dissenting.
The trial court erroneously entered a judgment non obstante veredicto in favor of the defendant, Hall. The majority so holds in that it agrees that the evidence raised a fact issue as to whether the oral contract between Hall and Hard involved the sale of real estate. Since I am not in accord with the statement of the case as set out in the majority opinion, and since I do not agree with Hall that as a matter of law the evidence shows that real estate was included, I have chosen to set out below evidence which in my opinion raises such fact issue.
It is my position that a general remand to the trial court for a new trial is in order. The majority, after placing great emphasis on the testimony in favor of Hall and against Hard, follows up with a remand to the trial court with specific instructions to make a finding on the issue and proceed with the disposition of the cause under Rule 279, just as though no judgment non obstante veredicto had been entered. The majority leaves the trial court in a state of uncertainty as to how to proceed by citing the case of Rodriguez v. Higginbotham-BaileyLogan Co., Texas Civ. App. (1943), 172 S.W. 2d 991, wr. ref. Id., 138 Texas 476, 160 S.W. 2d 234. No doubt, when the trial judge reads the case of McAfee v. Travis Gas Corporation, 137 Texas 314, 153 S.W. 2d 442, cited in support of this court’s holding in the Rodriguez case, he will be doubly confused. In view of the emphasis on the facts in favor of Hall, it appears to me that the majority has unintentionally told the trial judge that a presumed finding in favor of Hall would come into play in the event he should enter judgment in favor of Hall on the verdict. On the other hand, if the trial court should be of the view that the evidence would support a finding in favor of Hard, then a presumed finding on the vital omitted issue would support a judgment in favor of Hard. This case should be sent back to the trial court free from expressions such as we have in the *576majority opinion in regard to the evidence. Under the circumstances, I feel that it is essential for me to set out the facts which support my conclusions on the questions of law presented here.
The plaintiff, Hard, alleged and the jury found that the defendant, Hall, agreed to pay plaintiff a 5 per cent commission if plaintiff would procure a buyer upon terms satisfactory to defendant, for the Hall Motor Freight Line properties, and the jury further found that the plaintiff procured the buyer, Bras-well.
The defendant filed a general denial and demanded strict proof of the allegations contained in plaintiff’s petition. No special defense was pleaded, such as a plea that the contract alleged by Hard being oral and being one involving the sale of real estate was not enforceable. The defendant did not file a motion for instructed verdict, but elected to wait until after the verdict and then filed his motion for judgment notwithstanding the verdict. Even then, he made no claim that an oral contract for the sale of real estate was unenforceable and that plaintiff could not recover his commission. Instead, his ground for judgment non obstante in this particular was on the basis that the plaintiff was relying upon the written purchase agreement contract dated October 29, 1955, between Hall and Bras-well to prove that he was the procuring cause of the sale which was later consummated, Hall’s contention further being that since the purchase agreement involved real estate, and since the plaintiff failed to allege and prove that he was a licensed real estate broker or salesman as required by the Statutes of Texas his cause of action must fall.
The plaintiff did not sue upon the written contract between Hall and Brasswell. The evidence raised a fact issue as to what constituted the Hall Motor Freight Line properties. Mr. Hard testified that he had nothing to do with the leases, and that the leases were not mentioned in his discussions leading up to the oral agreement with Hall. Hard testified that Hall “wanted $1,600,000.00 for it and he would pay me 5% on $1,600,000.00, that he wanted to net or — I believe he said he wouldn’t sell it to anybody unless he netted $1,500,000.00 out of it. so then he [Hall] told me if I would come back in two or three days I could pick up the ICC reports, and that’s about all that was said at that meeting.” “Q. That he wanted $1,600,000.00 for it. A. That’s right. That’s for the franchise and the equipment, of the D. C. Hall Company, and the equipment in the Hall Equip*577ment Company.” Mr. Hard was asked what Mr. Hall actually said — referring to the oral agreement. 'The petitioner’s attorney, as a part of the question, stated: “I don’t think we can arrive at the terms of the contract except from what was said * * Mr. Hard’s answer was: “Mr. Hall told me that for the sale of the certificates, the equipment being used by the motor freight line and the Hall Equipment Company and the D. C. Hall Transport Company he wanted $1,600,000.00 and would give me a commission of 5% on the basis of $1,600,000.00.” At another point in the cross-examination, when the attorney was specifically inquiring as to whether Hard was attempting to sell the leases to Mr. Braswell, Mr. Hall answered: “All that went with it was the equipment.” [Emphasis added]. A jury could have construed this answer to mean that the leases were not required to be sold. The evidence shows that Braswell, at the time of the oral agreement between Hard and Hall, was the owner of Terminal Properties in Los Angeles, El Paso, Fort Worth, Dallas, San Antonio, and Houston, which perhaps explains why the leases were not mentioned in the discussions between Hard and Hall. Mr. Hall’s attorney made repeated eforts to have Mr. Hard admit that the leases were a part of the property to be sold, but to no avail. Mr. Hard would only go so far as to say in effect that he “expected” the leases to be transferred. However, when the agreement was finally signed between Hall and Braswell, it did not require the sale of the leases. It thus appears and a jury could have easily drawn the conclusion that the agreement concerning the leases was an ancillarv or side agreement between Hall and Braswell. To point out all the facts and circumstances showing an issue of fact as to whether or not the leases were to be sold by Hard would unduly lengthen this opinion. The question is one for a jury to decide. A jury would have the power to accept a part of Hard’s testimony, and reject any part of his testimony. The jury is the judge of the credibility of a witness and the weight to be given this testimony.
