Tinsley v. Penniman

• Decision Date: 08 February 1896
• Citation: 34 S.W. 365
• Parties: TINSLEY v. PENNIMAN.
• Court: Texas Court of Appeals

34 S.W. 365

TINSLEY v. PENNIMAN.

Court of Civil Appeals of Texas.

February 8, 1896.

Appeal from district court, Dallas county; R. E. Burke, Judge.

Action by H. C. Penniman against Thomas Tinsley. Judgment for plaintiff. Defendant appeals. Reversed.

H. C. Coke and G. G. Wright, for appellant.

LIGHTFOOT, C. J.

Appellee has filed no brief, nor has he made any appearance in this court. The statement of the case by appellant is adopted, as follows: Appellee, H. C. Penniman, brought this suit against appellant, Thomas Tinsley, to recover a balance of $1,080.78, alleged to be due him for certain labor and services in and about the negotiation and making certain purchases and sales of divers real estate and properties in and about the city of Dallas, Tex., and in procuring the tenants for and renting said property, and collecting rent, and paying taxes thereon, giving attendance and attention about the business of said defendant, and advancing money for him, as itemized in exhibit attached to plaintiff's petition; that said services were performed at the time specified and were reasonably worth the sums of money charged therefor; that the sums of money were advanced and paid out at the times specified; that said services so performed, and moneys so advanced and paid out, were reasonably worth the sums of money charged therefor, aggregating $2,604.78; that the credits given appellant in said specified account left a balance due appellee of $1,080.78. The part of the itemized account that affects this suit is the following:

                To 5 per cent. commission on purchases
                   of the following real estate
                  Feb. 15, 1885.—50 feet on Main St
                   bought of Bryan, for $4,500 .......... $212 50
                  March 17, 1886.—5 acres bought of
                   Mr. Elliott, $1,500 ..................   75 00
                  March 22, 1886.—23 acres bought of
                   Mr. Carns, $4,500 ....................  225 00
                  March 22, 1886.—75 feet on Main St
                   bought of Mr. Lively, for $10,000.....  500 00
                To 5 per cent. commission on sales of
                   the following property
                  March 27, 1887.—Bought of Mr
                   Carns, and sold to Luther Rees,
                   for $8,500 ........................... $425 00
                  May 10, 1887.—5 acres bought of
                   Mr. Elliott, and sold to Mr. Coleman
                   for $3,000 ...........................  150 00
                  Tinsley's share on patent right in vapor
                   burner ...............................  333 33
                —And interest on said amounts.
                

Appellant, Tinsley, pleaded a general demurrer and general denial, and specially answered, by way of cross action and counterclaim to plaintiff's cause of action, and says that it is a fact that appellee received a commission from Mr. Bryan, through Mr. Clark, for services in selling to appellant the Bryan property; that appellee purchased the Elliott 5 acres from Mr. Elliott for the sum of $1,350, and then sold it to appellant for $1,500, and had the conveyance made direct from J. T. Elliott to appellant; that appellee received a commission from Mr. Carns, through Prather & Ardrey, for services in selling to appellant the 23 acres of Carns' land; that appellee received a commission from Lively, through Cooper, Robertson & Reynolds, for services in selling to appellant the 75 feet of land on Main street, known as the "Lively property"; that appellee charges appellant with commissions for purchasing said land, which is double commission, and is against good conscience and public policy. He then set up a claim of indebtedness against appellant on a written obligation for $1,000, with interest at 12 per cent. per annum, and that all of the property owned by appellant in Dallas county, Tex., upon which appellee claimed a commission for purchasing land, was purchased by appellant, and appellee had nothing whatever to do with the purchases. Appellee sold a lot of land for appellant for $2,893.34 cash, and two notes, each for the same amount, and placed a credit of $48.50 on one of the notes, making the sum of $3,881.84 that appellee received on said transaction, for appellant, of which last amount appellee accounted to defendant for the sum of $2,639.62, in which accounting appellee charged appellant a commission of $12.50, leaving a balance due appellant on said transaction of $242.22. Appellee sold for appellant a lot of land to one C. P. Coleman, June 6, 1887, for $1,500 cash, and a note for $1,500, and accounted to appellant for the sum of $942, in which accounting appellee charged appellant a commission of $150, leaving a balance of $558 due appellant on said transaction. Appellee collected rent for appellant from July 1, 1886, to July 11, 1887, to the amount of $816, and accounted to appellant for the sum of $617.60, leaving a balance due appellant on the last account the sum of $198.40. All of which amounts aggregate the sum of $1,998.62, for which amount appellant asked judgment, with interest, and then pleaded that appellant had a settlement with appellee, on or about the 10th day of June, 1886, of all matters up to that date, and appellee paid to appellant $138.30, in which settlement appellant paid appellee the sum of $4.50 for cleaning a water closet, which appellee set up against appellant in this suit, which settlement appellee pleaded as an estoppel. Said cause was, on January 5, 1893, tried by a jury, and resulted in a verdict and judgment in favor of appellee for the sum of $956.38. Appellant filed a motion for a new trial, which motion was by the court, January 30, 1893, overruled, to which ruling of the court appellant excepted, and in open court gave notice of appeal, etc., and has perfected this appeal.

