
    MEYER-FORSTER REALTY CO. v. READ et al.
    (No. 5875.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 30, 1917.)
    1. Contracts <§=>327(1) — Agreement to Take up Notes — Conditions Precedent.
    Under contract whereby plaintiffs authorized defendants to sell land, $1,000 to be paid on approval of title by purchaser and execution of deed and placing of it in the C. Bank, balance of purchase money to be paid on or before January 1, 1915, with provision that vendor’s lien notes might be executed for balance, and, if executed, should bo taken up by defendants on or before such date, in which event plaintiffs should execute a transfer to them of the notes, plaintiffs, to recover on the agreement, need not have presented the notes to the purchasers, nor have delivered to them the deed placed with the bank; these being things for defendants to do.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1503-1570.]
    2. Trial <§=>141— Directing Verdict — Undisputed Facts.
    There being no disputed issue of fact for the jury, a Verdict may be directed.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 336.]
    3. Appeal and Error <§==>1064(3) — Harmless Error — Reducing Instruction to Writing.
    There is no injury not reducing to writing an instruction which is a mere direction of a verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4223.]
    4. Appeal and Error <§=>215(1) — Review — Objection Below — Fundamental Error-Reducing Instruction to Writing.
    Failure to reduce to writing an instruction directing verdict is not a fundamental error which can be reviewed in absence of objection in trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1309, 1310; Trial, Cent. Dig. § 085.]
    Appeal from District Court, Jaelsson County; John M. Green, Judge.
    Action by L. M. Read and another against the Meyer-Forster Realty Company, a partnership. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    McCrory & Vance, of Edna, and H. H. Sagebiel, of George West, for appellants. Gaines & Corbett, of Bay City, for appellees.
   FLY, C. J.

This is a suit by L. M. Read and W. E. Read, his wife, to recover of appellants, a partnership, the sum of $5,174, alleged to be due on a certain contract. A verdict was instructed for appellees, and upon the verdict judgment was rendered for appellees in the sum of $5,007. .

The suit is founded on the following contract signed by appellants and appellees on April 28, 1914:

“The State of Texas, County of Jackson:
“This memorandum of agreement entered into by and between L. M. Read and wife, W. E. Read, and the Meyer-Forster Realty Company, all of the county of Jackson, witnesseth:
“That tho said L. M. Road and wife do hereby give the said Meyer-Forster Realty Company authority to sell the following desci'ibed tract or parcel of land, situate, lying, and being in Jackson county, Tex., the same being a part of the John Davis league survey, and containing about ninety eight (98) acres, and the same property now standing in the name of said L. M. Read and occupied by him and his family, for the sum of $63.00 per acre. Of the purchase price, the sum of $600.00 shall be paid in cash on tho approval of title by the purchaser and the execution of the deed conveying said property to said purchaser and the placing of tho same in the Citizens’ State Bank of Ganado, Tex., and at the same time $400.00 more of the purchase price shall be paid, less, however, interest on said $400.00 at the rate of 8 per cent, per an-num from such date to the 1st day of January, A. D. 1915, and the balance of the purchase-price shall he paid on or before tho 1st day of January, A. D. 1915, but for such balance, or any part thereof, vendor’s lien notes may be executed by the purchaser, and if such notes are executed the said Meyer-Forster Realty Company shall take up said notes on or before the 1st day of January, A. D. 1915, without cost or expense to tho said Read, but in that event the said Read agrees to execute a proper written transfer of said notes to either the Meyer-Forster Realty Company or such party as they may designate.
“And the said L. M. Read and wife agree to convey the above-described property to the said Meyor-Forster Realty Company or to such party as they may designate, and to furnish a complete abstract of title to said property; but tho Meyer-Forster Realty Company shall add their commission to the net consideration above mentioned,'the same to be due and payable upon the final closing of the deal.”

Appellants, acting under that 'contract, sold the land to Otto Steinke for $2,000 in cash and for eight promissory notes amounting in the aggregate to $5,007. A deed was executed by appellees to Otto Steinke and deposited with appellants and by them deposited in the Citizens Bank of Ganado with tho notes as provided in the contract. The notes were executed, which appellant agreed “to take up” on or before January 1, 1915. They were not paid for by appellants. Appellees were at all times ready to make a written transfer of the notes to appellants or any party designated by 'them, and on February 23, 1916, the transfer was executed by ap-pellees. Everything connected with the trade was controlled by appellants. About one thousand dollars of the cash payment was turned over to appellees. A transfer of the notes was tendered into court by appellees. All the facts were uncontroverted.

The case against appellants is clearly and succinctly stated in the petition, and it was not subject to general or special demurrer. The notes were executed and delivered in full compliance with the terms of the contract, and no more should be demanded. The notes were given to appellants, who made the trade and performed everything in connection with it. It was appellants’ business to deliver the notes to Steinke, and not that of appellees. The law as to the delivery of a deed cited by appellants has no reference to the facts of this case. The deed was delivered in strict compliance with thft terms of a contract which appellants seek to evade. Every condition precedent placed on appellees hy the contract was performed by them. Appellees did not promise to deliver the deed to the vendee, but to a designated bank, and they so delivered it, through appellants.

There was no disputed issue to be decided by a jury, and the court very properly instructed a verdict for.appellees. Appellants were not injured by that instruction not being reduced to writing. There were no intricate points of law in the instruction of the study of which they were deprived by the instruction not being written. No instructions were requested by appellants, nor reasonably could have been for there were no'issues to submit. There was no objection urged in the lower court to the failure of the court to put the instruction in writing, and there is nothing fundamental about it.

There is no merit in the appeal, and the judgment is affirmed. 
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