This was a suit by K. U. Chadwick and Mark Raley, doing business as realtors or real estate brokers, against O. V. Colvin, for a commission for the alleged sale or exchange of a house and lot in Fort Worth. After the plaintiffs had testified at length, the plaintiffs rested. Thereupon defendant filed a motion for a ‘ peremptory in-, struction, and the plaintiffs joined issue, and submitted a motion for a peremptory instruction for plaintiffs. In plaintiffs’ motion it was stated that defendant had requested the case to be taken from the jury and instruct a verdict for defendant, but defendant’s motion was simply a request for a peremptory instruction. The court gave plaintiffs’ motion, and instructed the jury to find for plaintiffs in the sum of $162.60 — 21/4 per cent, commission on the alleged value of defendant’s property. From a judgment -entered upon this verdict, the defendant has’appealed.
Opinion.
The one question to be decided on this appeal is: Did the trial court err in instructing a verdict for plaintiffs and in refusing to permit defendant to introduce testimony after the two motions for peremptory instructions had been made?
In Manska v. San Benito Land Co., by the Iowa Supreme Court, 191 Iowa, 1284, 184 N. W. 345, 18 A. L. R. 1430, and in annotations thereto, the question is discussed as to whether a request by both parties for a directed verdict constitutes a waiver of submission to the jury of the facts. The majority rule holds thatt it does, and the federal courts and the courts of Alabama, Arkansas, Colorado, Indiana, New York, and a number of other states so hold. The minority rule holds that a request for a directed verdict by both parties is not a waiver of submission of the case to the jury, as held by the Supreme Court of Illinois, Iowa, Minnesota, New Jersey, Oklahoma, Tennessee, and Vermont. No eases from Texas are given in the annotation, but by reference to Texas decision we conclude that our state has followed the minority rule in Eberstadt v. State, 92 Tex. 94, 45 S. W. 1007, where, in an opinion by Judge Brown, the Supreme Court said:
“In answer to the second question, we say that the court should not have treated the motion made by the defendants to peremptorily instruct the jury to find a verdict in their favor as a demurrer to the evidence.
“The office of a demurrer to the evidence is to take the case from the jury, and submit it to the court, upon the admission that the evidence introduced is true, and thus to invoke the judgment of the court upon the sufficiency of that evidence. The jury is discharged from the further consideration of the case except that in actions for unliquidated damages the court must submit the question of the amount of recovery to the jury. Railway Co. v. Templeton, 87 Tex. 47, 26 S. W. 1066.
“The effect of the motion made by the defendants to instruct the jury to find for them has practically the same effect as a demurrer to the evidence in calling for the opinion of the court on the legal sufficiency of the proof, but it does not have the effect to withdraw the case from the jury. If a motion be overruled, the trial must proceed as if it had not been made; and the court can not, because the motion has been overruled, instruct the jury to find for the plaintiff, upon the ground that the motion'admitted the truth of the evidence adduced. 2 Thomp. Trials, § 2270, p. 1624; Harris v. Woody, 9 Mo. 113. The difference between the demurrer to the evidence and the motion' *640to instruct a verdict for the defendant is technical, it is true, but it is still a practical difference, in this: That the defendant does not choose to withdraw his case from the jury, and rely upon the testimony already introduced, but exercises his option of calling for the judgment of the court upon the strength of the plaintiff’s case, with the privilege, in case the decision is ¿gainst him, of proceeding to develop his defense to the plaintiff’s action. Instead of moving the court to instruct the jury, the defendants might have presented a written instruction to that effect, and, it being refused, could have proceeded to introduce their testimony.”
It will be seen from the above quotation that the Supreme Court recognized a distinction between a demurrer to the evidence and a joinder of issues on request for an instructed verdict. The court held that the effect of the motion made by the defendants to instruct the jury to find for them has practically the same effect as a demurrer to the evidence in calling for the opinion of the court on the legal sufficiency of the proof, but it does not have the effect to withdraw the ease from the jury; that, if a motion for a verdict be overruled, the’ case must proceed as if it had not been made; that the difference between the demurrrer to the evidence and the,motion to instruct a verdict for the defendant is technical, but it is still a practical difference, in this, that the defendant does not choose to withdraw his case from the jury and rely upon the testimony already introduced, but exercises his option in calling for the judgment of the court, upon the strength of the plaintiff’s case, with the privilege, in ease the decision is against him, of proceeding to develop his defense to the plaintiff’s action. The Eberstadt Case has been followed by a number of decisions, some of which are: Woldert Gro. Co. v. Veltman (Tex. Civ. App.) 83 S. W. 224; Diamond Rubber Co. v. Wernicke (Tex. Civ. App.) 148 S. W. 160; Ward v. Walker, 159 S. W. 320, by the Galveston Court of Civil Appeals, writ of error refused; Co-Operative Furniture Co. v. Southern Surety Co., 264 S. W. 201, by the Beaumont Court of Civil Appeals; Hook v. Payne, 211 S. W. 280, by the San Antonio Court of Civil Appeals; Proctor v. Garman, 203 Mo. App. 106, 218 S. W. 910.
Appellees rely on such cases as Tiblier v. Perez, 277 S. W. 189, by the San Antonio Court of Civil Appeals, and Jeffers v. Brewer, 266 S. W. 1110, also by the San Antonio Court of Civil Appeals. In Jeffers v. Brewer, supra, the case was submitted to a jury upon special issues, and. upon the answers thereto the court returned judgment. Certainly in .this case there was no denial of the right of trial by a jury. We presume the case was cited merely because of certain expressions therein, to the effect that, where both parties file requests in writing for an instructed verdict, such action may and does indicate that each side approves the testimony as a finding in their favor of the sufficiency of the facts for that purpose. In Tib-lier v. Perez, supra, the case was tried with a jury, and, after all the evidence was in, both parties requested an instructed verdict in their behalf. The court instructed the Verdict for the plaintiff. The court said, in regard to the two motions for an instructed verdict:
“This, of course, must be treated on the part of each side as a waiver of the jury and an approval of the testimony by each party in their favor, thus electing to take the action of the court as final, and cannot be heard, either one of thein, to complain of the court’s action resolving any issue against them” — citing cases.
In the cited case no issue was requested by appellant to be submitted to the jury. We do not think that this ease in any way conflicts with Eberstadt v. State, supra.
If the pleadings filed by appellant had been technical demurrers to the evidence, a different situation would have been presented. A demurrer to the evidence admits ever) fact and conclusion that the evidence tends to prove; that is, which a jury could legally infer from the evidence. Combination Fountain Co. v. Rogers (Tex. Civ. App.) 186 S. W. 407. It has been held that demurrers to the evidence are practically eliminated from the practice of Texas courts, a motion to direct a verdict taking their place (Woldert Gro. Co. v. Veltman, supra; T. & P. Ry. Co. v. Murphy, 46 Tex. 356, 367, 26 Am. Rep. 272); that the effect of entertainment of a demurrer to the evidence is to suppress the truth. However, in a number of states the practice of permitting a demurrer to the evidence is invoked, and in such states has been held not to conflict with the constitutional guaranty of a trial by jury. 26 R. C. L. § 68, p. 1060. But there is no technical demurrer to the evidence in this ease.
For the reasons stated, the judgment below is reversed, and the cause is remanded.