author: ONION, Judge.

text:
    Charles Wayne LACEFIELD, Appellant, v. The STATE of Texas, Appellee.
    No. 40161.
    Court of Criminal Appeals of Texas.
    March 15, 1967.
    Tim C. Curry, Fort Worth, for appellant.
    Frank Coffey, Dist. Atty., Grady Hight, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Burglary of a Private Residence at Night with Intent to Commit Theft; the punishment, 50 years confinement in the Texas Department of Corrections.

The trial concluded on December 14, 1965. Notice of appeal was given on March 7, 1966.

Jo Moree, age 20, testified that she retired at approximately midnight on August 11, 1965; that she screamed when she awakened, several hours later, to find someone in her bedroom; that she was slugged in the chest and later discovered that she was stabbed in her chest and in her arm. She related that her bedroom was dark at the time and she saw only the form of her assailant as he fled.

Frank Moree testified that he had the care, custody and control of the Tarrant County house in question; that he resided there with his wife, daughter Jo and son, Frank, Jr. He related that he was awakened at 3:20 a. m on the date in question by his daughter’s screams and ran to her aid. He further related he had not given consent to the appellant to break and enter his house. He was present when a western straw hat, later identified as belonging to appellant, was found by the police under his daughter’s bed.

Frank Moree, Jr., was also awakened by his sister’s screams. He identified appellant as the man he saw running out of his sister’s bedroom, and leave by the kitchen door.

Appellant’s sole ground of error is that the trial court erred in admitting, over objection, his written confession into evidence. He urges that the confession, revealing that he had entered the Moree house to search for money, was the result of an illegal arrest without warrant or probable cause, and was therefore inadmissible.

Prior to the introduction of the confession the careful trial judge removed the jury from the courtroom and conducted a hearing on the voluntariness of the confession in accordance with the procedure recommended by this Court in Lopez v. State, Tex.Cr.App., 384 S.W.2d 345.

The evidence produced at the hearing reveals that at approximately 1:10 p. m. on August 16, 1965, Detective Wiggins went to the Arlington High School to investigate the second complaint received by the Arlington Police Department from the.school principal that an older man and a young female were “making love” in the bleachers on the school’s football field. Upon arriving, Wiggins went to the principal’s office where he was informed that the man was still in the bleachers.

At the empty football field Wiggins observed the 23 year old appellant and a 14 year old girl seated on the bleachers. The appellant was not committing any overt act and did not attempt to flee.

At this time Wiggins had no warrant of arrest.

After asking for identification, Wiggins related, he requested the appellant to accompany him to the police station where the investigation soon turned to the theft of a knife in which appellant was a suspect. Shortly thereafter a report was received from the same school identifying appellant as the man seen leaving a burglarized school building and upon confirming such identification, Wiggins testified, he placed the appellant under arrest for the first time. During the investigation of the alleged school burglary, suspicion began to focus upon the appellant with regard to the case at bar as he fitted the description given of Jo Moree’s assailant and smoked the same brand of cigarettes as the one found outside of her bedroom window.

Within four or five hours after leaving the football field with Detective Wiggins, and prior to giving any confession, appellant was taken before a magistrate who gave him the warning now set out in Article 15.17, Vernon’s Ann.C.C.P., 1965 (not then in effect) including the right to counsel and the right to appointed counsel if he was unable to obtain an attorney. He then was given the statutory warning required by old Article 727, V.A.C.C.P., 1925, then in effect, by Bob Mills, Assistant District Attorney. Thereafter, at 7:10 p. m., the appellant gave and signed a written statement after reading the same and making one correction.

Appellant, testifying in his own behalf on the issue of voluntariness, contended he was merely sitting in the bleachers with the 14 year old girl watching some boys play tag football. He related that he was under the impression that he was arrested when the officer asked for identification, and that he was searched before being placed in the police car. His statement as to the search is contradicted by the testimony of Detective Wiggins and the 14 year old girl who was present.

At the conclusion of the hearing, the judge found that the officer had probable cause for the arrest (though the record does not reflect which arrest) and that the confession was freely and voluntarily given and therefore admissible. No issue as to voluntariness was subsequently raised before the jury.

It does not appear that appellant seriously questions the voluntariness of the confession. The question posed by appellant is whether or not a confession con-cededly voluntary is to be excluded from evidence if made by the appellant following an unlawful arrest.

It is appellant’s contention that the arrest occurred at the football field and that at such time the officer had no warrant or probable cause for arrest. He further contends there was no showing by the State that a felony or a breach of the peace was committed in the officer’s presence, or that the appellant had committed a felony and was about to escape, or that any facts were established that would have justified the appellant being arrested without a warrant. No city ordinance enacted pursuant to the authority of Article 214, C.C.P., 1925, was introduced.

Appellant’s argument, as we understand it, is that to constitute a lawful arrest without a warrant there must be a statute authorizing an arrest under a specified situation, and probable cause to believe the situation specified in the statute exists. It is his contention that these two indispensable prerequisites were not present in the case at bar.

It is the state’s contention, on the other hand, that if the original arrest took place at the football field the officer had adequate' probable cause based upon the information received from the school principal (with whom he was acquainted and knew to be a credible person) and his own personal observation.

The State further argues that the events which followed the “arrest” including the intervention of time, the warnings by the magistrate and assistant district attorney, are sufficient to- demonstrate that the written statement was the act of free will on the part of the appellant and to purge the statement of the stigma of the “arrest”.

There is no need to prolong the discussion of the question of the legality of the arrest for this Court has repeatedly held, under the 1925 Code of Criminal Procedure, which is the statutory law applicable to the case at bar, that it is the illegal detention and not an illegal arrest which under certain circumstances will vitiate a confession. Hughes v. State, Tex.Cr.App., 409 S.W.2d 416; Dugger v. State, 402 S.W.2d 178; Ward v. State, Tex.Cr.App., 399 S.W.2d 567; Garza v. State, Tex.Cr.App., 397 S.W.2d 847; Benitez v. State, Tex.Cr.App., 377 S.W.2d 651; Smith v. State, 171 Tex.Cr.R. 313, 350 S.W.2d 344; Head v. State, 160 Tex.Cr.R. 42, 267 S.W.2d 419. Therefore, a confession otherwise shown to . have been voluntary is not rendered inadmissible by the fact that its author was under arrest or in custody at the time, even though the arrest may have been under invalid process or without any process or legal right.

Nevertheless, appellant contends that in view of the decision in Collins v. Beto (5th Cir.) 348 F.2d 823, citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, the rule above stated no longer applies and a confession obtained as a result of an illegal arrest and introduced in a state criminal proceeding is in violation of the Fourth Amendment, U.S. Constitution and the exclusionary rule applicable to the states by virtue of the Fourteenth Amendment, U.S. Constitution. See Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6. L.Ed.2d 1081.

Appellant’s contention is without merit. Collins v. Beto, supra, is clearly distinguishable from the case at bar on its facts alone. While Chief Judge Tuttle cited Wong Sun, supra, in his opinion, Judge Friendly concurred in the result to make it the majority opinion but expressly refrained from basing his decision on Wong Sun, supra, a federal prosecution.

As stated by the United States Supreme Court in Wong Sun, supra: “The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion,” and “matters observed (or overheard) during an unlawful invasion * * Wong Sun extended this rule to “verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers’ action in the present case * * In Wong Sun, federal officers without probable cause broke open a door and followed the defendant Toy into his living quarters where he was handcuffed and placed under arrest and at that time made oral statements held by the Supreme Court to be within the exclusionary rule. Toy’s statement was found to be so intimately bound up with the conditions and circumstances of the arrest as not to be an act of a wholly free will. The decision rested on the oppressive circumstances there present.

Both state and federal courts have had occasion to pass on the contention here made that a confession following an illegal arrest is ipso facto inadmissible under Wong Sun. The contention has been generally rejected. Rogers v. United States, 330 F.2d 535, 540-542 (5th Cir.); Hollingsworth v. United States, 321 F.2d 342, 350-351 (10th Cir.) ; Burke v. United States, 328 F.2d 399, 402-403 (1st Cir.) affirming 215 F.Supp. 508, 511; United States v. McCarthy, 249 F.Supp. 199; State v. Keating, 61 Wash.2d 452, 378 P.2d 703; Prescoe v. State, 231 Md. 486, 191 A.2d 226; People v. Freeland, 218 Cal.App.2d 199, 32 Cal.Rptr. 132; State v. Kitashiro (Hawaii) 397 P.2d 558.

The oppressive circumstances present in Wong Sun, supra, are entirely lacking in the case at bar. There is no claim of an unlawful search or a seizure of property; nor is there a claim that any evidence in the hands of the prosecutor flowed from an unlawful search and seizure. The incriminating statement was not verbal or contemporaneous with the arrest. The evidence reflects that there was ample reason to detain appellant and that his detention did not vitiate the confession. The record does not demonstrate, nor is it here affirmatively contended that the defendant was held incommunicado for an extended period of time, denied food or drink or critically deprived of his capacity for self determination. Here no framework or coercion has been established. We find nothing in Wong Sun to require a holding that the confession here was improperly admitted.

The judgment is affirmed.


source: Caselaw Access Project

author: DICE, Judge.

license: Public Domain

text:
    Willo CONERLY, Appellant, v. The STATE of Texas, Appellee.
    No. 40199.
    Court of Criminal Appeals of Texas.
    March 22, 1967.
    No attorney on appeal.
    Carol S. Vance, Dist. Atty., James C. Brough and Ray Montgomery, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for robbery by assault; the punishment, fifteen years.

