Cranke v. Trinity Gravel Co. , 272 S.W. 604 ( 1925 )


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  • Unable to concur in the disposition of this case by the majority of the court, it has become necessary to file this dissenting opinion. The case was tried below before the court without the intervention of a jury, and the appeal comes *Page 609 to this court on the statement of facts without any specific findings of fact by the trial court.

    The grounds for this dissent are (1) that, under the settled rule of law governing this court, it is without power to enter judgment rendering this case in favor of appellant; (2) as there is evidence to sustain the judgment of the trial court, this case should be affirmed, as this court must presume that every issue of fact sustained by evidence was found by the trial court favorable to the judgment entered. Dallas v. Emerson (Tex.Civ.App.) 36 S.W. 304; Grace v. Miller, 4 Tex. Civ. App. 50,23 S.W. 444; Dunn v. Price, 87 Tex. 318, 28 S.W. 681; Herndon v. Williams (Tex.Civ.App.) 233 S.W. 544.

    The trial court is the forum where the issues of fact are determined. The Court of Civil Appeals may set aside the findings of fact either of a jury or of a court, but cannot substitute its findings of fact for those either of the jury or the trial court, if such findings in the court below have any evidence to sustain them. This rule of law is so clearly announced in the case of Post v. State of Texas, 106 Tex. 500,171 S.W. 707, that we quote its language:

    "The province of determining questions of fact is in the trial court. The Court of Civil Appeals has the power to set aside its finding and remand the cause for a new trial. Where the evidence is without conflict, it may render judgment. But, where there is any conflict in the evidence upon a material issue, it has no authority to substitute its findings of fact for those of the trial court."

    In the case of Choate v. S. A. P. Ry. Co., 91 Tex. 406, 44 S.W. 69, this rule of law is declared as follows:

    "It is the province of the jury to determine questions of fact; but it is in the power of the trial judge to set aside the finding and to award a new trial. The Court of Civil Appeals has the same power upon appeal. But clearly the trial court cannot set aside the verdict of the jury and substitute its finding instead of the finding of a jury and render judgment accordingly. To say that the Court of Civil Appeals may do so when there is any conflict in the evidence is to concede to that court a power over the facts greater than possessed by the judge who heard the evidence, who had the witnesses before him, and had the opportunity of judging of their credibility by their appearance and manner of testifying."

    A finding of fact by the trial court is governed by the same rule of law when it comes to this court, as is a finding of fact by a jury.

    The power of this court to reverse the judgment of the trial court on its findings of fact and render a judgment opposed to such findings rests solely on the question, "Is there any evidence to sustain the judgment of the trial court?" It must then first be determined what is the undisputed evidence in this case. It is submitted that it consists only of the following facts: Harston, for himself and the other appellees, made an agreement with appellant that, if he would sell for $200 per acre the 471 acres of land owned by them, he would be paid the usual commission for such services; that appellant at once interested a Mr. Chamblin, a gravel expert, to assist him to make a sale, first, under the promise to pay him $800 of the commission, and later, to pay him in lieu thereof one-third of the amount recovered in this case; that appellant Chamblin and Harston inspected the land to determine its value as to gravel deposits, with the result that Chamblin was favorably impressed with the land in this respect; that after this visit to the land appellant interested a Mr. Callahan as a prospective purchaser under the terms named; that the parties who first inspected the land, together with Callahan and his gravel expert, at once inspected the land and Callahan secured permission from Harston for his gravel expert to make borings and other investigations of the land to determine its probable amount of gravel deposits; that Callahan did not become the purchaser of this land, either on the terms given appellant or on any other terms; that some two months or more after Callahan's visit to the land a corporation was formed, known as the Harston Sand Gravel Company, in which corporation Callahan became a stockholder and an officer; that this corporation was formed through the joint efforts of Harston and Callahan, and for the purpose of taking over this land to exploit its gravel deposits; that the land was conveyed by appellees to this corporation for a consideration of $77,500, paid as follows: $5,000 in cash; one note for $5,000; the assumption of a prior indebtedness against the land in the sum of $22,500; and the issuance of stock to appellees of the par value of $45,000. The record does not state how much stock of the corporation was taken by Callahan; it does state that the corporation was organized with an authorized capital stock of $120,000, and names a number of parties who were interested as stockholders in the corporation, and leaves a clear inference that Callahan's stock holdings in the corporation were relatively small.

