Allen v. Camaros

WILLSON, C. J. (after stating the facts ns above). Of the contentions presented in appellant’s brief the first is that the trial court erred when he refused to submit to the jury a question as follows: “Was it agreed between the defendant, M. L. Allen, and the plaintiff Camaros that the $2,500 commissions due by Rogers Lacy to the firm of Moore & Allen for the sale of the Lacy farm should go into and become a part of the purchase price of the Lacy place?” In the proposition advanced to support the contention appellant asserts: “That undisputed evidence showed that the farm was listed with said real estate agents and that the said commission went into the purchase price of the property, an(l it was admitted in open court and by the pleading filed that Allen had been ejected from the property and the contract for his portion or interest had been breached or set aside by Camaros.” As we view the matter, it is not necessary to determine whether the testimony would have supported an affirmative answer to the question or not, for such an answer would not have required the trial court to render a judgment different from the one he did render. If the parties so agreed, and the $2,500 commissions did “go into and become a part of the purchase price of the Lacy place,” the effect thereof may have been to make appellant and appellees together, instead of the latter alone, the owners of the property purchased. In that state of the case, the deed from Lacy being to appiellee Mack Camaros, he would have held the legal title to the interest owned by appellant as trustee for the latter (Johnston v. Johnston [Tex. Civ. App.] 204 S. W. 469), and appellant’s remedy would have been a suit to establish the trust and partition the property among the owners thereof. Appellant’s cross-action was not that kind of a suit, but, instead, was to recover of appellees the sum he alleged he had “contributed to the purchase of said farm.” Certainly, on a finding merely of facts showing that he and appellees together were the purchasers of the property, he woul$i not be entitled to recover of the latter the sum of money he paid as the purchaser of an interest therein. And had the question been submitted to the jury and answered in the affirmative, and had the answer considered' with reference to appellant’s pleadings been construed as a finding in effect that he had loaned the $2,500 to appellees to use in paying for the property, it would not therefore appear that the trial court erred when he denied him the relief he prayed for; the allegation in appellant's cross-petition was that the amount he contributed to pay for the property was to be paid to him “upon the sale of the place,” and it did not appear from the testimony that appellees had sold same. On the contrary, the testimony was that appellees still owned the place at the time of the trial. Another contention presented by the assignments is that the trial court erred when he refused to grant appellant a new trial because of “newly discovered evidence” relevant to the issue the trial court submitted to the jury. The evidence referred to was testimony which .appellant alleged E. Z. Ingram, Mrs. Virgie Bowei^ and W. C. Shoults would give on another trial of the case that appellee Mack Caiparos at times specified before the trial stated to them that he and appellant were partners in the purchase and sale of real estate. W. C. Shoults was one of the attorneys who represented appellant in the litigation. It appears from the motion for a new trial and affidavits attached thereto that the alleged admission of appellee Mack Camaros to Shoults was made long before the time of the trial, and that before that time appellant knew of the testimony it was alleged Ingram and Mrs. Bowers would give, and informed Shoults thereof. The reason shown in the motion for the failure to produce the testimony at the trial was illness of Shoults which prevented him from being present and participating in the trial as one of appellant’s attorneys and from thinking about “anything other than his condition.” But no sufficient reason appears in the motion why appellant, who was present at the trial and therefore *335 must have know of the illness and absence of his attorney Skoults, did not inform other attorneys present representing him of the testimony in question. The assignments complaining of the action of the court in overruling the motion are overruled. The judgment is affirmed.