Trial was before a jury upon appellant’s plea of not guilty. The jury found appellant guilty and the court assessed the punishment in his judgment rendered June 7, 1966.

Notice of appeal was given by appellant on July 8, 1966, when his motion for new trial was overruled and sentence was pronounced.

Appellant was represented at the trial by C. C. Divine, an attorney of the Harris County Bar.

On July 7, 1966, appellant filed his written request in the cause to proceed as a pauper and requested the court to appoint counsel for him on appeal. He also urged newly discovered evidence.

No action was taken by the court on the request, and the record reflects that appellant’s counsel, C. C. Divine, continued to represent him.

The record on appeal, which was approved by the court and filed with the clerk, does not include a transcription of the court reporter’s notes of the evidence adduced upon the trial.

No written designation of matter to be included in the record was filed by appellant, as authorized in Art. 40.09, Sec. 2, of the 1965 Vernon’s Ann.Code of Criminal Procedure; however, copies of all instruments enumerated in Art. 40.09, Sec. 1, of the Code are included in the record.

On October 12, 1966, appellant’s counsel, C. C. Divine, was notified by the clerk, by certified mail, of completion of the record on appeal, and on October 28, 1966, the trial court approved the record pursuant to Sec. 7 of Art. 40.09, supra, upon no objection having been filed thereto in writing. The record was thereupon filed with the clerk of the trial court.

On November 25, 1966, a motion for extension of time to file a statement of facts on appeal was filed in the cause by appellant, through his attorney, C. C. Divine.

On the same date, appellant filed his affidavit in the cause, stating that he was without funds with which to pay for a statement of facts and requesting the court to order the official court reporter to prepare a statement of facts to be filed as a part of the record on appeal.

No action appears to have been taken by the trial court on either the motion or the affidavit.

The preparation, approval, and filing of the record on appeal is governed by Art. 40.09 of the 1965 Code of Criminal Procedure.

Art. 40.09, Sec. 2, provides:

“Each party may file with the clerk a written designation specifying matter for inclusion in the record. The failure of the clerk to include designated matter will not be ground for. complaint on appeal if the designation specifying such matter be not filed with the clerk within sixty days after notice of appeal is given.”

Art. 40.09, Sec. 3, provides, in part:

“The record may include a transcription of all or any part of the proceedings shown by notes of the report — to have occurred before, during or after the trial and same will constitute the statement of facts for the appeal. A transcription applicable to any proceeding occurring before or within a period of ninety days after notice of appeal shall be filed with the clerk for inclusion in the record not later than the end of such period. * * * The times herein provided for filing transcription of the notes of the reporter may be extended by the court for good cause shown, and the court shall have the power, in term time or vacation, on application for good cause to extend for as many times as deemed necessary the time for preparation and filing of the transcription, and the approval of the record after the expiration of the time provided by law for its approval shall be sufficient proof that the time for filing the transcription was properly extended, and the transcription so filed shall be construed as having been filed within the time required by law.”

Art. 40.09, Sec. 5, provides, in part:

“A party desiring to have included in the record a transcription of notes of the reporter shall have the responsibility of obtaining such transcription and furnishing same to the clerk in duplicate in time for inclusion in the record and defendant shall pay therefor. The court will order the reporter to make such transcription without charge to defendant if the court finds, after hearing in response to affidavit by defendant — that he is unable to pay or give security therefor. * *

Under the statute, it was appellant’s responsibility to obtain a transcription of the court reporter’s notes of the evidence adduced to be included in the record on appeal.

It was also incumbent upon appellant to either pay the reporter for the transcription or obtain an order from the court directing the reporter to make the transcription without cost to appellant upon a finding after hearing in response to appellant’s affidavit that he was unable to pay or give security therefor.

Appellant’s motion for extension of time to file a statement of facts and his affidavit of inability to pay for the same, filed after the record on appeal had been approved by the court — without objection, and filed with the clerk, came too late.

The facts presented do not require inclusion of a statement of facts in the record on appeal.

No brief has been filed by appellant with the clerk of the trial court, setting forth any grounds of error of which he desires to complain on appeal.

The proceedings appear to be regular.

The judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Gloria Dean LACY, Appellant, v. The STATE of Texas, Appellee.
    No. 40230.
    Court of Criminal Appeals of Texas.
    March 22, 1966.

      No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is injuring property belonging to another (Art. 1350, Sec. 1(a) Vernon’s Ann.P.C.); the punishment, 2 years.

The record approved by the trial court reflects no statement of the evidence adduced and no brief was filed in the trial court by appellant.

The indictment was attacked in the trial court as void by motion to quash and again by motion in arrest of judgment. The motions were overruled and exception taken.

As read to the jury, the indictment alleged that appellant did wilfully and mischievously and without the consent of the owner “injure and destroy certain property, to wit, drapes, windows, gas light, window air conditioners, rugs, and walls” by “cutting, tearing, ripping, and breaking the same and defecating upon the said rugs, in-' flicting damage and injury to the same of the value of over $50.00.”

The quoted portion of the indictment sufficiently alleged that the property described was injured. It was not necessary that the extent of the injury to each article of property be alleged.

The court’s charge authorized the jury to convict if they found that appellant wil-fully injured drapes and rugs without the consent of the owner, the extent of the injury inflicted being of the value of $50.-00 or more.

The indictment is sufficient though it does not allege the value or extent of the damages to the drapes and rugs separately.

The judgment is affirmed.


author: WILSON, Justice.

text:
    C. H. HARRISON COMPANY, Appellant, v. H. R. M., INC., et al., Appellees.
    No. 4546.
    Court of Civil Appeals of Texas. Waco.
    Feb. 23, 1967.
    Rehearings Denied March 23, 1967.

      John B. McNamara, Jr., Waco, for appellant.
    Kelso, Locke & King, San Antonio, Barkley & Cutcher, Taylor, Farmer, Maddin & Walker, Waco, for appellees.
   OPINION •

WILSON, Justice.

Appellee, H. R. M., Inc., sued a prime contractor and a subcontractor for road construction equipment rentals. The prime contractor filed a cross-action against appellant alleging an indemnity agreement by which appellant assumed liability for all obligations under a road construction contract. Judgment was rendered for appellee against appellant on a jury verdict.

Appellee pleaded and proved execution in 1962 of four separate written contracts by which it rented four units of equipment, each for a specified monthly rental. It alleged that in 1963 these four units were combined with two other pieces of equipment in one 30-month lease agreement containing a purchase option. Appellee pleaded that the 1963 agreement was abandoned in 1964 and five pieces of equipment were rented separately by oral agreement, each at the same monthly rental rate provided by the 1962 contract. Appellant’s position was that the 1963 written contract was never abandoned; that it was not a rental agreement, but a sale. The jury found the parties abandoned the 1963 contract.

Although appellant’s brief contains 21 points, it presents four briefed “propositions” which appear to constitute its contentions and grounds for reversal. The first of these is that it is not liable because the 1963 contract is “in law, a chattel mortgage and not a lease,” or that in legal effect it is “a sale and not a bailment.” The second is that the 1963 contract remained in effect until abandoned or otherwise terminated by agreement, and it was not so terminated. The third is that “the Statute of Frauds does not permit a written contract to be rescinded by an oral agreement.” Proposition 4 asserts that appellee must establish that notice of claim was given in the manner required by Art.' 5160, Vernon’s Ann.Civ.Stat., under which appellees’ action was brought, and it is said it was not so given.

The argument as to the statute of frauds and the contention concerning sufficiency of notice under the statute are not reached because they are not raised by defensive pleading as required by Rule 94, Texas Rules of Civil Procedure; and are not the subject of assignments in the prerequisite motion for new trial. They may not be first raised here. Rules 324, 374, Texas Rules of Civil Procedure; City of Corpus Christi v. Gregg, 155 Tex. 537, 289 S.W.2d 746; Cook v. Hamer, 158 Tex. 164, 309 S.W.2d 54; Hortenstine v. McKlemurry, Tex.Civ.App., 402 S.W.2d 946, writ ref. n. r. e., and cases cited, Syl. 2.

It is urged that Art. 5160 under which the suit was instituted provides for recovery of rental only, and not the purchase price of equipment; that the 1963 contract was one of sale, and appellee was not entitled to recovery of rentals. The argument becomes immaterial by virtue of the jury finding that the 1963 contract was abandoned. The case is reduced, therefore, to the only real issue: whether there is adequate evidence to support this finding.

There is evidence to show appellant had defaulted in payment since September, 1963 and was delinquent for several months. Appellee’s president testified that in January, 1964 there was “an oral contract that you just do away with all of this contract here of March 27, 1963 and February, 1963”; that it was said, “Now, from here on out we’re going to charge rental on that equipment” as set out in the 1962 agreements, and that “after we abandoned the lease agreement,” the rental rates agreed on in the oral contract were “the same rental rates we started out with”; that they did not “operate any further under that written contract” because “they didn’t have the same machines.” Although his evidence was disputed, the president testified an officer of the subcontractor to whom the equipment was delivered agreed to the change. This officer testified at one point that there was no other change in the 1963 agreement except the method of billing, “at this time;” but he also testified unequivocally that “that contract had been abandoned about the first of the year 1964.” There is testimony which would support a contrary verdict, but we are unable to hold the evidence was not adequate to support the finding. Appellant’s contentions as briefed have been fully considered, and are overruled.

