
    STRACHBEIN v. GILMER.
    (No. 5988.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 13, 1918.
    On Motion for Rehearing, April 17, 1918.)
    1. Appeal and Error <&wkey;1058(2) — Harmless Error — Exclusion oe Testimony.
    Exclusion of testimony is harmless; the same witness having elsewhere given substantially the same testimony.
    2. Appeal and Errior <&wkey;232 (2). — Review-Objections Below.
    Testimony cannot be complained of on appeal as hearsay; such objection not having been made below.
    3. Appeal and Error <&wkey;1050(l) — Harmless Error — Admission oe Evidence.
    Admission of plaintiff’s testimony of a.conversation with a third person was harmless; such person having testified .thereto without objection.
    4. New Trial &wkey;>102(l) — Newly Discovered Evidence — Diligence.
    One is not entitled to new trial for newly discovered evidence; lack of diligence in not discovering it before being apparent.
    5. New Trial <&wkey;105 — Newly Discovered Evidence — Impeaching Evidence.
    Newly discovered evidence which is merely impeaching is not ground for new trial.
    6. Appeal and .Eruor &wkey;>981 — Review—Denial oe New Trial.
    A clear abuse of discretion in denying a new trial for newly discovered evidence must appear, that such action may be revised.
    On Motion for Rehearing.
    7. Appeal and Error <&wkey;742(l) — Assignment oe Error — Propositions and Statement.
    A reference to the record for a statement is not a compliance with the rule for briefing that an assignment of error be followed by propositions and statement.
    8. Appeal and Error &wkey;1052(2) — Harmless Error — Admission oe Evidence.
    Admission of testimony was harmless, the same evidence having, been given by other witnesses without objection.
    Appeal from District Court, Edwards County ; C. E. Dubois, Judge.
    Action by Jess Gilmer against W. C. Strachbein. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. W. Hill, of Uvalde, H. C. Geddie, of Kerrville, and Prank H. Booth, of San Antonio, for appellant. L. J. Wardlaw, of Sonora, J. E. Priestmen, of Rock 'Springs, and»W. H. Lipscomb and Will A. Morriss, both of San Antonio, for appellee.
   PLY, C. J.

Appellee sued appellant to recover commissions alleged to be due for the sale of certain lands listed with appellee for sale. The cause was submitted to a jury on special issues, and on the answers thereto judgment was rendered for appellee in- the sum of $3,132.27, with legal interest from January 1, 1916, amounting in the aggregate to $3,403.72.

It is not clear from the brief of appellant when the terms of the district court of Edwards county were held under the law in force previous to the act of March 9, 1917, which created the eighty-third district and changed the times of holding court in Edwards county, but by an inspection of the old and new laws, to which we are referred by the brief of appellee, we ascertain that Edwards county was formerly a part of the Thirty-Eighth district, and held its terms in June and December of each year. The act of March 9, 1917, provided for terms in Edwards county on tie last Monday in January and August of each. year. Tie law went into effect from date, and it is apparent tiat under its provisions only one term of court could be ield in Edwards county during tie year 1917, and tiere is some difficulty in determining iow iolding a term in June under tie old law would give two terms, unless anotier term was ield under tie new law in August or under tie old law in December, and then begin on tie new law in January, 1918. However, this is not tie question before this court.

If tie term of court could be held in Edwards county under tie old law, tie fact tiat it might deprive Pecos county of a part of its term under tire new law is a matter of no importance, because if Edwards county was entitled to tie term under tie old law, tie .only question that could arise in this case would be met. Tie only question before this court is as to tie validity of tie term of court ield in Edwards county. This question is answered in tie affirmative by the case of Bowden v. Crawford, 103 Tex. 181, 125 S. W. 5. We overrule tie first assignment.

Tie second and third assignments of error are overruled. We fail to see the pertinency or materiality of tie testimony excluded by tie court. Appellant did not state tiat ap-pellee claimed to own the Benton place, and if he had made such claim, if appellant had listed iis property with appellee, as tie latter ■testified and agreed to pay him a commission to sell the same, what he might have done if he had known tiat tie place which appellee showed him belonged to some one else would be immaterial. Appellant admitted tiat appellee told him when they were about halfway to tie land tiat it belonged to Benton, and still he went on and looked at tie place and negotiated with Benton. Tie testimony excluded would pot have thrown tie least light on tie transaction. Whether appellant knew tiat appellee was a land agent or not, he must have known that he was seeking to obtain remuneration for his services, or he would not have been calling him on tie telephone and taking him out in automobiles to look at lands. Tie testimony clearly showed tiat appellant had made appellee iis agent to sell the lands, tiat he procured purchasers, and tiat appellant sold to them. Appellee swore to tie agency, and he was corroborated by Williams, Benton, Henry, and Wardlaw. Several of appellant’s witnesses testified to matters tiat tended to show tiat he had employed appellee to sell his land.

Tie testimony of J. A. Winn, which tie court excluded, was testified to by him, in substance and effect, several times in iis testimony, and the exclusion of tie evidence, set out in tie fourth assignment, could not, by any possible means, have injured appellant. The testimony of Winn, which shows that tie exclusion of tie evidence was harmless, is in part set out in tie brief of appellant. If appellee was tie agent, he was undoubtedly tie procuring cause of tie sale, whether Winn thought he induced him to buy or not. Winn swore tiat appellee never talked to him about tie land and had no connection with tie sale, and he could add nothing to tiat testimony.

