Tabet v. Powell

HEILL, Associate Justice. This is the second appeal in this case, and a full statement of its nature will be found in our opinion on the first, reported in 78 S. W. Rep., 997. It is sufficient to say here that appellee’s cause of action is based upon the following allegations: (1) that on March 39, 1903, he was employed, as an attorney at law, by George Tabet acting as the agent for and in behalf of his brother Elias Tabet, to act for Elias as his legal representative in all things connected with and pertaining to his claim against the Galveston, Harrisburg & San Antonio Ry. Co. for personal injuries sustained by him on March 7, 1903, at Maxon Springs, Texas, and that, in consideration of services rendered and to be rendered by appellee, George Tabet bound himself and Elias to pay him one-half of all amounts that might be received by Elias from said railroad company in settlement of said claim; (3) that in pursuance of such contract of emplojunent appellee rendered all legal services and gave all legal counsel necessary in the settlement of said claim; (3) that on April 33, 1903, appellants settled said claim with the railroad company for $4,500, and (4) that they have failed [466] and' refused to pay appellee anything of the sum collected, of which, under the contract, he is entitled to one-half, that is, $2,250. Elias Tabet by his answer denied that he ever authorized or empowered his brother George to make the contract or ever ratified or acquiesced in the same. George answered by a general denial, and specially plead that if he was liable at all, his liability was as a surety only. The case was tried without a jury, and the court found that the material allegations in plaintiffs’ petition were sustained,, and thereupon rendered judgment in his favor against both defendants for the sum of $1,894, with 6 percent interest thereon from the 1st of May, 1902, aggregating the sum of $2,178. All of the allegations stated, constituting plaintiffs cause of action, were proved by the uncontradicted testimony except the first; and the only controversy about it is as to the authority of George Tabet to make the contract for his brother Elias, which is copied in the opinion on the first appeal. While the evidence upon the issue is conflicting, we are not prepared to say that it is not sufficient to support the finding of the trial judge. “It is impossible to lay down any inflexible rule by which it can be determined what evidence shall be sufficient to establish an agency in any given case, but it may be said in general terms that whatever evidence has a tendency to prove the agency is admissible, even though it be not full and satisfactory, as it is the province of the jury to pass upon it.” Mech. Ag., sec. 106. As it is said in Donaldson v. Everhart, 50 Kans., 718, 32 Pac., 405, “Testimony on paper is not like testimony from the lips, and when a trial judge hears living voices, -and sees the witnesses, who utter it, believes one, and disbelieves others, we can not decide that the judge, having better opportunities than we, ought to have believed and found the other way.” Therefore, as there was evidence tending to support the finding of the trial judge on the issue of agency, it is our duty to make his finding our own. The authority of George Tabet being shown to make the contract for his brother, we think he can only be held liable thereon as a surety, and to that extent will notify the judgment. Arid as so modified it will be affirmed. Modified and affirmed.