Appellee presents a cross-point complaining of denial of a portion of its claim. It filed no motion for new trial. Its complaint is waived. Rule 324, Texas Rules of Civil Procedure; Edgar v. Schmidt, Tex.Civ.App., 243 S.W.2d 414, 417; Furrh v. Furrh, Tex.Civ.App., 251 S.W.2d 927, 934, writ ref. n. r. e.; Walker-Smith Co. v. Coker, Tex.Civ.App., 176 S.W.2d 1002, 1009.

The judgment is affirmed.


author: RENFRO, Justice.

text:
    LITTLE MOE, INC., Appellant, v. MUNICIPAL SERVICE COMPANY OF TEXAS, Appellee.
    No. 16805.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 24, 1967.

      Donald C. Bubar, Lattimore & Lattimore and Hal S. Lattimore, Fort Worth, for appellant.
    Spruiell, Lowry, Potter, Lasater & Guinn and Charles F. Potter, Tyler, for appellee.
   OPINION

RENFRO, Justice.

Suit was brought in a District Court in Tarrant County by Little Moe, Inc., against Municipal Service Company of Texas.

The trial court sustained defendant’s plea of privilege and ordered the case transferred to the 7th Judicial District Court of Smith County.

The plaintiff did not file a brief in this Court, and for that reason plaintiff’s appeal is dismissed. Rules 414 and 415, Texas Rules of Civil Procedure; Moorman & Singleton v. Simmons, 360 S.W.2d 548 (Tex.Civ.App., 1962); Moorman & Singleton v. Simmons, 364 S.W.2d 188 (Tex.Sup., 1963).

Appeal dismissed.


author: BATEMAN, Justice.

text:
    NEIMAN-MARCUS COMPANY et al., Appellants, v. Louis J. HEXTER et al., Appellees.
    No. 16850.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 3, 1967.
    Rehearing Denied March 10, 1967.

      Sol Goodell, of Thompson, Knight, Simmons & Bullion, J. Richard Gowan, of Johnson, Bromberg, Leeds & Riggs, Dallas, for appellants.
    Alfred Sallinger and H. Louis Nichols, of Saner, Jack, Sallinger & Nichols, Dallas, for appellees.
   BATEMAN, Justice.

The appellees Louis J. Hexter, Sam Lo-bello, Sam Lobello, Jr. and Ruby D. Hexter brought this suit for declaratory judgment against the appellants Neiman-Marcus Company and Raymond D. Nasher. At the conclusion of a nonjury trial the court rendered the judgment requested by appellees.

In 1947 appellees, owners of a long term lease of several acres in the City of University Park, Dallas County, Texas, developed the tract as a shopping center known as Varsity Village, and later as Preston Center. In 1948 appellees subleased to Neiman-Marcus Company (herein called Neiman-Marcus) a part thereof on which Neiman-Marcus constructed a store building and maintained a store for approximately 15 years. This sublease was for a term of 25 years, with a 25-year renewal option. On July 20, 1965 Neiman-Marcus assigned its rights under this sublease, and its interest in the store building, to the appellant Nasher, retaining vendor’s and deed of trust liens thereon to secure payment of part of the purchase price. The assignment contained the following provision:

“Nasher further expressly agrees, covenants and warrants that, without the prior written consent of Neiman-Marcus, he will not prior to July 20, 1985 sell, assign, transfer, lease or sublease the Preston Center Store Building, or the demised premises, or any part of either, to Bonwit-Teller, Bergdorf-Goodman, Lord & Taylor, or any other comparable specialty store dealing in luxury merchandise, or to Lou Lattimore, Inc. or Marie Leavell Specialty Shop, which are two stores currently dealing in luxury women’s apparel and accessories in Dallas, Texas.”

The record also shows that on May 3, 1963 the appellant Nasher, who had developed NorthPark Shopping Center on Northwest Highway, slightly less than two miles from the property in question, leased store premises therein to Neiman-Marcus, which opened and operated a retail store therein for the sale of luxury merchandise. That lease prohibited Neiman-Marcus from managing, operating or conducting or having any interest in any retail store within five miles of the NorthPark Shopping Center, except that Neiman-Marcus might continue to operate its store located in Preston Center, provided it was not operated under the name of Neiman-Marcus or any comparable name, or as “a typical Neiman-Marcus store,” or for the sale of merchandise within the price range of that being sold from its NorthPark store.

The trial court declared the above quoted provision in the assignment to be void and unenforceable as being in violation of the anti-trust laws of Texas, Vernon’s Ann.Civ.St. Art. 7426, and the appellant Neiman-Marcus, by its first point of error on appeal, challenges the correctness of this declaration.

Although the lease between Nasher and Neiman-Marcus covering the NorthPark premises was made in May 1963, and the assignment to Nasher of the Preston Center lease in July 1965, Nasher testified that they were parts of one transaction. Appel-lees do not contend that the leasing of the NorthPark premises to Neiman-Marcus, standing alone, would violate the Texas anti-trust laws, but argue that the effect of that transaction, coupled with the restrictive assignment of the Preston Center lease to Nasher, was calculated to create a monopoly and eliminate competition with the Neiman-Marcus store in NorthPark Shopping Center within a radius of five miles thereof, which appellees say comprises an area of 75 to 80 square miles. We do not agree with this contention of appellees.

Neiman-Marcus’ lease covering premises in Varsity Village, or Preston Center, did not obligate it to build a building thereon or to occupy it or to conduct any particular kind or quality of business therein. Moreover, it accorded to Neiman-Marcus the right to assign the lease and be relieved of all obligations thereunder. It did not provide for a rental based on a percentage of sales but only a fixed ground rent.

As the owner of the Preston Center lease, Neiman-Marcus had the right to require the restriction contained therein as a condition to its assignment of the lease to Nasher. In doing so, it was only exercising “one of the inherent rights incident to the ownership of real property,” which was “within the well-recognized exception to the general rule” which might render such agreement or combination unlawful under the anti-trust statutes. Celli & Del Papa v. Galveston Brewing Co., Tex.Comm.App., 227 S.W. 941, 942. The same may be said of Nasher’s right to require the restrictions contained in his lease to Neiman-Marcus covering the NorthPark store.

We think this court correctly stated the applicable rule in Weinkrantz v. Southwestern Life Ins. Co., Tex.Civ.App., 264 S.W. 550, no wr. hist., as follows:

“The right of a lessor to control the use of his premises is undisputed. He may insert such conditions in the lease contract with reference thereto as he pleases, and it is not for the lessee to say that they are unreasonable; thus covenants not to carry on a particular business or not to carry on any business except the one named in the lease contract is binding and may be enforced.”

See also State v. Gulf Refining Co., Tex.Civ.App., 279 S.W. 526, wr. ref.; Schnitzer v. Southwest Shoe Corp., Tex.Sup.1963, 364 S.W.2d 373; and Weil v. Lewis (Ann) Shops, Inc., Tex.Civ.App., 281 S.W.2d 651, wr. ref.; 35 Tex.Jur.2d, LANDLORD and TENANT, § 57, p. 545; Redland Fruit Co. v. Sargent, 51 Tex.Civ.App. 619, 113 S.W. 330, no wr. hist.

If the combination of the restrictions contained in the two instruments creates a monopoly or is in restraint of trade (and we do not hold that it is), such is in our view a fortuitous circumstance resulting from contracts between the appellants which they had a legal right to make and concerning which neither of them is complaining.

Appellant Neiman-Marcus’ first point of error is sustained.

The trial court also declared in its judgment that certain restrictive provisions contained in Section XVII of the sublease from appellees to Neiman-Marcus were personal covenants to Neiman-Marcus and no longer in force and effect or binding upon appel-lees since Neiman-Marcus no longer operated its store upon the leased premises. Neiman-Marcus by its second point of error on appeal, and Nasher by his only point of error, attack this part of the judgment contending that, except as to certain parts here-matter noted, the covenants in question run with the land and remain in force and effect for the life of the sublease.

The covenants in question are contained in Paragraph XVII of the sublease and are as follows:

“Lessor covenants and agrees that during the life of this lease and any extension thereof no property in Varsity Village not included in the premises hereby leased will be leased by it for any of the following uses, to wit: Saloon, package store, fish market, drive-in restaurant, hamburger stand (where food and drink are served in automobiles), manufacturing, processing, dwelling or apartment purposes, or, without Lessee’s written approval, no apparel mercantile establishment from outside the City of Dallas comparable to such apparel stores as Sak’s Fifth Avenue, Bonwit-Teller, Peck & Peck, or Bullock’s Wilshire, and no specialty store which is either a subsidiary or affiliate of any department store or specialty store now located in Dallas, or owned or controlled by any department store or specialty store now located in Dallas during the life of this lease, or any extension thereof, without Lessee’s written consent. By ‘specialty store’ as above used, is meant any store in which at any time apparel sales exceed thirty per cent (30%) per annum of its total sales. It is not intended by any of the foregoing provisions to restrict the sale by any Lessee of any part of Varsity Village of men’s and boys’ clothing in Varsity Village. Lessor further agrees that it will exercise reasonable diligence not to lease any property in Varsity Village to any person theretofore in the employ of Lessee, or to any party or concern in which such person has an investment or interest as partner, stockholder, lender, officer, director, employee, or otherwise, for the purpose of conducting the business of selling any character of goods, wares and merchandise which may then be handled by Lessee within a period of ten (10) years from and after the termination of said person’s employment by Lessee. Lessors further covenant and agree that they will not allow any store to operate in Varsity Village for any purpose whatsoever having the name of Neiman and/or Marcus, or any combination of Neiman and Marcus; and will exercise reasonable diligence to prevent any person or persons having the name of Neiman or Marcus, or any combination thereof, to operate such store by means of an investment or interest as partner, stockholder, lender, officer, director, employee or otherwise during the life of this lease or any extension thereof. No lease covering property in Varsity Village not included in this lease will be executed by Lessor unless such lease contains the aforesaid use restrictions without the written consent of Lessee first had and obtained.”

