author: RENFRO, Justice.

text:
    Les BAKER, Jr., Appellant, v. CITY OF FORT WORTH, Appellee.
    No. 16531.
    Court of Civil Appeals of Texas. Fort Worth.
    May 22, 1964.
    Rehearing Denied June 19, 1964.
    Les Baker, Jr., Fort Worth, for appellant.
    S. G. Johndroe, Jr., City Atty., Fort Worth, for appellee.
   RENFRO, Justice.

Appellant filed suit under the Declaratory Judgment Act to have the court declare illegal appellee’s actions in exercising urban renewal powers conditionally conferred upon municipalities by Art. 12691-3, Vernon’s Ann.Tex.Civ.St., without having called an election of the tax-paying citizens. He prayed that the court declare illegal the formulation and carrying out of workable programs in furtherance of urban renewal objectives; the application for, acceptance of and expenditures of federal funds for programs which contribute to carrying out and effectuating the purposes and provisions of the Urban Renewal Law; the joining into contract with any agency for performance which contributes to carrying out and effectuating the purposes and provisions of the Urban Renewal Law; the budgeting, appropriating, and expending of tax money and other general revenue for programs which contribute to carrying out and effectuating the purposes and provisions of the Urban Renewal Act.

The appellee denied it had ever engaged in Urban Renewal activities, engaged in the planning or preparation of any urban renewal project, nor engaged in the preparation or completion of any urban renewal plan as defined in Art. 1269Z-3.

Article 1269Z-3 is called “Urban Renewal Law”. Section 6 of the Article provides that a city, in furtherance of the urban renewal objectives of the Act, may formulate a workable program for utilizing appropriate private and public resources to encourage needed urban rehabilitation and to provide for the development of slum and blighted areas. It also provides for a workable program to include specifically, without limitation, provision for the prevention of the spread of blight areas, the rehabilitation of slum areas, and to convert such areas by providing parks, playgrounds and public buildings. Section 9 is quite long, but in substance defines the authority of a city under the Act. Section 5 provides that none of the powers conferred by the Act can be exercised without approval of the electorate in a proper election.

It is conceded the citizens of Fort Worth have not by election authorized adoption of the benefits of the Act, and this is the hub of appellant’s contentions.

Appellee filed a sworn motion for summary judgment in which it contended the City was not, and never had, engaged in the planning or preparation of any Urban Renewal Project, but had, in connection with its community renewal program, performed acts in the nature of research analysis and planning.

Affidavits from the Research and Budget Director of the City of Fort Worth, the Director of Planning of the City and the City Secretary were properly filed, and attached to the affidavits were voluminous reports, etc., showing in detail the money spent and the services done under the community renewal program. The motion, affidavits and exhibits consist of 162 pages.

According to the affidavit of W. J. Bryan Baker, Director of Planning for the City, the objective of the City in promulgating its comprehensive plan was to further the welfare of its citizens by creating a more healthful, convenient, efficient, economical and beautiful environment by endeavoring to meet the economic and physical needs of the citizens by establishing desirable areas for their varied activities; endeavoring to logically relate these different areas to one another and to the natural characteristics of the land; and endeavoring to develop a program for providing adequate services and facilities to these areas.

The acts and policy of the community renewal program are very well explained by Baker by the following, taken from his affidavit :

“No personnel of the Planning Department or independent contractor working under my direction and control, nor any other person or persons to my knowledge, are engaged in, nor have they been engaged in, nor do I anticipate that they will be engaged in, the preparation of surveys and plans for any specific Urban Renewal Project nor the survey of any specific urban area to determine whether the undertaking of Urban Renewal Projects therein may be feasible in connection with the Community Renewal Planning Program of this City nor in connection with the Community Renewal Planning Grant commitments of this City, pursuant to Contract No. Tex R-65 1 (CR) (G), dated June 22, 1962, and executed by this City and the Housing and Home Finance Agency of the United States of America.
“The activity engaged in by the Planning Department of this City embraces research, analysis and preparation of plans only; and in no way whatsoever contemplates condemnation of land or structures upon land, sale of land or construction of any kind whatsoever, or entering into any type of local or federal Urban Redevelopment Project or federal Urban Renewal Project. The City of Fort Worth has applied to the federal government for a Community Renewal Program Grant and such application has been approved; subsequent to such application and approval, this City entered into an agreement, Contract No. Tex R-65 (CR) (G), with the federal government whereby the federal government agreed that if the City performed the aforementioned analysis, research and planning in conformity with minimum federal standards, the federal government would reimburse the City for its expenditures therein to the extent of not more than $89,000.00. At this time the City has completed one economic base study. * * * and is shortly to receive certain aerial mapping photography of the City; this photography is being done by International Aerial Mapping Company, an independent contractor, under my direction and control.”

All the exhibits support and are in accordance with the statements in the motion for summary judgment and the affidavits.

Appellant filed a two page affidavit “In Opposition to Defendant’s Motion for Summary Judgment”,. but in said affidavit he did not deny or contradict a single material fact presented by the appellee, nor did he give any reason for not doing so, nor make any showing that he could contradict said affidavits, records, etc., at a trial on the merits.

So, in effect, appellant relied on his pleadings.

“Generally a genuine issue of a material fact is not raised by allegations in a pleading when they are controverted by affidavits or other evidence, in the absence of counter-affidavits or evidence to sustain them. Wilkinson v. Powell, 5 Cir., 149 F.2d 335. Plaintiffs did not show that they were unable to obtain affidavits or evidence to controvert defendants’ affidavits, or evidence or affidavits to support the allegations in their own petition. According to the rule the courts’ rulings are to be based upon the pleadings, depositions, and admissions on file, together with the affidavits, if any. Sub. (c), Rule 166-A, Texas Rules of Civil Procedure. Formal issues framed in the pleadings are not controlling when extrinsic evidence demonstrates the absence of any true issue, McFarland v. Connally, Tex.Civ.App., 252 S.W.2d 486; Reese v. Davitte, Tex.Civ.App., 255 S.W.2d 1015; Saenz v. Lower Rio Grande Valley Chamber of Commerce, Tex.Civ.App., 296 S.W.2d 806; hence a genuine issue of material fact is not raised by allegations in a pleading when they are controverted by affidavits or other evidence, and they must be bolstered by counter-affidavits or other evidence. Baxter v. Beaupre, Tex.Civ.App., 295 S.W.2d 718. Where a party’s motion for summary judgment has support in extrinsic evidence which will sustain his contention that there is no genuine issue of fact, the opponent should be required to come forward with more than a mere denial pleading, even a sworn one, in order to overcome the force of the motion. McDonald, Texas Civil Practice, Vol. 4, 1958 Cumulative Supplement, p. 40.” Savoy v. Graham Memorial Auditorium Ass’n, Inc., Tex.Civ.App., 329 S.W.2d 352.

Under the record before the court, the appellee was entitled to judgment in that the appellant failed to show that a material fact issue as to the matters plead by him was presented by depositions, admissions, affidavits, or otherwise.

Moreover, the contract between the ap-pellee and Federal Government, by which the Government agreed to furnish a certain amount of money for appellee’s community renewal program, provided the program should not include the preparation of surveys and plans for any specific urban renewal project, the survey of any specific urban area to determine whether the undertaking of urban renewal projects therein might be feasible, or the planning or undertaking of any specific urban renewal project in the locality. There is no showing the contract has ever been breached by the City.

Appellee is a Home Rule City. The City charter provides that the City Planning Commission shall have power to control the preparation of plans for the future physical development and improvement of the City.

In so far as the record before the trial court is concerned, it appears conclusively that appellee was not acting and had not acted under the urban renewal law, but had acted and was acting through its proper officials in performing the functions of community planning, an activity authorized by its charter and the powers granted Home Rule cities by law, and was not acting in conflict with the urban renewal law.

Judgment affirmed.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    M. B. TRAWEEK, Jr., d/b/a Jim Dandy Uniform Supply Company, and Local Uniform Supply Company, Appellant, v. John S. SHIELDS, Appellee.
    No. 61.
    Court of Civil Appeals of Texas. Tyler.
    June 4, 1964.
    Edmund L. Cogburn, Dow & Dow, Houston, for appellant.
    John S. Shields, pro se.
   DUNAGAN, Chief Justice.

This is a suit which was brought by the appellant, M. B. Traweek, Jr., d/b/a Jim Dandy Uniform Supply Company, and Local Uniform Supply Company, for a temporary injunction against the appellee, John S. Shields, to enjoin him from the breach of an employment contract, which contained certain non-competitive covenants. At the hearing on temporary injunction testimony was taken and at the close of the evidence the trial court denied the application for temporary injunction. Appellant has perfected his appeal from that ruling.

The purpose of this suit was to enjoin the defendant, John S. Shields, from the violation of the employment contract. The employment contract was executed March 23, 1963, and the pertinent provision of the same reads as follows:

“6. As a part of the consideration for the execution hereof by Employer, the Employee agrees that he will not for a period of one year from the termination hereof (whether this agreement is terminated by Employer or Employee) engage or work in the selling or renting of any products in competition to those now or then being handled by Employer, within a radius of seventy-five (75) miles of Houston, Texas, by calling on or soliciting customers that are being served by Employer, either for himself or for any other person, firm or corporation, and that he will not directly or indirectly, solicit, divert or take away, or attempt to take away any of the customers of Employer.”

The testimony showed that John S. Shields, employed as a route man by Jim Dandy Uniform Supply Company, -terminated his employment on August 9, 1963. The testimony of John S. Shields, defendant in this case in the trial court, was that he was employed by Texas Overall Service on the 1st of September, 1963, and handled uniform rentals and industrial towels, soliciting business for the company.

Shields testified that he personally took a contract out and got Galena Park Plumbing Company, a customer of Jim Dandy Uniform Supply Company, signed up with Texas Overall Service in October, 1963, and that he did the same for Bill Raines Humble Station, another customer of Jim Dandy Uniform Supply Company.

