author: RENFRO, Justice.

text:
    The MILLERS MUTUAL FIRE INSURANCE COMPANY OF TEXAS, Appellant, v. Floyd HENSLEY, Appellee.
    No. 16824.
    Court of Civil Appeals of Texas. Fort Worth.
    April 21, 1967.

      Thompson, Coe, Cousins & Irons and Franklin H. Perry, Dallas, for appellant.
    Coleman & Whitten and Earl L. Coleman, Denton, for appellee.
   OPINION

RENFRO, Justice.

The defendant, The Millers Mutual Fire Insurance Company of Texas, appellant, succinctly states the nature and result of the case as follows, “This is a suit on the contents coverage portion of a Texas Standard Fire Insurance Policy originally issued to another person. Appellant contended that the endorsement adding the Appellee’s name to the policy did not provide contents coverage to the Appellee, that the policy was canceled before the loss, and other matters. The Court ruled against Appellant and submitted only value issues to the jury, and in due course gave judgment to Appellee for $5,000.00.”

In its first two points of error defendant contends: (1) The endorsement providing insurance coverage to Floyd Hensley is clear and unambiguous in its terms and does not provide any coverage to the appellee for loss or damage to the household goods at the premises in question, and the trial court erred in ruling that it did provide such coverage. (2) As a matter of law, and under the proper rules of construction applicable to this case, the endorsement issued by the Gambill Insurance Agency which was attached to The Millers Mutual Fire Insurance Company policy does not provide coverage to Floyd Hensley for damage to household goods, and the court erred in ruling that it did cover.

On January 12, 1962, the fire policy was issued to M. M. Stuart. The policy covered building and contents on a farm in Denton County. Attached to and made a part thereof was Farm and Ranch Form No. 81. The policy provided coverage of $24,000.00 on the dwelling while occupied by owner, and $5,000.00 on household goods while in the main dwelling.

On March 10, 1964, Stuart and plaintiff Hensley executed a contract of sale of the real property owned by Stuart.

At the time of the execution of the above contract of sale, according to plaintiff, der fendant’s agent agreed to a General Change Endorsement after plaintiff’s attorney told her, “ * * * that you wanted it fixed to where Mr. Stuart had protection, still had protection while he was in that house, and therefore that when we moved, we moved in with protection where that we wouldn’t have to call and notify anybody, that we would be immediately, protected.” His evidence was disputed. Anyway, as of March 10, 1964, defendant issued its General Change Endorsement, which read, material here:

“General Change Endorsement
“Form No. 77 “Effective “June 1, 1944
“Attached to and forming part of Policy No.. 308 39 92 of the Millers Mutual Fire Insurance Company of Fort Worth, Texas, issued at its Denton, Texas Agency.
“Dated 1-12-62 Gambill Insurance Agency
“By: Mary Jo Fowler, Agents
“Insured M. M. Stuart
“Other conditions remaining the same, this Policy is amended as of March 10, 1964, as follows: It is understood and agreed the named insured is hereby amended to read: M. M. Stuart and Floyd Hensley, the property having been sold under contract, and the policy insures the respective interests of the said M. M. Stuart and Floyd Hensley in the dwelling hereby insured.
“Location 6 miles SE from Denton, Texas
“Lot Block Map Page File No. Occupancy Owner
“Property Insured Farm Schedule — Dwelling and Household Goods (State whether Building, Household Goods, Stock, Furniture, Fixtures and/or Machinery, or Contents, and whether Specific or Blanket * * *)
“Prescribed by The State Board of Insurance.”

It is undisputed that on the date of the fire Stuart had no household goods in the house. It is undisputed that Hensley, plaintiff, had moved in the house and had his household goods therein. Defendant paid plaintiff for loss of the dwelling, but claimed it had no coverage on the household goods; hence this suit by plaintiff.

Referring to the General Change Endorsement, defendant argues that the “words of change” or the “active” words contained on the endorsement clearly mean that the “property” was sold under contract, and the “policy insures the respective interest of the said M. M. Stuart and Floyd Hensley in the dwelling hereby insured”; that the words “household goods”, appearing on the line “Property Insured”, are merely a recitation, and the active words, or words of change, follow the statement “Other conditions remaining the same”; that the endorsement is clear in its coverage of the dwelling only; that plaintiff purchased an interest in the real property only and had no insurable interest in the contents of the dwelling; that, considering the words used, the subject matter to which they relate, and the matters naturally or usually incident to the issuance of the endorsement, it is apparent that the evident intent was to cover the dwelling only.