These restrictions may be said to fall into four parts or categories. In what we shall call Part I the appellees bound themselves not to lease any of their remaining property for a saloon, package store, fish market, etc. Part II binds appellees not to lease their remaining land to certain types of mercantile establishment. In Part III they agree to use reasonable diligence not to lease any of such remaining property to former employees of Neiman-Marcus, and Part IV bound appellees not to allow any store in Preston Center with the name of Neiman-Marcus or either of such names or any combination thereof. Both of the appellants in their briefs agree that the restrictions contained in Parts III and IV are of no importance to them and, so far as they are concerned, may be by agreement deleted from the sublease. They contend vigorously, however, that the restrictions contained in Parts I and II are important, were bargained and paid for, and are covenants running with the land which may be enforced by Nasher or his assigns. We agree with appellants.

Our first duty is to determine the intention of the parties, and in doing so we shall follow the rule set out in the early case of Howeth v. Anderson (1860), 25 Tex. 557, 572, wherein the Supreme Court said:

“Leases are construed, like other written agreements, so as to give effect to the intention of the parties. To arrive at the intention, regard is to be had to the situation of the parties, the subject matter of the agreement, the object which the parties had in view at the time, and intended to accomplish. A construction should be avoided if it can be done consistently with the tenor of the agreement, which would be unreasonable or unequal; and that construction which is most obviously just is to be favored, as most in accordance with the presumed intention of the parties.”

Other parts of the contract are helpful in this respect. Section XV accords to the “Lessee” the absolute right to assign his leasehold estate in its entirety or for any portion of the unexpired term thereof. Section XIX provides:

“Wherever the word ‘Lessor’ appears in this agreement it is agreed to include not only the Lessors, but their heirs, assigns, administrators and successors. Similarly, wherever the word ‘Lessee’ appears in this agreement, it is agreed to include not only the Lessee, but its successors and assigns.”

We think we should also take into consideration the facts that the sublease does not provide for a rental based even in part on a percentage of sales, but only for a fixed ground rent payable semi-annually; that it does not obligate the lessee to conduct any business whatsoever on the premises or to continue to occupy or use the same in any respect; and that when Nei-man-Marcus assigned the sublease to Nash-er it retained vendor’s and deed of trust liens on the leasehold estate to secure payment of the balance of the purchase price. Also entitled to consideration is the fact that appellees imposed similar restrictions upon themselves in leases given by them to other tenants in the Preston Center.

If appellees had intended any of these restrictions to be personal to Neiman-Mar-cus alone, it seems to us that when they expressly gave Neiman-Marcus the right to assign its interest in the sublease appellees would have insisted upon specifying that in the event of such assignment the restrictions in question would be no longer in effect or binding upon them. Instead, however, they stipulated that the restrictions should be effective “during the life of this lease, or any extension thereof.”

Giving effect to all of these considerations, we conclude that the restrictive covenants contained in Parts I and II were not intended to be and are not personal, but run with the land and are enforceable at the behest of Nasher or any subsequent owner of the sublease. Cauble v. Hanson, Tex.Civ.App., 224 S.W. 922, affirmed Tex.Com.App., 249 S.W. 175; Moore v. Kirgan, Tex.Civ.App., 250 S.W.2d 759, no wr. hist.; Fort Worth Driving Club v. Fort Worth Fair Ass’n, 103 Tex. 24, 122 S.W. 254; Goldberg v. Siegel, 182 Misc. 1068, 47 N.Y. S.2d 678; Norman v. Wells, (N.Y.Ct. of App.), 17 Wend. 136. Neiman-Marcus’ second point of error and Nasher’s only point of error are therefore sustained.

By its third point of error on appeal Neiman-Marcus says the trial court erred in not dismissing this suit for want of a necessary and indispensable party, Connecticut General Life Insurance Company. The record shows that on November 28, 1960 appellees assigned to that Company their rights under the lease to Neiman-Marcus, as well as other leases, to secure their note for $200,000. Counsel for Nei-man-Marcus announced ready for trial without raising this question, and did not raise it until the filing of its motion for new trial. He argues on appeal that, since the assignment contained appellees’ agreement “not to modify, extend or in any way alter the terms of said lease or accept a surrender thereof,” Connecticut General Life Insurance Company was given a direct interest in the sublease and was, therefore, an indispensable party to the suit.

This suit for declaratory judgment was brought pursuant to Vernon’s Ann.Civ.St. Art. 2524-1. Section 11 of that statute provides :

“When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.”

While Connecticut General Life Insurance Company might properly have been joined as a party to this suit, it was not an indispensable party and it was not fundamental error for the court to proceed to trial and judgment in its absence. Petroleum Anchor Equipment, Inc. v. Tyra, Tex. Sup.1966, 406 S.W.2d 891.

Neiman-Marcus’ third point of error is overruled.

In view of the agreement of appellants that the restrictive covenants in the sublease concerning leasing property in Varsity Village to former employees of Neiman-Marcus and not allowing any other store to operate in Varsity Village having the name of Neiman and/or Marcus, or any combination of such names, etc., without the written consent of Lessee, may be deleted from such sublease, that part of the judgment of the trial court which declares such last named provisions to be no longer in force and effect or binding upon appellees, is affirmed. The remainder of the judgment is reversed and here rendered declaring that the restrictions in the assignment of the sublease from Neiman-Marcus to Nasher do not violate the antitrust laws of Texas, and that the restrictions contained in Section XVII of the sublease prohibiting appellees from leasing their remaining property in Varsity Village, not included in the sublease, for use as a saloon, package store, fish market, etc. or as an apparel store such as Sak’s Fifth Avenue, Bonwit-Teller, etc. or as a specialty store which is either a subsidiary or affiliate of a Dallas department or specialty store, are not personal covenants to Nei-man-Marcus but are covenants running with the land and still in force and effect.

Costs in the trial court and in this court will be taxed against appellees.

Affirmed in part and reversed and rendered in part.

       Suggestion is made of the death of Sam Lobello. His estate has been substituted by order of this court on the voluntary appearance of Sam Lobello, Jr., independent executor of said estate.


author: SELLERS, Justice.

text:
    RESERVE LIFE INSURANCE COMPANY, Appellant, v. ESTATE of William E. SHACKLETT et al., Appellees.
    No. 262.
    Court of Civil Appeals of Texas. Tyler.
    March 2, 1967.
    Rehearing Denied March 30, 1967.

      Joe Bailey Humphreys, Dallas, for appellant.
    Henry L. McGee, Jr., Tyler, for appel-lees.
   SELLERS, Justice.

Reserve Life Insurance Company brought this suit against the Estate of William E. Shacklett et al. to cancel a certain policy of life insurance on the life of William E. Shacklett because of alleged fraud in securing the same by making false answers to the application.

The policy was issued on June 4, 1963, and Mr. Shacklett died on May 18, 1965.

The defendants denied the allegations in plaintiff’s petition, and by cross-action Mrs. Shacklett, as beneficiary in the policy, sought to recover the face value of the insurance provided for in the policy. In answer to the cross-action, the plaintiff alleged that William E. Shacklett’s (the deceased) death was a suicide, and tendered into the Court the amount of the premiums paid for the insurance which, it is alleged, was the only liability under the terms of the policy since the insured’s death was a suicide.

The case was tried to a jury and resulted in a judgment on the jury’s verdict in favor of Mrs. Dorothy Faye Shacklett, the beneficiary in the policy of insurance, for the sum of $9,700, together with attorney’s fees and damages. The judgment denies the plaintiff, Reserve Life Insurance Company, any recovery on its suit to cancel the policy for fraud. From this judgment the plaintiff, Reserve Life Insurance Company, has duly prosecuted an appeal to this Court.

The deceased, William E. Shacklett, died about 10:30 at night in his home in the room where he and his wife slept. He came in, turned on a light, and partially awoke his wife who had retired earlier. Shacklett was sitting on the side of the bed opposite where his wife slept. The pistol was kept inside a sliding door of the headboard of the bed where they slept. No conversation was had between Mrs. Shacklett and her husband after he returned home. A gun was exploded and the wife jumped out of the bed on her side and went screaming down the hall calling her married daughter who was asleep in another room of the house at the time. It was disclosed that the explosion from the pistol struck the insured under the chin and came out the top of his head. The insured died at his home from the gunshot wound.

Each Wednesday, it was the habit of the insured to go out with a number of friends to a lodge where the men usually met every week and played cards and dominoes. Some would bet on the game they played and some would take a few drinks. This had been going on for about five years so far as the insured was concerned. It is true that the insured had been arrested for drunkenness on some occasions, that he and his wife had fussed on some occasions, and that he had struck her, but this was not immediately before his death. He had four girl children, one of whom was married. His relations with his children were normal, and he had kept the same job for ten years before his death.

In this State, there is a very strong presumption against suicide. Southland Life Insurance Co. v. Brown, Tex.Civ.App., 121 S.W.2d 653; Great Southern Life Ins. Co. v. Watson, Tex.Civ.App., 343 S.W.2d 921. The same cases place the burden of proof of the issue of suicide on the appellant.