The testimony of M. B. Traweek, Jr., plaintiff in this case, appellant herein, showed that a route man such as John Shields was a very important person to his company, handling all personal complaints with the customer and developing a personal relationship with the customers. Appellant further testified that each route man had a six weeks’ training period to begin with, with a guaranteed $75.00 a week salary and that the company further had a practice of paying one-half of the cost of a Dale Carnegie course for the route man. The testimony of the appellant further demonstrated the importance of the route man to to the company since he was very familiar with its business and thus had an advantage upon leaving it over a person not previously employed with Jim Dandy in approaching the company’s customers.

The appellant further testified that all of his obligations under the contract had been performed and that John Shields was given all the benefits of route men employed by Jim Dandy. Appellant further testified that he would not have signed the contract or employed any route man without the above set forth provision being part of the contract. Appellant further testified that the two accounts, Galena Park Plumbing Company and Bill Raines Humble Station taken away from Jim Dandy by appel-lee, averaged a total of approximately $80.-00 per week which business had substantial value to appellant.

There can be no doubt as to the validity of the contractual provision in question, since its propriety is fully supported by numerous authorities.

The appellant, by his single point of error, says that the trial court erred in refusing to temporarily enjoin the appellee, who clearly had violated his employment agreement not to call on or solicit customers of appellant and not to divert or take away or attempt to take away any of the customers of appellant after terminating his employment with appellant, since such refusal constituted an abuse of the discretion of the trial court.

Appellee has not filed a brief and did not avail himself of oral argument. He has not challenged in any manner the statements in appellant’s brief relative to the facts and the record. The Court of Civil Appeals must assume as true all facts stated by appellant in his brief and render judgment in conformity therewith. Rule 419, Texas Rules Civ.Proc.; Gonzales v. Gonzales, Tex.Civ.App., 224 S.W.2d 520 (writ refused); Coates v. Coates, Tex.Civ.App., 355 S.W.2d 260; Rancher v. Franks, Tex.Civ.App., 269 S.W.2d 926; Hartford Fire Ins. Co. v. Owens, Tex.Civ.App., 272 S.W. 611 (writ refused). However, we have checked the references in appellant’s brief and find them to be correct.

The appellee did not file any pleadings in this case and consequently the court is not informed as to the appellee’s defense, if any, to this cause of action. He was not represented by counsel in the trial court nor on this appeal. He did appear at the hearing in the trial court, cross-examined appellant’s witnesses, and was called to the witness stand by the appellant, and testified. Appellee did not call any witnesses to testify nor offer any evidence in his behalf. There is no complaint raised by the appellee that the restraint imposed upon him by virtue of the contract (which he admitted in open court he signed) was not reasonable or that the contract is unenforceable for any reason.

The language, or substantially the same language, used in the above-quoted paragraph of the employment contract involved herein has been upheld in Jennings v. Sheperd Laundries Co., Tex.Civ.App., 276 S.W. 726 (error dismissed); Blaser v. Linen Service Corporation of Texas, Tex.Civ.App., 135 S.W.2d 509 (error dismissed, judgment correct).

Under the customs and usages of modern business, an employee is frequently required to promise, as part of his contract of employment, that he will not engage in a similar or competitive business, either for himself or for another, for a specified period of time after the termination of the contract. 13 Tex.Jur.2d, p. 398, Sec. 189.

In the case of John L. Bramlet & Company v. Hunt, 371 S.W.2d 787 (writ refused n. r. e.) the court said:

“There was a time in our jurisprudence when covenants not to compete were held to be unenforceable because in restraint of trade and contrary to public policy. However, under the customs and usages of modern business practice it is now well established that contracts ancillary to employment involving trades or professions are enforceable, though amounting to limited restraint of trade, where they are reasonably limited as to time and space. Some cases even go so far as to uphold such restrictive covenants, even in the absence of a time limitation, where the agreement is reasonably limited as to area. 13 Tex.Jur.2d Section 189, Pages 398-400, Krueger, Hutchinson & Overton Clinic v. Lewis (Tex.Civ.App.), 266 S.W.2d 885, affirmed 153 Tex. 363, 269 S.W.2d 798; Randolph v. Graham, Tex.Civ.App., 254 S.W. 402, 58 A.L.R. 168.”

And, as stated above, there is no contention made in this case that the time or space limitation is unreasonable.

The sole question before this court is, under the facts as stated in appellant’s brief did the appellee, John Shields, violate the provision of the contract in question. He admitted that he called upon Galena Park Plumbing Company, which he knew was a customer of Jim Dandy, and got them to sign a contract for uniforms and took measurements for same. Also, that he took the contract out to Bill Raines and got him to sign a contract and took measurements for uniforms. In this regard the appellee gave the following testimony:

“Q Are you familiar with Galena Park Plumbing Company?
“A Yes.
“Q Did you know that it was a customer of Jim Dandy Uniform Supply Company when you were with them?
“A When I was with Jim Dandy?
“Q Yes.
“A Yes.
‘Q Who services Galena Park Plumbing Company now?
“A Texas Overall Service.
“Q Do they have a signed contract with Texas Overall Service?
“A Yes, they do.
“Q Who took the contract out and got them to sign it up?
“A I took it out and had the lady sign it.
“Q And measured them for uniforms ?
“A Yes.
******
“Q You took the contract out there and signed up Bill Rains on it?
“A He signed it himself, I didn’t sign it.
“Q Did you sign it on behalf of Texas Overall?
“A Yes, I did.
“Q You measured them for uniforms and took care of the necessary details in order to get Texas Overall’s stock ?
"A That’s right.
“Q And you did the same thing for Galena Park Plumbing Company?
“A That’s right.”

The testimony of the appellee that he called upon Bill Raines and Galena Park Plumbing Company and obtained a contract from them and performed other necessary duties to obtain their business, knowing that they were customers of Jim Dandy, was an admission that he violated the provision of the contract in which he agreed not to call on customers that were being served by Jim Dandy for one year after termination of his contract within a 75-mile radius of Houston, Texas.

So we have a valid contract and the admitted violation thereof. It thus became the duty of the trial court to properly apply the law to the undisputed facts.

It is well settled that on appeals from interlocutory orders in injunction cases the narrow question is whether the trial court abused its discretion in entering the order appealed from. Therefore, the order of a trial court in granting or in refusing to grant a temporary injunction will be reversed only when a clear abuse of discretion is shown. Texas Foundries, Inc. v. International Moulders & F. Wkrs. Union, 151 Tex. 239, 248 S.W.2d 460; Transport Company of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549; John L. Bramlet & Company v. Hunt, supra. However, it is equally well settled that if the facts are undisputed and only questions of law are presented, it does constitute an abuse of the trial court’s discretion to fail properly to apply the law to the facts. 31 Tex.Jur.2d, Sec. 224, p. 349; Southland Life Insurance Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722; Dallas General Drivers v. Wamix, Inc., 156 Tex. 408, 295 S.W.2d 873; Rudd v. Wallace, Tex.Civ.App., 232 S.W.2d 121; Harrison v. Tucker, Tex.Civ.App., 342 S.W.2d 383; Bramlet & Company v. Hunt, supra.

Accordingly, applying these well-established rules of law to the record in this case, we are of the opinion that the law is clear and the facts are undisputed, so that the trial court fell into error in not applying the law to the undisputed facts. Southland Life Insurance Co. v. Egan, supra; Bramlet & Company v. Hunt, supra; Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517; Houston Credit Sales Co. v. English, Tex.Civ.App., 139 S.W.2d 163.

For the reasons above stated, the order of the trial court is reversed and the cause remanded with the direction that the temporary injunction be issued upon plaintiff complying with the provisions of Rule 684, Texas Rules of Civil Procedure.

Reversed and remanded with directions.


author: DENTON, Chief Justice.

text:
    C. E. WEBB et ux., Appellants, v. CITY OF LUBBOCK, Appellee.
    No. 7352.
    Court of Civil Appeals of Texas. Amarillo.
    May 4, 1964.
    Rehearing Denied June 8, 1964.
    Splawn & Maner, Lubbock, for appellants.
    Fred O. Senter, Jr., City Atty., Minor Pounds, D. Paul Stafford and William J. McGinnis, Asst. City Attys., Lubbock, for appellee.
   DENTON, Chief Justice.

This suit was brought by C. E. Webb, individually and on behalf of his wife, Julia A. Webb, against the City of Lubbock to recover damages for personal injuries alleged to have been sustained by Mrs. Webb as a result of stepping into a water meter box. The case was submitted to a jury on special isues, and based upon the answers of the jury, the trial court entered judgment in favor of the City and denied plaintiffs any recovery. Plaintiffs have perfected this appeal.

The City of Lubbock owned and operated its water system. In operating and maintaining the water system, water meters were placed in the alleys adjacent to the ■customers’ property. In the early evening •of August 4, 1962, Mrs. Webb, while walking in the alley at the rear of their property, stepped into the water meter hole resulting in her alleged injuries. In the original petition the plaintiffs alleged eight acts of negligence on the part of the City: In failing to replace the lid of the water meter; of carelessly replacing the lid; in failing to secure the lid in proper place; of failing to properly replace the lid; of creating an illusion for persons, more particularly Mrs. Webb, passing at the site of the meter; failing to warn Mrs. Webb of the dangerous condition; of creating a dangerous condition by misproperly replacing the lid; and failing to exercise that degree of care which would have been exercised by reasonable and prudent persons under the same or similar circumstances. By trial amendment plaintiffs alleged the City was negligent in failing to have a lock type meter lid on the water meters, and in failing to have the meter lid locked prior to and at the time in question. The trial court submitted to the jury the issues: Was the defendant city guilty of negligence in creating a dangerous condition by improperly placing the water meter lid; and did the city fail to make a proper inspection of the premises where the water meter was located prior to the time in question. These two issues, along with other issues concerning alleged acts of negligence on the part of Mrs. Webb, were answered in the negative.

