J. B. Lloyd & Son v. Kerley

• Decision Date: 19 December 1907
• Citation: 106 S.W. 696
• Parties: J. B. LLOYD & SON v. KERLEY.
• Court: Texas Court of Appeals

106 S.W. 696

J. B. LLOYD & SON v. KERLEY.

Court of Civil Appeals of Texas.

December 19, 1907.

Appeal from Hardeman County Court; J C. Marshall, Judge.

Action by J. B. Lloyd & Son against J. C. Kerley. From a judgment in favor of defendant, plaintiffs appeal. Reversed and remanded.

Fires & Decker and Diggs & Clark, for appellants. M. M. Hawkins, for appellee.

LEVY, J.

The appellants sued the appellee to recover 5 per centum of the price on a sale of land made by them for the appellee, alleging that amount to be due them as commissions, upon express agreement with the appellee, for making the sale of his land. The case was tried to a jury, and there was a verdict and judgment for the appellee, which the appellants seek to have reversed in this court for errors assigned upon the admissibility of evidence in the trial and the giving of a special instruction to the jury by the court.

The first, second, and third assignments of error complain of the admission of evidence. The three bills of exception in the record show that the appellee introduced three different real estate agents to testify that they were separately engaged in the real estate business and that the appellee had listed his land generally with each of them for sale during the year 1906, and stated the price that appellee had listed the land for sale by them. The evidence in the record shows, without substantial contradiction, that the appellee made an agreement with the appellants to sell the land. The appellants procured a purchaser and made a sale of his land; and the appellee, joined by his wife, executed a conveyance of the land to the purchaser. The appellants declare that the appellee employed them specially to sell this land at $17 per acre, and expressly promised to pay them 5 per centum of the proceeds of the sale of the land as commissions. The appellee declares that he listed the land with appellants at that time for sale at $17 per acre net to him, and that the appellants were to get any over-plus of the price of the sale of the land that they might secure as their commissions. The land was sold to the purchaser at $17 per acre by the appellants, which price was accepted by the appellee. It is evident that the controversy between the parties is as to how the commissions to be earned by the appellants were to be paid by the appellee, whether at 5 per cent. of the proceeds of the sale of the land at $17 per acre, or all over and above the proceeds of the sale of the land at...