The first four assignments of error by appellant challenge the admissibility in evidence of the death certificate. The death certificate complies fully with the provisions of Vernon’s Ann.Civ.St. Article 4477, Rule 54a, and the certificate of the-State Registrar was in all things proper. We find the law in this State to be that such certificates are not only admissible in evidence, but are prima facie evidence of the facts therein stated. In' this certificate, the statement is made that the death of the insured was an accident. American Nat. Ins. Co. v. Valencia, Tex.Civ.App., 91 S.W.2d 832; Southland Life Insurance Co. v. Brown, supra; Universal Life & Accident Ins. Co. v. Barron, Tex.Civ.App., 269 S.W.2d 467.

In the Valencia case at 91 S.W.2d page 833, it is held:

“It was not error, under article 4477, rule 54a, of the Revised Civil Statutes, as added by Acts 1927, 1st Called Sess. c. 41, § 21 (Vernon’s Ann.Civ.St. art. 4477, rule 54a), to permit in evidence the properly certified copy of the death certificate of the insured, Rosendo Lopez. Universal Life & Accident Ins. Co. v. Ledezma (Tex.Civ.App.) 61 S.W.(2d) 165.”

We have carefully reviewed all of the evidence in this case and find the same amply sufficient to support the jury’s finding that the insured did not commit suicide.

Complaint is made of the Court’s definition of “suicide” given in the Charge to the Jury. The definition given was as follows:

“You are instructed that suicide means the intentional taking of one’s own life.”

We find no error in the charge under the facts of this case. The evidence did not raise the issue, of insanity and therefore, there is no need to charge on the same.

A Deputy Sheriff of Smith County made a routine investigation on the night of Mr. Shacklett’s death, and on his return to the office, made the following report which was filed in the office of the Sheriff, to-wit:

<( ⅝ ⅝ ⅜
“REMARKS — William Schacklett came home about 11:00 p. m. come into the bedroom walked around the bed got a 38 S.W. Special gun and shot himself through the neck bullett come out side his head and lodged in ceiling of room.
“His wife was in bed and seen the gun as he got it and seen him shoot himself.
“He had been drinking and there was just a little whisky left in a quart bottle.
“Outside information he was quite a ladies man and they his wife and him had been having trouble.
“Dated May 18, 1965 Signed John Wy-mon.”

The Sheriff of Smith County testified as follows:

“Q. Sheriff, in connection with the operation of your office, I will ask you to tell the Court whether or not you have a practice of having reports filed by your deputies when they go on an assignment?
“MR. McGEE: If the Court please, we object to the practice of the Sheriff’s office here, for the reason that it is a conclusion on the part of this witness and immaterial to any issue in this lawsuit.
“THE COURT: Overrule the objection.
“A. No, sir, I wouldn’t say that I would have a practice of my deputies filing a report. I leave that strictly to their discretion on any investigation that they make, whether they file a report or not.
“Q. If they do file a report, are those reports maintained in your office as a part of the records of your office ?
“A. Yes, sir. If they file one, it’s maintained in my office.
“Q. And was that the usual course of business in the operation of the Sheriff’s office in those particulars ..in the month of May, 1965 ?
“A. Yes, sir.
“Q. All right, sir, I will ask you if either or any of your deputies filed a report in May of 1965, pertaining to one, William E. Shacklett, of Lindale, Texas?
“A. Yes, sir.
“Q. I will ask you to tell the Court whether or not that report was filed in keeping with the business practices you just testified about?
“A. Yes, sir, in the form of memorandum. Actually, wasn’t filed as a report. It was a memoranda in our office, for our information.”

The Court refused the admission of this statement into evidence. The appellant contends that it was admissible under Article 3737e. This statute has been held t.o require the trial court to find as follows:

“Since Gaston Hospital was not shown to be a public hospital, the records, if admissible at all, would be made so by virtue of Article 3737e, Vernon’s Ann. Civ.St., which provides for the admissibility of records if the judge finds :
“ ‘(a) It was made in the regular course of business;
“ ‘(b) It was the regular course of that business for an employee or representative of such business with personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record; * * ” Skillern & Sons, Inc. v. Rosen, Tex., 359 S.W.2d 298.

The Sheriff’s evidence should he sufficient to show this statement inadmissible under this statute since the Sheriff had no requirement that his deputies make such reports, but if made, they were kept on file in his office. Under the foregoing authority, to make this statement admissible, the Court had to find that this statement was made in the regular course of business. We are of the opinion that the trial court was justified in holding said statement did not meet this requirement.

The record in this case wholly negatives the fact that anyone saw the insured shoot himself (as stated in the deputy’s statement) and therefore, the second requirement of the statute that the party making the statement had personal knowledge of said act is entirely lacking.

The appellant com plains of the court’s failure to grant the appellant a new trial because of the following occurrence. The counsel for appellee took the stand to prove up the time he had spent in preparing the case in order to recover reasonable attorney’s fees:

“A. I didn’t figure it on a charge per hour.
“Q. And your testimony is that that is a contingent fee arrangement?
“A. I think — if I understand contingent fee, it is not exactly a contingent fee. It does not come from any money to which Mrs. Shacklett is entitled.
“Q. But, did I understand you to tell the Jury that in the event she is unsuccessful, then she would owe you no attorney’s fee?
“A. That’s right. That’s her agreement with me.
“Q. Isn’t that — I am not arguing with you, but isn’t that an out and out contingent fee?
“A. It is contingent on the outcome, yes.
“Q. And that is the arrangement that you have with her? That’s your testimony ?
“A. Yes, sir. She doesn’t pay me anything if we lose.”

Since this evidence was given by the attorney for appellee in answer to appellant’s attorney’s questions and no objection was made to the same by the appellant at the time but complaint was raised for the first time after the trial in a motion for instructed verdict, there was no error by the trial court in denying the motion.

Complaint is made that certain issues submitted to the jury were answered against the undisputed evidence. The record shows that this insurance policy was written by an agent of the company who called upon the insured of his own volition, and was advised by the insured that he was not in the market for insurance hut that he was going to build a new home and that when he did, he would want insurance. Some three months later after the insured had built his new home, the agent again called upon the insured and sold him the policy of insurance involved. One of the questions which was in the application inquired whether the appellee had ever had or been treated for a disorder of the stomach or intestines. The answer was “no.” The fallacy of the answer is alleged to be in the fact that the insured, more than ten years before he took the policy of insurance, had been shot in the stomach, was placed in a hospital and fully recovered and had never had any trouble with his stomach or intestines since. The jury found that the answer given was not material to the risk and the same is true with reference to whether the insured had been in a hospital within the last five years. The record shows that he had spent one night in a hospital as a result of an automobile accident some three years before the policy was written, from which he fully recovered.

The burden was upon appellant to show that these answers were material to the risk, and the jury with ample evidence to support them, found they were not material to the risk. This being a fact issue for the jury, the answers are binding upon appellant. Bankers Standard Life Ins. Co. v. Atwood, Tex.Civ.App., 205 S.W.2d 74.

There are other assignments of error which this Court has considered and they are deemed without merit and are overruled.

Judgment of the trial court is affirmed.


author: LANGDON, Justice.

text:
    SOUTHWESTERN INVESTMENT COMPANY, Appellant, v. Claude D. NEELEY et ux., Appellees.
    No. 16787.
    Court of Civil Appeals of Texas. Fort Worth.
    March 3, 1967.
    Rehearing Denied March 31, 1967.

      Clayton & Clayton and Cleo G. Clayton, Jr., Amarillo, for appellant.
    Johnson & Browning and William V. Browning, Wichita Falls, for appellees.
   OPINION

LANGDON, Justice.

This is a suit for conversion of household furniture. The plaintiffs sought actual damages in the sum of $5,000.00 and exemplary damages of $50,000.00 against the appellant and Elbert Brumbelow, a dealer in used furniture. The latter was sued as agent of appellant and individually.

The appellees will hereinafter be referred to by name or as plaintiffs and the appellant as defendant or as SIC.

The case was tried to a jury on special issues in answer to which the jury found that: (1) the plaintiffs’ account with SIC, secured by the two notes and chattel mortgages, was settled and discharged by the plaintiffs by the payment made by check by plaintiffs and accepted by SIC on March 26, 1963. (2) There was a dispute between plaintiffs and SIC over the amount of the debts owing on March 26, 1963, when plaintiffs made the payment of $837.-01. (3) SIC represented to Elbert Brum-below that it had a valid mortgage on plaintiffs’ furniture on or about November 17, 1964. (4) SIC through its actions, if any, authorized Elbert Brumbelow to repossess plaintiffs’ furniture on or about November 17, 1964. (4A) At the time Elbert Brumbelow took possession and control of plaintiffs’ furniture he was relying on SIC’s chattel mortgage. (5) SIC ratified the actions of Elbert Brumbelow in taking the plaintiffs’ furniture on November 17, 1964. (7) On or about November 17, 1964, SIC converted plaintiffs’ furniture. (8) The conversion of plaintiffs’ furniture was done with malice. (10) $700.00 was the reasonable cash market value of plaintiffs’ furniture on or about November 17, 1964. (11) Conditioned on a “yes” answer to special issue No. 8 the jury found that $30,000.00 should be awarded plaintiffs as exemplary damages. In connection with the foregoing special issue the jury was instructed that “exemplary damages” means compensation which may be allowed by the jury in addition to actual damages by way of punishment and as an example for the good of the public, and may also include compensation for inconvenience, reasonable attorney’s fees and other losses too remote to be considered under actual damages. (12) SIC made no mistake in arriving at the payoff figure furnished Mrs. Neeley on or about March 26, 1963.

