Fordtran v. South End Land Co. ( 1907 )

NEILL, Associate Justice.

—Appellant sued appellee on various items for commission on alleged sales of land made by him, and for. some dirt which he claims to have excavated for defendant, the aggregate amount of his demands being $2,142.62, less three certain credits amounting to $275, and asked judgment for the balance, amounting to $1,867.62. The defendant answered by a general denial, and pleaded specially certain matters which are unnecessary for us to state. The case was tried by the court, without a jury, and the trial resulted in a judgment in favor of the defendant.

We shall only state such findings of fact and of law as are involved in this appeal. The ninth finding of the court is as follows:

“I find that plaintiff made the sale to F. W. Vaughan of lots sixteen (16), seventeen (17) and eighteen (18), in block No. eight (8), and is entitled to $180 as his commission from the defendant, but he being justly indebted to the defendant in the sum of $275, as shown by his petition, I conclude as a matter of law that he is not entitled to recover anything.”

Complaint is made by the first and second assignments of error that, as the court found that appellant had made the sale to Vaughan, and that there were $180 due him as commission thereon, it erred in not rendering judgment in his favor for that amount. This contention would be upheld were it not for the fact that the court, in connection with this finding, also found that the plaintiff was justly indebted to the defendant in the sum of $275, as shown by his petition. In view of this, the court’s conclusion, as a matter of law, that plaintiff was not entitled to recover anything on this item, is unquestionably correct.

The third and fourth assignments of error complain of the court’s not rendering judgment for plaintiff in the sum of $122, amount of commission claimed to be due him upon a sale to W. L. Bogers of lots nineteen (19) and twenty (20) in block 3STo. six (6) of Westmoreland Addition to the city of Houston. The finding of the trial court in-regard to this matter is as follows: “As to the claim of $122, in paragraph 2 of the exhibit to plaintiff’s petition, I find that plaintiff sold lot eighteen (18) under this agreement, and was paid his commission. That lots nineteen (19) and twenty (20) were sold by the defendant to one J. D. Bone, and he sold the same to Bogers, Bogers paying plaintiff a commission, therefor. That the property was conveyed back to the defendant so that its notes could be canceled, and it eonve,yed the same to Bogers, but in no wise made itself responsible to the plaintiff for any commission on the sale. That at Bogers’ request, and as a mere matter of convenience, Bone conveyed the property back to the defendant, and it made a deed to Bogers, and with plaintiff’s negotiating with Bogers and receiving compensation from him.”

Hnder these findings the plaintiff was clearly not entitled to recover anything as commission on such sales.

There is no error assigned requiring a reversal of the judgment, and it is affirmed.

Affirmed.

Writ of error refused.