Sanchez v. Dixon

SMITH, Chief Justice. In the original disposition of this cause this court reversed the judgment appealed from, and remanded the cause. Sanchez v. Dixon (Tex.Civ.App.) 59 S.W. (2d) 425. Writ of error was granted by the Supreme Court, which remanded the cause to this court for the sole purpose of determining if the judgment appealed from was excessive, as contended by appellant. Dixon v. Sanchez (Tex.Com.App.) 91 S.W.(2d) 325. The case is sufficiently stated in the opinions of this court and the Supreme Court, and need not be restated here. Briefly, the jury found that appellant listed certain property with appellee as a broker, and agreed to pay him a commission of 5 per cent, of the sale price; that appellee procured the sale to Walker Bros, at the price of $110,000 (5 per cent, of which is $5,500); that appellee, and Wick-line and Wormser, brokers working with appellee, agreed to divide the commission equally among themselves, which agreement was' never abandoned by Wormser and appellee; that when the sale was finally consummated appellant agreed to pay $4,975 as brokerage fee. The trial judge, upon those' findings, awarded Dixon recovery of one-third of $5,500, or $1,833.33, with interest. Appellant contends that under those findings the court should' have awarded Dixon only one-third of $4,975 (or $1,658.33), the amount of the agreed commission (one of the conditions upon which the sale was consummated), as found by the jury. We sustain the contention. The case has been in the courts long enough. The judgment will be reformed so as to allow appellee recovery from appellant of $1,658.33, with 6 per cent, in-tei^st from the date of the decree below, and as so reformed the judgment will be affirmed, at the cost of appellee.