Based upon the verdict of the jury the court entered judgment for plaintiffs in the sum of $700.00 actual damages and $30,000.-00 exemplary damages.

The appellant bases its appeal upon 44 points of ferror.

We reverse and render.

After the plaintiffs had rested, Brum-below presented his formal motion to be discharged from the proceedings since Mrs. Neeley had testified that she did not have any complaints against him nor had she any complaints against him at the time of the trial. The Court sustained Brumbe-low’s motion. Defendant SIC also made a motion to be dismissed and for an instructed verdict on the same grounds as presented by Elbert Brumbelow. The basis of SIC’s motion was that if the plaintiffs had no complaint against Elbert Brumbe-low, its alleged agent, there would be no basis to impute liability to SIC as principal. That if plaintiffs found nothing wrong with the acts and conduct of its agent, they would have no complaint as against SIC. The court in overruling the latter’s-motion stated “Mr. Brumbelow wasn’t their (SIC’s) agent.” The attorney for plaintiffs in protesting the court’s discharge of Brumbelow from the proceedings stated that in testimony before the court Brumbe-low himself had said that he went out there and took the furniture, sold it, and kept the money. The plaintiffs did not appeal from the action of the court in dismissing Brumbelow from the suit.

On April 26, 1962, the plaintiffs obtained a loan from SIC in connection with which they executed a note in the principal sum of $1,490.16, payable in 24 monthly installments of $62.09 each commencing on June 10, 1962. The note was secured by chattel mortgage, signed by them covering items of household furniture and a car.

The plaintiffs made the payments on the note each month from June, 1962 through February, 1963, both inclusive, a total of 9 payments.

In March of 1963, the plaintiffs decided to consolidate some of their debts. A friend had agreed to lend them the money for this purpose. In order to know how much to borrow Mrs. Neeley called the various companies, including SIC to obtain the amount of the balances owed. She talked to some lady at SIC.and requested the amount of the balance due on the two notes (car and furniture). The lady agreed to get the figure. They talked again at which time the lady said the balance was $837.01.

On March 26, 1963, Mrs. Neeley went to the SIC office. She testified that she told the lady she was there to pay off the notes and that according to her figures the amount due should be a little less. She did not offer any explanation other than to say that “enough wasn’t taken off for interest or something but we get a less figure.” She agreed to pay the $837.-01 and said to the lady, “I’ll make it clear to you that I thought it was less than that but I will agree to go ahead and pay that in order to get all of these bills out of the way that we owe.” She then wrote the check for $837.01, and wrote on it, “In full of account.” Mr. Neely offered no testimony as to a dispute over the amount due. The amount due was readily ascertainable. It was a liquidated amount.

Several days later the Neeleys received the title to the car free and clear of any lien. The $837.01 check indorsed by SIC for deposit was honored and paid. Neither the note nor release of the chattel mortgage covering the furniture was ever received by the plaintiffs.

In May or June of 1963 (after the $837-01 check was given to SIC) Mrs. Neeley testified she was contacted by phone on two occasions by someone with SIC and was advised that the amount due on the notes had been misfigured and that plaintiffs still owed, a balance of $62.09. On each occasion Mrs. Neeley advised the person calling that she had her cancelled check showing the account paid in full and, “we owe you no more money.” Neither of the plaintiffs offered any testimony based on facts or figures that they were entitled to credit for another payment of $62.09.

At this point the plaintiffs were on notice that SIC held their note and chattel mortgage and was claiming a balance due of $62.09. Further, that under the chattel mortgage it (SIC) had the right to seize the household furnishings wherever found and to dispose of same with or without notice to them. In spite of this they made no effort to contact SIC to obtain the note or a release of the mortgage or otherwise to settle the matter. Plaintiffs chose to ignore the notice rather than to take necessary steps to protect their interest in the furniture.

Sometime after the loan of April 26, 1962, the plaintiffs, after having resided at several different locations, moved to 4708 Catalina Street in Wichita Falls, Texas, about May of 1964, to a residence they rented from Mr. and Mrs. Sidney K. Lambert at $105.00 per month. Plaintiffs paid the first month’s rent when they moved in and later paid $50.00. They made no additional rental payments. Several days after the first of the month when the rent was due Mr. Lambert went to the house on Catalina. “It looked like they had locked up and gone; the yard was growed up * * A week or two later Mr. Lambert, having received no word from the plaintiffs, returned to the residence and found the Neeleys were still gone. The household furniture, furnishings and personal effects of the Neeleys were in the house. Mr. Neeley did not notify Lambert that he had to leave town or was leaving town nor did he otherwise make any arrangements for the rent or the removal of the household furnishings from the residence.

Lambert went to the liquor store Neeley had operated. It was locked. Following some inquiry in the area he learned Neeley was in Strawn, Texas, and called him. Neeley offered the car in payment of the rent and Lambert declined. Neeley advised that he would pay the rent when he received money for property he was selling.

After conversations with SIC and Neeley, Lambert changed the locks on the Catalina Street house. He and his wife were the only persons who had keys to the house and access to it and to the furnishings therein.

Mr. Lambert testified that a house with furniture and stored personal effects was no good to him as a rent house with no rent coming in.

The pertinent evidence in the record regarding the furniture which was left at 4708 Catalina Street by the Neeleys and its subsequent removal by Brumbelow is as follows :

Neeley testified that he left his furniture and car with the Lamberts as security for the rentals owed by him. Lambert denied this stating Neeley offered only the car as security which he refused.

Brumbelow testified that before November 17, 1964, he was contacted by Scott Allred, an employee of SIC. Allred wanted to know if he wanted to buy some furniture. Brumbelow said yes. Allred did not tell him who was selling the furniture. All he wanted to know of Brumbelow was whether or not he wanted to buy it. Brumbelow examined the chattel mortgage securing SIC’s loan which was on file in the clerk’s office and made a list of the furniture covered by it. He paid SIC by check the $62.09 to clear the lien it claimed against the furniture pursuant to such mortgage. Thereafter on November 17, 1964 Brumbelow, accompanied only by his son, went to 4708 Catalina Street where the furniture was located. There he met Mr. and Mrs. Lambert who had the only keys to the house. It is undisputed that the Lamberts would not relinquish their possession and control of Neeleys’ furniture until after Brumbelow had paid to them in cash the $315.00 back rent owed by the Neeleys. Thus before he went to get the furniture Brumbelow had paid the $62.09 to SIC to clear the chattel mortgage he had examined in the clerk’s office. Before he was admitted into the house and permitted to load up the furniture he was required to pay the Lamberts. He took only the furniture described in the chattel mortgage and left all of the other effects in the house. The Lamberts retained the key. Brumbelow sold all of the Neeley furniture which he obtained. He retained all of the proceeds. SIC and the Lamberts received only $62.09 and $315.00 respectively which was paid to them by Brumbelow before the latter took the furniture and sold it.

Later at the request of the Lamberts, Brumbelow returned to the house and picked up all of the remainder of the Neeley belongings and stored them. Mrs. Lambert was present at this time with the key to admit him. She retained the key. The Neeleys later paid Brumbelow the storage charges and obtained all of their personal effects.

It is further undisputed that this particular transaction was conducted differently than any prior dealings between SIC and Brumbelow had been handled. In the usual case (in repossessing furniture for SIC) Brumbelow, accompanied by an SIC field man, would pick up the furniture designated and store it for them. SIC would pay him for his services. In this instance he received no remuneration from SIC for any services. Brumbelow took complete possession and control over the furniture by leave of the Lamberts who prior thereto had possession and control to the exclusion of all others, including the Neeleys. Under this record SIC at no time had possession or control over the furniture.

The Neeleys were not present when the furniture or the personal effects were removed by Brumbelow.

Mrs. Neeley did not know that such items had been removed until she was so advised by letter from Lambert’s attorney in December.

Mr. Tom Miller was not an officer but was the branch manager of SIC in the Wichita Falls office. He testified repeatedly that the furniture was not repossessed or taken by this defendant. To the contrary, he gave specific instructions that the furniture not be repossessed or taken. He never talked to the Lamberts or to Brum-below concerning plaintiffs’ furniture. His only information as to disposition of the furniture was that he heard Brumbelow had bought it. In this connection it is recalled that the trial Judge in granting Brumbelow’s motion to be discharged and in overruling a similar motion by SIC predicated his action upon his conclusion that Brumbelow was not the agent of SIC. No issues were requested or given to which the jury could have found to the contrary. Miller made the decisions as to when furniture would be repossessed by his office. He instructed his employees to do nothing concerning plaintiffs’ furniture and specifically not to pick it up. This testimony is not countered.

Scott Allred testified that this furniture was not repossessed nor subjected to foreclosure of this defendant’s lien claim. That the procedure involving plaintiffs’ furniture was entirely different from that employed by SIC in repossessing.

Mr. Miller testified as regards the mistake in calculating the “pay off” figure given Mrs. Neeley. He knew of no dispute regarding the amount owed by plaintiffs. He was the only one authorized to settle any dispute arising between SIC and any of its customers.

In our examination of the pleadings, the evidence and the charge, it appears to us that the primary problem with which we are concerned on this appeal is the failure to submit issues requiring the jury to make findings as to specific agents, the acts of such specified agents and the scope of the authority under which they were acting. There is no finding, other than by the court on the issue as to whether Brumbe-low was the agent of SIC on the occasions in question. The court said he was not. There is no finding that any other person, for whose acts the defendant may be charged was acting in a capacity or with such authority, at a given time, in the scope of his employment so as to establish liability on the part of SIC on the matters of accord and satisfaction, conversion or ratification.

