Teairl v. Gober , 1953 Tex. App. LEXIS 2380 ( 1953 )

On Motion For Rehearing.

Appellees argue that since the jury finding identified the property listed for sale, only as “the property referred to in evidence” and since both real and personal property are mentioned in the evidence that all of such property is included in the jury finding. ,,

A jury finding is • entitled to a reasonable and sensible interpretation. It is true that real property is mentioned in the evidence several times. Appellant testified that he had an office at 117 West 5th Street; that he formerly had an office in the Nalle Annex; that he conferred with a client, at the P. K. Grill who lived in the ..Wilke Funeral Home, — etc. etc. Could it be' seriously contended that the jury finding .should.include these pieces of real estate?

■ ■ Ai-guing this point further appellees state that the evidence is conflicting as to whether only personalty or both real and personal property was listed for sale. We find - no evidence that any real property was listed by appellees with appellant for sale. Appellees did not admit .listing any property with appellant and appellant testified that only personal property. was listed. As far as the lease on the club is concerned appellees had no right to assign or transfer such lease without the written consent of the-lessor,., a fact which the record does not , disclose. It cannot be presumed that appellees would list property for sale which they had no, right to sell.

Appellees also contend that since an indivisible consideration consisting of both real and personal property was received by them for the sale actually consummated that there is no basis for a judgment.

What appellees actually received or were promised for the sale of the pool hall fixtures and equipment was:

1. Assumption of rents on the club from July to December, 1950, inclusive, $1200, and an indemnity for any claims arising from” the rental" thereof from December 30, 1949. '

2. Cancellation of the lease on the 'club and release of all indebtedness due or to become due thereunder.

3. Dismissal of a suit brought by the lessor of the club against them and cross action therein.

. 4, Assumption of $576 due on appellee Gober’s note to .J. B. Harris.

5. Assumption of $700 balance due on appellee .Gober’s note to National Billiard ...Manufacturing Company.

6. Execution and delivery of two notes each for $2750 by purchaser to- appel-lees. . , .

It is obvious that appellees have or will receive cash benefits from the sale in the definite amount of at least $7,976.

Since this amount exceeds the amount on which' appellant claimed a commission it is immaterial that appellant by proper pleading and proof may have sued for and collected a greater commission.

The motion is overruled.