Plaintiffs contend the trial court erred in refusing to submit their requested issues based on the allegation in their trial amendment, to-wit: Whether the meter lid in question was not locked prior to and at the time in question; and whether the defendant city did not have a lock type lid on the meter box in question. Despite the well-settled general rule that a party is entitled to have material fact issues submitted to a jury if they are supported by the pleadings and evidence, there are exceptions to such rule. In order to constitute actionable negligence it is necessary that the action or omission complained of must be wrongful in the sense such action or omission involves the breach of some legal duty which the alleged wrongdoer owes to the injured party at the time the injury was inflicted. Westbrook v. Watts, (Tex.Civ.App.), 268 S.W.2d 694, (Refused, NRE) ; City of Wichita Falls v. Swartz, (Tex.Civ.App.), 57 S.W.2d 236 ; 40n Tex.Jur.2d, Negligence, Section 6, Page 448, and authorities there cited. Whether or not a legal duty does exist under a given state of facts and circumstances is essentially a question of law to be determined by the court. City of Austin v. Schmedes, (Tex.Civ.App.), 270 S.W.2d 442, (Refused on other grounds, see 156 Tex. 416, 279 S.W.2d 326, 52 A.L.R.2d 680); City of Bryan v. Jenkins, (Tex.Civ.App.), 247 S.W.2d 925, (Refused, NRE). By rejecting appellants’ requested issues the trial court determined the issues sought to be submitted involved acts which were not in the realm of a legal duty owed to appellants by the City. We agree with this determination.

There is no evidence of any defect in the water meter lid or in the manner in which it was placed on the meter box. Mrs. Webb had only a vague impression of the location of the meter. She had paid no particular attention to it prior to the incident, and had not seen anyone placing the lid on the meter box. There was no evidence concerning the condition of the lid prior to the incident. Mrs. Webb testified, “I don’t know whether it [the meter lid] was off or whether it was partly off. I just know that I fell into it.” The evidence shows the meter box lid was circular and was equipped with a catch or a lip so that when the lid was properly placed in position it would hold securely in place. It could be opened and removed with a screwdriver or other sharp instrument. This particular meter lid was not equipped with a locking device, and the evidence is without dispute that the City’s 38,000 water meters were not normally equipped with a lock, but with the catch or lip to secure their position. In our opinion the City did not owe a legal duty to appellants to lock its meter box lids in order to prevent anyone from falling into the water meter hole. To impose such a duty upon the City would in legal effect make it an insurer against such a hazard. This is a greater burden than that imposed upon it by law. City of Bryan v. Jenkins, supra; 40 Tex.Jurs.2d, Municipal Corporations, Section 633, Page 321.

As a general rule a municipality has a duty to exercise ordinary care to construct and maintain its public ways so as to render them reasonably safe for ordinary travel. City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259. This duty to exercise reasonable care in the construction and maintenance of public ways by a city includes alleys. City of Abilene v. Fillmon, (Tex.Civ.App.), 342 S.W.2d 227, (Refused, NRE). The same degree of care has been applied to a city in maintaining a water meter box located in a sidewalk. Gatz v. City of Kerrville, (Tex.Civ.App.), 36 S.W.2d 277, (Dismissed). In our opinion the trial court properly submitted the controlling issues making up plaintiffs’ cause of action. Appellants make no complaint that there is no evidence or insufficient evidence to support the jury finding. We conclude the trial court did not err in refusing to submit appellants’ requested special issues.

Appellants further contend the trial court erred in submitting the special issue inquiring whether or not the accident in question was the result of an unavoidable accident. The jury found there was no act of negligence on the part of the plaintiffs or the City, and that the accident was the result of an unavoidable accident. The jury’s findings being to the effect that neither party was negligent, the unavoidable accident issue becomes immaterial. Adkins v. Texas Pac. Ry. Co., (Tex.Civ.App.), 233 S.W.2d 956, (Error Refused) ; Brown v. Dallas Gas Co., (Tex.Civ.App.), 42 S.W.2d 869, (Writ Refused).

The judgment of the trial court is affirmed.

Affirmed.


text:
    Homer R. PLASTER, Appellant, v. TEXAS CITY, Texas, et al., Appellees.
    No. 58.
    Court of Civil Appeals of Texas. Tyler.
    June 4, 1964.

      Roy Engelke, Engelke & Brown, La-Marque, Greenberg & Schwartz, Galveston, for appellant.
    Neugent & Lilienstern, Texas City, for appellees.
   DUNAGAN, Chief Justice.

The appellant was a member of the Police Force of Texas City, Texas, and on May 31, 1963, he was suspended indefinitely by the Chief of Police of Texas City. On July 18, 1963, the appellant instituted suit against the City of Texas City, Texas, Firemen’s & Policemen’s Civil Service Commission of Texas City, Texas, and Rankin De Walt in his official individual capacity as Chief of Police of Texas City, Texas, seeking his reinstatement. On August 9, 1963, City of Texas City, Texas, filed its original answer to plaintiff’s original petition. On September 23, 1963, the defendant, City of Texas City, Texas, filed its motion for a summary judgment. Upon a hearing of defendants’ motion for sum'mary judgment the court entered an order sustaining same, from which the plaintiff, appellant in this court, duly appealed and caused transcript to be filed on December 13, 1963, in the Court of Civil Appeals for the First Supreme Judicial District at Houston.

On January 9, 1964, the case was transferred to this court pursuant to an order of the Supreme Court of Texas on an equlization of the dockets of the Courts of Civil Appeals.

Appellant failed to file a brief in this cause. Appellee, City of Texas City, Texas, on May 22, 1964, filed its motion to dismiss appeal for want of prosecution.

There is a more compelling reason for the dismissal of this case; that is, the judgment appealed from is not final and there can be no appeal therefrom.

The summary judgment appealed from disposes only of the rights of the appellant and the City of Texas City, Texas. The rights of the other parties to the lawsuit have not been disposed of by this judgment, nor does the record show an order of severance; consequently, it is not a final judgment.

Since the record discloses that there was no final judgment, this court is without jurisdiction and it is our duty to dismiss the appeal on our own motion. Pan American Petroleum Corporation v. Texas Pacific Coal & Oil Co., Tex.Civ.App., 320 S.W.2d 915 (writ of error refused, n. r. e.), 324 S.W.2d 200, 201; Goldfaden v. Reuben, Tex.Civ.App., 1963, 373 S.W.2d 759 (n. w. h.) ; Covert v. Ready, Tex.Civ.App, 1963, 377 S.W.2d 680, 681 (n. w. h.).

Appellees’ motion to dismiss for failure of appellant to file brief is overruled and for the reasons above stated this appeal is dismissed for the want of jurisdiction without prejudice to the parties entering a final judgment from which an appeal might be perfected.


author: COLEMAN, Justice.

text:
    GOLDEN STATE MUTUAL LIFE INSURANCE COMPANY, Appellant, v. John L. KELLEY, Appellee.
    No. 14270.
    Court of Civil Appeals of Texas. Houston.
    May 28, 1964.
    Rehearing Denied June 25, 1964.
    W. J. Durham, Dallas, A. M. Wickliif, Wm. R. Brown, R. Gordon Gooch, Houston, Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellant.
    J. Paul Pomeroy, Jr., Houston; Roland A. Baker, Leonard Z. Finger, Houston (On Motion for Rehearing), for appellee.
   COLEMAN, Justice.

This is a controversy between an insurance company and a former general agent. The issue is the right of the company to terminate the agency contract.

By written contract the company designated appellee a general agent in the Houston area for the purpose of soliciting applications for insurance, collecting premiums, and certain other enumerated acts. The contract specifically provided:

“14. TERMINATION — This Agreement shall continue in full force and effect until terminated, with or without cause, by (1) either the Company or the Second Party upon thirty (30) days’ written notice to the other party, effective the day notice is mailed to the other party’s last known address, which day shall be the first day of the thirty (30) day period or should mail not be used, the day notice is delivered to the Second Party or to an officer of the Company as the case may be; (2) by death of the Second Party or cancellation, suspension or non-renewal of his license or if the Second Party is a partnership, the death of any member or change in the partners composing the firm or dissolution of the partnership for any other reason; or (3) by operation of law; except that this Agreement is automatically terminated and no notice shall be required when contract is terminated under (2) and (3) above, or when disqualification of the Second Party is by Insurance Department ruling or court action.
“Without restricting the right of the Company to terminate this Agreement on thirty (30) days’ notice, the Company may terminate this Agreement immediately upon written notice to the Second Party’s last known address if the Second Party shall fail to comply with the rules and regulations of the Company, the laws of the state or states applicable, or regulations of the Department of Insurance thereof, or shall fail to conform to the terms and conditions of this Agreement or any other Agency Agreement with the Company, or if, in the opinion of the Company, the Second Party becomes physically or mentally disqualified from performing the terms of this Agreement, or if, in the opinion of the Company, the production of the Second Party is insufficient.”

Subsequently Section 14 of the Agency Agreement was modified by letter agreement as follows:

“This is to inform you that the Company hereby waives its right to terminate without cause the General Agent’s Contract between you and Golden State Mutual Life Insurance Company dated December 1, 1956, under the termination clause, Section 14 of the Contract. Any statements concerning termination without cause to the contrary in the contract shall be considered modified to conform to the intent of this letter.”

The contract was terminated by the company on June 2, 1961, its letter of termination reading in part as follows:

“This letter is the Company’s formal notice of termination of your general agent’s contract dated December 1,1956 and as subsequently amended between your agency and this Company. This termination is effective immediately for failure to conform to the terms and conditions of your general agent’s contract and for insufficient production.”

This was a jury trial. Three special issues were submitted to the jury. Two of these issues concerned damages and the other reads as follows: “Do you find from a preponderance of the evidence that the Defendant did not, on June 2, 1961, have reasonable cause for its action in terminating the John Kelley contract of December 1, 1956 as modified by any subsequent agreement?” The jury answered: “The Defendant did not have sufficient cause to cancel contract.”

The trial court found that the evidence established without dispute certain facts, which demonstrate that the agent violated the agency contract. However, he overruled the company’s motion for judgment notwithstanding the verdict and entered judgment for the agent on the jury’s verdict.