Contracts of insurance are to be construed as other contracts. Ordinarily, all parts of the contract are to be taken together, and such meaning will be given to them as will carry out and effectuate to the fullest extent the intention of the parties. General American Indemnity Company v. Pepper, 161 Tex. 263, 339 S.W.2d 660 (1960); United American Insurance Company v. Selby, 161 Tex. 162, 338 S.W.2d 160 (1960).

The original policy was delivered by Stuart to plaintiff. In the original policy part of the coverage was shown to be “2. $5,000.00 on Household Goods, while in the above described Main Dwelling.”

In our opinion the trial court properly construed the policy and endorsement to afford coverage to plaintiff’s household goods. Thé policy issued to Stuart afforded coverage on household goods. The endorsement made plaintiff a “named insured.”

The policy in which he was made a named insured covered the main dwelling while occupied by the owner and covered household goods of the named insured while located in the main dwelling. Neither the policy nor the endorsement excluded coverage of household goods.

Under the “Property Insured” line, on which defendant had typed “Farm Schedule —Dwelling and Household Goods,” was the instruction, “State whether Building, Household Goods, Stock, Furniture, Fixtures and/or Machinery, or Contents, and whether Specific or Blanket.” Thus, as stated by plaintiff, the instructions for typing the description of the property specifically mentioned household goods. As stated previously, the words “Household Goods” were typed above the mentioned instruction.

We agree with plaintiff that the wbrds of the policy and of the General Change Endorsement show clearly and without ambiguity that plaintiff had coverage on his household goods from the time he moved the goods into the dwelling.

Furthermore, it is a settled principle of insurance law that language of a policy that is susceptible of more than one construction should be interpreted strictly against the insurer and liberally in favor of the insured. When the contract is capable of two constructions, under one of which recovery is allowed but under the other of which it is denied, that construction will be given which permits a recovery. And where two interpretations, equally fair, may be made, that which allows the greater indemnity must prevail. 32 Tex.Jur.2d 121-3, § 60; Southwestern Fire and Casualty Company v. Atkins, 346 S.W.2d 892 (Tex.Civ.App., 1961, no writ hist.).

We hold first that the policy and General Change Endorsement show clearly that plaintiff had coverage of his household goods, and, next, if the policy and endorsement are susceptible of the construction given them by defendant, they are also susceptible to the construction made by the trial court. In either event plaintiff was entitled to recover for the loss of household goods.

In its third point defendant argues the Court erred in refusing to admit evidence and submit issues in respect to receipt by plaintiff of a “Revised Amount Endorsement,” for if plaintiff had notice of such action an issue of waiver was raised.

On May 20, 1964, Stuart requested cancellation of the Contents Coverage. This was more than two months after the contract of sale was executed by plaintiff and Stuart. On May 27, a Revised Amount Endorsement was issued by defendant which showed cancellation of coverage on household goods. Defendant contended said endorsement and accompanying letter were mailed to plaintiff. Both plaintiff and his wife denied receiving the endorsement.

Mrs. Fowler, agent for defendant, testified as to the preparation and mailing of the Revised Amount Endorsement and the letter. Her testimony was not of sufficient probative force to support a finding that defendant canceled the policy by giving plaintiff five days’ written notice even if such an issue had been submitted and answered favorably to the defendant. Both plaintiff and his wife testified positively that they did not receive the referred to letter and cancellation.

Mrs. Fowler’s testimony was such as to amount to a mere conclusion on her part that the instruments were mailed.

Even if plaintiff had received the “Revised Amount Endorsement,” he would not have been apprised that the coverage on his household goods was canceled. The endorsement merely canceled the Household Coverage as to Stuart who had already moved his household goods from the dwelling. There was nothing in the instrument to indicate that plaintiff’s coverage on household goods was canceled or eliminated from coverage. Indeed, on the same date the “Revised Amount Endorsement” was executed, defendant approved an “Assignment of Interest” in which the interest of Stuart as owner of the property covered by. the policy was assigned to plaintiff.

Judgment affirmed.

