Ingram v. Gentry, 2749.

• Decision Date: 16 October 1947
• Docket Number: No. 2749.,2749.
• Citation: 205 S.W.2d 673
• Parties: INGRAM v. GENTRY et al.
• Court: Texas Court of Appeals

205 S.W.2d 673

INGRAM v. GENTRY et al.

No. 2749.

Court of Civil Appeals of Texas. Waco.

October 16, 1947.

Rehearing Denied November 20, 1947.

Appeal from District Court, Limestone County; H. F. Kirby, Judge.

Suit by L. J. Ingram against Violette Gentry and husband to recover money due under an oral contract for construction of a building. From a judgment entered upon a directed verdict in favor of defendants, plaintiff appeals.

Judgment reversed and cause remanded.

Owen F. Watkins, of Mexia, for appellant.

W. W. Mason, of Mexia, for appellees.

LESTER, Chief Justice.

Appellant, as plaintiff below, brought this suit to recover the sum of $583.12 from appellees, claimed to be due him as a result of an alleged oral contract entered into between the parties, by the terms of which he alleged that he was to receive from appellees the sum of $1.50 per hour for each hour he actually worked, and as contractor and supervisor he was to receive ten per cent commission on all moneys paid out as wages to all employees for their services rendered in the construction of a building to be used as a cafe. Appellant says that he was paid $1.50 per hour for each hour he worked as a laborer but was not paid his ten per cent commission on the amount of the pay roll or the $50 which he alleged was for the use of his truck in doing some hauling during the construction of the building.

Upon the conclusion of the testimony the court below granted appellees' motion for an instructed verdict and so instructed the jury to return a verdict for them. Appellant has appealed to this court for relief.

Appellees say that the instruction below was proper for three reasons: (1) that appellant failed to prove the parties made a contract in which they agreed to pay him ten per cent commission; (2) that if there was a contract, appellant failed to prove that he was entitled to recover any sum of money by reason thereof; and (3) that if the contract was made, there was a variance between the one alleged and the one proved.

Before a court should give a peremptory instruction against a party there must not be any evidence in his favor of sufficient probative force that reasonable minds might differ as to the ultimate conclusion to be reached; and in passing upon the question the court must disregard all adverse or contradictory evidence in favor of the party seeking such instruction and must take as true the evidence most favorable to the opposite party and give it all reasonable conclusions and inferences that might be drawn therefrom. In reviewing a proceeding in which a peremptory instruction is involved the appellate courts are bound by the same rule. Sherman v. Sipper, 137 Tex. 85, 152 S.W.2d 319, 137 A.L.R. 263; Lawson v. Hutcherson, Tex.Civ.App., 138 S.W.2d 131; Barrett v. Commercial Standard Ins. Co., Tex.Civ.App., 145 S.W.2d 315; Lipscomb v. Houston Elec. Co., Tex.Civ. App., 149 S.W.2d 1042; Texas Pacific Coal & Oil Co. v. Wells, Tex.Civ.App., 151 S. W.2d 927, affirmed Wells v. Texas Pacific Coal & Oil Co., 140 Tex. 2, 164 S.W.2d 660; Gulf, C. & S. F. Ry. Co. v. Clements, Tex.Civ.App., 203 S.W. 623, pt. 3. International & G. N. Ry. Co. v. Williams, Tex. Civ.App., 160 S.W. 639, pt. 3; Kirksey v. Southern Traction Co., 110 Tex. 190, 217 S.W. 139, pt. 3.

We are confronted with a statement of facts which includes the testimony of plaintiff as the only witness. In passing upon the question of whether it was proper for the trial court to give the peremptory instruction for the appellees, we will set out some of appellant's testimony which is most favorable to him:

"Q. In the conversation with Mr. Gentry about this building, just state what was said, tell the jury what was said. A. I was on the Roller job and he called me across the street and asked me when I came up what I would do the job for and I told him I would furnish my car and work for $1.50 and hour and 10% on labor. He asked if that meant brick labor and I said all labor and I started out with Mr. Robinson and he called us back and Mr. Robinson said he said he didn't mind paying me $1.50 an hour but he hated to pay 10% on labor. I did all my work under the same contract. Two weeks later he called me back and asked me when I was going to start to work and I told him I didn't know but I wanted to and I started the next Monday. I didn't get through with the Roller job until then.

"Q. Just what agreement did you have, if any, for work on this building and supervising it? A. The only agreement we had was between Mr. Gentry and me that I supervise and furnish my car for $1.50 an hour and 10% on labor, that's all.

"Q. (propounded by appellees' attorney) Now, tell the jury when you made a deal with Mr. Gentry did he agree to pay you 10% on labor? A. I never told you that, he didn't tell be to go to work then, he told me to come back in two weeks, I know what I did.

"Q. He never agreed to pay you that? A. No but he accepted my proposition.

"Q. What was the 10% you are claiming for as a contractor, you were foreman and supervisor? A. I was both and I did as much at night as I did in the day time, I charged 10% on labor.

"Q. But he never agreed to pay it? A. He came back and told me to go to work and I thought that's what he meant.

"Q. During your work did they pay you $1.50 an hour for actual work? A. Yes, every Saturday, I drew wages every Saturday.

"Q. And you drew wages if you worked? A. Yes.

"Q. How was your commission to be paid? A. Nothing said about it, nothing said about how it would be paid, he always said wait until you finish work then give a bill for the commission.

"Q. When it (the building) was completed did you furnish them a statement of other labor? A. It was all estimated.

"Q. Did you furnish a statement of that? A. Yes, I gave them a statement, but they had done talked to me about it and said it wouldn't go on the bill.

"Q. The items alleged here and these estimated items, was that actual work performed on that building by other workmen? A. Yes, according to this pay roll, I gave them a copy and I kept a copy. I worked mine out by a copy of the pay roll.

"Q. If you estimated the amount of the painting of the building as $300.00, did they pay that? A. Yes they paid that.

"Q. You imagine? A. They paid it.

"Q. You are asking them to give you $30.00 by imagining how much they did pay? A. I said I estimated all this.

"Q. You claim you supervised all this work? A. Yes, I did.

"Q. You kept time on it? A. I didn't keep the painters and tile men. I kept the carpenters, brick laborers and laborers.

"Q. How did you arrive at this estimate sued for? A. Well, you would know if you were a general contractor, you would not be asking these questions, you take a contractor and figure these out, that's why.

"Q. Now, Laurence, I hand you a sheet of paper headed Oil Field Oil Company, I will ask you if this is your record for the week, $2345 of labor performed, what each man did on the job at that time and how much each one had coming to them on that pay roll? A. Yes.

"Q. I will ask you, Laurence, if one of your duties was...