One of the reasons given for termination of the contract was “insufficient production.” The contract provides that if, in the opinion of the company, the agent’s production is insufficient, it may be terminated. There was evidence that the company was dissatisfied with the volume of business produced by the agent and that he failed to meet the quotas set by the company for several years prior to the termination of the contract. There was also evidence tending to prove that appellee’s production compared favorably with that of other agents and, possibly, it was sufficient to raise the issue as to whether a cancellation on this ground was arbitrary and fraudulent.

The provision for termination of the contract when, in the opinion of the company, production was insufficient is valid. Maddox Motor Co. v. Ford Motor Co., Tex.Com.App., 23 S.W.2d 333; Griffith v. Thomson, Tex.Civ.App., 244 S.W.2d 722. The reasonableness of the action of the company in determining that production was insufficient is not an issue. The agreement of the parties left that matter to be determined by the company. The fact that a reasonable man considering the same facts might not have reached this conclusion becomes immaterial in light of this plain and clear provision of the contract. The company must, in fact, have been of the opinion that the production was insufficient, or a cancellation on that ground would be tainted with fraud. The determination must have been made in good faith. Sanger v. Slayden, 7 Tex.Civ.App. 605, 26 S.W. 847; Golden Rod Mills v. Green, Tex.Civ.App., 230 S.W. 1089, error dism.; Atlas Torpedo Company v. United States Torpedo Company, Tex.Civ.App., 15 S.W.2d 150; Schoenfeld v. De Puy, Tex.Civ.App., 58 S.W.2d 574, writ dism.; Texas Rural Communities v. Avary, Tex.Civ.App., 113 S.W.2d 597, error dism.; Grindstaff v. Mather, Tex.Civ.App., 186 S.W.2d 364, ref. w.m.; Goltra v. Weeks, 271 U.S. 536, 46 S.Ct. 613, 70 L.Ed. 1074; Ard Dr. Pepper Bottling Co. v. Dr. Pepper Co., (5th Cir.), 202 F.2d 372; Woodard Motor Co. v. General Motors Corporation, (5th Cir.), 298 F.2d 121.

The burden of proving arbitrary or fraudulent conduct and of requesting proper issues submitting such a defense rested on appellee. By his failure to request the submission of a proper issue embodying this affirmative defense, appellee has waived the issue. Rule 279, Texas Rules of Civil Procedure; Golden Rod Mills v. Green, supra; Johnson v. Miller, 142 Tex. 228, 177 S.W.2d 249.

Since it is clear that the company properly terminated the contract because production was insufficient, it is perhaps unnecessary to consider whether the admitted violations of the terms and conditions of the contract warranted its termination in view of the jury verdict that the company did not have sufficient cause to cancel the contract. The plain terms of the contract provide for termination, at the option of the company, if the agent violates its provisions. The company elected to exercise its option. While the evidence raises issues of fact as to waiver of certain violations, no issue concerning waiver was requested by appellee or submitted by the trial court. These defensive issues were waived. Continental Casualty Co. v. Bock, Tex.Civ.App., 340 S.W.2d 527, ref., n.r.e.; Grantham v. Anderson, Tex.Civ.App., 211 S.W.2d 275.

. Certain damages were awarded appellee by reason of losses suffered by him when the company took from him the right to solicit, collect and service, debit insurance under the policies of industrial insurance. The record shows that appellee acquiesced in this action by continuing performance under the contract as amended and accepting the compensation due him thereunder. The record also reflects that he specifically agreed in writing to this change in the contract. A valid new agreement was thereby created. Maddox Motor Co. v. Ford Motor Co., Tex.Com.App., 23 S.W.2d 333. While there is a dispute in the testimony as to whether appellee received the full consideration orally agreed upon between the parties at the time of this contract change, he does not seek to recover the balance of the consideration. Judgment was rendered in his favor based on the answer made by the jury to a special issue determining the amount of profit which he lost by reason of the loss of his right to solicit, collect and service debit insurance. This was error. The evidence established, as a matter of law, that appellee elected to be bound by the contract as modified. L. H. Balfour Co. v. Brown, Tex.Civ.App., 110 S.W.2d 104; Shaddock v. Grapette Co., Tex.Civ.App., 259 S.W.2d 231; Weiss v. Duro Chrome Corp., (8th Cir.), 207 F.2d 298.

Paragraph 14 of the Agency Contract also provides that if, after notice of termination is received by the agent, he shall engage in the transaction of insurance business with any other company in any state in which this company is operating, his right to any and all commissions and other compensation that might otherwise then be due, or thereafter become due, under the terms of the contract, shall be forfeited at the option of the company. Appellee testified that he has continued to engage in the insurance business. While forfeiture provisions are not favored in the law, where such provisions in a contract are clear and unambiguous, they will be enforced by the- courts in accordance with the agreement of the parties. Wood Motor Company v. Nebel, 150 Tex. 86, 238 S.W.2d 181; Texas Rural Communities v. Avary, supra; Grindstaff v. Mather, supra.

Appellee seeks to recover the damage which he has suffered by reason of a claimed breach of contract on part of appellant. He necessarily affirms the validity of the contract. “[0]ne suing upon a contract must recover upon the contract alleged, or not at all.” Morris v. Kasling, 79 Tex. 141, 15 S.W. 226, 11 L.R.A. 398; Giant Mfg. Co. v. Davis, 132 Tex. 220, 121 S.W.2d 590.

The trial court erred in overruling appellant’s motion for judgment notwithstanding the verdict of the jury. The judgment of the trial court is reversed and judgment is here rendered that appellee take nothing.

Reversed and rendered.


author: NORTHCUTT, Justice.

text:
    COMBINED INSURANCE COMPANY OF AMERICA, Appellant, v. F. G. THOMPSON and wife, Dessie P. Thompson, Appellees.
    No. 7338.
    Court of Civil Appeals of Texas. Amarillo.
    May 18, 1964.

      Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Jerome W. Kirby, Littlefield, for ap-pellees.
   NORTHCUTT, Justice.

This is an appeal by Combined Insurance Company of America, appellant, from a judgment in favor of appellees, rendered by the County Court of Lamb County, Texas. F. G. Thompson and his wife, Dessie P. Thompson, appellees, brought suit against appellant to recover under the terms of a policy of hospitalization and surgical insurance issued by appellant to appellees.

Appellant answered, contending the application for the insurance indicated Des-sie P. Thompson was in good health at the time the application was made but that she was not in good health. Further pleading was to the effect that on or about the tenth day of August 1962 until the eighteenth day of August 1962 and after the delivery of the policy here in question Dessie P. Thompson was hospitalized as a result of illness with which she was afflicted prior to her filling out the application on which the policy was issued. Appellant then pleaded it learned Mrs. Thompson was not in good health at the time she filled out the application on which the policy was based and issued and appellant returned the premiums that were paid because of the fact that the policy never took effect and was never an effective insurance contract since Mrs. Thompson was not in good health at the time of the issuance and delivery of the policy.

The case was submitted to the jury upon special issues. In answer to said issues the jury found that neither Mr. Thompson nor Mrs. Thompson made any false statements in the application for insurance; that the jury did not find Mrs. Thompson was not in good health February 20, 1962, and that the cause of the condition for which Mrs. Thompson was treated did not originate before February 20, 1962. Upon the verdict of the jury judgment was rendered in favor of Mr. and Mrs. Thompson for the $164 coverage under the policy; 12 per cent damages and $250 attorney’s fees. From that judgment appellant perfected this appeal.

Appellant’s first point of error contends the court erred in overruling appellant’s motion for instructed verdict because the undisputed stipulated evidence showed appellees’ cause of action was based upon a claim which arose out of a sickness which was first contracted before the expiration of thirty days after the effective date of the policy. We construe this point as stating there was no evidence authorizing the submission of any issue to the jury because the undisputed stipulated evidence shows the sickness was contracted before the expiration of the thirty days after the effective date of the policy. The sickness in question was diagnosed as orthostatic hypotension. Therefore, if there is any evidence of probative force to support the finding of the jury, such finding is conclusive and binding on both the trial court and this court. The application for insurance asked if to the best of their knowledge Mrs. Thompson was in good health. She testified so far as she knew she was in good health. Mr. Thompson testified to the same fact. Mrs. Thompson had never been diagnosed before as having this sickness and she had never suffered from this illness. The doctor testified the hospital record was vague and his presumption was based upon a vague record as to any time the illness had existed. We are unable under this record to hold this sickness was contracted before the expiration of thirty days after the effective date of the policy. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. Appellant’s first point of error is overruled.

Appellant’s second point of error contends the court erred in overruling appellant’s motion for a new trial for the reason that the jury answers to special issues five and six were contrary to the great weight and preponderance of the evidence and were clearly and manifestly unjust. The effect of the jury’s answers to issues five and six was that Mrs. Thompson was in good health on February 20, 1962, when the policy was issued and that the sickness for which Mrs. Thompson was treated between the dates of August 10 and August 18, 1962, (being the sickness here involved) did not originate before February 20, 1962, (issuance of the policy here involved).

Appellant refused appellees’ claim because appellees did not give complete information to appellant on the application. There is testimony that so far as appellees knew Mrs. Thompson was in good health when the application was made. Whether Mrs. Thompson was in good health when the application and policy were made was a controverted fact issue for the jury. Where testimony is conflicting on fact issues as here, appellate courts will not disturb the jury’s verdict. Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820 (Sup.Ct.). Although the Clark case was a life insurance case we think the same principle of law applies to health and accident policies. Appellant’s second point of error is overruled.

Appellant’s points of error three and four contend the court erred in failing to grant appellant’s motion for mis-trial and also failing to grant appellant’s motion for a new trial based upon certain comments of appellees’ counsel while testifying. Appellees’ counsel testified: “I have, on several occasions, had occasion to sue the same company, and had occasion to deal with the same attorney in Chicago and * * * ” Appellant’s attorney objected to such statement and asked for mis-trial. The trial court overruled the motion for mis-trial but instructed the appellees’ attorney not to mention anything about suing the company before and instructed the jury not to consider that for any purpose. We think such statement was out of line but we cannot hold in the face of the instructions of the court that the same in any manner influenced the jury in their verdict. Points three and four are overruled.

