Lilly v. Yeary

• Decision Date: 14 December 1912
• Citation: 152 S.W. 823
• Parties: LILLY et al. v. YEARY.
• Court: Texas Court of Appeals

152 S.W. 823

LILLY et al. v. YEARY.

Court of Civil Appeals of Texas. Amarillo.

December 14, 1912.

Rehearing Denied January 18, 1913.

Appeal from Ochiltree County Court; R. I. Hanna, Judge.

Action by W. G. Yeary against W. E. Lilly and others. Judgment for plaintiff, and defendants appeal. Affirmed.

R. T. Correll, of Ochiltree, and Crudgington, Works & Umphres, of Amarillo, for appellants. W. F. Shipp, of Ochiltree, and Theodore Mack, of Ft. Worth, for appellee.

HUFF, C. J.

This suit was originally instituted by Mrs. M. M. Yeary, wife of W. G. Yeary, in which suit W. G. Yeary was joined as party plaintiff. As originally instituted, it was against W. E. Lilly alone, and filed on the 29th day of August, 1910. The suit as originally brought was to recover part of the commissions alleged to be due plaintiffs by reason of a contract entered into between W. E. Lilly and Mrs. M. M. Yeary and her husband, in which it was agreed that Mrs. Yeary would direct parties coming to Ochiltree county to purchase land to Lilly, and that he would take the parties, and if he effected a sale to them that he would give Mr. and Mrs. Yeary one-half of the commission so earned; that one W. J. Smith and wife, in answer to letters by Mrs. Yeary, came to the county in search of land and were directed to Lilly, who took said parties and sold them the land described in the petition, for which services he received $1,000 commission. Mrs. Yeary and her husband, appellee herein, amended their petition in October, 1910, bringing in A. E. Scott, W. J. Cambern, and W. B. Hansell, parties defendant. On the 21st day of November, 1911, the petition was again amended, W. G. Yeary appearing alone, as plaintiff, the wife, Mrs. M. M. Yeary, not appearing as a party to the suit, and again amended on the 21st day of February, 1912, alleging substantially the same contract, with the exception that he alleges that Lilly made the contract with appellee direct, and does not allege the contract as having been made with the wife. It was sought to make the defendants Scott, Cambern, and Hansell liable, on the ground that they knew the fact that appellee was interested in the sale of the land to Smith and wife, and that he was to receive a commission on the same. It is charged that Cambern admitted to Mrs. Smith and others that he knew appellee was entitled to a commission, and that he would see that he got it, if he had to pay it himself; and it is further charged that the other defendants knew of appellee's interest and were so informed, and that they got the commission and divided it between themselves.

The case was tried at the February term, 1912, of the county court, and a verdict resulted in favor of appellee for the sum of $333.33 1/3. The facts show substantially that in August, 1909, Mrs. M. M. Yeary, wife of the appellee, in correspondence with Mrs. W. J. Smith, induced them to come to Ochiltree county to look at the lands, and that previous to their coming an agreement was entered into between Lilly and Mrs. M. M. Yeary, to the effect that when the Smiths should arrive that she would direct them to Lilly, who represented himself as being a real estate agent, and it was agreed that if he sold any land to them that whatever commission he received he would divide it; the term used was "whack it." At this agreement the appellee himself was present and participated in the conversation and took part in its negotiations, and he testifies that he adopted the contract so made. The testimony further shows that when the parties arrived that appellee's wife had Lilly notified of their arrival, and that he came to their place and took the Smiths and carried them to the office of Cambern & Scott, real estate men, and that they were there taken onto the land, of which a sale was effected, and that they were paid a commission of $1,000. The facts further show that Cambern, of the firm of Cambern & Scott, told Mrs. M. M. Yeary that he knew she was to receive a commission, and that he would see that she got $100, $150, or $200, if he had to pay it himself; and Cambern told Mrs. Smith, upon her stating that Mrs. Yeary was entitled to a commission in the sale, "I know that too."

We desire to call attention to the pleadings in the court below. It appears that appellants, defendants below, did not observe rules Nos. 6 and 13 for the district and county courts (142 S. W. xvii, xviii). They filed three exceptions, apparently separate, which they indorse "Demurrers Nos. 1, 2, and 3," all filed the 21st day of February, 1912, and on same day filed what is denominated "Defendants' First Amended Original Answer," which consists of general exceptions, special exception to all of paragraph 4 of plaintiff's petition, and also exception to all of the six paragraphs of said petition, and pray judgment thereon, and then answer by general denial. The exceptions, as contained in the answer, are not numbered, and, so far as we can ascertain from an inspection of the record, they do not appear to be a part of the three demurrers above mentioned. By filing the first amended, original answer, it would appear that the three instruments indorsed "Demurrers" were waived. True there is a judgment overruling No. 3; but it does not appear whether because waived, or on other grounds. It cannot be said that demurrers are part of the first amended, original answer, and if they did not appear to be such in the trial court we think the court could properly disregard them.

Appellees object to the assignments made by appellants, on the ground that rule No. 25 (142 S. W. xii), as amended, has not been complied with, in that the assignments do not refer to the ground in the motion for new trial, setting up the purported error of the trial court, and which was pointed out in the motion for new trial. The assignments and brief are defective in the particulars complained of, and do not comply with rule No. 25 in the particulars mentioned. As the assignments were filed in March and before the attorneys were generally aware of the amendment, we have decided to consider them. This court has heretofore been liberal in such matters, and under the facts stated in answer to the motion to disregard the assignments, and under the circumstances surrounding the preparation of the assignments and brief, we have concluded to consider the same upon the brief and records as presented.

We shall consider appellants' first and fifth assignments together. The first complains of the action of the trial court in refusing to dismiss the cause, because barred by the statutes of limitation; and the fifth is to the action of the court in refusing the special charge of appellants, requesting a peremptory charge for a verdict. Both of these assignments are based on the fact that the contract as originally made by Lilly with the wife of appellee, and that the action as originally brought was on such contract, and that appellee in the petition upon which the case went to trial, declared on a contract made between appellee and Lilly, and the suit on the last declared cause of action was barred by the two-year statute of limitation. It is contended that the uncontroverted testimony adduced upon the trial shows that the appellee declared upon one contract and proved another. It will be seen, therefore, that the above question depends upon the interpretation which should be given to the contract sued on and the one proven, as to whether they presented different causes of action, and whether one supports the other. We have concluded they do not present different causes of action, but are substantially the same. The facts as alleged and proven show that appellee and his wife were living together; that the contract entered into between Lilly and Mrs. Yeary was in the presence of appellee, and by his consent. He joins with her in the first suit and sought recovery with her thereon. In every amendment he...