Porizky v. Olinger

• Court: Texas Court of Appeals
• Writing for the Court: Young
• Citation: Porizky v. Olinger, 177 S.W.2d 995 (Tex. App. 1943)
• Decision Date: 22 October 1943
• Docket Number: No. 13435.,13435.
• Parties: PORIZKY v. OLINGER.

177 S.W.2d 995

PORIZKY v. OLINGER.

No. 13435.

Court of Civil Appeals of Texas. Dallas.

October 22, 1943.

Rehearing Denied November 19, 1943.

Appeal from District Court, Dallas County; Wm. M. Cramer, Judge.

Action by Sigmund Porizky against Ethel Laura Olinger for broker's commissions and for malicious prosecution. From an adverse judgment, plaintiff appeals.

Affirmed.

John E. V. Jasper and F. B. Davenport, both of Dallas, for appellant.

No one appeared for appellee.

YOUNG, Justice.

Appellant, plaintiff in the trial court, and duly licensed real estate dealer, filed this suit against appellee for commission provided in a real estate contract between defendant and a third party. Additional thereto, Porizky sought damages following his arrest upon a sworn complaint made by Mrs. Olinger to the Dallas County District Attorney. Defendant answered, in substance, that plaintiff had procured execution of the contract by an oral promise to assign her all commissions coming to him from the realty transaction; that the Olinger land was subject to a lien and plaintiff had prevented the exchange of properties by refusing to assign aforesaid commissions, thereby defeating defendant's financial arrangements. In answer to the action for malicious prosecution, defendant plead reliance on the advice of an assistant district attorney after a full disclosure of facts to said official. From an adverse judgment, Porizky has appealed; and here we note that appellee has filed no reply brief.

Upon request of plaintiff, the trial court made and filed comprehensive findings of fact and conclusions of law; and in appellant's seven points of error, attack is made upon these findings, principally because same are either (1) insufficient in law as a basis for defendant's judgment; or (2) not supported by the statement of facts. We quote one of the findings so made: "* * * that plaintiff Porizky entered into an agreement with Mrs. Olinger prior to her execution of the exchange contract and on which she relied in entering into and executing said exchange contract, and but for which said agreement on the part of plaintiff Porizky she would not have entered into and executed said exchange contract, to advance to Mrs. Olinger at least $1500.00 of his commission of $1625.00, without collateral or security, the amount of which advance was to be used and applied by her as part of the cash consideration to be paid by her under the terms of said exchange agreement to the United Fidelity Life Insurance Company, but when the exchange was ready to be closed except for meeting the objections to the title, plaintiff Porizky refused to advance any of said $1625.00 commission from the United Fidelity Life Insurance Company without collateral or security; I also find from the evidence that such failure to make that loan as promised made it impossible for Mrs. Olinger to comply with her part of the exchange contract, * * *."

In considering the sufficiency of testimony as a whole to sustain trial court findings, the Appellate Court will disregard all adverse evidence and consider only that favorable thereto, indulging every legitimate conclusion which tends to uphold the finding. Ward v. Bledsoe, Tex.Civ. App., 105 S.W.2d 1116; Exporters & Traders Compress & Warehouse Co. v. Steele, Tex.Civ.App., 111 S.W.2d 867; Houston, etc., Ins. Co. v. Biber, Tex.Civ. App., 146 S.W.2d 442. This rule may be invoked in aid of defendant's judgment, and particularly on the finding above quoted that plaintiff had promised Mrs. Olinger to complete her financial arrangements by assignment of at...