By appellant’s points of error five and six it is contended the court erred in submitting the issues as to whether the appellees made any false statement in the application for the insurance policy issued. Since the policy of insurance was issued upon the application, the appellant knew what the application contained, and if the application did not contain sufficient facts to justify the issuance of the policy, appellant should have required additional information. If the statements made in the application were true and the policy was issued upon such statements, appellant had no complaint and it would be necessary to show they were false in order to defeat the policy. It is stated in Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820 by the Supreme Court as follows:

“It is also well settled in this State that to avoid a policy of insurance because of misrepresentations, the burden is on the insurer to plead and prove, not only that the answers made by the insured were false or untrue, but that the insured knew, or should have known, that they were untrue, and that he made them willfully and with the intention of including the insurer to issue him a policy. American Cent. Life Ins. Co. v. Alexander, Tex.Com.App., 56 S.W.2d 864; Doyle v. Great Southern Life Ins. Co., Tex.Civ.App., 126 S.W.2d 735, affirmed 136 Tex. 377, 151 S.W.2d 197; General American Life Ins. Co. v. Martinez, Tex.Civ.App., 149 S.W.2d 637; American Nat. Ins. Co. v. Green, Tex.Civ.App., 96 S.W.2d 727; Provident Life & Accident Ins. Co. v. Flowers, Tex.Civ.App., 91 S.W.2d 847 ; 46 C.J.S. Insurance, § 1319, pp. 435-437.”

Finding no reversible error, the judgment of the trial court is affirmed.


author: WERLEIN, Justice.

text:
    The KROGER COMPANY, Appellant, v. J. WEINGARTEN, INC., Appellee.
    No. 14322.
    Court of Civil Appeals of Texas. Houston.
    April 9, 1964.
    Rehearing Denied June 4, 1964.
    Second Rehearing Denied June 25, 1964.

      John F. Heard, Houston, and Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellant.
    James W. Dilworth and Selby W. Sullivan, Houston, and Andrews, Kurth, Campbell & Jones, Houston, of counsel, for ap-pellee.
   WERLEIN, Justice.

This suit was brought by appellee, J. Weingarten, Inc., the lessee and operator of a super-market in Oak Forest Addition to the City of Houston, herein referred to as Weingarten, against appellant, The Kroger Company, referred to as Kroger, to enjoin Kroger from constructing and operating a competing super-market on a tract of land within Oak Forest Addition about one mile from Weingarten’s store, in violation of certain restrictive covenants. The trial court, without a jury, rendered judgment enjoining Kroger for the duration of the Weingarten lease from constructing and operating a super-market on the tract in question. Appellant has appealed from such judgment, contending that the restrictions made the sole basis of the court’s injunction, violated the anti-trust laws of Texas.

A brief summary of the evidence will be of assistance in determining whether or not the court erred in prohibiting the construction and operation of a competing supermarket within two miles of Weingarten’s store in violation of the restrictions. In 1946, Frank W. Sharp, herein referred to as Sharp, a real estate developer, with Mr. Douglas McGregor and Mr. Ben Taub, planned a residential subdivision with adequate community center facilities, the subdivision being known as “Oak Forest Addition.” In connection with such development plans, Oak Forest Corporation was formed. In 1950 Sharp withdrew from the corporation, and took in lieu of his 40% stock interest therein 40% of the unimproved land then owned by said corporation. With the land thus acquired, Sharp continued his activities in the Oak Forest area. Part of the undeveloped land acquired by Sharp in lieu of his stock in said corporation was later developed into the Oak Forest Shopping Center, in which Sharp had a divided 40% interest. He then created Oak Forest Realty Corporation, referred to as Realty Corporation, which he solely owned. 20% of the proposed shopping center tract was in the name of the newly formed Realty Corporation and the remaining 20%, the southeast corner, was in Sharp’s name individually. Sharp commenced development of a part of the shopping center land acquired by his Realty Corporation, and built a super-market and leased the same to Minimax Food Chain. He also developed the remainder of the Realty Corporation tract.

In the summer of 1954 Taub and Mc-Gregor approached Sharp with a proposal that he buy the remaining 60% of the Oak Forest Corporation and its lands. In order to do so, it was necessary for Sharp to put together enough sales and leases to finance the purchase. In such connection he approached Weingarten and negotiations were begun in the latter part of 1954, and a tentative agreement between Sharp and appel-lee was outlined on December 6, 1954 in a letter of intent between Weingarten and Sharp’s wholly owned Realty Corporation.

Weingarten decided that the proposed location for its super-market would be suitable only if the number of food stores in the area could, in some way, be limited. It felt that it was necessary for its protection to havé restrictions covering a circular area having a two mile radius extending from the leased premises. According to the testimony of Mr. Bernard Weingarten, the subject of restrictions was discussed from the very beginning. In said original letter of intent it was provided that “ * * * the Lessor will agree not to lease space to other food markets, other than one already existing, within a radius of two miles of the subject property.” At the trial it was estimated that the two mile circle covers approximately 13 square miles and contains approximately 40,000 people.

Before any lease was executed Sharp became concerned about his health, and wanted to make arrangements that would protect his two daughters, Elizabeth Lucille Sharp, now Mrs. Hooten, and Mrs. Frances Sharp Haden, if anything happened to him. As a result of a meeting with his attorney, two irrevocable trusts, one for each daughter and each in the sum of $1,000.00 with Bank of The Southwest, herein referred to as Bank, as trustee, and Oak Forest Center Corporation, herein referred to as Center Corporation, were created by Sharp. The trusts were executed on February 28, 1955, and the charter for Oak Forest Center Corporation was issued March 1, 1955. The capital of Center Corporation was only $2,-000.00, and all of its stock was held by the Bank as trustee for said two trusts. The cost of the property which Oak Forest Corporation by its stockholders and directors, McGregor and Taub, agreed to sell and did sell to Center Corporation, was $1,000,080.-00. Center Corporation, as part of the purchase price, executed its note in the sum of $794,000.00, secured by a deed of trust on the property purchased. In order to effectuate the transaction, it was necessary for Sharp to guarantee payment of the note. Additionally, Sharp negotiated a note on behalf of Center Corporation from the trustee Bank in the amount of $110,-000.00, and loaned the corporation approximately $40,000.00. Mrs. Sharp loaned the corporation an additional $18,000.00.

After Oak Forest Corporation conveyed all of its property to Center Corporation by deed dated March S, 1955, Center Corporation on August 19, 1955 leased to Wein-garten for a period of 25 years, with an option for two 10-year extensions, the property in Block 26, Oak Forest Addition, Section III, located at 43rd Street and Oak Forest Drive, being the property in the community center where Weingarten operates its super-market. This base lease, containing some 25 pages, which was executed only by Center Corporation and Weingarten, was never filed for record, but a memorandum thereof or short form lease, also dated August 19, 1955, which was executed by said lessor and lessee, was duly filed for record on September 14, 1955. A separate restrictive agreement of the same date, which was executed not only by Center Corporation but also by Sharp and Realty Corporation, was also filed for record on September 14, 1955.

Appellant contends that the trial court erred in granting the injunction because the combined agreement of Center Corporation, Weingarten, Sharp and Realty Corporation creating the restrictions and prohibiting the construction of a competing super-market within two miles of Wein-garten’s store is void and unenforceable. Appellant also complains of the court’s findings in its judgment to the effect that Sharp had a property interest in Center Corporation and the Kroger tract and that Center Corporation and Realty Corporation were alter-egos of Sharp incapable of conspiracy under the anti-trust laws of Texas, because there is no evidence supporting such findings. Appellant further asserts that there is insufficient evidence to support the finding that Sharp and Realty Corporation executed the restrictions agreement to protect a property interest of Sharp in Center Corporation; and that the restrictive covenants in question are as a matter of law unreasonable as to time and area.

Appellee takes the position that the restrictions contained in the base lease are valid and enforceable and not in violation of the anti-trust laws of Texas since such lease and also the recorded memorandum thereof were executed only by Center Corporation and Weingarten, and applied only to the land owned by Center Corporation. It cites the case of Schnitzer v. Southwest Shoe Corporation, Tex.Sup.1963, 364 S.W.2d 373, for the proposition that a lessor may validly agree to restrict other property owned by it in order to induce a lessee to enter into a lease. On August 19, 1955, when the lease was executed, and on September 14, 1955, when the memorandum of lease and restrictive agreement were filed for record, Center Corporation owned not only the Weingarten tract but also other property in Oak Forest Addition within the two mile limit, including the unimproved property which was later acquired by Gromarco, Inc., a wholly owned subsidiary of Kroger, and which was conveyed by Gromarco to Kroger. The tracts conveyed by Gromarco to Kroger are contiguous and slightly less than one mile from the center of the land leased to Weingarten. It is upon such tracts that Kroger proposes and intends to erect and operate a super-market containing more than 4,000 square feet.

Assuming that the area and time specified in the lease are not unreasonable, the restrictions set forth in the base lease might be upheld as not in violation of the antitrust laws of Texas, if there were no more involved than such lease and the property belonging at that time to Center Corporation, the lessor. At the time the lease was executed, both Sharp and Realty Corporation owned other real estate within the two mile circle but neither of them owned any interest in the property leased to Wein-garten or in the tracts acquired by Kroger.

In the base lease Center Corporation and Weingarten agree that a circle having a radius of two miles from the Weingarten premises is a reasonable area, and that Center Corporation will not engage in the operation of a food store during the term of the lease within such area, and will also restrict the use of all property then owned by it or which it might acquire within such area during the term of the lease, such restrictions to constitute a covenant running with the land. There are certain specialty shops, not pertinent hereto, which are excepted from the operation of the restrictions in the lease. The memorandum of the lease, which was recorded, contains the following provision:

“In said lease the Landlord agrees to certain restrictions on property owned by the Landlord within a reasonable area of the demised premises with such area agreed to be a circle with a radius two miles from the center of the property covered by said lease, and said restrictions on said property being the same as the restrictions set out in a separate agreement between Oak Forest Center Corporation and others with J. Weingarten, Inc., of even date herewith to which restriction agreement and its record reference is hereby made for said restrictions as well as reference to said lease for said restrictions.”

