party, must be predicated on testimony propR. B. GEORGE MACHINERY CO. v. SPEAR- erly before the court. MAN. (No. 9389.) (Court of Civil Appeals of Texas. Dallas. May 23, 1925.) 1. Trial 365 (1)-Verdict held equivalent to direct finding for plaintiff as to defendant's counterclaim. In suit for commissions for sale of a tractor, with cross-action by defendant for binder twine sold plaintiff, in which special issue submitted to jury presented only controverted issue, whether commission was to be paid as claimed by plaintiff or as contended for by defendant, verdict sustaining plaintiff's contention was equivalent to a direct finding for plaintiff on issues presented by pleadings and proof as to defendant's counterclaim. 8. Appeal and error 930 (3)—When issue not submitted and not requested deemed as found by court to support judgment stated. It is only where there is evidence to sustain finding that, on appeal, an issue not submitted and not requested in writing by party complaining of judgment to be submitted will be deemed as found by court in such manner as to support judgment, in view of Vernon's Sayles' Ann. Civ. St. 1914, art. 1985. Appeal from Dallas County Court; Wiley A. Bell, Judge. Action by A. M. Spearman against the R. B. George Machinery Company, with crossaction by defendant. Judgment for plain2. Trial 343-Verdict for plaintiff held to tiff, and defendant appeals. Reformed and determine controverted issue in his favor. In suit for commissions for sale of tractor, where only controversy between parties was as to source or manner of payment, necessary effect of verdict for plaintiff was to determine that issue in his favor. 3. Trial 365(1)—Finding of jury on controverted issue not lessened because court submitted unnecessary issue in conjunction therewith. In suit for commissions for sale of tractor, where only controverted issue between parties was as to source or manner of payment, that court submitted such issue in conjunction with an unnecessary issue could not lessen effect of findings of jury on controverted issue. 4. Trial 352(1) — Issue held sufficiently clear to present to jury exact matter to be determined. In suit for commissions for sale of tractor, where only controverted issue was as to source or manner of payment of commission, issue, though not submitted strictly according to Vernon's Sayles' Ann. Civ. St. 1914, art. 1984a, was sufficiently clear to present to jury exact matter to be determined. 5. Appeal and error 1002-Findings of jury on controverted issue will not be disturbed. Findings of jury on a controverted issue, when supported by the evidence, will not be disturbed. 6. Judgment 255-Judgment, including part of plaintiff's demand based on loading and shipment of secondhand machinery Held erroneous, where not supported by evidence. In suit for commissions for sale of tractor, judgment, including part of plaintiff's demand based on loading and shipment of secondhand machinery taken as part payment on purchase price of new tractor, held erroneous, where record failed to show that such particular service was performed by plaintiff, or reasonable value thereof. affirmed. Burgess, Burgess, Sadler, Chrestman & Brundidge, of Dallas, for appellant. J. D. Kugle, of Dallas, for appellee. VAUGHAN, J. Appellee, A. M. Spearman, sued appellant, R. B. George, a sole trader under the name of R. B. George Machinery Company, in the court below, to recover $627 alleged to be due him for making sale, as appellant's agent, of certain machinery to one J. F. Rogers, and for the further sum of $26.30, expense incurred by appellee in loading on board car a separator and engine, at the instance of appellant, making a total of $653.53 involved, less a credit of $142.50 due for certain binder twine purchased by appellee from appellant after the accrual of appellee's claim, leaving a balance of $510.80, for which judgment was sought. Owing to the questions presented we think it well to make the following statement from the pleadings: It is alleged by appellee that on or about the 1st day of April, 1921, he took up with appellant the sale of a tractor engine and separator to one J. F. Rogers, of Venus, Tex., that appellant contracted and agreed to pay appellee, in the event said sale should be consummated, a commission of $627; that by and through his efforts said sale was fully consummated, whereby the appellant became obligated and bound to pay said sum of $627; that thereafter appellant instructed appellee to load and ship to his order a certain engine and separator which had been taken in as part payment on the sale of said machinery to J. F. Rogers; that the labor and material performed and used in loading said machinery was of the value of $26.30, which was a reasonable charge for such services; that thereafter appellee purchased from appellant binder twine of the value of $142.50, for which sum he has allowed appellant credit, leaving a balance of $510.80 due and unpaid to appellee. Appellant answered by general demurrer, (273 S.W.) general