Affirmed.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    GARRISON INDEPENDENT SCHOOL DISTRICT et al., Appellants, v. Leroy McDUFFIE et al., Appellees.
    No. 276.
    Court of Civil Appeals of Texas. Tyler.
    April 27, 1967.
    Rehearing Denied May 11, 1967.

      E. G. Aycock, Fort Worth, S. M. Adams, Jr., Nacogdoches, for appellants.
    H. L. Edwards, Nacogdoches, for appel-lees.
   DUNAGAN, Chief Justice.

This is an injunction case. Pursuant to Article 2786e, Vernon’s Annotated Civil Statutes, the Board of Trustees of the Garrison Independent School District entered into a written contract with McMorries & Company, Inc., a corporation, dated March 2, 1965, to compile taxation data for use by the Board of Equalization, said corporation being deemed to have the special skill and experience to perform such services. McMorries completed its performance of said contract in July, 1965. To pay for the services of McMorries as provided for in said contract, the Garrison Independent School District issued five time warrants in the total sum of $6,000.00 to be paid out of available funds. Each time warrant was in the sum of $1,200.00 per year, bearing interest at the rate of five per cent per annum, number one being due on or before December 1, 1965, and one warrant due on December 1st each year thereafter, making the last warrant due on December 1, 1969.

On November 24, 1965, the appellees filed this suit. On June 7, 1966, they filed their second amended original petition seeking to enjoin the Board of Trustees of the Garrison Independent School District from paying out any of the school funds of said school district to McMorries & Company, Inc. for its services and especially from paying off and redeeming any of the warrants mentioned in said contract. Appel-lees in their second amended original petition alleged that such purported contract “is illegal, unlawful,, void and of no force and effect, and should be canceled, set aside and held for naught,”. Further, that said school district and its Board of Trustees should also be enjoined from paying public school funds to McMorries & Company, Inc. as provided in said contract.

The appellants, the Garrison Independent School District and McMorries & Company, Inc., in their answer to appellees’ second amended original petition, among other things, specially denied the allegations in appellees’ petition and alleged that the contract is a valid exercise of the powers granted to the Board of Trustees of said school district under the provisions of Article 7212 or Article 2786e, Vernon’s Ann.Civ.St. of Texas, and that the warrants issued pursuant to the provisions of said contract conform to the requirements and provisions of said articles of the statutes, and are valid, outstanding obligations of the Garrison Independent School District.

On July 9, 1966, after a full hearing, the •trial court entered an order making the temporary injunction theretofore granted permanent. Pursuant to notice of appeal, appellants perfected their appeal from the judgment granting the injunction.

The trial court permanently enjoined the Garrison Independent School District and its Board of Trustees “from paying off, or paying out any of the school funds of said school district to McMorries and Company, Inc., or any other person, any of the school warrants issued and executed as mentioned in said contract, being warrants dated Dec. 1st, 1965 down to and including Dec. 1st, 1969, each in the amount of $1200.-00 aggregating $6000.00The trial court further permanently enjoined said Board of Trustees “from levying any tax against any property located in said school district for the purpose of raising funds to be used in- paying off any of said school warrants mentioned and described in said contract and as hereinabove described and referred to, as shown by the record in this case.”

A stipulation of the facts by the parties with the order of the school board approving the contract and the contract comprise the entire statement of facts in the record.

It was stipulated that no provision was made in the 1964-1965 school budget for the payment of any of the time warrants; that the contract was adopted on March 2, 1965; that the Board of Trustees of Garrison Independent School District levied sufficient taxes for the payment of time warrant number one, which was issued to become due and payable on December 1, 1965; that at all times during the tax school year 1964-1965, there was on hand and available to the school Board of Trustees of the Garrison Independent School District to and including August 31, 1965, sufficient funds to pay time warrant number one, due December 1, 1965.

It was further stipulated that none of the time warrants have been paid; that the Board of Trustees of the Garrison Independent School District will continue to levy a tax to pay the warrants as provided in the contract; that all five warrants provided for in the contract and resolution have been issued as provided for therein.

As a part of the school board’s order approving the contract, it levied an annual tax on all the taxable property in the Garrison Independent School District sufficient to pay said warrants, so long as said warrants, or any of them, or any interest thereon, are outstanding and unpaid.

The record in this case reflects that the warrants were issued to pay an authorized purpose; that they matured in serial installments of less than five years, that the interest from maturity due on such warrants was 5% per annum.

