Allison v. Wheless , 1935 Tex. App. LEXIS 728 ( 1935 )

MURRAY, Justice.

Appellants, W. W. Allison and M. E. Hinkle, instituted this suit against appel-lee, H. H. Wheless, seeking to recover the sum of $1,430 alleged to be the amount of commission due by appellee to appellants for their services as real estate brokers in securing a purchaser for appellee’s 2,860 acres of' land.

The cause was submitted to a jury on one special issue, as follows: “Special Issue No. 1, Was the contract wherein defendant listed the 2860 acres of land with plaintiff for sale, terminated prior to the procurement of a purchaser by plaintiff? Answer ‘Yes’ or ‘No.’”

This special issue was answered by the jury in the affirmative, and judgment, accordingly, rendered in favor of appellee, from which judgment Allison and Hinkle present this appeal.

Appellants complain that this question submitted only the issue of an express contract, while their suit was based not only upon an express contract, but an implied contract, and on quantum meruit.

Appellants could not recover herein upon a quantum meruit basis because the allegations and proof are insufficient to show that appellee received any benefit as a result of appellants’ efforts in securing a purchaser for his land, and, likewise, the allegations and the proof show an express rather than an implied contract.

The' issue as submitted did not refer either to an express or an implied contract, but simply to a contract. The evidence was sufficient to sustain the verdict of the jury wherein they found that the listing contract had been terminated before appellants found a purchaser for the land. This would preclude appellants from recovering, and it' would be immaterial whether the contract was express or implied.

Appellants further complain of alleged misconduct of the jury in that the foreman of the jury in effect told the jury that if they answered the special issue submitted “yes” it would be a finding in favor of appellee, and if they answered it “no” it would be a finding in favor of appellants. It occurs to us that a case like this, with only one issue submitted and but one issue really in the case, it was a perfectly obvious fact that an answer of “no” would be a favorable finding for appellants, and an answer of “yes” favorable to appellee. It has been definitely decided in this state that telling the jury something that they already know is not misconduct. Furthermore, it was shown that no juror was influenced by these remarks of the foreman.

Finding no error in the record, the judgment will, accordingly, be in all things affirmed.