Opinion
No. 828.
May 12, 1922.
Appeal from Harris County Court; Roy F. Campbell, Judge.
Action by D. Knodell and others against E. J. Burke. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.
Van Velzer York, of Houston, for appellant.
Green Boyd, of Houston, for appellees.
This was a suit by appellees, as plaintiffs, against appellant, as defendant, for commission on the sale of certain pieces of real estate. They alleged that appellant listed this property with them for sale under a written contract which set forth the prices and terms on which each piece was to be sold. They further alleged a compliance by them with the terms of the written contract. The proof raised the issue that they were instrumental in selling the property on conditions and terms satisfactory to appellant. However, under the most liberal construction of appellees' testimony, the sales were not made under the terms of the contract pleaded, but under modifications of that contract, both as to price and terms. The trial was to the court without a jury, and, while the evidence was sufficient to sustain his conclusions of fact and his judgment based thereon in favor of appellees, such evidence had no support in the pleadings. "Evidence cannot form the basis of a judgment, without a pleading to which the evidence relates." Kirby Lumber Co. v. Lewis (Tex. Civ. App.) 222 S.W. 332.
Reversed and remanded.