
    O’NEAL et al. v. BUSH & TILLAR.
    (No. 2368.)
    (Supreme Court of Texas.
    Feb. 14, 1917.)
    1. Appeal and Error <&wkey;216(l) — Review- . Requests por Instructions.
    A judgment will npt be reversed for failure to submit an issué where no charge embodying the issue is requested.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <&wkey;>216(l); Trial, Cent. Dig. § 627.] , .
    2. Appeal and Error <&wkey;1151(2) — Judgment —Reformation.
    Where verdict was for $25,000 and judgment was entered for that amount, the appellate court may, where undisputed evidence shows that amount agreed to be paid was $15,000 and the charge did not authorize recovery for any other amount, reform the judgment and affirm it for the correct amount.
    [Ed. Note. — For other cases, see Appeal and Error,. Cent.' Dig. §§ 4498-A500, 4503-4505; Dec. Dig. 4&wkey;1151(2).]
    
      Error to Court of Civil Appeals of' Sixth Supreme Judicial District.
    Modification of former opinion reported in 173 S. W. 869, in pursuance of rehearing granted as reported at 177 S. W. 953.
    See, also, 140 S. W. 242.
    Capps, Cantey, Hanger ■& Short, of Ft. Worth, for plaintiffs in error. Flournoy, Smith & Storer, of Ft. Worth, for defendants in error.
   PHILLIPS, C. J.

At a former term we reversed the judgment of the honorable Court of Civil Appeals in this case and affirmed that of the District Court, the opinion of the court being delivered by the late Chief Justice Brown. Some misstatements in respect to the disposition of the case by the Court of Civil Appeals appeared in the opinion which it was Chief Justice Brown’s purpose to correct before the opinion was filed, but through oversight this was not done. For the purpose of making these corrections and re-examining some features of the case, as well, we granted the motion for rehearing of the defendants in error, setting our judgment aside and reserving further decision.

The case in all of its aspects has been thoroughly reconsidered. Save in one material respect it was in our view correctly decided upon the former hearing, and with that correction in the judgment our former determination will be adhered to.

A substantial statement of the case is contained in the former opinion. A judgment for $25,000.00 and interest in favor of the plaintiffs in the suit was rendered in the trial court. This judgment was reversed by the Court of Civil Appeals, upon a holding that the defendants were entitled to have the jury pass upon the issue as to the value of the notes, in excess of $6.50 per acre, given them by Rule and Allen for the land, and the cause remanded for further trial. On rehearing judgment for the defendants was rendered, apparently upon the ground that the plaintiffs’ cause of action was one for damages for the defendants’ breach of their contract to account to the plaintiff for the amount in excess of $6.50 per acre received in the sale to Rule and Allen, and not for the recovery of such excess, as was in fact the action.

There was evidence to sustain a finding, — and under the charge of the court it is to be assumed that such was the jury’s finding,— that Tillar for himself and co-defendant, the owners of the land, agreed with the plaintiffs that in lieu of their making any further payment under their own contract and a closing of the pending transaction for their acquisition of the title, the land might be directly conveyed to Rule and Allen, with whom the plaintiffs, in contemplation of their own purchase, were negotiating for its sale; and that acting with the plaintiffs and in their behalf he would assist in concluding such sale, holding for the plaintiffs as their property, and accounting to them therefor, all in excess of $6.50 per acre that Rule might bind themselves to pay for the land. The sale to "Rule and Allen, for $6.50 per acre and $15,000.00 in excess of that amount, evidenced by secured notes, was thus effected. It is clear that the sale was made through the means of the pending negotiation between the plaintiffs and Rule and Allen, of which Tillar fully availed himself. The result was a sale of his and his co-owner’s land which was entirely satisfactory to himself. Tillar’s attempted repudiation of his agreement with the plaintiffs after the sale to Rule and Allen was virtually concluded and his announcement of a purpose to appropriate the entire proceeds could not destroy the rights of the plaintiffs under the agreement. He undertook the transaction with Rule and Allen under the agreement, and in good conscience was bound to observe it upon concluding a sale which was the subject of it. The plaintiffs owned an equitable interest in the land. They had assisted in closing the transaction with Rule and Allen, and hence were in the attitude of consenting to the passing of their equitable interest by Bush and Tillar’s deed. The conveyance by Bush and Tillar of the legal title therefore passed to Rule and Allen the plaintiffs’ equitable interest by estoppel. In concluding the transaction with Rule and Allen under these circumstances, Tillar, upon clear equitable principles, was a trustee for the plaintiffs to the extent of the excess over $6.50 per acre that Rule and Allen contracted to pay for the land, and rested under the duty of accounting to the plaintiffs therefor.

The failure of the trial court to submit the issue as to the value of the notes accepted by Bush and Tillar, representing the excess over $6.50 per acre agreed to be paid by Rule and Allen in the transaction,, affords no ground for reversing the judgment. Granting that there was evidence raising the issue, the error of the court' consisted in its omission from the charge. No special charge upon the issue was requested. The amount of the notes was, prima facie, their value; and upon the measure of the recovery there was no affirmative error in the charge. A judgment will not be reversed because of a mere failure to submit an issue where no charge embodying the issue is requested. Shumard v. Johnson, 66 Tex. 73, 17 S. W. 398; T. & P. Ry. Co. v. Eberheart, 91 Tex. 321, 43 S. W. 510.

This is also true of the issue in respect to the amount the plaintiffs were entitled to recover if the payment by Tillar of $15,000.00 in notes to Pyron, one of the plaintiffs, was for a commission earned in making the sale to Rule and Allen. Assuming that this payment to Pyron was for such purpose, and not, as Pyron claimed, for the purpose of satisfying other indebtedness due him by Bush and Tillar, and that accordingly there could be no recovery for Ms interest in tbe amount Rule and Allen agreed to pay for tbe land in excess of $6.50 per acre, no special charge presenting tbe issue was requested by tbe defendants; and therefore tbe judgment will not be reversed because of tbe court’s failure to submit it.

