W. C. Tyrell Trust v. Lovell

CRITZ, J. Defendant in error, E. T. Lovell, recovered a judgment in this case for $645.12. This amount included $612.72 alleged commissions on the sale of land by the W. C. Tyrell Trust to one Harry It Johnson, and $32.40 commission on an alleged sale of land by the W. 0. Tyrell Trust to one John Martin. In our original opinion we discussed the case with reference to the sale to Harry K. Johnson, and overlooked the fact that $32.40 of the judgment was commission for the sale to Martin. It is contended on motion for rehearing that this portion of the judgments. of the Court of Civil Appeals [16 S.W.(2d) 880], and trial court should be allowed to stand, regardless of the disposition of the balance. We are of the opinion that this contention should be sustained, as there is evidence in the record of sufficient probative force to in law sustain this part of the judgment. We still adhere to the views expressed in our original opinion with reference to the commission claimed by E. T. Lovell on the sale by the trust to Harry K. Johnson. We therefore recommend that the motion for rehearing filed herein by E. T. Lovell, defendant in error, be granted, and that the former judgment of this court be set aside and a new judgment here entered as follows: (a) That the judgments of the Court of Civil Appeals and of the district court to the extent of $32.40 allowed Lovell as commission on the sale of land to John Martin be affirmed. (b) That the balance of the judgments of both ¿lower courts be reversed, and judgment here rendered for W. C. Tyrell Trust. ' CURETON, O. J. Judgments of the District Court and Court of Civil Appeals affirmed as to recovery of $32.40 by defendant in error, and judgments otherwise reversed, and judgment here rendered for plaintiff in error, as recommended by the Commission of Appeals.