CASES IN THIS VOLUME Furr v. Chapman (Tex. Com. App.)...... 496 ... Bailey v. Federal Supply Co. (Tex. Com. C. D. Hartnett Co. v. Shirah (Tex. Com. 902 244 901 904 50 902 South Chester Tube Co. v. Texhoma Oil & First State Bank v. Fidelity Union Fire TEXAS COURT OF CRIMINAL APPEALS CASES IN THIS VOLUME .... Adams v. State (Tex. Cr. App.). Brooks v. State (Tex. Cr. App.) Cr. ........ ..... .... Cain v. State (Tex. Cr. App.) ... Hall v. State (Tex. Cr. App.). 499 | Johnson v. State (Tex. Cr. App.). 257 .1111 .1111 .1112 262 260 Oglesby v. State (Tex. Cr. App.) .1112 Orr v. State (Tex. Cr. App.).. .1095 ..... .1112 Patton v. State (Tex. Cr. App.) 56 264 .1100 Spence v. State (Tex. Cr. App.). 254 Uhl v. State (Tex. Cr. App.). Wright v. Stewart (Tex. Civ. App.)..... 145 See End of Index for Tables of South Western Cases in State Reports 287 S.W. (xxii)† THE SOUTH WESTERN REPORTER VOLUME 287 ADKINS v. MCCLEARY. tained by the evidence, and that the court erred in its instructions to the jury, the issue of fact being as to whether Adkins had no (Court of Appeals of Kentucky. Oct. 5, 1926.) tice of the character of the Helfrich lease, 1. Brokers 88(1). In broker's action for commissions in sale of real property, whether broker had notice of extension privilege in lease on property and whether such privilege was considered in listing contract held for jury. 2. Appeal and error 699 (2). Reviewing court cannot consider objections urged against instructions where they are not in the record, since verdict will be considered as verdict of properly instructed jury. Appeal from Circuit Court, Boyd County. Action by S. G. Adkins against J. H. McCleary. Judgment for defendant, and plaintiff appeals. Affirmed. and how, if at all, this was considered in the listing contract. [1] On this point Adkins testifies: That, in the inception of the matter, he had a proposal from a party to pay $12,000 for the building, $6,000 in cash and $6,000 on time; that he suggested it to McCleary, who de clined, but said: "If he could get $12,000 cash for it he would let it go, and that if he did not get it that he would just hold on to it, that he did not want to sell it on credit. * * 'He said that Mr. Helfrich had a lease on it until July 1, 1924;' and I goes back and told Mr. Carter, and he says to me, I will talk to Mr. McCleary;' and I says, 'All right,' and we walked up to the store and walked in back to McCleary's office; and Mr. Carter said, 'McCleary, is Mr. Adkins S. S. Willis, of Ashland, for appellant. H. R. Dysard and C. L. Miller, both of your authorized agent to sell the Helfrich store Ashland, for appellee. for $12,000?' and he says, 'Yes, sir;' and he says, 'Possession to be given July 1, 1924?' and Mr. Carter says, 'I will just buy your building;' and Mr. McCleary says, 'I will have to go down and see Ernie (Helfrich).'" MCCANDLESS, J. J. H. McCleary owned a business house in Ashland which had been occupied by H. L. Helfrich for many years That the agreement between him and Mcunder lease. S. G. Adkins is a real estate Cleary was that he was to get all of the sale broker in that city. In May, 1923, Adkins price over $12,000; that when he and Carter solicited McCleary to list this building with visited McCleary the latter asked Carter the him for sale. McCleary did this, fixing a price he was paying for the property and he cash price of $12,000 for the property, Ad- told him $13,000, and McCleary said it was kins to receive as commission whatever agreed for Adkins to have $1,000 of this as amount the sale price exceeded this sum. commission. He further testifies that he Adkins found a purchaser in the person of went to see McCleary the next morning, and W. H. Carter, who agreed to pay the sum of McCleary told him that Helfrich had inform$13,000 in cash. Helfrich was holding under ed him that he had a five-year extension on a five-year lease which expired on the first the lease, but that he (McCleary) had been of July, 1924, but it contained a provision unable to find his copy of it, though he would giving Helfrich the privilege of renewing the try to find it; that he went back the followlease for five years on the same terms, and ing day and McCleary told him that he was when Carter learned of this fact he declined still unable to find the contract and for him to take the property. Later, McCleary sold to go down and see Helfrich; that he did the property to Helfrich for $12,000, and Ad- this, and at first Helfrich refused to let him kins brought suit against McCleary to re- see the contract, but finally showed it to cover the $1,000 commission. In a jury trial, him; that after it was discovered that the verdict was rendered for defendant and Ad-lease had an extension privilege and that kins appeals, the only questions urged for Helfrich intended to exercise his option of reversal being that the verdict is not sus-retaining the property, Carter refused to pur For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |