Sonora Realty Co. v. Fabens Townsite & Imp. Co.
| Decision Date | 14 February 1929 |
| Docket Number | (No. 2235.) |
| Citation | 13 S.W.2d 965 |
| Parties | SONORA REALTY CO. v. FABENS TOWNSITE & IMPROVEMENT CO. |
| Court | Texas Court of Appeals |
Appeal from District Court, El Paso County; P. R. Price, Judge.
Action by the Fabens Townsite & Improvement Company against the Sonora Realty Company and another. From a judgment against the named defendant, it appeals. Affirmed.
Turney, Burges, Culwell & Pollard, of El Paso, for appellant.
Isaacks & Lattner, of El Paso, for appellee.
Appellee sued appellant and Z. T. White in the Forty-First district court of El Paso county, Tex., for the sum of $3,600 alleged to be due it as commission for procuring a tenant for a certain building belonging to appellant located on West San Antonio street in the city of El Paso, Tex.
Upon a trial before a jury, a verdict was returned in favor of appellee and against appellant for $3,000, and, upon instruction, in favor of Z. T. White.
From a judgment rendered upon the verdict, the Sonora Realty Company has appealed to this court.
Opinion.There are two questions raised by appellant, namely: (1) That the evidence is insufficient to support the verdict and judgment; (2) that the verdict was the result of prejudice and not founded on the facts of the case.
It is the province of the jury to pass upon the credibility of witnesses, and its determination will not be disturbed on appeal. Edrington v. Kiger, 4 Tex. 89; Anderson v. Anderson, 23 Tex. 639; Pope v. Beauchamp, 110 Tex. 271, 219 S. W. 447; Gurley v. Pilgrim Oil Co. (Tex. Com. App.) 285 S. W. 283.
And it appears to be well settled, though there seems to be some confusion arising from the language used by some of the courts, that an appellate court will set aside the finding of a court or the verdict of a jury only in cases where the finding or verdict is against such a preponderance of the evidence that it is clearly wrong. Turner v. Ontiberos (Tex. Civ. App.) 193 S. W. 1089; American Nat. Ins. Co. v. Fulghum (Tex. Civ. App.) 177 S. W. 1008; Missouri Pac. Ry. Co. v. Somers, 78 Tex. 439, 14 S. W. 779; Houston & T. C. Ry. Co. v. Schmidt, 61 Tex. 282; Zapp v. Michaelis, 58 Tex. 270; Short v. Kelly (Tex. Civ. App.) 62 S. W. 944; Kohlberg v. Awbrey & Semple (Tex. Civ. App.) 167 S. W. 829.
Do the facts before us come within the scope of the above rule?
Garrett's testimony, we think, is sufficient to support the verdict, if uncontradicted, and the reason, if any there is, why the verdict should not stand arises from the fact of his contradiction by so many witnesses, some of whom are shown to have no interest in the result of the suit.
If the case was before us merely on the testimony of Garrett and White, counsel for appellant admits that he would not ask that the verdict be disturbed, and the matter would be very simple as far as our power in the matter is concerned; but the condition in which we find the record presents a question which we admit is very difficult.
Bearing in mind, however, that the courts of our state have at all times manifested extreme caution in disturbing the findings of juries and have always done so reluctantly, American Nat. Ins. Co. v. Fulghum, supra; Nowlin v. Hall, 97 Tex. 441, 79 S. W. 806; Lee v. International & G. N. Ry. Co., 89 Tex. 583, 36 S. W. 63, we are of the opinion that while the record shows the verdict to be against the preponderance of the evidence, still it is not shown to be clearly wrong to that extent which would justify us in disturbing it.
There is a sharp conflict between the witnesses Garrett and White as to whether Mr. White gave Garrett a blueprint and the keys to the building. It can readily be seen that whether or not these things were delivered to Garrett by White would be a question to which a jury would attach considerable importance in their consideration of the question of Garrett's employment.
We find from an examination of the testimony of Mr. Asquith and Mr. Watkins that...
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