
    MITCHELL v. SMITH.
    (No. 8553.)
    (Court of Civil Appeals of Texas. Dallas.
    June 4, 1921.)
    1. Brokers <S=>82(4) — A petition being for com- • missions on express contract, no recovery on any other basis.
    The petition being on an express contract to pay a certain commission for effecting sale on stipulated terms, recovery cannot be had on any basis other than such contract.
    2. Appeal and error <3=»I0I1(I) — Finding of facts on conflicting evidence conclusive.
    The evidence having been conflicting, the judgment is conclusive as to the facts of making and breach of contract.
    Appeal from Dallas County Court; T. A. Work, Judge.
    Action by W. S. Mitchell against J. H. Smith. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    R. H. Capers and Lee R. Stroud, both of Dallas, for appellant.
    Ross M. Scott, of Dallas, for appellee.
   HAMILTON, J.

Appellant sued appellee for a broker’s commission, alleged to have accrued by reason of appellant finding a purchaser for a certain lot in Dallas listed with him, as agent, for sale, and" which, it was alleged, appellee sold to the purchaser discovered by appellant, who was the procuring cause of the sale made.

The suit was upon an alleged express contract to pay a commission of 5 per cent, for effecting sale upon certain stipulated terms, and the allegations are insufficient to support a recovery upon any basis other than the alleged contract.

The proof was conflicting upon the issue of whether or not the contract was made and violated as alleged. The judgment of the court resolved this issue of fact against appellant.

The judgment upon the facts is conclusive of the issue, and we are not authorized to disturb it in the absence of some harmful error of procedure. No such error is disclosed by the record or pointed out in appellant’s brief.

Accordingly, the judgment of the court below is affirmed.  