It will be noted that the memorandum lease states that the restrictions on said property owned by Center Corporation are the same as the restrictions set out in a separate agreement between Center Corporation and others with Weingarten, of even date therewith “to which restriction agreement and its record reference is hereby made for said restrictions as well as reference to said lease for said restrictions.” The agreement referred to in said memorandum which contains the restrictions was as stated hereinabove executed not only by Center Corporation, but also by Sharp and Realty Corporation. Such restrictions agreement covers within the two mile circle not only property owned by Center Corporation, the lessor, but also property within such area owned by Sharp individually and by Realty Corporation. Said parties executing such agreement undertook to restrict all the property which they or either of them:

“now own or which they, or either of them may acquire hereafter and during the entire duration of the lease above referred to, within a circle having a radius of two miles of the center of the tract of land covered by the lease from Oak Forest Center Corporation to J. Weingarten, Inc. * * * so that the same shall not during such time be used for the operation of a food store as defined herein, except the property which is leased to J. Weingarten, Inc. by the lease above referred to and except the present leases and buildings now being occupied and used for food stores or grocery stores or stores which sell groceries of one type or another and belonging to the parties hereto and located within the area above described.”

The restrictions agreement also provides that the restrictions shall constitute covenants running with the land which may be enforced by Weingarten, its successors or assigns, by injunction, and that they shall apply “to any and all property within such area now owned or acquired during the time these restrictions are in effect by the parties hereto, or now owned or acquired in such time by any corporation of which Frank Sharp, or immediate members of his family, now control or hereafter control.”

The evidence shows that Weingarten insisted upon the restrictions agreement being executed before it would accept and execute the lease. Such agreement expressly refers to the lease in question, and provides : “ * * * and as a part of such lease agreement, it was understood and agreed that the property hereinafter described would be restricted by the parties hereto for the benefit of J. Weingarten, Inc. * * *” (emphasis supplied) As stated, the parties “hereto” were not only Center Corporation but also Sharp and Realty Corporation, and the property described was all the property belonging to each and ail of said parties or which they or any of them might later acquire.

The three instruments consisting of the lease, memorandum of lease and restrictions agreement were all executed contemporaneously and pursuant to the agreement of all the parties. They are inseparably linked together and must be construed as a combined agreement or arrangement imposing restrictions upon property whether owned or later acquired by Center Corporation or by either of the other signatories to the agreement, Sharp and Realty Corporation, who had no vendible interest in the leasehold or the Kroger property. When so construed the purpose and effect of the instruments and the agreement entered into is to restrict the establishment and free pursuit of any competing supermarket within the prescribed area on any tract of land owned or later acquired by any of the parties, and thereby prevent competition in violation of Article 7426, Vernon’s Annotated Texas Statutes, which as applicable here defines a trust as a “combination of capital, skill or acts by two or more persons, firms, corporations or associations of persons, or either two or more of them for any or all of the following purposes:

“1. * * * to create or carry out restrictions in the free pursuit of any business authorized or permitted by laws of this State.
«2 * * *
“3. To prevent or lessen competition in the * * * sale or purchase of merchandise, produce or commodities * *

A trust falling within the prohibitions of Article 7426 is declared to be illegal under Article 7429, V.A.T.S., and under Article 7437, VA.T.S., any agreement involving such a conspiracy is “absolutely void and not enforceable either in law or equity.”

In Schnitzer v. Southwest Shoe Corporation, supra, our Supreme Court held that the rigidity of our anti-trust statutes has been softened in certain exceptional situations, such as where the owner or lessor or one in control of premises agrees with another person that the other person shall have an exclusive right or privilege in or on such premises, or that the other person will sell on premises only the products or merchandise of the owner or lessor. Such contracts are upheld when they are collateral or incidental to a lawful lease or grant of premises in which the lessor or grantor has a property interest. The Court further held:

“If the agreement before us related only to the premises owned and leased by Schnitzer the exclusive right given Southwest would be valid as collateral and incidental to the lease of Schnit-zer’s premises. But if two landowners may validly enter into this type of agreement with a lessee of premises of one only, so could a dozen or all in a given area. We are unwilling thus to extend this exception to the anti-trust laws.”

There can be no doubt that if the restrictions agreement was incorporated into the lease and made a part thereof, the lease would be in violation of the anti-trust statutes of this State. In the instant case it would appear that an effort was made to get around the anti-trust statutes by not having the owners of other property join in the execution of the lease but by having them agree to impose such restrictions on their property by execution of another instrument to which all were parties. The provision in the contemporaneous restrictions agreement, to the • effect that it was understood and agreed by all of the parties that as a part of the lease agreement all of the property owned or later acquired by any of them would be restricted for the benefit of Weingarten, incorporated into the lease agreement an extension of the restrictions to property not owned by Center Corporation, thereby creating restrictions in violation of the anti-trust statutes of Texas.

Appellee argues that even if the three instruments when construed together be held void and unenforceable, the court can disregard the restrictions agreement entirely and enforce the restrictions in the lease, since the restrictions in the lease and in the recorded memorandum thereof, apply only to property owned by Center Corporation and the Kroger property which was owned by Center Corporation at the time the lease was executed. Appellee in support of such argument relies upon such cases as Weatherford Oil Tool Company v. Campbell, 1960, 161 Tex. 310, 340 S.W.2d 950; Lewis v. Krueger, Hutchinson & Overton Clinic, 153 Tex. 363, 269 S.W.2d 798; and Spinks v. Riebold, Tex.Civ.App., 310 S.W.2d 668, writ ref. These cases involve contracts of employment containing negative covenants or agreements on the part of the employee not to compete with his employer after termination of the employment. Such a contract is in restraint of trade and will not be enforced in accordance with its terms unless reasonably limited as to time and area. The law is well established in this State that although the territory or period stipulated by the parties may be unreasonable, a court of equity will nevertheless enforce the contract by granting an injunction restraining the defendant from competing for a time and within an area that are found to be reasonable under the circumstances.

It is our view that the cases relied upon by appellee are distinguishable from the instant case. As stated by the court in Spinks v. Riebold, supra, contracts of employment containing restrictive covenants will not be declared void because said covenants are unreasonable as to time, or as to the extent of territory covered, or unreasonable as to both time and territory. Such contract is merely void or unenforceable with respect to that portion of the time or area beyond what the court considers reasonable. In said case the court said: “The question before us, it seems, is not whether or not the contract is valid, but as to what extent the court will aid the appellant in the enforcement thereof.”

In the instant case the restrictions agreement executed by not only Center Corporation but also by Sharp and Realty Corporation is made a part of the lease agreement and is inseverably woven into its woof and fabric by the agreement of all said parties. The question before us is not to what extent the court will aid appellee in enforcing the combined agreement, but whether such agreement has any validity whatever. Article 7437, V.A.T.S., in plain language states that any agreement in violation of the antitrust laws “shall be absolutely void and not enforceable either in law or equity.” The parties who executed the restrictions agreement, none of whom is a party to this suit, have bound themselves by their contract. This Court has neither the power nor the authority to rewrite their contract for them or for the parties to this suit, by striking therefrom the restrictions agreement which they expressly made a part of the lease agreement, and which constituted a basic part of the consideration for the execution thereof. Sharp testified: “I know the restriction was not an afterthought, because Weingarten’s wouldn’t sign the lease until the restrictions were signed first. I remember that.”

In Patrizi v. McAninch, 1954, 153 Tex. 389, 269 S.W.2d 343, the Court refused to eliminate from the contract the illegal portion thereof which was in violation of the anti-trust laws of Texas, saying:

“If a party may thus eliminate parts of an agreement which may well have been the vital and inducing cause for its execution by the other party, the while retaining the right to enforce the consideration for the eliminated parts, the antitrust laws will become a hollow symbol of a dead era.
* * *
“It is our opinion that under the only reasonable construction of all the provisions of the contract, the royalty payments and the illegal restrictions contained in paragraphs 2 and S are so interdependent and indivisible that they cannot be separated and must fall together.”

Appellee vigorously contends that there can be no violation of the anti-trust laws of this State in the instant case, since Sharp completely ran, dominated and controlled Center Corporation, which was his alter-ego, and before a combination becomes unlawful the persons to the combination must be independent and capable of competing with each other. Gates v. Hooper, 1897, 90 Tex. 563, 39 S.W. 1079; State v. Fairbanks-Morse & Co., Tex.Civ.App.1951, 246 S.W.2d 647, writ ref., n. r. e. In this connection appellee asserts that Sharp set up Center Corporation as well as the two trusts for his daughters, for their benefit, and that it would be absurd to think that such corporation would enter into effective competition with Sharp or he with the corporation.

We do not agree with this contention. All of the stock in Center Corporation was owned by the two irrevocable trusts which had been established for Sharp’s daughters with Bank of the Southwest as trustee. It is true that the trustee generally approved sales and leases and other transactions recommended to the trustee by Sharp or his righthand man, Tucker. It is equally true, however, that Center Corporation was not required to follow their recommendations or suggestions with respect to such business matters. The testimony shows that the Bank never abandoned its responsibility as trustee although it did not usually administer the properties of the corporation held in the trust as ordinarily done in the case of trust property. The properties of the Corporation were administered by the corporation. The owners of the corporation stock were Sharp’s two married daughters, but such stock constituted assets of the two trusts, and was held in trust by the Bank as trustee. Sharp was not a stockholder, officer or a director of Center Corporation, nor did he have any right to control such corporation or the irrevocable trusts. The affairs of the Corporation were managed through its officers and directors who were mainly officers of the trustee Bank. While the corporation seems to have cooperated with Sharp and he with the corporation, there was nothing to keep them from competing. Indeed, had Sharp undertaken some project that would have been detrimental to the trusts that owned the corporate stock of Center Corporation, the trustee would not only have had the power but it would have been its duty to compete with Sharp for the protection of the trust property. Sharp himself testified at the trial that the controlling stock of Center Corporation was in the Bank of the Southwest as trustee which operated under a trust indenture executed by him and his wife, and that the trusts were irrevocable trusts which gave the Bank, in its capacity as trustee, control of the corporation. Mr. Weintraub, Vice President of Center Corporation, acknowledged in his deposition that the Bank as trustee had the right to make the decisions for the trust, and that the Bank acted as trustee and never abandoned its responsibility as such.

