Rabinowitz v. Smith Co.

• Decision Date: 15 November 1916
• Docket Number: (No. 995.)
• Citation: 190 S.W. 197
• Parties: RABINOWITZ v. SMITH CO.
• Court: Texas Court of Appeals

190 S.W. 197

RABINOWITZ v. SMITH CO.

(No. 995.)

Court of Civil Appeals of Texas. Amarillo.

November 15, 1916.

Rehearing Denied December 20, 1916.

Appeal from Dallas County Court; T. A. Works, Judge.

Action by the Smith Company against D. Rabinowitz. Judgment for plaintiff, and defendant appeals. Reversed, and judgment rendered for defendant.

Adams & Stennis, of Dallas, for appellant. Thompson, Knight, Baker & Harris, of Dallas, for appellee.

HUFF, C. J.

The Smith Company, appellee, sued D. Rabinowitz for commission alleged to have been earned in the sale of a certain lot in the city of Dallas. The contract of listing is alleged as follows:

(1) "That on January 18, 1910, defendant (Rabinowitz) re-enlisted the said property with the plaintiff at the gross price of $8,000 (eight thousand dollars), $2,500 of which to be paid in cash by the purchaser, and the balance of the purchase price was to suit the purchaser as to the payment of same."

(2) "That the terms upon which said property was listed with plaintiff for sale was $2,500.00 cash, upon delivery of warranty deed and the residue of the purchase price to be secured by vendor's lien upon said property."

(3) After this cause had been pending in the court for some four or five years, on March 23, 1915, by an agreement appellee inserted in the petition the following: "That if the property was not listed with Smith Company upon the exact terms hereinabove set forth, it was listed to be sold upon the following terms, to wit: For $8,000, not less than $2,500 to be cash; balance in vendor's lien notes bearing 8 per cent interest upon terms to suit purchaser."

It is also alleged that it was agreed to pay 5 per cent. commission upon the gross sum of $8,000 "on and for the sale of said property." Four days after the re-enlistment plaintiff sold the property to one C. P. Dawson for the sum of $8,000, who was ready, willing, and able to meet the terms of defendant, or to pay all cash for said property, or to make the terms to suit the defendant. Again it is alleged:

"That the said plaintiff did sell the said property to the said C. P. Dawson upon terms required by defendant, but plaintiff avers that defendant, when requested to perform said contract made by plaintiff, as defendant's duly authorized and constituted agent, renounced said contract and refused, and still refuses, to perform the same, or to transfer the said property to said purchaser, notwithstanding he has been requested and urged to do so."

It is also alleged:

"That at no time after the said property was listed with plaintiff for the gross price of $8,000 did defendant change or modify the price, terms, or conditions on and for which said property was listed to be sold by plaintiff, but, on the contrary, and from time to time, over and always confirmed the said contract of enlistment, and urged these plaintiffs to employ their best energies to find a purchaser for the said property."

The appellant answered by exceptions, general denial, and as to the plea added March 23, 1915, interposed the plea of two-year statutes of limitation.

We shall first consider appellee's objections to the appellant's assignments of error, in which complaint is made to the action of the trial court in refusing four special requested instructions. The objections to the assignments are:

"That appellant waived said assignments of error for the reason that he approved the court's charge, which submitted an issue of fact for the jury's decision, and determination by his failure to object to such charge."

Two of the requested instructions were peremptory, and requested a directed verdict, on the ground that there is no evidence showing that a sale was effected on the terms of the listing contract. The other two were instructions, requesting an application of the law to the facts on that issue. Proper bills of exceptions were taken and preserved to the action of the court in refusing the request. In the case of Railway Co. v. Alcorn, 178 S. W. 833, this court, speaking through Judge Hendricks, while reviewing the case of Steele Co. v. Dover, 170 S. W. 812, with reference to the construction given to the amendment of the statutes regulating charges, said:

"We disagree, however, with that holding, and think that a more reasonable construction of the statute, viewed as a whole, is that if a litigant makes a presentation in a special charge of an element of recovery, or of defense, appropriately based upon the facts and not embodied in the main charge, and sufficiently succinctly calls the court's attention to the omission, he is entitled to the submission of the charge, though he failed to object to the general charge on account of such omission."