For example there is no evidence of probative value nor any finding that SIC, acting by and through any specific person, (except some “lady”) with the capacity or authority to bind it did “settle and discharge” the debt owed by plaintiffs to SIC for an amount less than was owed. There is no evidence or finding of ratification as to any such action. The evidence is that SIC immediately sought to notify the plaintiffs that $62.09 was still due on the notes. Rule 272, Texas Rules of Civil Procedure, requires the judge to “so frame his charge as to distinctly separate questions of law from questions of fact, and not therein comment on the weight of the evidence, and so as to instruct the jury as to the law arising on the facts, and shall only submit controverted questions of fact.” Part 2, page 129.

In 1 Tex.Jur.2d 232, §§ 29 to 37, both inclusive, and authorities cited thereunder the elements of accord and satisfaction as to unliquidated and disputed claims and disputes over liquidated claims, the latter requiring a bona fide dispute, are fully discussed. Unquestionably this case involves a liquidated claim. The amount due could be mathematically ascertained by anyone possessing information as to the number of payments which had been made. Plaintiffs never questioned the accuracy of the amount claimed by SIC or its contention that plaintiffs had been given a double credit for a single payment of $62.09. The jury finding that SIC made no mistake in the settlement figure is without support in the record.

We are in agreement with appellant’s contention that submission of Issue No. 1 called upon the jury to make a finding upon a question of law rather than of fact. Issue No. 2 contained one of the elements of accord and satisfaction; however, we are of the opinion that it was error to submit it in the absence of an issue as to whether such dispute, if any, was bona fide or to include such in the same issue.

In 1 Tex.Jur.2d 230, § 31, supra, it is stated that “For a dispute over a liquidated claim to constitute the basis for an accord and satisfaction, the dispute must be bona fide and not a mere denial of liability simulated for the purpose of forcing a settlement or escaping liability in whole or in part. * * * ” To the same effect see Buford v. Inge Const. Co., 279 S.W. 513 (Dallas Tex.Civ.App., 1925, no writ hist.); Bergman Produce Co. v. Brown, 156 S.W. 1102 (Amarillo Tex.Civ.App., 1913, no writ hist.) and Turner v. Pugh, 187 S.W.2d 598 (Amarillo Tex.Civ.App., 1945, no writ hist.).

In the case at bar there was no pleading as to a bona fide dispute and no issue submitted thereon.

The case of Hines v. Massachusetts Mut. Life Ins. Co., 174 S.W.2d 94 (Fort Worth Tex.Civ.App., 1943, no writ hist.), involved a check bearing the notation, “note payment in full,” which was received and deposited. Thereafter it was discovered that the quoted pay-off figure (the amount of the check) was in error because it did not include interest or attorneys’ fees which were owing. The debtor, advised of the mistake, denied further liability in reliance upon the notation on the check. The court held the complaint or protest did not amount to a bona fide dispute as to the amount in controversy.

We see no significance in the finding (Issue No. 3) that SIC represented to Brumbelow that it had a valid mortgage or the finding (Issue 4A) that when Brum-below took possession and control of plaintiffs’ furniture he did so in reliance upon such mortgage. Brumbelow had examined the mortgage which had been placed on record. Based upon his examination and findings he paid SIC the sum of $62.09 to clear its lien. He relied upon the mortgage to this extent. Even then he had one more hurdle to clear and that was to obtain the permission of the Lamberts before he could actually take possession. SIC could not grant him such permission.

Again referring to Rule 272, T.R. C.P., supra, and its application to the issue inquiring as to whether SIC through its actions authorized Brumbelow to repossess the plaintiffs’ furniture, we find that by use of the word “repossess” the court has commented upon the weight of the evidence. The issue is not predicated upon any finding that the furniture was repossessed. This fact was highly disputed. The issue as framed presumed such finding. And again with reference to the issues above discussed there are no findings of agency and whether the acts of such agents, if any, were within the scope of their authority.

The finding of the jury (Issue No. 5) that SIC ratified the action of Brumbelow in taking the furniture on November 17, 1964, has no support in the evidence. There is no finding as to what agent, if any, of SIC, with authority to* bind it, did or said which would constitute ratification after Brumbelow took the furniture. It was before Brumbelow took the furniture that SIC received the $62.09 and not afterwards. It was Brumbelow who sold the furniture and retained the proceeds. The only money received by SIC or the Lamberts was before Brumbe-low took the furniture. Thereafter Brum-below received the proceeds of the sale and money from the Neeleys for storage charges covering the personal effects. Ratification is a doctrine of agency. Where there is no agency and no attempt to act as agent there is nothing to which the doctrine can apply. There is no evidence in this record that Brumbelow held himself out as the agent of SIC in any dealings with the Neeleys or that the latter, in any respect, relied upon any assumed authority exercised by Brumbelow.

We have carefully examined the record relating to the points on malice and exemplary damages and find the evidence insufficient to support the findings of the jury and the judgment of the Court.

In describing the effect that information concerning the loss of her furniture had upon her Mrs. Neeley stated that after they lost the store and everything in Wichita Falls, they (plaintiffs) were waiting on money due them for property sold to Texaco, but in the meantime, “we didn’t have a thing that we could live on. We were forced to stay with his folks a while * * * and when I found out we had lost our furniture, it seemed like the straw that broke the camel’s back; we didn't have anything.”

The record reflects that plaintiffs were residing with Mr. Neeley’s folks in Strawn and had lost the store long before the alleged conversion. Mrs. Neeley was with her husband’s family in Strawn when she signed the note in question. SIC therefore was not responsible for plaintiffs’ residing in Strawn or the loss of their store nor did they cause the delay in the Texaco payment.

In this case there is no evidence of any threats, harassment, intimidation or abusive language. There is no evidence of forcibly taking of property as alleged by plaintiffs on the part of anyone. There is no evidence that plaintiffs’ neighbors or friends or creditors were informed of the nonperformance of the chattel mortgage contract. There is no evidence of threatening or insulting letters or telephone calls or efforts to blacklist the plaintiffs.

As previously stated, neither a representative of SIC nor either of the plaintiffs were on hand when Brumbelow picked up the furniture. The plaintiffs sustained no “illness or body harm” as alleged due to any conduct of SIC.

There is no evidence that SIC was actuated by some evil intent or with such gross negligence and disregard of the rights of the plaintiffs as is deemed equivalent to evil intent. The record contains no evidence as to attorneys’ fees, the amount or the reasonableness thereof and should not have been considered as an element of exemplary damages under this record.

The Amarillo Court of Civil Appeals in Security State Bank v. Spinnler, 55 S.W.2d 128 (1932, dism.), in considering a conversion suit, said as regards attorney’s fees, “ * * * but the law appears to be that, if properly alleged and proved, they (attorney’s fees) may be considered by the jury in determining the amount of punitive damages to be awarded.”

The Austin Court of Civil Appeals, in Hodges v. Plasky, 300 S.W.2d 955 (1957, Ref., n. r. e.), said: “[1] Of course the jury could not establish by a preponderance of the evidence any element of damage about which the evidence was nonexistent. * * * [2] * * * if the charge authorizes the jury to consider items of damage about which there is no proof then the charge is erroneous and an objection on this ground must be sustained.”

“In order to hold a principal or master liable in exemplary damages for the actions of an agent or servant, the plaintiff must produce evidence from which the jury may find that the principal or master authorized the doing of the act and in the manner in which it was done, that the agent or servant who committed the wrong was unfit and that the principal or master was negligent in employing him, that the agent or servant was employed in a managerial capacity and was acting within the scope of his employment at the time of the commission of the wrongful act, or that subsequently to the commission of the act the employer or a manager of the employer ratified the act.” 17 Tex.Jur.2d 340, Damages § 280, and cases cited thereunder.

In Wortham-Carter Pub. Co. v. Little-page, 223 S.W. 1043, page 1046 (Fort Worth Tex.Civ.App., 1920, no writ hist.), it was said: “ ‘A willful or wanton act or gross indifference, as used in the definition of malice, means an act done with the specific intention to injure the person that was injured, or an act done with such utter recklessness as to indicate a disregard of consequences.’ * * *

‘We do not wish to be understood as holding that under no set of circumstances can a corporation be held liable for exemplary damages; what we mean to say is it can be so held only in these cases where the agent who acted with express malice is alleged and shown to be something more than a mere servant, in other words, an alter ego of the corporation, or when the malicious act of the servant is alleged and shown to have been adopted or ratified by the corporation after knowledge of the malice. We take the following apt quotation from International & G. N. Ry. Co. v. Garcia, 70 Tex. [207,] 208, 7 S.W. [802], 804:

“ ‘Exemplary damages are given as punishment for fraud, malice, gross negligence, or oppression. In the absence of all of these grounds such recovery cannot be legally had. When exemplary damages are claimed, the petition should allege the acts and circumstances constituting the fraud, malice, gross negligence or oppression upon which such claim is predicated, and if there is any evidence to support it the court should instruct the jury as to the law applicable to such claim. The petition contains no allegation of any act, or circumstance, indicating either fraud, malice gross negligence or oppression on the part of appellant. The court gave the jury no instruction as to the law by which they must be governed in awarding such damages, nor was it necessary to do so as there was no allegation nor evidence to support such claim.
“ ‘Corporations may be guilty of such acts and conduct as will subject them to exemplary damages, but no more than individuals can they be punished for the malicious acts of their agents and employes. To make the master liable in any case, to exemplary damages for the fraud, malice, gross negligence or oppression of the servant, it should be alleged and proved, that the acts of the servant which constitute the fraud, malice, gross negligence or oppression were committed by direction of the master, or that the master has ratified and adopted such acts as his own, or that the master has been guilty of negligence in the selection and employment of the servant whose acts constitute the fraud, malice, gross negligence or oppression complained of.’ ”

See also Western Union Telegraph Co. v. Schoonmaker, 181 S.W. 263 (El Paso Tex.Civ.App.1916, Ref.); Hamlett v. Coates, 182 S.W. 1144 (Dallas Tex.Civ.App.1915, Ref.); Hays v. H. G. N. R. R. Co., 46 Tex. 272 (1876); and 14 Tex.Jur. 2d 29, § 25 and cited authorities.

