Hussmann v. Leavell & Sherman

• Decision Date: 19 September 1929
• Docket Number: (No. 2314.)
• Citation: 20 S.W.2d 829
• Parties: HUSSMANN v. LEAVELL & SHERMAN.
• Court: Texas Court of Appeals

20 S.W.2d 829

HUSSMANN v. LEAVELL & SHERMAN.

(No. 2314.)

Court of Civil Appeals of Texas. El Paso.

September 19, 1929.

Rehearing Denied October 17, 1929.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Action by Leavell & Sherman against Harry L. Hussmann. Judgment for plaintiffs, and defendant appeals. Affirmed.

Turney, Burges, Culwell & Pollard, of El Paso, for appellant.

Whitaker & Peticolas, of El Paso, for appellees.

PELPHREY, C. J.

Appellees in this suit are seeking to recover from appellant a commission of $5,000 alleged to be due them by virtue of their assistance in bringing about the sale of a certain tract of land located at the corner of San Antonio and Stanton streets in the city of El Paso, Tex.

Appellees allege that prior to May 1, 1927, they were the agents for the then owners of the property, and as such agents, carried on extensive correspondence with divers chain store organizations, including J. C. Penney Company and McCrory Stores Corporation, relative to executing a long-term lease on the property; that on or about May 1, 1927, the property was purchased by appellant; that in either the latter part of July or the early part of August, 1927, one Joe Kline of Los Angeles, Cal., came to El Paso for the purpose of conferring with appellant relative to a purchase of the property; and that the said Kline expressed himself as being willing to purchase the property only in the event that he would be able to lease it to some responsible tenant for an extended period.

The issue, between the parties, made by the pleadings and the evidence, we think, is presented quite clearly in the first issue submitted to the jury, and the same will here be quoted: "Question No. 1: Do you find from a preponderance of the evidence, as contended by plaintiffs, that Mason Pollard, thereunto authorized by Harry L. Hussmann, on or about July 31st, 1927, agreed with Ray E. Sherman, representing Leavell & Sherman, that in consideration of the use of their files and information and their assistance in inducing Joe Kline to purchase the property in question in this case, that if he should purchase it and lease it to one of the firms or corporations with whom Leavell & Sherman had been in correspondence, they should be paid a commission of $5,000.00; or was the agreement, as contended by defendant, that in the event the said Kline purchased the property and thereafter leased to McCrory Stores Corporation, that then, in that event only, should Leavell & Sherman be paid a commission of $5,000.00?"

Upon the jury's finding in accordance with the contention of appellees, the court rendered judgment in favor of Leavell & Sherman for the sum of $5,000, and Hussmann has appealed.

Opinion.

The first three propositions presented in appellant's brief deal with the question of the right of recovery by appellees on the theory of their activities being the procuring or inducing cause of the lease from Kline to the Penney Company.

As we understand the record, appellees are not basing their claims for compensation upon the ground of any activities on their part being such procuring cause; rather, do we think, their claim is based solely upon the agreement which they allege was made with appellant's agent as it appears in the issue above quoted. Therefore there could be no connection between their right to recover and their efforts or lack of efforts in procuring such lease.

Appellant's first assignment of error reads: "The court erred in permitting the plaintiff to show by the witness J. M. Pollard that the defendant had been indemnified against loss growing out of this transaction by one Joe Kline, as is made to appear from defendant's bill of exceptions No. 1, made part hereof."

The bill of exceptions reveals: That Mr. Pollard, on cross-examination, was asked this question: "Did Mr. Kline undertake, in consideration of the last option any responsibility in this suit, or any commissions claimed by Leavell & Sherman?" That the question was objected to by appellant for the reason that it involved an immaterial issue, that Mr. Kline was not a party to the suit, that it made no difference in so far as the issue on trial was concerned what, if any, agreement existed between appellant and Kline relative to the obligation of Kline to appellant as to the payment of commissions to Leavell & Sherman, and that said testimony was highly prejudicial to the interest of appellant. That before any answer was made this further question was asked: "Was there any agreement by Mr. Kline in consideration for any of these extensions that he would take care of Mr. Hussmann's liability to Leavell & Sherman, if any?" That the same objections were made by appellant to this question. That these objections were overruled by the court, and the witness answered, "Yes."

Appellant contends in his brief that the evidence was erroneously admitted because it was immaterial, throwing no light upon the question as to whether or not appellees were entitled to recover; that it had a tendency to indicate to the jury that, possibly, appellant felt that he might be liable to appellees, which was the very question at issue in the lawsuit; and that it was prejudicial.