In the recent case of Roberts v. Houston, etc., 188 S. W. 257, the Court of Civil Appeals for the First District apparently in part concur with this court, while as to certain classes of requested instructions hold that a failure to object to the main charge would be an approval of the charge, and that a special requested instruction would not be considered. It is obvious, however, in the light of the construction given these statutes by the Supreme Court, in the case of Railway Co. v. Dickey, 187 S. W. 184, that the various Courts of Civil Appeals have reached their conclusion from a wrong premise; as, for instance, it is frequently said a party failing to object to the main charge will be considered as having approved it. The Supreme Court points out very clearly that the articles with reference to objections to the main charge do not require exceptions, and that article 2061, as to taking bills of exception, refers to requested instructions, and it is therefore the given or refused instructions which are approved when there is no bill of exceptions. If there is no objection made to the general charge, it is waived under article 1971. It is the objection that is waived; the charge is not approved as being the law applicable to the case by failing to object. The courts have time and again said since this act that if there is an omission, an objection to the main charge because of the omission will not sufficiently present error, but an instruction must be asked covering the omission. Modern Woodmen of America v. Yanowsky, 187 S. W. 729. It is apparently held because no objection is filed to a charge submitting the facts to the jury that this would be held to be an approval of the charge and, we presume, an admission that there are facts for the determination of a jury. If there are no facts raising an issue, there is nothing to submit or to be determined by the jury. This rule has long been followed in this state by all the courts. Mitchell v. De Witt, 20 Tex. 294; Henne v. Moultrie, 97 Tex. 216, 77 S. W. 607. A party should not be estopped from calling attention to the fact that there is no evidence, either by a special charge or upon motion for a new trial, simply because no objection was presented to the charge of the court. It has been the holding of the Supreme Court that a requested instruction, presented after the court has prepared its charge, is not invited error or an estoppel. Telegraph Co. v. Bowen, 97 Tex. 621, 81 S. W. 27; Railway Co. v. Eyer, 96 Tex. 72, 70 S. W. 529. It has also been held, where it appears the charges requested by the appellant were asked in explanation and amplification of the charge of the court, that this does not estop the appellant. Railway Co. v. Pickens, 118 S. W. 1133; Paris Gro. Co. v. Burks, 56 Tex. Civ. App. 223, 120 S. W. 552. An invitation to do a thing is in some respects a waiver of any injury resulting from the doing of the thing. We call attention to this line of authorities because it has been suggested by some of the decisions cited in the brief that a general charge to which appellant does not object should be treated as invited error. We cannot very well conceive why a failure to object should be held to have invited the court to write the charge it did. The court writes its charge and submits it to counsel for objection, who may then prepare and present such instructions as he desires. If the court's charge is not full enough or does not correctly present the law as applied to the facts, we cannot see why the appellant should be estopped or be held to have waived his right to request proper instructions by the mere failure to object to the charge. It has also been suggested that if the charge is not objected to and special instructions are requested and given, there would be such a conflict between the two that the case would be reversed under that line of decisions requiring a reversal upon inconsistent charges. In the first place, we are not to presume the court will do a thing of that kind; the presumption should be that he will withdraw the erroneous charge and give the correct one, as the law requires that he shall. Railway Co. v. Dickey, 187 S. W. 184. If he does not do so, then in the face of that presumption the court ought not to assume that appellant has waived his rights, which are preserved under the statutes giving him the right to request such instructions as he might desire. If the charges requested should have been given and were proper to have been given, the question of objection to the main charge of the court should have nothing to do with it. The objections provided for under the statutes were evidently intended to correct a well-known evil — such a charge not in the proper form, upon mere construction of the language of the charge liable to be considered as a charge upon the weight of the evidence, and the like — well-known considered evils known to the profession. To hold a failure to object waives the right to request special instructions is to hold in effect a repeal of articles 1973 and 1974, giving the right. This cannot be done by any rule of statutory construction.

This court, in the case of Insurance Co. v. Rhoderick, 164 S. W. 1067, and Railway Co. v. Culver, 168 S. W. 514, called...