Carter v. Mills

HIGGINS, J. Appellants were the owners of a ranch in Terrell county. What is referred to in the record as the east half of the ranch contained 16,372.2 acres. What is referred to as the west half contained 18,278 acres. ■ On April 1, 1927, appellants conveyed the west half of the ranch to V. A. and Joe E. Brown for $100,531.75. Appellees Mills and Howard, real estate agents, brought this suit against appellants to recover a commission of 5 per cent, upon the purchase price, asserting that service rendered by them was the efficient and procuring cause of the sale made to the Browns. The petition declared upon both an express and implied contract to pay for the services. Appellants answered by general demurrer and general denial. The ease was submitted upon special issues as follows: “No. 1. Were the plaintiffs the efficient and procuring cause of the sale of defendants’ lands referred to in the evidence to V. A. and Joe E. Brown ? “No. 2. Did J. Q. Garter list the lands referred to as the west side of the property com-' monly known as the Carter estate in Terrell county, Tex., with plaintiffs? “No-. 3. Did the defendants sell the property described in the deed from defendants to V. A. and Joe F. Brown, to a purchaser procured for them by the plaintiffs with full knowledge on the part of their agent, J. Q. Garter, that plaintiffs were engaged in the business of real estate brokers, and in consideration of a commission? “No. 4. What was the usual and customary commission ór compensation paid to real estate brokers, in Terrell county, on or about the-month of November, 1926, and up to and including the 4th day of April, 1927, for procuring purchasers for real estate?” The first three issues were answered “Xes” ; the fourtíi, “5 per cent.” Judgment was rendered in appellee’s favor for 5 percent. of the purchase price. In connection with issue No. 1, the court gave an explanation of what was meant by the expression “efficient and procuring cause,” to which it is objected that it was a comment upon the weight of the evidence. We do not regard the same as subject to the-criticism made. Whether or not J. Q. Garter listed the-west side of the ranch with plaintiffs was an issue raised by the evidence. Hence it was471 proper to submit issue No. 2. Nor was such, issue noncontrolling or a comment upon the weight of the evidence. The second proposition is therefore without merit. Propositions 3, 4, 5, and 6 complain of the refusal to submit special issues requested by appellants. This case is purely one of fact. All the ultimate controlling issues of fact raised by the pleadings and upon which the evidence was in conflict were fully, sufficiently, and correctly submitted, in the first three questions. Requested issues 2 and 3 were evi-dentiary and properly refused for that reason. Requested issues 5 and 10 were noncon-trolling. If they had been submitted and answered as contended for by appellants, it would not have affected appellees’ right to judgment upon the ultimate and controlling facts found in answer to the first three questions submitted. This disposes of all propositions submitted. Affirmed.