Hall’s motion for judgment non obstante veredicto asserts that Hard relied on the written contract between Hall and Braswell to show that he was the procuring cause of the sale. The motion assumes that real estate was to be sold, and, at the same time, admits that Hard testified that he was not seeking to recover any commission for the sale of terminal leases. In this connection, non-claim of a commission for the sale of the leases is consistent with his testimony that the leases were not involved in the oral agreement between Hall and Hard. Paragraph 5 of the motion for judgment non obstante veridicto con*578tains an admission that Hard testified affirmatively that he was not employed to sell any real estate and no real estate was mentioned. However, the paragraph goes on to say in effect that this cannot be true because the contract between Hall and Bras-well involved the sale of the leases. The motion alleges that under such circumstances it was encumbent upon Hard to allege and prove that he was duly licensed under the Texas Real Estate Act to engage in the business of a real estate broker. The motion for judgment non obstante presents the contention that judgment must be entered for Hall for the reason that Hard failed to allege and prove what properties he was employed to sell. No special exceptions were lodged against Hard’s pleadings in this regard, therefore, the pleadings were sufficient. The fact that the leases were later conveyed to Braswell under the terms of a contract not agreed upon by the plaintiff does not mean that as a matter of law the leases were within the scope of the oral agreement between Hall and Hard. A jury could have found that the leases were not required under the oral agreement between Hard and Hall to be sold. The record shows that it is customary for commissions to be paid under oral contracts such as that entered into between the plaintiff and defendant in this case. The fact that plaintiff was not a licensed real estate agent or broker in no way affects his right to recover a commission for the sale of defendant’s trucking operations.
The question of whether or not the contract involved the sale of real estate was one of fact, and was injected into the case by the defendant as a defense to plaintiff’s cause of action. The burden rested with the defendant to prove that real estate was included. In order to sustain the action of the trial court in granting judgment non obstante veredicto, it must be determined that there was no evidence of probative force upon which the jury could have made a finding that the real estate (leases) was not involved. Broussard v. Burton Construction & Shipbuilding Co., Texas Civ. App., 265 S.W. 2d 665, 675; reversed on other grounds, Burton Construction & Shipbuilding Company, Inc. v. Broussard, 154 Texas 50, 273 S.W. 2d 598. The evidence required a submission of the issue. Judgment could not be rendered for Hall without an affirmative answer in his favor. An omitted issue or finding cannot in itself form the basis for the judgment. The rule that an issue not submitted and not requested is deemed as found by the court in such manner as to support the judgment is not applicable in this case. All issues which were submitted were answered against the defendant. No finding was made which would support the judgment non obstante veredicto. There is nothing in Rule 279, Texas *579Rules of Civil Procedure, which placed the duty upon the plaintiff, Hard, in the present case to request the submission of the defensive issue that a part of the property involved consisted of real estate. It was the burden of the defendant to request the issue presenting his ground of defense.
It is quite clear that the issue of whether or not the contract involved real estate is an ultimate and controlling issue raised by the evidence. An affirmative answer to this issue is essential to the defense. This is absolutely necessary to form a basis of a judgment for the defendant, Hall. See Wichita Falls & Oklahoma Ry Co. v. Pepper, 134 Texas 360, 135 S.W. 2d 79 (syls. 4 and 5.)