We direct our attention first to appellants’ points of error Nos. 1, 2 and 3.

Appellants by their first three points of error contend that the trial court erred:

(1) “In holding that because no funds were provided for in the budget of Garrison Independent School District for the year 1964-1965 for payment for services to be rendered, the contract in question is invalid.”

(2) "In adjudging the contract involved to be invalid, notwithstanding the agreed facts show that there was at all times on hand and available to the Board of Trustees of Garrison Independent School District to and including August 31, 1965, sufficient funds to pay Time Warrant No. 1 due December 1, 1965.”

(3) “In adjudging the contract to be invalid upon any ground of law.”

It is appellees’ contention as raised by their brief that Section 5, Article 2786e provides for the payment of the time warrants issued to be paid out of the delinquent taxes collected. Further, that Article 2786e does not provide for the levying of a tax for the purpose of paying the time warrants here involved.

The questions presented on this appeal involve an interpretation of Article 2786e, Vernon’s Tex.Civ.St.

Article 2786e provides in effect that any school district in need of funds for specific purposes, including the employing of an individual firm or corporation deemed to have special skill and experience to compile taxation data for use by its Board of Equalization, may issue interest bearing time warrants if the district is financially unable to pay therefor out of current available funds, and that such warrants “shall upon maturity be payable out of any available fund of such school district.”

The burden is on the appellees (plaintiffs in the court below) to show the invalidity of the contract and every reasonable and fair intendment should be indulged against such invalidity. Winston v. City of Ft. Worth, 47 S.W. 740 (Tex.Civ.App., 1898, writ ref.).

Section 3 of Article 2786e provides that no interest bearing time warrant may be issued that the payment thereof in any one year will exceed the anticipated surplus income of the district for the year in which the warrant is issued, based on the budget of the district for said year. It also provides that such anticipated income is “The entire expected income of such school district from every source for the year in which such interest-bearing time warrants are issued, less teachers’ salaries, bus aid included in the foundation fund, and that part of the local maintenance tax earmarked for salaries and known in the Gil-mer-Aiken Law as the economic index or fund assignment.” This section of the statute also provides that the anticipated income computation as therein defined shall be exclusive of all bond taxes. Section 3 contains other restrictions not regarded as material here.

The effect and purpose of Section 3 of the statute is to limit the amount of any such warrants that a school district can issue because of the limitation placed on the amount of payment on the warrants in any one year. This section of the statute has been so interpreted by the Attorney General of this state in opinion No. C-197, dated December 19, 1963.

From the stipulations as above set out, it is clear that there was on hand and available to the Board of Trustees of Garrison Independent School District during the school tax year 1964 — 1965 sufficient funds to pay time warrant number one, in addition to all the other obligations of the school district, therefore warrant number one is valid, although issued in a year during which the budget did not provide for the payment of the same. Of course as to time warrants numbers two to five inclusive, they were not provided for in the budget and could not be but may be (and appellants say they will be) provided for in the budgets of each of the succeeding years during which they were payable. These warrants may be paid out of any available funds of said school district. Article 2786e, Vernon’s Ann.Civ.St.; Allen v. Channelview Independent School District, 347 S.W.2d 27 (Tex.Civ.App., Waco, 1961, writ ref.). Under Section 5 of Article 2786e, they may also be paid out of delinquent tax collection, subject to the limitation imposed by Section 9 of the statute. Article 2786e further provides that “Such warrants shall be entitled to first and prior payment out of any available funds of such district as they become due. Included in such purposes is the payment of any amounts owed by said school districts, which indebtedness was incurred in carrying out any of such purposes.”

“Fund” means a sum of money set apart for a specific purpose, or available for the payment of debts or claims. Black’s Law Dictionary, Fourth Edition. “Available” means capable of being made use of, at one’s disposal or within one’s reach. Commonwealth of Pennsylvania v. Esayian, 182 Pa. Super. 146, 126 A.2d 808 (1956); Smith v. Administrator, Division of Employment Security of Department of Labor of State of Louisiana, 95 So.2d 349 (Court of Appeals of Louisiana, Second Circuit, 1957).