In one respect we think tbe judgment of tbe trial court was materially wrong. This is tbe only additional question which we deem it necessary to discuss. The undisputed evidence was that the amount agreed by Rule and Allen to be paid for the land in excess of $6.50 per acre was $15,000.00. The jury found in favor of the plaintiffs in tbe amount of $25,000.00 with interest, and judgment was so rendered. This included the $15,000.-00 agreed to be paid by Rule and Allen in excess of $6.50 per acre and the $10,000.00 which the plaintiffs had previously paid the defendants under their contract of purchase. The charge of the court authorizing a recovery in favor of the plaintiffs was as follows:

“You are instructed that if you believe from the evidence that after plaintiffs and defendants entered into the written contract offered in evidence, dated October 27th, 1906, and before or on May 11th, 1907, plaintiffs had secured an agreement from Rule and Allen, for the purchase by said Rule and Allen from the plaintiffs of all the rights and interest vested in the plaintiffs under and by virtue of the said written contract between plaintiffs and defendants, for the sum of $25,000.00 and $6.50 per acre; and that thereafter and on or about the 11th day of May, 1907, the defendant, Ben J. Tillar, for himself and for the firm of Bush & Tillar, entered into an agreement with the plaintiffs, that they, the defendants, would, in lieu of any further payments which might then be due from plaintiffs under the contract of October 27th, 1906, conclude and make for plaintiffs and themselves, the trade with said Rule and Allen, and make conveyances of or contracts for the land described in said written contract of October 27th, 1906, direct to said Rule and Allen and that defendants would preserve for the plaintiffs’ benefit any advanced consideration or bonus which you believe from the evidence said Rule and Allen had agreed, at that time, to give plaintiffs over and above the $6.50 an acre and that the defendants, Bush & Tillar, and Ben J. Tillar would accept for themselves the $6.50 per acre and give to the plaintiffs, or account to the plaintiffs for all amounts over and above such sum of $6.50 per acre, as they might be able to contract for with said Rule and Allen; and you further believe from the evidence that in consideration of such agreement the plaintiffs notified Rule and Allen that they should deal directly with said Ben J. Tillar with reference to said matters, and they did so deal with said Tillar with reference to said contracts for the sale of said lands; and you further believe from the evidence that the defendants did, in pursuance of said agreements and understanding, if any, contract for the conveyance of said lands (mentioned and described in said contract of October 27, 1906), to said Sidney P. Allen with the guarantee of said Rule and the same was acceptable to said defendants, and they, the defendants, did receive, realize or secure satisfactory contracts for any amount of money in excess of $6.50 per acre for said lands, then it will be your duty to find for the plaintiffs, the amount which you find from the evidence said defendants realized, or secured satisfactory contracts for the payment of, in excess of $6.50 per acre, with interest at the rate of 6% per annum from the date of the consummation of such sale to said Rule and Allen by the defendants.”

This charge does not submit as an issue any agreement upon the part of defendants to pay the plaintiffs all that might be realized by them in the sale of the land in excess of $6.50 per acre, including the $10,-000.00 wMch the plaintiffs had previously paid on their original purchase agreement, and does not authorize a recovery for the latter amount. It deals with the status of the parties as it existed after that payment had been made, and submits, as the predicate for a recovery by the plaintiffs, whether Tillar agreed, m lieu of any further payments by the plaintiffs under their contract, that he and Bush would, for the plaintiffs and themselves, conclude the pending trade between the plaintiffs and Rule and Allen, and would preserve for the plaintiffs any bonus agreed to be paid by Bule and Allen for the land in excess of $6.50 per acre, and account to them for all amounts over $6.50 per acre which they might.be able to contract for with Buie and Allen. In other words, the subject of the charge was whether Tillar agreed that he and Bush would give to the plaintiffs all amounts over $6.50 per acre which Bule and Allen might agree to pa/y for the land; whether any amount in excess of $6.50 per acre was agreed to be paid by Rule and Allen; and the rule of liability in that event. It made no reference to any other character of agreement. A finding that Tillar did so agree would entitle the plaintiffs to a verdict for the amount in excess of $6.50 per acre, that Rule and Allen agreed to pay, but it would not warrant a verdict for an amount not a part of that amount. The charge then authorized the jury, if they found that Til-lar agreed that he and Bush would account to the plaintiffs for all amounts over $6.50 per acre contracted to be paid for the land by Rule and Allen, and that the defendants did receive, realize or secure satisfactory contracts for such an amount, to find for the plaintiffs the amount “which the defendants realized, or procured satisfactory contracts for the payment of, in excess of $6.50 per acre, with interest” This plainly relates only to the amount in excess of $6.50 per acre realized in the transaction with Rule and Allen or for the payment of which they had obligated themselves. As previously stated, that amount was only $15,000.00. Under the charge, therefore, no recovery for a greater amount was authorized. In their printed argument filed in this court the plaintiffs have offered to file a remittitur of $10,000.00, if we should conclude that under the charge no greater amount than $15,000.00 with interest was recoverable. It being an undisputed fact that the amount agreed to be paid by Rule and Allen for the land in excess of $6.50 per acre was $15,000.00, we may reform the judgment and affirm it for the correct amount. The judgment of the Court of Civil Appeals is reversed, and the judgment of tile District Court is accordingly reformed so as to allow a recovery by the plaintiffs in the amount of $15,000.00, with interest at the legal rate from May 11, 190T; and as thus reformed the judgment of the District Court is affirmed. 
      dteoffor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     