Leuschner v. Patrick
| Decision Date | 26 June 1907 |
| Citation | 103 S.W. 664 |
| Parties | LEUSCHNER v. PATRICK. |
| Court | Texas Court of Appeals |
Appeal from District Court, Falls County; Sam R. Scott, Judge.
Action by W. A. Patrick against C. O. Leuschner to recover broker's commissions. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
Martin & Martin and Rice & Bartlett, for appellant. Z. I. Harlan, for appellee.
The judgment of the trial court is reversed, and the cause remanded on account of errors pointed out in appellant's second, third, and fourth assignments. It may be unimportant in some cases to plead an extension of time for the performance of a contract; but in a case of this character, where time is material, and which may be said as to a branch of the case to be of the essence of the contract, we are of the opinion that the extension should have been pleaded in order to the admission of evidence and submitting that fact to the jury by the charge of the court.
Part of the testimony of the plaintiff objected to, as pointed out in the bill of exceptions stated under the appellant's first assignment of error, was admissible and a part not admissible. As to what occurred between the plaintiff and Capt. Martin with reference to drawing up the deed to Hunter was admissible, but the declarations and statements of the plaintiff as to the sale to Hunter, and what he would be entitled to, was self-serving, and not admissible.
As the question was presented, we think there was no error in the court's refusing to admit the telegrams in evidence, as pointed out in the fifth assignment. We cannot say that the court erred in holding that the original telegram, which it is claimed was signed and sent by Hunter, was accounted for. This objection may be obviated in another trial.
We can find no objection to the evidence of Hunter as complained of in the sixth assignment of error. His arrangement with the Strayhorn-Hutton-Evans Commission Company for funds, and their financial ability to furnish the same, was admissible.
No reversible error is pointed out in appellant's seventh, eighth, ninth, and tenth assignments. We doubt the propriety of the court's undertaking to define the expression "a purchaser ready, able, and willing to purchase." The general charge of the court did, as to one branch of the case, submit to the jury the question as to whether Hunter was able, ready, and willing to purchase, and we are inclined to think that this was sufficient, but the charges as...
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