made a party since as assignees of the lease they had assumed to pay the commissions due Seay, Cranfil & Co. and Crane out of the oil runs, and that all of said parties be required to litigate their rights in the consolidated case, and that he be protected from double recovery. The transcript contains nearly all of the original and amended pleadings of the parties, together with several supplemental pleadings, which contain matters not properly in such pleadings, but which should have been presented by separate motions. Some of these matters are not in due order of pleading. Because of these facts we have experienced great difficulty in obtaining a definite knowledge of the issues and suggest that upon another trial the court should order a repleader. Because of the uncertainty and prolixity we will not undertake to make a detailed statement of the numerous pleadings and will quote from them in the discussion of the several propositions as occasion requires.

The first proposition is predicated upon assignments attacking the action of the trial judge in denying the appellant's demand for a jury. Since the case has been briefed, the Supreme Court has granted a writ of error in the case of Blair v. Paggi (Tex. Civ. App.) 219 S. W. 287; Id. (Tex. Com. App.) 238 S. W. 639, construing the statutes relating to the payment of jury fees and the right of the parties to a jury trial in accordance with the appellant's contention. Appellee frankly admits that under the authority of this case the judgment must be reversed. We will therefore now discuss the first proposition.

The order of the court, consolidating the Majors case with the Reed case, is not in the transcript, but it is apparent from the entire record, and the briefs of counsel, that the order was made and no exception reserved to it. It further appears that after consolidation the court, over the objection of appellant, permitted Majors to take a nonsuit without prejudice to his right to file another suit against appellant for the recovery of the commission alleged to be due him. This action is made the basis of appellant's second and third propositions, by which it is insisted that since appellant has, in his pleadings and cross-action, asked affirmative relief against both Reed and Majors, the court erred in permitting the nonsuit. The right of a party at any time to dismiss his action subject to certain conditions is governed largely by Vernon's Sayles' Ann. Civ. St. art. 1955. It occurs to us that this point is only incidental to the real question presented, which is the right of one holding a fund to interplead and have tried in one action the claims of all parties to such fund. This right is liberally construed and under the practice in this state has generally been permitted. We think the court's order in consolidating the cases was correct and in permitting Majors to take a nonsuit had the effect of setting aside the order. By his amended answer, a portion of which is in the nature of a bill of interpleader, the appellant alleges that he was the owner of the lease sold on April 19, 1920; that Ton E. Cranfil, of the firm of Seay, Cranfil & Co., represented to him that his firm had a purchaser for the lease and that the said purchaser was financially responsible and was connected in a business way with certain well-known, wealthy parties at Dallas. He alleges that he relied upon Cranfil's statement that the Eastland Oil & Refining Company, the proposed purchaser, was solvent; that its president was an influential business man of Dallas, engaged in banking and in refining oil; that he agreed to sell his lease for $575,000 cash, which proposition was not accepted, but that Seay, Cranfil & Co. and Crane made a counter proposition whereby he should receive $50,000 cash, the purchaser to pay said brokers their commission out of the oil runs and the remainder of the purchase price to be evidenced by certain notes; that he would not have sold the lease for such a small cash payment to the Eastland Oil & Refining Company, but for the...