Tie only objection urged to tie testimony made tie basis of tie fifth assignment was tiat appellant was not present; tiat it was self-serving, and tie agency of tie plaintiff was not admitted, but denied, and the evidence was prejudicial. -Tie first proposition is that, tie agency being an issue, it was error to admit tie declarations of tie agent tiat tie land was listed with him for sale. Tie bill of exceptions fails to show tiat such testimony was offered by appellee or objected to by appellant. Tie second proposition is tiat tie evidence was hearsay and inadmissible. No such objection was made to the evidence, and tie proposition has no basis.

Tie sixth assignment of error is too general and indefinite to be considered, and is not followed by any propositions.

Tie evidence of Benton is attacked in tie seventh assignment of error on tie ground tiat it was self-serving and prejudicial to defendant. How it was self-serving and prejudicial does not appear from the assignment or tie propositions under it; in fact, tie propositions are not germane to tie assignment or supported by it.

Tie eleventh assignment of error complains of tie exclusion of testimony of J. A. Winn tiat Cloudt had never said anything to him about having any connection with Gilmer. No one said tiat he had, and tie testimony was clearly inadmissible. However, Winn testified, in substance, to tie same matters which are claimed to have been excluded, for he stated: “Mr. Cloudt did not at any time, in my presence, say anything to Mr. Stracibein about a commission to Gilmer on this deal to me. Mr. Cloudt never at any time claimed to be representing Gilmer and helping him sell the land to me.”

The thirteenth assignment of error complains of tie admission of a conversation between appellee and A. J. Williams, which was objected to on tie ground that it was hearsay and self-serving. Tie conversation between Williams and appellee was in regard to a conversation Williams had with appellant through a telephone, and ap-pellee asked Williams and was' told what Strachbein had sa'id. The same conversation was detailed by Williams without objection on tie part of appellant. While tie evidence objected to should not have been admitted, still, in view of tie testimony of Williams, we do not think appellant was injured by tie admission of tie conversation between ap-pellee and Williams, as detailed by appellee.

Appellant, among otter things, sought a new trial on the ground of newly discovered evidence of J. A. Winn and Frank Oloudt, to the effect that appellee had, before he instituted his suit, proposed to them that they should help him “skin old Strachbein out of a commission,” and that in consideration for their help appellee would pay them out of any amount recovered from appellant the sum of $500. This suit was filed in May, 1916, and was tried in June, 1917; the two witnesses named had been willing, loyal, and helpful witnesses for appellant, and were thoroughly and exhaustively examined during the trial, and yet within two days after judgment was rendered the two witnesses disclosed some remarkable testimony which they had kept locked in their bosoms up to that time. The affidavits were denied by appellee, and the court heard the contest and decided against appellant. The court had the witnesses before him, and was in a good position to decide whether the affidavits were probably true, and it is so improbable that, if the affidavits were not a fabrication, the substance of them would not have at once been communicated to appellant that the court was justified in refusing to grant the motion for new trial. The rules as to new trials on the ground of newly discovered evidence are that the evidence has been discovered since the trial, and could not by reasonable diligence have been sooner discovered, that it is not merely cumulative, and that it was not for the purpose of impeachment. The lack of diligence is apparent, and the evidence could have no ob j ect except the impeachment of appellee. The granting of new trials for newly discovered testimony is largely a matter of discretion with the trial judge, and in order for an appellate court to revise the action of the trial court, there must appear a clear abuse of such discretion. Kaack v. Stanton, 51 Tex. Civ. App. 495, 112 S. W. 702; Railway v. Clifford, 148 S. W. 1163. It was a singular circumstance that both of the witnesses swore that they had not told about appellee’s proposition because they thought “it was too bad to tell.”

The evidence is ample to sustain the verdict of the jury. Appellee did the work for appellant; he procured parties willing, ready, and able to purchase, and they purchased. Appellant received the benefit of the labors of appellee, and the jury very properly required him to pay for the services.

The judgment is affirmed.

On Motion, for Rehearing.

The eighth assignment of error is not followed by propositions or statement. A reference to the record for a statement is not a compliance with the rules for briefing, as has been often held. It is not disclosed in the assignment of error who testified to the matters to which objection was. taken, and what was objected to is not shown by any statement taken from a bill of exceptions.

The ninth assignment of error fails to disclose what the conversations with Benton were, and it is not disclosed in any statement; there being none. It is not followed by a proposition. If there were anything in either of them to require any consideration, it was disposed of under the sixth and seventh assignments.

The evidence objected to in the tenth assignment of error is without merit. It could not have injured appellant; but, if it could, the same evidence was given by other witnesses without objection. Appellant did not deny raising the price of the land from $5.25 to $5,50 an acre. Getting the assistance of Oloudt to sell to Winn was testified to by Oloudt, as well as appellee, and without objection. Appellant did not deny, as was stated by Oloudt, that he refused to furnish an abstract of title. Oloudt swore that he wanted Winn for a neighbor, as testified by appellee. In fact, in substance, the whole of appellee’s testimony to which objection was urged was testified to by Oloudt and other witnesses without objection on the part of appellant. The tenth assignment is without merit.

The motion for rehearing is overruled. 
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