Hart v. Martin

• Decision Date: 09 November 1927
• Docket Number: (No. 2904.)
• Citation: 299 S.W. 520
• Parties: HART et ux. v. MARTIN et al.
• Court: Texas Court of Appeals

299 S.W. 520

HART et ux. v. MARTIN et al.

(No. 2904.)

Court of Civil Appeals of Texas. Amarillo.

November 9, 1927.

Appeal from District Court, Potter County; W. E. Gee, Judge.

Suit by J. B. Martin and others against Fred B. Hart and wife. Judgment for plaintiffs as against Mrs. Hart, and defendants appeal. Reversed and remanded, with instructions.

William Boyce and William Q. Boyce, both of Amarillo, for appellants.

W. S. Birge, of Amarillo, for appellees.

HALL, C. J.

Martin and others, as real estate brokers, brought this suit against Hart and wife to recover commission alleged to be due them from defendants, on a sale of certain real property described in the petition, and which plaintiffs allege was listed with them by the defendants.

Issue was made as to the enlistment and as to whether plaintiffs were the procuring cause of the sale.

There was a trial to a jury, and the court, having overruled defendants' request for a peremptory instruction, submitted the case to the jury on special issues. The jury found as follows: (1) That the defendants listed the property with the plaintiffs for sale; (2) that the plaintiffs were the procuring cause of the sale.

In addition to the findings of the jury, the court found that the property belonged to the separate estate of Mrs. Hart; that the sale was for the use and benefit of her separate estate, and that the usual commission for effecting a sale of real estate is 5 per cent., and rendered judgment that the plaintiffs take nothing against the defendant Fred B. Hart, and that they recover judgment for the commission against Mrs. Hart.

That part of the petition necessary to the consideration of the errors urged here may be briefly stated as follows:

The declaration is against "Fred B. Hart and his wife, Mrs. Fred B. Hart, as defendants," and alleges that on June 1, 1926, the defendants represented to the plaintiffs that they were the owners in fee simple, in their own right and stead, of certain property in Amarillo, Tex., and particularly described, and that the defendants were desirous of selling said premises, and on or about said date, and at divers times prior thereto, expressly listed said premises with the plaintiffs for sale; that it was agreed and understood by and between the plaintiffs and defendants that the plaintiffs should procure a purchaser for the defendants and bring about and cause a sale to be made for the defendants, of the above-described premises, and, in consideration of the services thereby to be rendered by the plaintiffs for defendants, the latter were to pay unto the former 5 per cent. commission on the amount of the selling price of said premises, said sum to be paid to plaintiffs by defendants, when the sale was closed.

The petition then proceeds to allege that the plaintiffs procured for the defendants a purchaser for said premises at a price acceptable to defendants, and that, as a consequence of the rendition of such service, the plaintiffs are entitled to recover against the defendants and each of them, jointly and severally, the commission alleged to be due under the facts stated. The petition also ends with a prayer for general relief.

The first proposition urged is that the petition, having alleged the ownership of the property to be in defendants Hart and wife, and a contract of enlistment having been made by them with plaintiffs, without any allegation that the contract was for benefit of the separate estate of the wife, sets up a cause of action against the community, and will not support a judgment against the wife or her separate estate.

This proposition must be sustained. The rule is settled in this state that, where a petition shows that one of the defendants is a married woman, it is necessary, in order to state a cause of action against her, that it also disclose that the debt was contracted for the benefit of her separate property or some other fact that would authorize a judgment against a married woman, under the provisions of the Texas Statutes. Gamel v. City Nat. Bank of Colorado, Texas (Tex. Com. App.) 258 S. W. 1043; Beshears v. Talbot (Tex. Civ. App.) 241 S. W. 635; Fisk v. Warren (Tex. Civ. App.) 248 S. W. 406; Borchers v. Fly, 114 Tex. 79, 262 S. W. 734; Schenck v. Foster Building & Realty Co. (Tex. Civ. App.) 215 S. W. 879; Haynes v. Stovall, 23 Tex. 626; Trimble v. Miller, 24 Tex. 215; Menard v. Sydnor, 29 Tex. 257; Milburn v. Walker, 11 Tex. 329; Covington v. Burleson, 28 Tex. 368; Rhodes v. Gibbs, 39 Tex. 432; Red River Nat. Bank v. Ferguson, 109 Tex. 295, 206 S. W. 923.

As against this contention, the appellees insist that, because the prayer of their petition is for judgment against Hart and wife, "jointly and severally," a judgment against the wife was authorized.

It is true that the prayer is against both defendants, jointly and severally, but it also ends with a prayer for general relief, and, under such circumstances, the cause of action is disclosed by the facts stated, although there may also be a prayer for specific relief, and the facts alleged do not warrant the special relief prayed for. Griner v. Trevino (Tex. Civ. App.) 207 S. W. 947.

A prayer cannot change the legal effect of the facts alleged in the charging part of the petition. Wilks v. Kreis, 63 Tex. Civ. App. 527, 134 S. W. 838.

The prayer must conform to the facts stated in the pleadings. If inconsistent therewith, it is of no avail. Milliken v. Smoot, 64 Tex. 171.

Relief cannot be granted upon a prayer beyond that which is authorized by the facts...