Stephenson v. Jackson

• Decision Date: 25 May 1910
• Citation: 128 S.W. 1196
• Parties: STEPHENSON et al. v. JACKSON.
• Court: Texas Court of Appeals

128 S.W. 1196

STEPHENSON et al. v. JACKSON.

Court of Civil Appeals of Texas.

May 25, 1910.

Appeal from Coleman County Court; T. J. White, Judge.

Action by R. M. Stephenson and others against T. J. Jackson. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

E. M. Critz and Woodward & Baker, for appellants. Snodgrass & Dibrell and J. C. Randolph, for appellee.

JENKINS, J.

Appellants were land agents in the town of Santa Anna. W. M. Hooper was also a land agent in said town. Appellee placed his land in the hands of appellants and also in the hands of Hooper for sale. Both appellants and Hooper showed the land to Shelton, who finally purchased the same through Hooper. Appellants brought this suit to recover their commissions, amounting to $442.25, upon the grounds (1) that they were the procuring cause of said sale; (2) that the appellee had constituted them his exclusive agents for the sale of said land. Judgment was for the appellee, defendant in the court below. In view of the disposition that we make of the case, it will not be necessary for us to discuss the evidence, nor refer to the same, except in so far as it serves to show the grounds of our decision herein.

Appellants, after alleging that they were the procuring cause of said sale, and that they brought the appellee and the buyer together, allege that, if they did not consummate said sale, it was because appellee permitted W. M. Hooper to interfere in said transaction. Appellee, in addition to a general denial, alleged that said sale was made solely through the efforts and agency of said Hooper, to whom he had paid a commission of $410 for effecting said sale. Had the evidence showed that the sale was made through the agency of Hooper, of course, this would have shown a legal liability on the part of appellee to pay Hooper his commissions for making the sale. But whether he had or had not paid Hooper was not material on the trial of this cause, and the allegation of such immaterial fact could not form the proper basis of proof. On the trial of this cause appellee was permitted to prove such payment, over appellants' objection, by both himself and Hooper. Appellee suggests that this evidence was admissible, for the reason that his testimony had been attacked by testimony showing that he had said that he knew he did wrong in paying Hooper commissions on said sale, and that he knew that he had paid the wrong party, which statements were denied by the appellee in his testimony herein. When an effort is made to show that the testimony of a witness is fabricated and an afterthought, instead of being a narrative of the facts as they occurred, it is permissible to show, in support of the witness' testimony, that he has at other times made statements similar to those to which he testifies. But such is not the case here. Appellants do not deny that appellee paid Hooper, but says that such fact is not material to any issue in this case. Appellee insists that, if the admission of said testimony was error, the same was harmless, inasmuch as it had already been shown by the testimony of appellants that appellee had, in effect, said that he paid Hooper commissions on said sale. True it is that appellants had put such declarations of appellee in evidence as above set out. The declaration of appellee, as proven by appellants, that he knew that he had done wrong in paying commissions on said sale to Hooper, and that he knew that he had paid such commissions to the wrong party, were admissible on the issue of exclusive agency alleged by appellants, and would probably have been considered by the jury on that issue only. But it does not follow that proof of payment of $410 to Hooper as such commissions was harmless to appellants' case. Appellee had pleaded such payment. Why, if not as a defense to appellants' cause of action? He offered to prove such payment by himself. The appellants objected, as shown by their bill of exceptions, on the ground that such testimony was irrelevant, immaterial, prejudicial to plaintiffs, and...