In the case of Woodard v. Tatum, 277 S.W.2d 943, 945 (Waco Tex.Civ.App., 1955, no writ hist.), it was held that “exemplary damages are not allowed for the breach of an ordinary contract, or for ordinary conversion of property. However, the breach of a contract or the taking or conversion of property may be accompanied by such wilful acts of violence, malicious or oppressive conduct as would subject the wrongdoer to exemplary damages.” See also Phoenix Furniture Co. v. McCracken, 3 S.W.2d 545 (Beaumont Tex.Civ.App., 1928, no writ hist.), and cases cited therein; Bolton v. Stewart, 191 S.W.2d 798 (Fort Worth Tex.Civ.App., 1945); and Pacific Finance Corporation v. Gilkerson, 217 S.W.2d 440 (Beaumont Tex.Civ.App., 1948, Ref. n. r. e.)

The appellant asserts by its points 9, 10, 28, 38 and 46, respectively, that the trial court erred in overruling defendant’s motion for judgment non obstante veredic-to because (1) there is no jury finding that plaintiffs were acting in “good faith” in their contention that a dispute existed as to the debt owed; (2) there is no finding that the defendant, acting by and through some duly authorized person agreed at any time to accept payment from the plaintiffs of any sum of money less than the amount owed defendant in complete satisfaction and discharge of the debt; (3) the jury finding of malice is not supported by evidence of probative value that the defendant, through any person authorized to act for and on its behalf, did or performed any act consisting of malice, oppression or gross negligence or any other type of conduct which would warrant or sustain recovery on the finding of the jury to such issue; (4) the plaintiffs have judicially condoned and acquiesced in the taking of the furniture by Elbert Brumbe-low and his exercise of exclusive ownership, control and possession of such furniture since November 17, 1964; and (5) because there is no evidence of probative value establishing that the defendant exercised any dominion, control or posses-sory right in the furniture to the exclusion of or in defiance of any rights of plaintiffs in and to the furniture.

Appellant contends that the trial court erred in entering its judgment herein against the defendant on the jury finding of conversion (Issue No. 8) because such “conversion” is not limited to an act of a duly authorized person acting within the scope of his employment for the defendant, SIC. We are in agreement.

In 14 Tex.Jur.2d 5 § 1 and authorities cited thereunder conversion is defined and § 3 of the same text P. 9 sets forth the elements of conversion. In general to establish the allegation of conversion it must be shown that the person charged did unlawfully and wrongfully exercise dominion and control over the property of another to the exclusion of the exercise of the same rights by the owner or some other person entitled to its possession.

The only persons under this record whoever at any time had possession of and exercised any control or dominion over the Neeleys’ furniture to the exclusion of the same rights of possession and control by the latter were the Lamberts and Brumbelow in that order. Plaintiffs did not choose to name the Lamberts as defendants. They did name Brumbelow and as stated the court dismissed as to him.

We have concluded that all of the points discussed should be sustained and that on the basis of such holding the judgment should be and the same is accordingly reversed and rendered. Since appellant, in our opinion, was entitled to judgment in any event we deem it unnecessary to discuss its other points.

If we are found to be in error in holding as we do we then hold that the award of actual damages of $700.00 should be decreased by the deduction therefrom of the sum of $315.00 paid to the Lamberts for the benefit of the plaintiffs and that the $30,000.00 exemplary damages is unreasonable. Since the record will not in our opinion support such an award ($30,-000.00) we hold that same was actuated by prejudice, bias, passion or some other improper motive.

The judgment of the trial court is reversed and here rendered, that appellees take nothing by this suit.

Reversed and rendered.


text:
    TEXAS TRACTOR COMPANY, Appellant, v. TEXAS POWER & LIGHT COMPANY, Appellee.
    No. 4544.
    Court of Civil Appeals of Texas. Waco.
    March 9, 1967.

      Barrow, Bland & Rehmet, Sidney Farr, Houston, for appellant.
    Bryan, Wilson, Olson & Stem, Waco, for appellee.
   OPINION

WILSON, Justice.

Summary judgment was rendered for ap-pellee plaintiff in its action seeking damages for alleged breach of “guaranty contracts”. We reverse.

Plaintiff, Texas Power & Light Company, alleged it entered into written dealer contracts with defendant, Texas Tractor Company, by which the latter, as dealer, was to sell a light apparatus called “Ready-Lite” to the power company’s electrical power customers. By the terms of the pleaded dealer agreement the power company agreed to “purchase company-approved sales contracts” under which the tractor company sold the “Ready-Lite”.

Plaintiff alleged the dealer also “guaranteed in writing to repurchase from the plaintiff all the 'Ready-Lite’ sales contracts purchased by the plaintiff from the defendant which became defaulted in that the lights were not installed or that the purchaser of the lights refused to make those payments due and owing on such sales contracts to the plaintiff.” It alleged accounts in specified amounts were still due and owing, and that after demand the dealer defendant had failed “to repurchase from plaintiff those defaulted sales contracts, and thus breached the guarantee agreements.” The prayer was for damages in the total amounts alleged to be due under the sales contracts “purchased” by the power company.

The “guarantee agreements” pleaded by power company, attached as exhibits, were in the form of letters from the dealer to the power company’s district managers in Waco, Hillsboro, Temple, Corsicana and Taylor, which stated, in effect, that the appellant dealer made “an unconditional guarantee” to repurchase from the power company “all defaulted contracts for the purchase” of the lights. The five letters were not identical in language, but in each there was the further statement to the effect that the contract was made “in consideration of” the power company’s agreement, or with “the understanding” that the latter agreed, to add monthly payment charges for the lights “to the customer’s light bill” if sales contracts were purchased by the power company from the dealer, and (in two letters) that the power company agreed to “make the same routine efforts to collect such monthly payments as you make for the collection of your monthly service charges.”

Appellant dealer answered that the power company had failed to add the “Ready-Lite” monthly payment charges to its customer’s light bills, and had failed to make the effort agreed upon to collect the payments; that there was thereby a failure of consideration; that the acts and conditions precedent to liability on the part of the dealer never occurred.

Attached to the power company’s motion for summary judgment were affidavits of its five district accountants reciting that “certain of these contracts” covered by the “guaranty” agreements “had become defaulted” on the part of appellee’s customers, and appellant dealer had failed to repurchase the defaulted sales contracts in specified amounts. The tractor-company dealer answered, pointing out defects in the affidavits, and again pleading omission by., the power company to include the payments in its monthly bills. It filed an affidavit based on personal knowledge, stating that the condition in the “guaranty” agreement as to billing and collection efforts had not been complied with, and that each of the five district managers had admitted these facts to the affiant.

The power company urges affirmance of the summary judgment on the ground the dealer’s agreement to repurchase defaulted sales contracts was an absolute, or “unconditional guaranty.” It argues the distinctions and differences between a conditional and an unconditional guaranty and the divergent results which are a con-comitance of each, and insists that whether it complied with the agreement is not material.

If the five letters of appellant were to be considered as “guaranties” appellee would not be relieved of the obligation of performance under elementary contract rules. But these letters are not “guaranties”, and appellant is not a guarantor under the law of guaranty. The mere fact that the writer of the letters used the verb “guarantee” in the lay connotation of that word as an expression evidencing a primary undertaking, did not convert the letters into anything other than what they are: contracts to repay the power company a portion of the amount it had paid the tractor company consisting of “the unpaid balance of the principal” amount due on “Ready-Lite” sales contracts “purchased” by the power company and on which the power company’s customers defaulted. A part of the consideration for this agreement was an agreement by appellee to exert a measure of protective action which the dealer exacted : that the power company include monthly “Ready-Lite” payments.

A “guaranty” in the sense appellant advances, is a promise to answer for the debt or performance of a contract or duty for another. The nature of the obligation, not the words used, determines the status. Wood v. Canfield Paper Co., 117 Tex. 399, 5 S.W.2d 748, 750. “Guarantee” is said to be a word frequently employed outside the scope of its technical legal significance to express a primary — not a collateral or secondary — obligation, and which does not purport to secure the promise or debt of another. Border Nat. Bank of Eagle Pass, Tex. v. American Nat. Bank of San Francisco, Calif., 5 Cir., 282 F. 73, 78, cert. den.

Appellee failed to negative existence of a genuine issue of material fact under Rule 166-A, Texas Rules of Civil Procedure, i. e., the material issue of whether appellee performed its agreement to add the monthly payment charges to its light bills, and whether it followed collection procedure agreed upon. The summary judgment was not authorized.

Reversed and remanded.

      . As in the ease, e. g., of the familiar, uncouth and emphatic “Oklahoma guarantee.”