Winn v. Gilmer

• Decision Date: 09 June 1891
• Citation: Winn v. Gilmer, 16 S.W. 1058, 81 Tex. 345 (Tex. 1891)
• Parties: WINN v. GILMER.
• Court: Texas Supreme Court

Page 1058

16 S.W. 1058

WINN v. GILMER.

Supreme Court of Texas.

June 9, 1891.

Commissioners' decision. Appeal from district court, Kerr county; THOMAS M. PASCHAL, Judge.

A. J. Evans and L. F. Price, for appellant.

HOBBY, P. J.

The plaintiff in the lower court, who is the appellant in this, brought suit against the defendant, A. M. Gilmer, to recover $3,500, and interest, for the alleged breach of a verbal contract. The plaintiff alleged that the defendant, who was the owner of a large ranch and flock of sheep, promised and contracted to pay to the plaintiff the sum of $3,000, if the plaintiff would procure a purchaser for said property; that he also on the 14th June, 1884, entered into a contract of a similar character with one M. L. Cureton, by the terms of which he agreed to pay said Cureton the sum of $500 if he would find a purchaser for said property; that this latter claim Cureton, for a valuable consideration, had transferred to plaintiff. It is further alleged that the foregoing propositions were accepted by both Cureton and plaintiff, who succeeded in finding a purchaser for the property on August 14, 1884, and brought said purchaser, Fawcett, and defendant together; and that Gilmer, the defendant, sold the same to Fawcett for $40,000, but had failed to pay the $3,500, as promised. The defendant denied making the contract sued on, and denied having promised any sum to either of the parties as alleged, and further answered that, if he owed Cureton any sum of money, he had adjusted it, and settled the same by paying him $10, which he accepted in satisfaction, etc. There was a trial by jury. Verdict rendered for the defendant. Judgment was entered thereon, and this appeal is therefrom prosecuted by the plaintiff, Winn.

The evidence was conflicting; that of the appellant establishing substantially the material averments of his petition, while the defendant's testimony sustained his denial. During the trial the defendant, Gilmer, testified, over the objections of plaintiff's counsel, that he proposed on one occasion to the plaintiff that if he, the plaintiff, would furnish a purchaser for the ranch of defendant, and the other property, for the sum of $42,500 or more, plaintiff could have all in excess of that sum for which the property sold, as compensation for finding a purchaser, but that, if the property sold for a less sum than $42,500, the plaintiff would receive nothing. The objection to this testimony was that the defendant had set up no such fact or facts in his answer. The objections were overruled, and the evidence admitted. This action of the court is assigned as error. Appellant's proposition, under this assignment, is that "a party defendant cannot avail himself of an affirmative matter of defense, not alleged and set out in his pleadings." The foregoing rule is elementary, and perhaps no other...