Jenkins v. Tanner, 5485.
| Decision Date | 16 November 1942 |
| Docket Number | No. 5485.,5485. |
| Citation | 166 S.W.2d 167 |
| Parties | JENKINS v. TANNER. |
| Court | Texas Court of Appeals |
Appeal from District Court, Potter County; W. E. Gee, Judge.
Action by A. C. H. Tanner against J. R. Jenkins to recover broker's commissions in connection with alleged sale by plaintiff of certain horses and cattle belonging to defendant. Judgment for plaintiff after refusal of defendant's request for a peremptory instruction, and defendant appeals.
Affirmed.
B. N. Richards, of Dalhart, for appellant.
W. S. Birge, of Amarillo, for appellee.
This suit was filed by the appellee, A. C. H. Tanner, against the appellant, J. R. Jenkins, to recover a commission as broker in connection with the alleged sale by appellee of certain horses and cattle belonging to the appellant and situated on his ranch in New Mexico. It was alleged that the appellee was the procuring cause of the sale of 365 horses and 1,060 head of cattle to Mrs. Carlene McCuiston Bland, of Groom, Texas, for which, under an agreement with appellant, the appellee was due one dollar per head for the horses and fifty cents per head for the cattle. The appellant admitted in his pleadings that he had sold 365 head of horses "and some cattle" to Mrs. Bland, but denied that appellee was the procuring cause of the sale or had any connection therewith. He further admitted that he had agreed to pay the appellee one dollar per head for all horses sold by the appellee, but denied that appellee was the procuring cause of the sale of any horses.
The jury found, in effect, that the appellee was the procuring cause in the sale of 295 of appellant's horses and 888 head of appellant's cattle to Mrs. Bland and that the appellant had agreed to pay the appellee fifty cents per head for the sale of the cattle. Apparently because the appellant admitted in his pleadings that one dollar per head for the sale of the horses was agreed upon by the parties, no issue was submitted on this question. The court rendered judgment against the appellant and in favor of the appellee for $739, which represented the commission in the sale of 295 horses at one dollar per head, and 888 cattle at fifty cents per head.
The appellant presents but two points for the reversal of the judgment. The first complaint is that the court erred in refusing his request for a peremptory instruction because of the appellee's introduction of appellant's answer in evidence, which he asserts comprised a complete defense to appellee's cause of action, and that the appellee, having introduced the answer, was bound by its allegations and was concluded from any recovery. The second complaint of the appellant is based on the jury's failure to answer certain other issues which he contends were material to his defense, as will hereinafter more particularly appear.
It is true that the appellee introduced in evidence the answer of the appellant and the same was introduced without limitation and without stating the purpose for which it was offered. As material to this controversy, it consisted chiefly of a general denial, save and except such as might therein be admitted, and of a special denial that appellant listed any cattle for sale with the appellee, or that appellee was the procuring cause of the sale thereof. As above indicated, the appellant admitted in his answer that he had agreed to pay the appellee one dollar per head for any horses sold by appellee for appellant, but denied that appellee had sold any horses or that he was the procuring cause of the sale of such horses. The appellant further admitted he had sold 365 head of horses "and some cattle" to Mrs. Bland, but denied that the appellee had any connection with such sale. It is the contention of the appellant that this pleading, as introduced by the appellee, is conclusive against appellee's cause of action and that by reason thereof the court should have instructed a verdict in appellant's favor. No contention is made that there was not other evidence in the record amply supporting the above findings of the jury establishing appellee's cause of action and, indeed, such contention could not be successfully made, since there is an abundance of testimony in...
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...rule is subject to exceptions. Masterson v. Bouldin, 151 S.W.2d 301 (Tex.Civ.App.--Eastland 1941, writ ref.). In Jenkins v. Tanner, 166 S.W.2d 167 (Tex.Civ.App.--Amarillo 1942), opinion by Justice Folley, the court 'In this connection, we have been unable to find any case holding squarely t......
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