In support of that contention, he cites: Water, Light & Ice Co. v. Barnett (Tex. Civ. App.) 212 S. W. 236; Lone Star Gas Co. v. Coates (Tex. Civ. App.) 241 S. W. 1111; Acola v. Magnolia Petroleum Co. (Tex. Civ. App.) 261 S. W. 384; Fakes & Co. v. Ft. Worth Gas Co. (Tex. Civ. App.) 280 S. W. 234; and Lange v. Lawrence (Tex. Civ. App.) 259 S. W. 261.

On the other hand, appellees assert the evidence to be proper and admissible as an admission by conduct, having occurred after the transaction, and as tending to show the weight to be given to Pollard's testimony that the offer was limited to the McCrory Stores Corporation.

They cite us: Texas & N. O. R. R. Co. v. Assurance Co. (Tex. Civ. App.) 137 S. W. 401; Austin Electric R. Co. v. Faust, 63 Tex. Civ. App. 91, 133 S. W. 449; Railway v. Thomas (Tex. Civ. App.) 167 S. W. 784; Railway v. Hertzig, 3 Tex. Civ. App. 296, 22 S. W. 1013; Harris v. Allison (Tex. Civ. App.) 11 S.W.(2d) 821; M., K. & T. R. R. Co. v. Kellerman, 39 Tex. Civ. App. 274, 87 S. W. 401; San Angelo v. Baugh (Tex. Civ. App.) 270 S. W. 1101; Benussi v. Hannah, 53 Cal. App. 243, 199 P 1065; Cusick v. Miller, 102 Kan. 663, 171 P. 599, L. R. A. 1918D, 1086; Rice v. Transit Co. (Mo. Sup.) 216 S. W. 746; Fournier v. Rund, 242 Mass. 272, 136 N. E. 75; Pennington v. K. C. Rys. Co., 201 Mo. App. 483, 213 S. W. 137; and Chaufty v. De Vries, 41 R. I. 1, 102 A. 612, as supporting their view.

At the outset we are confronted with the question of the relevancy of the evidence complained of to the fact to be determined.

"The word `relevant' means that any two facts to which it is applied are so related to each other that, according to the common course of events, one, either by itself or in connection with other facts, proves or renders probable the past, present, or future existence or nonexistence of the other." 4 Words & Phrases, Second Series, p. 252.

"By relevancy is meant the logical relation between proposed evidence and a fact to be established. All facts are admissible in evidence which afford reasonable inferences or throw any light upon the matter contested." 10 R. C. L. 925; Stone v. Day, 69 Tex. 13, 5 S. W. 642, 5 Am. St. Rep. 17.

And again in 10 R. C. L. 927, we find: "Evidence tending to prove a fact must be submitted to the jury, however slight it may be. It is competent, relevant and admissible, though it may not be such as of itself to establish a fact, if it is such that the jury may, in connection with it and other facts properly alleged, make a finding respecting some issue material to the cause."

Applying the above definitions to the evidence in question, is it relevant?

The only case with an analogous state of facts, decided in this state, which we have been able to find, is the case of Florence v. Smith (Tex. Civ. App.) 241 S. W. 312.

The facts of that case, as stated by Justice Hodges of the Texarkana Court of Civil Appeals, were:

"The appellant, Florence, sued the appellee, J. M. Smith, upon an open account aggregating $252.30. It was alleged that most of the items constituting the account were for goods delivered to Jess Cannon and Dick Smith, tenants upon the farm of the appellee. It was also alleged that the goods were delivered to the tenants at the request of the appellee and upon his express promise to pay for them. These averments were denied, and in the trial which followed there was a direct conflict between the testimony of the appellee and that of the appellant, Florence. The latter swore to an express agreement on the part of Smith to pay for the goods delivered to his tenants, while Smith swore equally as positively that no such agreement had ever been entered into.

"On cross-examination the appellee was interrogated concerning a note for the exact amount of this debt which he held against Cannon. He was asked the following question:

"`Isn't it a fact that you did contract with Mack Florence to let Jess Cannon and Dick Smith have stuff and charge to you, and that in the fall, after you got the statement from Mack that you say you got through the mail, didn't you make Jess Cannon give you a note for $252.30 with a mortgage on his mules, wagon, and cattle, and wasn't that note taken by you to cover the amount of the account that you stood for at Mack Florence's?'

"He was asked the further question: `Did Jess Cannon ever owe you...