Opinion
March 12, 1913.
Appeal from District Court, Medina County; R. H. Burney, Judge.
Action by R. C. Howard against C. M. Thompson and another. From the judgment, the defendant named appeals. Affirmed.
Brucks Noonan, of Hondo, Jno. T. Briscoe, of Devine, and C. C. Harris, of San Antonio, for appellant. De Montel Fly, of Hondo, and J. I. Kercheville, of San Antonio, for appellee.
Appellee sued appellant and Mrs. Lizzie C. Adams to recover $1,900 alleged to be his portion of commissions due the Devine Realty Company, of which he was a member, on sales of real estate belonging to appellant and Mrs. Adams. The parties to this suit, together with A. M. Patterson and W. L. Dubose, by written agreement, formed the Devine Realty Company, for the purpose of selling real estate, and plaintiff alleged that a supplemental oral agreement was made by which each member of the firm agreed that, in case of sale by any of them of their own lands, a commission should be paid the firm, and that Mrs. Adams and appellant sold certain of their lands to the Medina Irrigation Company, by reason whereof commissions became due the Devine Realty Company, of which the portion to which he was entitled amounted to $1,900. Defendants answered by a general denial. The court instructed a verdict in favor of Mrs. Adams, and submitted to the jury the sole issue whether appellant had entered into and agreed to the terms of the oral contract as pleaded by plaintiff, and submitted plaintiff's possible recovery at $904.08. The jury returned a verdict in favor of plaintiff for $480.34, with interest thereon at 6 per cent. from January 1, 1912, and judgment was entered accordingly, from which this appeal was taken.
Appellee in his brief calls attention to the fact that the only assignment contained in appellant's brief does not appear in the transcript. As the record does not show that such assignment of error was filed in the lower court, and no error of law in the proceedings is apparent of record, there is no question before us for consideration, and it is our duty to affirm the judgment of the court below. Article 1612, Rev.Stat. 1911; rules 22 and 23 for Courts of Civ.App. (142 S.W. xii); Durham v. Garrett, 121 S.W. 1141; Lewis v. Steiner, 84 Tex. 364, 19 S.W. 516; Bopp v. Ganzer, 26 S.W. 444; Hamilton v. Kegley, 57 Tex. Civ. App. 159, 122 S.W. 304; Newman v. Satterwhite, 118 S.W. 1145; Phillips v. Webb, 40 S.W. 1011.
Judgment affirmed.