Saunders v. Thut
| Decision Date | 28 March 1914 |
| Citation | 165 S.W. 553 |
| Parties | SAUNDERS v. THUT. |
| Court | Texas Court of Appeals |
Appeal from Gray County Court; Siler Faulkner, Judge.
Action by Henry Thut, Jr., against George H. Saunders. Judgment for plaintiff, and defendant appeals. Affirmed.
Ewing & Dial, of Miami, for appellant. Synnott & Underwood, of Amarillo, and S. E. Boyett, of McLean, for appellee.
This suit was instituted by the appellee, Henry Thut, Jr., against George H. Saunders, appellant, to recover the sum of $200 for commission, by virtue of certain agency for sale of about 350 head of cattle at a reasonable commission of 25 cents per head, and the leasing of 10 sections of grass for the reasonable commission of 5 cents per acre. Upon appeal from the justice court to the county court of Gray county, the trial resulted in a verdict and judgment in favor of Thut against Saunders for $100, and interest.
Every assignment of error in appellant's brief is either the presentation of a complaint of the action of the court in giving in charge to the jury certain paragraphs of the court's main charge, or the refusal of the court to give to the jury certain special requested instructions, except the last assignment, which is a criticism of the action of the court in permitting certain testimony hereafter noticed by us.
There are objections in the transcript to the court's charge, but this record is absolutely devoid of any action of the trial court upon said objections; it is not stated that he refused the same; neither is there any preservation in the record as to the time of the presentation of the objections to the court's general charge. There must be an incorporation in the record, in some manner, of the fact of the refusal by the trial court of the written objections of a litigant to the general charge, and it must be shown that the objections are presented to the trial court before the charge is read to the jury, for the reason that all objections not so made and presented shall be considered as waived. Article 1971, Session Acts, 33d Leg. p. 113. Again, the ruling of the court in refusing special instructions to the jury shall be regarded as approved, unless excepted to, and, of course, the exceptions to the action of the court should be preserved in the record. We have considered these matters in the following cases, and it is unnecessary to reiterate the reasons here: Q., A. & P. Ry. Co. v. Galloway (decided by this court March 14, 1914) 165 S. W. 546; Mutual Life Ins. Ass'n of Donley County, Texas, v. Rhoderick (decided March 14, 1914) 164 S. W. 1067; Roberds v. Laney (decided March 21, 1914) 165 S. W. 114; McSpadden v. Vannerson, 167 S. W. ___; and Southern Kan. Ry. Co. of Tex. v. Crutchfield (this day decided by this court) 165 S. W. 551.
However, regarding the case upon its merits, on account of the insistent contention in appellant's brief that a certain character of contract was alleged, and, if any proved, it was different; and, second, that the evidence fails to show that the appellee was the procuring cause of the sale of the cattle and the leasing of the land.
Extracted from the record, the appellee pleaded orally as follows: "This is a case appealed from the justice court at Pampa, and the pleadings are oral, and the facts or the allegations of the plaintiff, as established, are about these: Some time in March of this year, he had a conversation with Judge Saunders, in which Judge Saunders listed with him about ten sections of land to lease and about 350 head of cattle to be sold, and the plaintiff alleges that he brought about the sale of these cattle satisfactory to Judge Saunders, and at the same time found a man to whom Judge Saunders could lease the grass, and to whom Judge Saunders did lease the grass, and the plaintiff claims that he is entitled to a reasonable commission of 25 cents per head for the sale of the cattle, and 5 cents per acre for finding a man to whom the judge could lease the grass, alleging that he is entitled to the commission for these services."
Appellee testified that the appellant listed the ten sections of land with him for the purpose of leasing the same to other parties, and about 350 head of cattle for the purpose of sale; that he informed appellee that he was engaged in that business, and testified as to his efforts with one W. W. Mars in procuring the latter as a prospective purchaser of the cattle and as lessee of the land. It is noted that he pleads, as an ingredient of an express contract, that Saunders listed the land and cattle with him; that he brought about the sale of the cattle and the leasing of the grass, and for which he was entitled "to a reasonable compensation of 25 cents per...
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