Lipscomb v. Harwell (132 S.W. 867, 1910)

SPEER, J.

S. B. Harwell instituted this suit in the county court of Sherman county to recover the sum of $480 from Joe Williams, T. D. Lipscomb, and M. W. Harris, alleging in a general way that Lipscomb and Harris were the owners of certain lands which they had employed the defendant Williams as real estate broker to sell, agreeing to pay him the usual commissions of 5 per cent., and that he, the plaintiff, at the instance of defendant Williams and upon his promise to divide such commissions equally witb him, had furnished a buyer for such lands. The defendant Lipscomb answered generally, and specially that he had paid his codefendant Williams the sum of $480 in full settlement of such commissions. The case was tried before, a jury upon special issues resulting in a judgment in favor of the •plaintiff against Williams for the sum of $240, and in favor of plaintiff and Williams jointly against the defendant Harris for the sum of $96 and against the defendant Lipscomb for the sum of $384. The defendant Lipscomb alone prosecutes this writ of error.

A number of issues were submitted to the jury by the court, among which was the following: “(13) How much commission, if any, is still due from Harris and Lipscomb, or either of them, on account of the sales of the land to Bell and Egolf?” And again among special issues submitted at the request of plaintiff in error was the following: “(3) Did T. D. Lipscomb and M. W. Harris tender to the defendant Joe Williams their note for $480 after the sales alleged by the plaintiff as a full settlement of all commissions due by them to said Joe Williams on account of said alleged sales? Answer ‘Yes’ or ‘No.’ ” To each of these questions the jury answered that they disagreed. The answer to other issues indicated that Lipscomb and Harris had given Williams their note for $4S0 on account of this transaction, and that it had been fully paid. It will thus be seen that the jury to whom were submitted the material issues of fact in this case failed to find upon one of them, and this failure is necessarily fatal to any judgment whatever as to those parties interested in that issue. In cases submitted upon special issues, as upon all others submitted-for the determination of a jury, the verdict alone constitutes the basis for the court’s judgment, at least as to those issues which are submitted for the jury’s determination. It is beyond the power of the court to enter a judgment contrary to those findings, even if the evidence is undisputed upon that issue. Ablowich v. Greenville Nat. Bank, 95 Tex. 429, 67 S. W. 79, 881. Whether or not the $480 paid to Williams was in full settlement of all demands against Lipscomb and Harris was an issue under the pleadings, and should have been decided by the jury before the court was authorized to enter any judgment upon it. This necessarily reverses the case as between defendant in error Harwell and Williams as plaintiffs and plaintiff in error Lipscomb and Harris, but the judgment in favor of defendant in error Harwell against Joe Williams for $240 (one-half the $480 paid by Lipscomb and Harris to Williams), is in no manner disturbed.

Reversed and remanded.