denial, and specially pleaded that, in machinery to Rogers, and the purchase of making said sale to Rogers through appel- the binder twine by appellee from appellant, lee's agency, certain secondhand machinery to wit, whether or not the $627 was to be was accepted from Rogers at the sum of paid as claimed by appellant or as contended $1,000 in part payment for the new machin- for by appellee. The disposition of this isery, with the agreement that, if said second- sue necessarily determined the issue involvhand machinery was sold for more than ing the $142.50, viz., as to whether or not $1,000, Rogers should have the excess over appellant was entitled to recover on his crossthat sum, and, further, as between appellee action or appellee the right to apply said and appellant, that out of the proceeds of sum as a credit on the amount of his claim the sale of the secondhand machinery, appel- against appellant. If the verdict of the jury lant was to receive $373, and appellee was to had sustained appellant's contention as to receive the excess over that sum up to $1,000, the manner in which the $627 commission or $627; that a part of the secondhand ma- was to be paid, it would have followed, as chinery had been sold, netting appellant $285, a natural sequence, that he would have been and that the remainder was on hand, in entitled to recover on his cross-action; howwhich appellant had an interest of $88, and ever, the jury having found against appellant tendered same to appellee if he would pay on his contention, the verdict sustaining apappellant said sum. pellee's was equivalent to a direct finding in favor of appellee on the issues presented by the pleadings and proof as to said $142.50. Appellee's major claim was for the recovery of $627, alleged to be due him as agreed By cross-action appellant sought to recover of appellee the sum of $142.50 for the binder twine sold by appellant to appellee, with legal interest from January 1, 1922. The cause was submitted to a jury on one commission, to be paid by appellant in the special issue, to wit: event appellee should sell to one Rogers cer "Was the plaintiff to receive a 10 and 20 pertain machinery. The fact that appellee was cent. commission, based on the sales price of employed as appellant's agent to consummate the new machinery, out of the secondhand ma- this transaction with Rogers is not controchinery taken in trade, when same should be verted, but admitted, as well as the amount sold, or did the defendant promise to pay him of commission that should be paid appellee a straight 10 and 20 per cent. commission, based for making the sale. 1 upon the sales price of the new machinery? Answer which." [2-5] The only controversy between the parties in re claim for commission being as Which was answered by the jury as fol- to the source or manner of payment, the neclows: "Plaintiff to receive commission of 10 and 20 per cent. on new machinery, regardless of whether old machinery sold or not." essary effect of the verdict was to determine that issue in favor of appellee, and the fact that the court submitted said issue in conjunction with an unnecessary issue, to wit, the rate of commission to be paid on each piece On this verdict judgment was rendered in of machinery sold by appellee to Rogers, canfavor of appellee in the sum of $510.80. Appellant contends that said judgment was improperly rendered because (a) there was no basis for the recovery of the $26.30 for the loading and shipping of the machinery by appellee, there being no evidence that such service was rendered; (b) there is no finding of the jury as to what part of the machinery was sold on a 10 per cent. and what part on a 20 per cent. commission basis; (c) appellee having pleaded that appellant contracted to pay him "an agreed commission of $627," and the jury having found, "appellee to receive commission of 10 and 20 per cent. on the sales price of the new machinery, regardless of whether old machinery sold or not," the finding did not support the allegation, hence no basis for the judgment. [1] Following are the issues presented by the pleadings: (a) The issue raised by the pleadings as to the manner in which the $627 claimed as commission should be paid; (b) the issue raised by the pleadings as to the $26.30; (c) the issue raised by the pleadings as to the $142.50. The special issue submitted to the jury presented the only controverted issue growing out of the sale of the 273 S.W.