It is our view that Sharp never had any “property interest” in Center Corporation, the leasehold or the Kroger tracts. By reason of his affection for his daughters he naturally had an interest in the welfare of Center Corporation and in the trusts and in the development of Oak Forest Addition generally. He had guaranteed payment of a large note executed by Center Corporation and he and his wife had lent money to the corporation. This, however, did not give him a property interest in the corporation or in the property of the corporation. Not until a default should occur in the payment of such note, and Sharp is required to make .good his guarantee of payment, will he become subrogated to the foreclosure rights of the mortgagee or acquire any sort of property interest in the corporation’s property.

Appellant asserts that the trial court also erred in finding and holding that Realty Corporation was the alter-ego of Sharp, since there is no basis for disregarding the corporate entity. At the time the Weingarten lease was executed Realty Corporation ■owned the northeast quadrant in the shopping center and possibly other tracts within the two mile circle. The main purpose for having Sharp and Realty Corporation execute the separate restrictions instrument was to prevent competition by Sharp whether he operated individually or through a corporation. It is our view that the court’s finding that Realty Corporation was Sharp’s alter-ego finds no support in the meager evidence concerning Realty Corporation. Sharp testified that Realty Corporation was a Texas corporation solely owned by him. He signed the restrictions agreement for such corporation, but believes that there was a directors’ meeting authorizing it. The directors of the corporation were Sharp and two of his employees. It is possible, of course, that the employee-directors were mere puppets of Sharp who followed his directions to the letter. However, we find no ■evidence to such effect. The fact that Sharp owned all of the stock in Realty Corporation did not in itself make such •corporation his alter-ego. Trott v. Flato, Tex.Civ.App., 244 S.W. 1085, 1088; Moroney v. Moroney, Tex.Com.App.1926, 286 S.W. 167, 169; State v. Swift & Co., 1945, 187 S.W.2d 127, writ ref.; Commonwealth of Mass. v. Davis, 1942, 140 Tex. 398, 168 S.W.2d 216.

While it was probably unlikely that Realty Corporation and the trusts would compete, they were not incapable of competition. There was nothing to prevent the harmonious relationship between the trustee and Realty Corporation from terminating in the •event Realty Corporation undertook to engage in some transaction detrimental to the trust estate. Even the closest family relations have been known to deteriorate in disputes over property. The trustee was under a duty to take competitive or other proper action against Realty Corporation, in the same manner as in the case of Sharp, in the event such action became necessary, for the protection of the trust property and its owners.

In view of our holding, the question as to whether Kroger had actual and constructive notice, or either, of the restrictions before signing the lease, has become academic. We are of the opinion, without regard to constructive notice, that the court’s finding of actual notice is amply supported by the evidence.

It is our opinion that if it were not for the illegal combination and conspiracy of the parties which brought the properties of Sharp and Realty Corporation within the operation of the restrictive covenants contained in the lease, the trial court’s finding in its judgment that such covenants are reasonable as to both time and place, would find sufficient support in the evidence.

The judgment of the trial court is reversed and the injunction granted by it is dissolved and set aside.

Reversed and rendered.

On Motion for Rehearing

Appellee has very forcefully urged that the restrictions agreement incorporated into the lease, if in violation of the anti-trust laws of Texas, may be stricken from the combined agreement in order to keep the entire lease from being void, and that the remainder of the contract can then be enforced since the portion of the contract violating the anti-trust laws is severable under the facts of this case. Appellee has cited many authorities, mostly out of state, in support of its contention. It has also undertaken to distinguish this case from the case of Patrizi v. McAninch, 153 Tex. 389, 269 S.W.2d 343, cited in the above opinion. Judge Wilson, in his concurring opinion in the Patrizi case, indicates that the court in the majority opinion holds that a contract containing some clauses violating the antitrust laws and also containing a “saving clause” that the parties do not intend to violate the anti-trust laws is not “absolutely void” and therefore “not enforceable, either in law or equity”, but on the contrary the portions violating the anti-trust laws may be stricken and the remainder of the contract enforced if severable. We have reexamined the Patrizi case and are unable to find in the majority opinion any holding to such effect. The court arrived at the conclusion that the contract relied upon by plaintiff was in violation of Article 7426, V.A.T.S., and that the provision for royalty payments and the illegal provisions were indivisible and inseparable. The majority opinion makes no express mention of Article 7437, V.A.T.S., but it does refer to “Art. 7426 et seq.” Article 7437 reads as follows :

“Any contract or agreement in violation of any provision of this subdivision shall be absolutely void and not enforceable either in law or equity.”

We are of the opinion that Article 7437, V.A.T.S., means exactly what it says, and that this Court must recognize such provision. In 12 Am.Jur., p. 738, Sec. 220, it is stated:

“The rule with respect to agreements in violation of statute has been declared to be that if any part of an agreement is valid, it will avail pro tanto, though another part of it may be prohibited by statute, provided the statute does not, either expressly or by necessary implication, render the whole void and provided the sound part can be separated from the unsound and enforced without injustice to the defendant.” (emphasis supplied)

The combined agreement, which is the agreement sued upon by appellee, is in violation of the anti-trust laws of this State, and such contract is expressly rendered void and unenforceable by Article 7437, V.A. T.S.

We note also that in the Patrizi case the Supreme Court quoted with approval the following language in Wegner Bros. v. Biering & Co., 65 Tex. 506, 509, 510, 512:

“ ‘It is obvious that there is ample valid consideration to support the promise sued on; yet, if, to the abundance of valid consideration, there has been added a leaven of what is illegal, the whole contract is tainted.
“ ‘ * * * The whole cannot be enforced, because the law will not compel what it prohibits, and the parts can not be separated. Illegality thus vitiates the entire instrument.
“ ‘ * * * The purpose of the law is to discountenance and discourage improper contracts; not to enforce them is adopted as the best means to this end, and is adopted in total disregard of the effect upon the parties to the prohibited transaction.’ ”

It is undisputed in this case that the restrictions agreement was one of the chief inducements that persuaded appellee to enter into the lease. The record clearly shows that but for the execution of the restrictions agreement, appellee would not have entered into the lease agreement. Appellee agreed to pay rents, not only in consideration of Center Corporation conveying to it an interest or estate in realty for a term of years, but also in consideration of the promise on the part of Center Corporation, Sharp and Realty Corporation to restrict not only the property belonging to Center Corporation but also the property belonging to Sharp and Realty Corporation for the entire period of the lease. It is clear that the restrictions agreement was a vital part of the consideration for the execution by Weingarten of the lease in question. Where a contract sued upon is invalid under our anti-trust statutes, recovery by either party as against the other will be denied. Vann v. Toby, Tex.Civ.App., 260 S.W.2d 114, writ ref., n. r. e. See also Fred Miller Brewing Co. v. Coonrod, Tex.Civ.App., 230 S.W. 1099, error ref.; Gray v. Kaliski, Tex.Com.App., 45 S.W.2d 157; Morrison v. City of Ft. Worth, 138 Tex. 10, 155 S.W.2d 908; Continental Fire & Cas. Ins. Corp. v. American Mfg. Co., Tex.Civ.App., 221 S.W.2d 1006, writ ref.; Mercury Life & Health Co. v. Hughes, 271 S.W.2d 842, writ ref.; Loggins v. Stewart, Tex.Civ.App., 218 S.W.2d 1011, writ ref.

In our original opinion we concluded that there was no evidence that Realty Corporation was the alter-ego of Sharp or that it was controlled by him. On reviewing the record we have concluded that the trial court’s finding that Realty Corporation was Sharp’s alter-ego and that he had absolute control over such corporation, finds support in the testimony and legitimate inferences therefrom. This, however, does not result in any change in our opinion since we are still of the view that Center Corporation as a matter of law was not the alter-ego of Sharp. Thus there were at least two parties capable of executing an agreement that would prevent competition in violation of Article 7426, V.A.T.S.

Although Sharp was interested in the success and welfare of Center Corporation because of his affection for his daughters and also because of the money that he had lent it, and further by reason of his guarantee of the large note executed by Center Corporation, he had no legal control over such corporation or property interest therein. He acted for the corporation in various business matters and the corporation usually stamped its approval on what he did. In one sense he acted as an agent of the corporation in various transactions having to do with the property belonging to the corporation. He did not, however, act as an agent of the corporation with respect to his own property or that of Realty Corporation, nor did he act as an agent for Center Corporation when it executed by its vice president, Mr. Weintraub, the lease and the restrictions agreement. These facts distinguish the present case from those cases cited by appellee in its brief in support of its motion for rehearing, in effect holding that where an agent represents two or more corporations, there can be no illegal trust or conspiracy because of lack of parties.

Motion for rehearing overruled.


text:
    Iva RIPPSTEIN, Appellant, v. Elizabeth C. UNTHANK and F. M. Butler, Independent Executors of the Estate of C. P. Craft, Deceased, Appellees.
    No. 7364.
    Court of Civil Appeals of Texas. Amarillo.
    June 1, 1964.
    Rehearing Denied June 29, 1964.

      Stone & Stone, Amarillo, for appellant.
    Morehead, Sharp & Boyd, Plainview, for appellees.
   DENTON, Chief Justice.

This case concerns the same written instrument and the same parties involved in. the case of In re C. P. Craft Estate (Tex.Civ.App.) decided by this Court and reported in 358 S.W.2d 732 (Refused, NRE).. In the former case this Court held the written instrument was not testamentary in. character, and hence could not be probated', as a codicil of C. P. Craft. Upon the conclusion of that case, appellant filed the-present suit upon the same letter seeking to-fix liability of the executors of the Estate of Craft to pay the monthly payments provided for in Craft’s letter. Both parties, filed motions for summary judgment. Upon proper notice and hearing, the trial' court granted appellees’ motion and refused that of appellant, denying appellant’s-claim.

