Pryor v. Scott

• Decision Date: 30 January 1918
• Docket Number: (No. 5967.)
• Citation: 200 S.W. 909
• Parties: PRYOR et al. v. SCOTT.
• Court: Texas Court of Appeals

200 S.W. 909

PRYOR et al. v. SCOTT.

(No. 5967.)

Court of Civil Appeals of Texas. San Antonio.

January 30, 1918.

Rehearing Denied February 20, 1918.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

Action by R. L. Scott against Ike T. Pryor and another. From judgment for plaintiff, defendants appeal. Reversed and remanded.

T. F. Mangum, of San Antonio, for appellants. E. M. Whitaker, of El Paso, and Terrell & Terrell, of San Antonio, for appellee.

FLY, C. J.

Appellee sued Ike T. Pryor and E. A. Hutchins to recover $5,250, which was a commission of 2½ per cent. on $210,000, the selling price of land sold by Pryor, and for which appellee procured a purchaser. It was alleged that the agreement was made by Hutchins as agent for Pryor and that it was ratified by Pryor. Appellants alleged that the 2½ per cent. commission was based on a sale for $250,000, and that appellee failed to procure a purchaser at that price, and then agreed with Pryor to accept as his part of the commission the sum of $1,000. The cause was tried by jury, and upon certain answers to special issues a judgment was rendered in favor of appellee for the sum of $5,250.

The first assignment of error has no basis in the motion for new trial, and will not be considered, and, there being no merit in the second assignment of error, it is overruled.

Upon the trial of this cause the court presented the following special issues to the jury, which were answered as indicated:

"Question No. 1: Do you find that E. A. Hutchins, as agent for Ike T. Pryor, authorized R. L. Scott to act as agent for the sale of the property known as the Nan ranch, and the cattle and stock thereon? Answer: Yes.

"Question No. 2: Do you find that E. A. Hutchins, as agent of Ike T. Pryor, agreed to pay R. L. Scott 2½ per cent. commission for selling the property described in question No. 1? Answer: Yes.

"Question No. 3: Do you find that R. L. Scott, as agent, was the procuring cause of the sale of the said ranch and property at a price accepted by Ike T. Pryor to W. D. Connell, S. B. Tullos, and J. L. Ely? Answer: Yes.

"Question No. 4: If you have answered No. 1 `Yes,' then do you find from the evidence that the said E. A. Hutchins assigned to R. L. Scott a commission equal to 2½ per cent. of the purchase price? Answer: Yes.

"Question No. 5: If you have answered the foregoing question `Yes,' then answer whether or not Ike T. Pryor knew of such authorization and assignment prior to the sale of the property, and knowing same, if you find he did, accepted the services of R. L. Scott. Answer: Yes."

However, presented with the special issues was the following instruction, requested by appellee:

"Gentlemen of the jury, you are instructed to render judgment for the plaintiff for $1,000, regardless of your answer to any question."

And in obedience to that instruction the jury returned this verdict:

"In accordance with the instruction of the court, we find for the plaintiff $1,000, without reference to our answers to the special issues."

The court rendered a judgment for $5,250 in favor of appellee based on the answers to the special issues, thereby ignoring the instructed verdict. The occurrence is perhaps without a parallel, and the third and sixth assignments of error which are based upon a clause in the motion for a new trial, assail the judgment as being based upon contradictory and irreconcilable findings. Upon what hypothesis or theory the peremptory instruction was requested and given cannot be gleaned from the record or brief of appellee. That the special issues and peremptory instruction are irreconcilable and antagonistic is apparent. Under the peremptory instruction, the court had no authority to render judgment on the answers to the special issues, because the special instruction demanded a verdict for a certain sum regardless of the answers to the questions. The peremptory instruction means nothing or it means a total destruction of the special issues and answers thereto.

The question arises as to whether the conflict of the charges should...