-41 not lessen the effect of the findings of the jury on this feature of the controversy between the parties, as, in order to sustain appellee's position, it was only necessary for the jury to find that the commission was to be paid "regardless of whether old machinery sold or not." This issue, although not submitted strictly according to the provisions of article 1984a, Vernon's Sayles' Ann. Civ. St. 1914, yet, as framed, was sufficiently clear to present to the jury the exact matter to be determined; and the findings of the jury thereon, being supported by the evidence, will not be disturbed. [6] The judgment of the court includes that part of appellee's demand based on the loading and shipment of secondhand machinery. This is error, as appellee failed to introduce the slightest evidence supporting this claim. The record fails to show that this particular service was performed by appellee, or, if performed, the reasonable value of same. [7, 8] The fact that the court found "every other material issue not specifically submitted to the jury in favor of" appellee will not alone sustain the judgment for said sum of $26.30, as such finding must be predicated | a two-story building situated in the city of upon testimony, properly before the court. Denison. At the time of filing the suit the supporting the issue not submitted, and appellant sued out a distress warrant and found by the court in favor of the prevailing caused the seizure thereunder "of the stock party. For it is only where there is evidence of groceries, furniture, and fixtures" situatto sustain such a finding that, upon appeal, ed in the building. The defendant, the apan issue, not submitted and not requested in pellee here, filed a general denial. The case writing by the party complaining of the judg- was appealed from the justice court to the ment to be submitted, shall be deemed as county court, and there tried on the same found by the court in such manner as to sup- written pleadings. The county judge, before port the judgment. Article 1985, Vernon's whom the case was tried, made the following Sayles' Ann. Civ. St. 1914. findings of fact: The trial court erred in including in its judgment the sum of $26.30 alleged by appellee to be due him for the loading and shipping of the secondhand machinery. Therefore said judgment is reformed so as to eliminate said sum, and to allow appellee to recover against appellant the sum of $484.50, with interest at the rate of 6 per cent. per annum from the 18th day of February, 1924, and, as so reformed, the judgment of the lower court is affirmed, with the cost of this appeal adjudged against appellee. Reformed and affirmed. MAZZIE v. WOOLLY. (No. 3082.) "About October 1, 1922, the plaintiff, Frank Mazzie, and the defendant, J. A. Woolly, entered into a verbal agreement for the rent of the two-story building at 209 West Woodard street, Denison, Tex. The agreement was that J. A. Woolly as tenant was to pay Frank Mazzie as landlord $60 per month for the buildroof of the building and making it leak proof. ing, conditional on Frank Mazzie repairing the J. A. Woolly occupied and used the building as a grocery store on the first floor, and as a rooming house on the second floor. J. A. Woolly paid the rent for 15 months, and during which time Frank Mazzie made several attempts to stop the leaks in the roof, but did not succeed in doing so. In January, 1924, J. A Woolly refused to pay further rent until the roof be repaired and the leaks stopped. On March 20, 1924, Frank Mazzie brought the suit for rents due for January, February, and March (Court of Civil Appeals of Texas. Texarkana. in the sum of $180, and caused a distress war May 14, 1925.) rant to be issued and levied on the groceries and fixtures in the store. The goods are held 1. Landlord and tenant 188(1)-Landlord's by the constable subject to the order of the failure to repair building, agreed to be rent-court. After filing the suit, Frank Mazzie reed from month to month on condition repairs quested J. A. Woolly to vacate the premises, be made, would justify tenant to vacate with- and J. A. Woolly complied with the request out further liability for rent from time of vaimmediately." cation. Then follow the court's conclusions of law, Landlord's failure to repair roof of build-thating, agreed to be rented from month to month on condition such repairs be made, would justify tenant to vacate without further liability for rent from time of vacation. "I conclude, as a matter of law, that under the facts above stated that the plaintiff, Frank Mazzie, was guilty of a breach of contract entered into with the defendant J. A. Woolly, and I therefore find for defendant." The judgment entered was that the plaintiff take nothing by the suit, and he has sued out the appeal. It appears from the record that the renting of the building was for no fixed period of time, but was to be "from month to month." According to the evidence in behalf of the appellant the roof of the building was repaired at the inception of the rent agreement, and was made leak proof, and never leaked afterwards. According to the Appeal from Grayson County Court; R. evidence in behalf of the appellee the roof M. Carter, Judge. Action by Frank Mazzie against J. A. Woolly. Judgment for defendant, and plaintiff appeals. Reversed and rendered. The appellant brought the suit to recover $180 as the amount of rent due by appellee for January, February, and March, 1924, for was repaired several times during his occupancy of the building, but was only "patched," and continued to leak to the extent of inconvenience in the use of parts of the building. Appellee, it appears, continued in the building and made use of it from time of entry in October, 1922, until after this suit was filed on March 20, 1924. He occupied and (273 S.W.) used the building auring January, February, | his failure of performance, would not be in and March, 1924, and has not paid rent there a legal position to compel the continuance for. He conducted his business therein to of the rent agreement after the time the the full capacity of the building during the premises were thus vacated, for it is not a whole of this time, the building not being | continuing contract to rent the building rendered unfit for its usual use and occupan-"from month to month," if the covenant of cy on account of leaks. The appellant tes- repair is not fully performed, and the tentified, and it is undisputed, that “The defendant has been occupying that build ing from month to month for nearly 18 months. He has paid the rent up to January 1, 1924. He has paid no rent since that time. I am suing for rents of January, February, and March, 1924." The appellee testified: "In staying there from month to month I was relying on his agreement to fix the building. He said he would fix the building. I kept staying on, and paid him the rent for 15 months. The leaks have not been stopped in it yet. I finally stopped paying the rent, because he did not fix the building as he agreed to do. He claims I owe him for January, February, and March, 1924. I did not pay that, because he would not fix the building; that was my reason for refusing to pay." The appellee does not claim that he did not occupy and use the building in January, February, and March, 1924. J. H. Randell, of Denison, for appellant. LEVY, J. (after stating the facts as above). [1] The proposition of appellant is, in effect, that under the pleadings and the facts he was entitled to recover rent for the three months used and occupancy of the building by the appellee, and that the court erred in adjudging otherwise. We think the proposition should be sustained. The parties expressly covenanted as to the repairs, and such covenant therefore constituted the measure of liability of the respective parties thereto. The rent agreement stipulated the letting to be "from month to month," and, as found by the court, "conditional on Frank Mazzie repairing the roof of the building and making it leak proof." Construing the covenant here to be, as it is, in the nature of a condition, that the tenant would rent the building upon the condition that it was made leak proof, the tenant, as a legal consequence, would be authorized to annul the agreement and to vacate the premises at any time, and thereby escape further liability for rent in case the landlord did not perform his covenant to make the roof leak proof. ant especially contracted to rent the building subject to the condition, or "conditional" upon the covenant or agreement to repair the roof and make it leak proof. According to the facts, though the appellee did not vacate the building and thus escape liability for the rent from that date on, while he notified the landlord in January, 1924, that he would not "pay further rent until the roof be repaired," he nevertheless, as admitted, continued in possession of the building, using and occupying it to the same extent as before done during the previous 15 months, and the court does not find, nor does the evidence establish as a fact, that the building during those three months was rendered unfit for use for the purposes to which it was devoted by the appellee. Further, the court does not find, and there is an absence of any evidence showing such to be the fact, that there was a lessened rental value of the premises by reason of leaks such as appellee claims here; neither is there any counterclaim for damages as offsets to rents. Appellee relied entirely upon a general denial for pleading. In view of the pleadings and facts, appellee was liable for the rent for the three months' admitted use and occupancy of the building. The appellee's reason for not paying rent for the three months in suit was, as stated by him, "because he (appellant) would not fix the building; that was my reason for refusing to pay." And the court, it seems, based his conclusion of nonliability for rent upon the ground that the breach of the covenant to repair the roof exonerated the tenant from payment of any rent, although the tenant used and occupied the building during the months of January, February, and March, in the same way and to the same extent as during the 15 previous months. It is not the law applicable to the facts that liability for any rent was suspended and not enforceable merely because the landlord failed to perform the agreement, the default not rendering the building unfit for use and occupation. The judgment is reversed, and judgment is here rendered for appellant for the amount of rent sued for, with a foreclosure of the lien, in virtue of the distress warrant, and costs of both trial courts. The appellee to [2] In such case the landlord, in virtue of pay costs of the appeal. Accident Board, but, in proving her claim, OROSCO et al. v. TEXAS EMPLOYERS' INS. | made the following statement: ASS'N et al. (No. 1215.) (Court of Civil Appeals of Texas. Beaumont, 1. Master and servant 405 (5)—Finding of Evidence held to support finding of wife's abandonment of husband for three years prior to his death, so as to foreclose her right to compensation under Vernon's Ann. Civ. St. Supp. 1918, art. 5246-15. 