    The evidence contained in the record, which is either in conflict with other testimony or which the law requires to be corroborated before it can be placed in the category of undisputed testimony, may be briefly stated as follows: (1) In behalf of appellant it was testified, in effect, by Chamblin and appellant, that on the occasion of the first visit to the land Chamblin suggested to Harston that the sale of the land called for more money than could likely be *Page 610 controlled by a single person as a purchaser, and that he believed it was necessary for several persons to become interested in the purchase by means of the formation of a corporation or a partnership for the purpose of purchasing the land and exploiting it for gravel, and that Harston agreed that, if parties suitable to him were secured to form such a corporation or partnership, he would take stock in it as a part of his consideration and pay a commission in the event such a plan was consummated; that Callahan was interested through the efforts of appellant in such a plan for handling the land; and that his activities towards the formation of a corporation were the direct result of appellant's efforts. Appellant and Chamblin were the only witnesses called by appellant and, at the time they gave their testimony, each had a one-third interest in the amount of recovery, the other one-third being owned by a party who was not cognizant of any of the facts; (2) on behalf of appellee it was testified, in effect, by Harston that Callahan was shown the land only as a prospective purchaser of the land at $200 per acre; that some three weeks after Callahan's visit to the land, and while the said expert was completing his investigations as to the gravel deposits on the land, appellant came to his office and said, "Mr. Harston, those people [meaning Callahan and his associates] haven't got any money; I don't think there is a sale," to which Harston replied, "All right"; that he understood by this statement that appellant had ended his efforts to sell the land to Callahan; that about a month or six weeks after this interview with appellant he and Callahan began their efforts to organize the corporation for the purpose of taking over the land and marketing its gravel; that previous to his meeting with appellant he had had under consideration such a plan for handling the land, and had spoken to one Heiser, Callahan's business associate, in reference thereto; that as a result of his and Callahan's efforts the corporation was organized and the land purchased; that he never made any kind of an agreement to pay any kind of commission on the corporation deal, and never at any time acted for any of the other appellees as agent to deal with appellant to pay him a commission for aiding in the organization of the corporation known as the Harston Sand Gravel Company; that, so far as he knew, appellant had nothing to do with interesting either himself or Callahan in the organization of the corporation. The only other witness in the case was appellee Brotherton, whose testimony is not deemed material.

    The evidence offered by appellant could not be considered as making a prima facie case until there was evidence tending to show that his efforts were the procuring cause of the organization of the corporation for the purpose of selling the land, and that the land was sold as a result of the organization of this corporation. He does not make out such a case by the undisputed testimony; on the contrary, if he had rested his case on this undisputed testimony, to-wit, the fact that he was authorized to sell the land at $200 per acre, that for this purpose he had introduced Callahan to Harston and had assisted in showing him the land, and that afterwards a sale was made to a corporation of which Callahan was at most only a small stockholder, claim certainly could not be made that there was such a case in which the trial court would be authorized to instruct the jury peremptorily in his favor. Unless such a case was made by the undisputed evidence, this court cannot render a judgment in his favor. Appellant did not rest his case on the undisputed testimony, but offered evidence tending to show that he entered into another agreement with Harston, looking to the formation of such a corporation for the purchase of the land and his allowance of a commission should the land be sold to such corporation. Not only is this evidence, which was vital to appellant's right of recovery, disputed by Harston, but there is a rule of law which declares, in effect, that a plaintiff's right to recover in his suit cannot be assumed on his uncorroborated testimony, even if such testimony be uncontradicted. All of the testimony given in behalf of appellant in reference to the formation of a corporation and appellant's activities in respect thereto is given either by appellant or by Chamblin, both equally interested in the recovery, and wholly uncorroborated by any other evidence. This rule of law is announced by our Supreme Court in Dashiell v. Johnson, 99 Tex. 546, 91 S.W. 1085, in which the Court of Civil Appeals reversed a judgment of the lower court and rendered judgment in favor of a husband and wife because the judgment of the lower court was opposed by their testimony, which was undisputed. The Court of Civil Appeals was reversed and the rule laid down that the truthfulness of such testimony cannot be assumed by a court, but must be submitted to a jury in the trial court. To the same effect is Turner v. Grobe,24 Tex. Civ. App. 554, 59 S.W. 583, and A. T. S. F. Ry. Co. v. Lucas (Tex.Civ.App.) 148 S.W. 1149.

    In this case, in rendering judgment in favor of appellant, the majority of this court must have assumed the truth of this uncorroborated testimony of the interested parties, not only against the rule above announced, but also against the evidence of Harston in conflict with such testimony. It appears to me that the evidence in this record so clearly raises an issue as to whether *Page 611 appellant was the procuring cause of the formation of the corporation and the sale of the land to such corporation, that no further argument is needed to sustain this view.

    It is also my view that, under the rule that usually obtains in review of judgments of this character by our appellate court, this case ought to be affirmed. The court below was warranted in finding that appellant abandoned his efforts to make a sale to Callahan. If it was abandoned by appellant, and at a later date Harston made a sale direct to appellant, no commission in favor of appellant would be incurred by reason of such sale. Land Mortgage Bank of Texas v. Hargis (Tex.Civ.App.) 70 S.W. 352; note in Ann.Cas. 1913E, 788. In this note the doctrine upon which the case of Land Mortgage Bank of Texas v. Hargis, supra, evidently is decided is announced in the following language:

    "Although the broker may be the means of first bringing the parties together and of opening negotiations with them, yet if the negotiations are unproductive and the parties in good faith withdraw therefrom and abandon the proposed purchase and sale, a subsequent renewal of negotiations followed by a sale at a less price does not entitle the broker to the commissions, as he cannot be said to be the procuring cause of the sale."

    This is supported by the citation of a number of authorities. In the case at bar, however, Callahan and his associates never became the purchasers. They only owned a minority of the stock in the corporation that did become the purchaser. The rule above announced applies with much greater reason to this case.

    The conflict in the evidence as to whether appellant had anything to do with the formation of the corporation was an issue for the trial court to determine. In the instant case, this issue was determined against appellant on the conflicting testimony outlined above, and, by reason thereof, the duty rests on this court to affirm such judgment.

    I respectfully dissent from the opinion of the majority of this court in reversing and rendering this cause.