I call attention to the fact that the Hall properties are not specifically described in the petition, but they were described in the contract of purchase entered into between Hall and Braswell. It is my position that the question here is to be determined by ascertaining from the evidence the nature of the properties involved in the oral agreement between Hall and Hard. The testimony of the plaintiff would support a jury finding that the Hall properties involved in the oral agreement between plaintiff and defendant, and the property required by Hall in the oral agreement to be purchased consisted of the following :
“(a) ‘the furniture, fixtures and equipment of D. C. Hall Transport, Inc.’
“(b) ‘the trucks, tractors and semi-trailers of D. C. Hall Transport, Inc.’
“(c) ‘the trucks, tractors and semi-trailers of Hall Equipment Company.’
“(d) ‘the inventory, parts and material of D. C. Hall Transport, Inc.’
“(e) ‘the inventory, parts, materials and supplies of Hall Equipment Co.’
“(f) ‘the going concern and organization together with the certificates and operating rights of D. C. Hall Co.’ ”
As a matter of fact, the contract between the seller and purchaser does not list the lease (terminals) among the items *580which made up the Hall Motor Freight Line properties. Hard testified that the leases (terminals-real estate) were never discussed in his conversation with Hall or with Mr. Braswell’s attorney, Tom Christopher. The plaintiff did not at any time discuss or have any direct contract with the purchaser.
The contract between Hall and Braswell did not obligate or require Hall to assign or convey the leases. The leases or terminals or real estate are not mentioned anywhere in Hall’s “Representations and Warranties” or the “Covenants” which Hall undertook. They are not mentioned in the “Explanation of the Transaction” or in the statement immediately following the “Purchase Agreement.” The leases, however, are mentioned in Braswell’s covenants on page 11 of the purchase agreement. The reference reads:
“VIII * * * * (3) It (Braswell) will assume the leases of all those freight terminals, where such leases are assignable, which are now under lease to Hall or to Transport, true copies of said assignable leases being attached hereto, marked Exhibit ‘J’ pages 1 to 39, inclusive, and made a part hereof; Braswell further covenanting in this respect to save and hold Hall and Transport harmless in respect of such lease assumptions.”
As I understand this record, “trucking operations” may or may not include terminals. They are not necessarily a part of the trucking operations, likewise they were not necessarily a part of the “Hall Motor Freight Line properties.” As heretofore pointed out, no mention whatever was made of the leases to Hard, and Hall did not require the plaintiff to procure a purchaser for the leases. Hall, even under the purchase agreement, could have kept the leases himself; or assigned them to some third party, or arranged with original lessors to cancel them.
Mr. Christopher, the attorney for Braswell, in response to questions asked by counsel for defendant, corroborated the plaintiff’s testimony.
I wish to respectfully reiterate that plaintiff, Hard, in this case, seeks to recover on his oral contract with defendant, Hall, to find a buyer, and not under the written contract which Hall and Braswell finally worked out between themselves.
As was said in Parkey v. Lawrence, Texas Civ. App., 284 S.W. 283, 287, wr. dism.:
*581“There is nothing peculiary in the contract of a broker with his principal. It is governed by the laws applicable to the ordinary contract. * * * ”
A jury could here properly draw the inference that the HallBraswell contract was merely the method adopted by those two parties to convey the Hall Motor Freight Line properties. The plaintiff here had nothing to do with the details of that contract, in fact, he did not come in personal contact with Mr. Braswell. Plaintiff is not suing for a commission on the leases covering freight terminals leased by Hall from various third parties, as was the case, supra, cited by the majority. The consideration listed in the contract between Braswell and Hall did not include any consideration for Braswell’s agreement to assume any leases on freight terminals. It does not mention any leases or any real estate whatsoever. Instead of Braswell paying for the leases, it is logical to construe the language of the contract to mean that Hall wanted out from under the leases and Braswell agreed to hold him “harmless.” It has been held that an oral commission contract dealing only with personality cannot be defeated by the provisions of the Real Estate Act requiring written agreement for recovery of comission for sale of realty, notwithstanding that real estate transactions entered into the trade finally consummated between owner and buyer. See Teairl v. Gober et al., Texas Civ. App., 257 S.W. 2d 782, wr. dism. Hall did not require Braswell to purchase the leases. Under paragraph 8 — Braswell Covenants — will be found the following sgnificant subdivision:
“(4) That the reasonable fair market value of all of the properties herein required to be transferred, is the sum of ONE MILLION FIVE HUNDRED THOUSAND ($1,500,000.00) DOLLARS, subject to such depreciation as will occur between the date hereof and the closing date as herein defined, and as such depreciation is herein provided for; that such reasonable value has been arrived at by the parties hereto, and particularly by D. C. Hall and J. V. Braswell, based upon their long and successful experience in the operation of common carrier motor carrier services; the actual reasonable and intrinsic value of the physical properties involved; the base earning record of Transport resulting from its operations under the authority of the certificates of convenience and necessity described in Exhibits ‘A’, ‘B’ and ‘C’ hereof, and J. V. Braswell’s consideration of its value when operated as a subsidiary or division of Braswell; and at arm’s length negotiations.”