2. Master and servant 417 (5)-Failure to define abandonment without good cause held without error. Where no excuse was offered by wife in compensation proceeding for abandoning her husband more than three years prior to his death, failure of court to define "without good cause," within Vernon's Ann. Civ. St. Supp. 1918, art. 5246-15, was without error. "Port Arthur, Texas, September 16, 1922. "Industrial Accident Board, Austin, TexasYour letter of August 8 requires me to submit whatever evidence I have in the Manuel Gomez vs. Texas Company Case, as appears on the copy, and in the certificate attached to it. Manuel Gomez and I were not legally married. Manuel Gomez was also known by the name of Regino Gomez. As far as I know, Mr. Gomez' former wife's name was Emilia Lopez." Through the Mexican consular office, the woman, Emilia, was notified of the death of Gomez, and duly filed her application for the compensation, which was allowed as against the claim of Carmen Gomez. Thereupon Carmen and the Texas Employers' Insurance Association gave notice of appeal from the award, but the appeal was perfected only by the Association, to which suit the other parties at interest were made parties as required by law. Chonita Pro, a daughter of the woman Carmen and of Gomez, born to them while they were living together, was also made a party. 3. Master and servant 404-Evidence that by general repute wife of deceased had lived with another as his wife properly received. Where wife claimed compensation for death of husband, there was no error in receiving evidence that, by general repute, she was living with her cousin as his wife, evidence having relation to a time long after her alleged aban-gether as neighbors, Carmen with her husdonment of husband. Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge. insurer. Proceeding under the Workmen's Compensation Law by Emilia Cortez de R. Gomez Orosco and Carmen Gomez, claimants for death of Manuel Gomez, opposed by the Texas Employers' Insurance Association, the From an award of compensation by the Industrial Accident Board, the insurer appealed to the district court, where judgment was entered against both claimants, and compensation awarded to natural daughter of deceased, and first claimant named and another appeal. Affirmed. Upon the trial of the case, it was shown that Carmen and Manuel Gomez, who was known in Mexico as Regino Gomez, lived to band, and Regino with his wife, the woman Emilia. In 1905 or 1906, Carmen deserted her husband, and came to Texas with Gomez and lived with him as his wife until his death in 1922. Gomez and Emilia were married in 1895, 1896, or 1897. The facts raised the issue that at one time Emilia deserted her husband and came over to Texas for a short period with another man, but when she returned Gomez received her back into his home, and that she lived with him as his wife for three or four weeks. The evidence also raised the issue that she again deserted Gomez in 1901 or 1902, and went to the home of one of her cousins, with whom she lived from that time up until about 1914. Another cousin testified upon the trial of this case that when Gomez left in 1905 or 1906, Emilia was a "widow." There was also testimony to the effect that she was reputed to be the wife of her cousin with whom she was living; that she was seen at his home; that they were often seen out together on the streets. Without further WALKER, J. While in the due course of quoting from the record, it is our judgment his employment with the Texas Company, that the issue was raised that Emilia lived which carried workmen's compensation with constantly with her cousin in improper appellee, the Texas Employers' Insurance As- relations from 1902 until 1914. About 1915, sociation, one Manuel Gomez suffered death she came to Texas and was legally married under circumstances giving his surviving de- to another man, with whom she was living pendents the right to compensation. Imme- at the time this case was tried. She prosediately upon his death, a woman with whom cuted her claim before the Industrial Accihe had been living for about 17 years filed a dent Board under the name of Gomez, and claim for compensation with the Industrial did not reveal the fact that she had been Howth, Adams & Hart, David E. O'Fiel, and A. D. Lipscomb, all of Beaumont, and Randolph Carter and J. Tom Haltom, both of San Antonio, for appellants. Oswald S. Parker and R. E. Masterson, both of Beaumont, and Reynolds & O'Neal, of Port Arthur, for appellees. |