The first assignment of error is to the refusal by the court "to give to the jury special requested charge 1" and quoting the verbiage of the ground upon which the special charge was requested, as found in their motion for a new trial. The record shows a request for peremptory instruction for appellants, which the court overruled.
The court was not in error in overruling the request for peremptory instruction for appellants. The assignment is overruled. The second assignment asserts error in rendering judgment against appellants on the ground that the pleadings, while showing that the matters in controversy had been compromised and released in full by appellee, "no allegations of fraud sufficient to authorize the court to set aside the release were made by the plaintiff in his pleadings, in that he failed to allege that the false statements, if any, were material, were relied on by him, and that he believed them to be true," and asserted the proposition that in order to set aside the release executed, the petition must contain such allegations.
Without quoting the verbiage of the petition, we think it good as against a general demurrer. Appellants pleaded a general demurrer and no special exception to the petition. The grounds of error in the assignment could be made available under the circumstances here shown only on an action of the court on special exception to the pleading. The assignment not showing any action of the court on exception to the pleading it presents no ground of action for this court.
Appellee did not sue and pray for interest, but did pray for general relief. The judgment rendered does not exceed the amount sued for. The court allowed legal interest from the date of the exchange of properties. *Page 854
The third assignment claims error in allowing the interest. In this, we think there was no error. Interest to which appellee was entitled is awarded as a part of his damages, and not as interest eo nomine, and the amount recovered does not exceed the amount sued for. Heidenheimer v. Ellis, 67 Tex. 426, 3 S.W. 666; Island City Sav. Bk. v. Sachtleben,67 Tex. 420, 3 S.W. 733; Scnulz v. Tessman et al., 92 Tex. 488,49 S.W. 10:31; Morris v. Smith, 51 Tex. Civ. App. 357, 112 S.W. 130; Ry. Co. v. Fromme, 98 Tex. 459, 84 S.W. 1054. Appellee sued upon an express parol contract to recover onehalf of the unpaid balance of the commissions collected by appellants from Riordon, on the exchange of the properties. Appellants admitted that there was a contract between appellants and appellee for a division of commissions on amount collected from Kellogg, and alleged that appellee's portion was to be one-third and not one-half, and denied that there was a contract for a division of commissions collected from Riordon. The jury found that the agreement covered the Riordon commissions, and that appellee's share of such entire commission was one-third, and not one-half. The court rendered judgment for one-third of the Riordon commissions. By appellant's fourth assignment, it is urged that the judgment for one-third of the commission has no basis in the pleading, and that to render judgment for one-third of the commission is fundamental error. The judgment is well within the pleadings and the verdict. The assignment is overruled.
It is claimed the jury's finding that Critchett's share of the entire commission was one-third is not supported by the evidence. Critchett testified in substance that he listed the Kellogg property with Ellis for sale or exchange; that in response to a request that Ellis state distinctly the way in which commissions were handled in case of a trade, Ellis went over the statement as to customary commissions, and that in the Kellogg case the division of the commission would be in the ordinary way. Critchett's evidence does not show what Ellis stated L the customary division of commissions was; that later Ellis said:
"Get hold of Kellogg; I have got a fine apartment house, and there is 5 per cent. commission in it for us."
He got Kellogg, and the exchange was made. The evidence shows that on several occasions, and to different parties, Ellis Morris denied that they had received any commissions from Riordon. One of the parties to whom they so claimed was Critchett's attorney, who went to them in an effort to effect a settlement of commissions between them and Critchett. It was admitted of to record that they had received as commissions from Riordon, on the exchange of the apartment house for the Kellogg property, the amount above stated. Witness Stevens testified that it was customary under the circumstances stated, in the absence of an agreement, "to split all commissions 50-50," and that the same rule applied in case of exchange as in sale. We think the evidence is sufficient to sustain the finding.
Finding no error, the case is affirmed.