*582The evidence, as reflected by the oral testimony and the exhibits attached to the written contract between Hall and Bras-well, would support a finding that the leases were not a part of the Hall Motor Freight Line properties which the plaintiff and defendant agreed upon to be sold, and that the leases were not required to be transferred.
There are other points presented. Such points are without merit. I shall refer briefly to the only other point mentioned by the majority. The chief contention of Hall throughout has been that plaintiff was not a licensed broker for the sale of securities, and, therefore, had no right to recover a commission. This was his first reason assigned in support of his judgment non obstante veredicto. It is the question raised by his first point of error in this court. In fact, 24 pages of his 58-page application for writ of error are devoted to this question. His entire argument is centered around certain provisions in the written contract between Hall and Brasswell. Briefly, those provisions referred to the organization of corporations and the transfer of capital stock of such corporations. Here again, as argued by this writer on the real estate license question, plaintiff seeks to recover on his oral contract "with the defendant, Hall, to find a buyer— not under the Hall-Brasswell contract which Hall and Braswell worked out between themselves. There is no evidence that the plaintiff agreed to sell securities. The Hall Motor Freight Line properties were not securities within the meaning of the Securities Act. The record fully shows that the parties (Hall and Hard) did not contemplate that Hard was to act as a vendor or broker of securities. If the method subsequently adopted by the Hall-Brasswell contract to convey the trucking operations is to be permitted to vary or change the terms of the oral contract between plaintiff and defendant, then it seems to me that in transactions involving the sale of personalty, the commission man in every instance could be deprived of his commission solely on the basis of contracts and agreements with which he had no concern. The plaintiff here was not concerned with and had no part in the detailed and complicated contract entered into between Hall and Braswell. The petitioner contends that the sale of the Hall v'roverties as eventually consummated, included corporate stock, and that plaintiff, therefore, was attempting to sell securities. Under no circumstances can it be said that a "fact issue was raised as to whether the oral agreement involved the sale of securities.
The holding by the majority that the evidence raised a fact issue as to whether real estate was involved has been rendered *583of no consequence by the holding in the very next paragraph that “Under the provisions of Sec. 19 of Art. 6573a, it was the burden of Hard to plead and prove he was a duly licensed real estate broker, or salesman, at the time the alleged cause of action arose.” If the majority is correct in so holding, then it would make no difference what a jury or court would find in regard to the fact question. A favorable finding would not aid Hard, because it is undisputed that he did not have a real estate license, neither did he have a securities license.
If a fact issue was raised as to whether or not real estate was involved, then, regardless of where the burden of proof is to be placed, the trial court committed error in sustaining Hall’s motion for judgment non obstante veredicto. Accenting without agreeing that the burden was on Hard, I contend that this court “should remand the case for another trial if it shall appear that the justice of the case demands another trial.” See Rule 505, Texas Rules of Civil Procedure; Hicks v. Matthews, 153 Texas 177, 266 S.W. 2d 846; Associated Oil Co. v. Hart, Texas Com. App., 277 S.W. 1043. In the latter case the court said:
“It is the rule, where a judgment has been reversed, to remand to the trial court rather than render, where the ends of justice will be better subserved thereby. Such remanding has often been ordered to supply additional testimony, to amend the pleadings, and even to show jurisdiction.”
In the present case, the motion for judgment non obstante veredicto was granted on what I conceive to be an erroneous theory of law. One of the strongest points in the motion non obstante was that real estate was as a matter of law involved, and that before Hard could recover, he must have alleged and proved that he had a valid real estate license from the State of Texas. Even under the majority view, the court has now found error on the part of the trial court, and it remains for us to determine the kind of judgment to enter. Under the circumstances, I can see no valid reason for not following the long established rule and remand this case to the trial court for a new trial. It would be an injustice to hold that a fact issue was raised, and not give Hard an opportunity to replead and allege and prove that no part of the property involved in the oral agreement was real estate. This he would be entitled to do under a holding that the case was tried on the wrong theory. The action of the majority takes away from the jury the power to decide the question.
*584My view is that the judgment of the Court of Civil Appeals should be reversed and the cause should be remanded to the trial court for a new trial.
Opinion delivered February 17, 1960.