For clarity, material parts of Mr. Craft’s hand-written letter dated September 17,. 1960, will again be quoted.

“Dear Mrs. Iva: Used most of yesterday and day before to ‘round up’ my financial affairs, and to be sure I knew just where I stood before I made the statement that I would send you $200.00 cash the first week of each month for the next five years, presided -f live that long, also to send, you $200.00 cash for Sept., 1960, and thereafter send that amount in cash the first week of the following months of 1960, October, November and December.”

In the left-hand margin beside the preceding paragraph, the following words were written:

“I have stricken out the words ‘provided I live that long’ and hereby and hereunto bind my estate to make the $200.00 monthly payments provided for on this Page One of this letter of 9-17-60.”
* * * “You will find the $200.00 for Sept. 1960 enclosed herewith.”

Mr. Craft died September 20, 1960, three days after writing this letter.

It is appellant’s primary contention that the letter of C. P. Craft constituted an executed declaration of trust which imposed an equitable obligation on his estate to make the payments provided for in the letter. In effect, appellees take the position the writing is not enforcible as a gift for the reason there was not a complete delivery of the money [except one payment of $200.00] as Craft did not relinquish possession or control of such money; it was a gift to take effect in the future; the letter does not show an intention to create an express trust; there was not an immediate or unconditional passing of the equitable title to appellant.

A trust “is a confidence reposed in one person, called the trustee, for the benefit of another, called the cestui que trust, with respect to property held by the former for the benefit of the latter. * * * It is a device for making dispositions of property.” 89 C.J.S. Trusts § 9, page 719. No particular form of words is required to create the trust, if it is reasonably certain as to the property, its object, and the beneficiary. Pottorff v. Stafford (Tex.Civ.App.), 81 S.W.2d 539 (Error Refused). It is also settled that in order to create an express trust the legal and equitable titles must be separate, the former being vested in a trustee and the latter in a beneficiary. Cutrer v. Cutrer (Tex.Civ.App.), 334 S.W.2d 599 (Affirmed) ; 162 Tex. 166; 345 S.W.2d 513. Miller v. Donald (Tex.Civ.App.), 235 S.W.2d 201 (Refused, NRE). This intention to create a trust must be sufficiently expressed, and the declaration of trust must show the intention with reasonable certainty. Patrick v. McGaha (Tex.Civ.App.), 164 S.W.2d 236; 89 C.J.S. Trusts § 43, page 776. Whether transactions in which property is being disposed of takes-the form of voluntary trusts or inter vivos-gifts, they are governed in general by the-rules applicable to- gifts. Fleck v. Baldwin (Tex.Comm.App.), 141 Tex. 340, 172 S.W.2d 975 (Opinion Adopted). In that case-the court held:

“The principal difference between such a trust and a gift lies in the fact that in the case of a gift the thing given-passes to the donee, while in the case-of a voluntary trust only the equitable or beneficial title passes to the cestui qui trust. In each case the equitable-title must pass immediately and unconditionally and the transfer thereof must be so complete that the donee might maintain an action for the conversion of the property. Absent a completed gift of the equitable title, no trust is created, for an imperfect gift will not be enforced as a trust merely because of its imperfection. A gift cannot be made to take effect in the future, for the reason that a promise to give is without consideration. Neither can the donor retain the right to use and enjoy the property during his lifetime and direct its disposition after his death in any manner other than by the making of a will.”

That case holds that the ultimate controlling fact to be determined is the intention of the donor, when it used the following-language : “Such a transaction does or does not create a trust according as the donor intended.” In the present case the intention of Mr. Craft can be arrived at only from the language of the letter.

A reading of the letter reveals a clear intention on the part of Mr. Craft to obligate his estate to pay the $200.00 monthly payments for a period of five years. By deleting “provided I live that long” and substituting the phrase “I-hereby and hereunto bind my estate to make the $200.-00 monthly payments”, he obviously intended for the payments to continue for the period of five years regardless of whether or not he lived that long. It is uncontroverted Mr. Craft’s estate, consisting almost wholly of cash and promissory notes, exceeded the amount he pledged to Mrs. Rippstein.

In order to constitute an express or voluntary trust three essentials must be present: clear, unequivocal language or conduct creating the trust; definite subject matter or property to be included in the trust; definite or certainty as to the object or beneficiary of the trust. 89 C.J.S. Trusts § 45, a. b. and c., and cases therein cited. Viewed in the light of these principles we are of the opinion the necessary elements to create a trust are contained in Mr. Craft’s letter of September 17. The instrument unequivocally declares a present intention to make a gift to Mrs. Ripp-stein and to effect an immediate transfer of the equitable title to the money. The phrase, “I - - hereby and hereunto bind my estate” clearly manifests such an intention. The fact the first monthly payment was delivered simultaneously with the mailing of the letter emphasizes the present effectiveness of the transaction. The fact the benefits of the trust were to be received over a period of time and in installments does not alter the character of the transaction. His declaration, in addition to initiating the payments immediately, had the effect of completing the transfer of the equitable ownership of the pledged money to Mrs. Rippstein. Mr. Craft, during his lifetime, and his legal heirs upon his death, held the legal title to the unpaid balance for the benefit of Mrs. Rippstein. The words, “hereby” and “hereunto” denote immediate effect. We remain convinced the pledging of the installment payments constituted a single obligation to be performed over the designated period. The written instrument created a trust and by its specific terms leaves no uncertainty as to the subject matter or property to be included in the trust or the object or the beneficiary. In view of our holding the instrument under consideration established a voluntary trust we deem it unnecessary to discuss and pass on appellant’s remaining point of error and appellees’ counter points.

The judgment of the trial court is accordingly reversed and judgment is here rendered for appellant.

Reversed and rendered.


author: PRESLAR, Justice.

text:
    B. R. SHEFFIELD, Appellant, v. SEMINOLE STATE BANK, Appellee.
    No. 5627.
    Court of Civil Appeals of Texas. El Paso.
    May 27, 1964.
    Rehearing Denied June 17, 1964.

      Davee & Davee, Brady, for appellant.
    Freeman & Curry, Seminole, for appel-lee.
   PRESLAR, Justice.

This is an appeal from a judgment, after trial before a jury, on a note in favor of the Seminole State Bank against B. R. Sheffield, as maker, and Ross Bohannon and Lee Ogg as sureties, and for foreclosure of a chattel mortgage. Only Sheffield appeals. The note sued on was in the amount of $8,947.50 and represented a balance owing on two prior notes of Sheffield in the amounts of $15,000.00, secured by chattel mortgage on sheep and cattle of Sheffield, and $5,000.00.

Appellant’s first point of error is directed at the failure of the trial court to submit his requested issue:

“Do you find from the preponderance of the evidence, that defendant B. R. Sheffield authorized plaintiff’s Bank president Claude Holley, to deposit the $15,000.00 note in question, to the account of Lee Ogg?”

The court submitted an issue as follows:

“Do you find from a preponderance of the evidence that Sheffield consented for the $15,000.00 in exchange for which his note in that amount was given to be deposited to the account of Lee Ogg?”

To that the jury answered that he consented.

Appellant does not question the fact that he consented, and he agrees with the testimony of Bank President Holley to the effect that he called appellant, upon receipt of his note, about placing the proceeds thereof in the account of Lee Ogg, and that he consented. The record reflects that the issue on consent was submitted without objection, and appellant fails to point out how the failure to submit the additional issue on authority harmed him. He contents himself with the argument that there is a difference between “consented” and “authorized”, but does not point out how his defense was harmed by the failure to have a jury finding on both. We think the matter is controlled by that portion of Rule 279 which reads:

“Where the court has fairly submitted the controlling issues raised by such pleading and the evidence, the case shall not be reversed because of the failure to submit other and various phases or different shades of the same issue.”

Under the particular facts of this case, submission of the additional issue would have been another shade of the same, and the failure to make such submission was not reversible error.

Appellant’s point of error number two is, in substance, that the evidence is contrary to the jury’s finding that one Lee Ogg was an agent of the Seminole State Bank. Where the contention is made that the evidence is contrary to the jury finding, this court is required to consider and weigh all the evidence in the case and set aside the verdict if it concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. See Calvert, “No Evidence”, and “Insufficient Evidence”, 38 Texas Law Review 361; King v. King, 150 Tex. 662, 244 S.W.2d 660; Harrison v. Chesshir, 159 Tex. 359, 320 S.W.2d 814. We have so weighed and considered all the evidence and conclude that the jury’s finding that Ogg was not an agent of the Bank is not so contrary to the great weight and preponderance of the evidence as to be manifestly unjust.

Appellant, in this assignment, also argues the law of agency, and says that the verdict in this instance is contrary to the law. We overrule this contention because agency was defined in the charge, and no objection was made to such definition.

Appellant urges that the court erred in foreclosing the chattel mortgage for the reason that same had been assigned to co-defendant Ross Bohannon. Again he is met by the provisions of Rule 279, in the section which provides:

“Failure to submit an issue shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment
“Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and upon’ which no issue is given or requested shall be deemed as waived * * *

Whether the chattel mortgage had been, in fact, assigned was an ultimate fact question to be determined by the jury, and if appellant desired to rely on its assignment as a defense, the burden was on him to comply with the provisions of Rule 279 and request appropriate issues. That he failed to do, and such defense is waived. He would urge that there was no evidence to the contrary as to assignment — that the fact of assignment is undisputed — so that no issue was necessary. The evidence of assignment was on the original $15,000 and $5,000 notes which were endorsed on their backs to Bohannon as trustee. The Bank president testified, without objection, that this was done in an effort to effect collection, by attaching a draft to such notes and sending them to Bohannon’s bank in Dallas. This was done some five times, and Bohannon never honored the drafts to become entitled to the notes. They were returned to the Seminole bank and at a later date were turned over to appellant, not Bohannon, when replaced by the note sued on plus partial payment. Thus, any attempted assignment to Bohannon never materialized, or at least was a good fact question for the jury.

All assignments of error have been considered and all are overruled. The judgment of the trial court is affirmed.