The second assignment of error is as follows: "The court erred in the following portion of its charge, to wit: `With reference to the claim or demand of the defendant, Thomas Tinsley, as set out in his cross bill, for $1,000, relating to the purchase of the gas burner, you are told that it is for you to determine, from the evidence before you, what was the mutual understanding and agreement between them; that is, whether, by said agreement and understanding, the plaintiff, Penniman, owes the entire amount, or whether the defendant, Thomas Tinsley, should pay or account to Penniman for one-third of said sum,'—because the claim here referred to was evidenced by a contract in writing between the parties, and it was the duty of the court to construe the written instrument, and because there was no evidence, except the writing, as to what the understanding and agreement between the parties was." Appellant's first proposition, under this assignment, and which is clearly well taken, is as follows: "Where there is no ambiguity in an instrument of writing evidencing a contract between parties, and it is susceptible from its face of a legal construction, it is the duty of the court, in instructing the jury, to construe the instrument of writing." The only proof about the instrument of writing was the instrument itself, which is as follows: "Dallas, Texas, the 15th March, 1886. Received of Thomas Tinsley his check on the State National Bank of Waco for one thousand dollars ($1,000.00), to be applied by me in the purchase of the patent right for Texas of a patent oil stove burner, from Peck, of Chicago, who is patentee. It is agreed that Tinsley is to have one-third interest in the above purchase of patent right, and the remaining two-thirds to belong to H. C. Penniman; and, for and in consideration of Thomas Tinsley's advancing the above $1,000, I promise to return to the said Tinsley the aforesaid $1,000, together with interest at 12 per cent. per annum until paid, on or before the expiration of ninety days from date hereof. H. C. Penniman." The written contract is plain, and not in any sense ambiguous. Under it appellant was entitled to recover the $1,000, with interest, and the jury should not have been left to find, from any other source, a different meaning. Bruner v. Strong, 61 Tex. 555.

2. Appellant's third and fourth assignments of error are as follows: "(3) The court erred in that portion of its charge which is as follows: `If, from the evidence, you find or believe that Penniman was the agent of Tinsley in the purchase of the property, as alleged by him, and you further find and believe that, at the same time and in the same purchase, he was the agent of the parties selling the property to Tinsley, and received a commission, and has been paid by these parties, and you further find that Tinsley had no knowledge of this fact, and did not assent to the same, then, in such an event, Penniman cannot recover. But if you find that, in the purchase of the property by Tinsley, Penniman was his agent, and was not the agent of the parties selling to Tinsley, or if you find that he was the agent of the said parties, as well as of Tinsley, in making the sale, and was paid by the parties selling a commission, and this fact was known to Tinsley, who did not object to the same, then Penniman would be entitled to recover,'—because there was no evidence that Tinsley had any knowledge of, or assented to, Penniman's receiving a commission from the parties adversely interested to Tinsley, or that he was given an opportunity to object to it." "(4) The court erred in that portion of its charge wherein it told the jury: `If you find that Penniman was the agent of...