The Garrison Independent School District has the authority to levy, assess and collect a tax (within prescribed limits) upon all taxable property in said school district sufficient to produce the amount required to make the payments of the warrants provided for in the contract if the warrants meet the other requirements of Article 2786e, i. e., where warrants outstanding do not exceed 1% of assessed valuation of the district and no more than $25,-000.00 of such warrants are outstanding at any one time. White v. Thos. Y. Pickett & Company, Inc., 355 S.W.2d 848 (Tex.Civ.App., 1962, San Antonio, writ ref., n. r. e.); Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 1181, 4 L.Ed.2d 1277; also see Attorney General’s opinion No. WW-81, dated March 29, 1957.

The appellees in their second amended original petition also alleged as grounds for the injunction that the contract specifically attempts to create a large future deficiency debt to be paid out of future anticipated school funds of said school district in violation of Article 2749 and 2827 of the Vernon’s Revised Civil Statutes of the State of Texas; that the tax levied by the school board was made without submitting the matter to the voters of the school district. These questions have been decided adversely to appellees in Allen v. Channelview Independent School District, supra.

In view of our disposition of this case, it is unnecessary to discuss appellants’ other points of error.

We believe the injunction was erroneously issued. Therefore, the decree of the trial court is accordingly reversed, and the injunction awarded therein is dissolved.


author: CHAPMAN, Justice.

text:
    CITY OF LUBBOCK et al., Appellants, v. E. M. WHITACRE et al., Appellees.
    No. 7676.
    Court of Civil Appeals of Texas. Amarillo.
    April 3, 1967.
    Rehearing Denied May 8, 1967.

      Fred O. Senter, Jr., City Atty., Sam C. Rodehaver, Asst. City Atty., Evans, Pharr, Trout & Jones, E. G. Pharr and Carlton B. Dodson, Lubbock, for appellants.
    Anderson, Edwards & Warnick, Hugh Anderson, Lubbock, for appellees.
   CHAPMAN, Justice.

This opinion is in lieu of our opinion announced on February 6,1967.

This is an appeal from a judgment of the trial court holding the City of Lubbock’s Ordinances Nos. 4870 and 4870-A, amending the basic zoning Ordinance No. 1695 of the city to be unconstitutional, invalid under Subsection 14-A.1-9 of Section 14-A.l of such basic zoning ordinance, and invalid for various other reasons. In 1941 the City of Lubbock approved a comprehensive zoning ordinance under the authority of Articles 1011a to lOllj of Vernon’s Ann.Texas Revised Civil Statutes. In 1959 that original ordinance was repealed and in lieu thereof Ordinance No. 1695, the present basic zoning ordinance of the city was adopted.

In October 1965 in Zone Case No. 1369 a request was filed by Ray Chapman, Lubbock realtor, on behalf of University Dormitory Development, Inc., Bernard B. Heil-prin, and Harold E. Strauss, hereinafter called intervenors, with the Planning and Zoning Commission of such city for a zone change of certain properties situated on the southwest corner of the intersection of 19th Street and College Avenue, extending south one block to the northwest corner of College Avenue and 20th Street, on which they held options to purchase. The proposed improvements consisted of a twelve-story apartment building, which the record indicates was to be utilized principally for housing Texas Tech male students, the campus of such institution being located just across 19th Street, northwest from the intersection.

The city Planning and Zoning Commission recommended to the city council that the request for the zone change be denied. Appeal was made to the city council, and after due notice the matter was heard by the council, resulting in unanimous passage of Ordinance No. 4870 authorizing the issuance of a Specific Use Permit for the private apartment project. Intervenors, having acquired additional options on Lots 16, 17, 18, 19 and the West half of Lot 20 adjoining the zone change area, filed on November 11, 1965, an application which is designated zone case 1369-A amending the 1369 application. Amendatory Ordinance 4870-A was later passed for the stated purpose of clarifying and correcting Ordinance No. 4870 “ * * * to more accurately reflect the legislative intent and action of the city council.” It is these ordinances which were under attack in the trial court.

The five fifty-foot lots situated on the southwest corner of 19th Street and College Avenue in the zone change area belong to Texas Technological College Foundation and at the time were zoned to permit banks, retail bakeries, bowling alleys, cleaning and pressing establishments, self-service laundries, office buildings, moving' picture theaters, and pool halls. The other lots in the zone change area upon which the above named corporation acquired additional options were at the time zoned R-l, limiting their use to single family residences. Ordinance 4935 under zone case No. 1380, amending Ordinance No. 1695, was also passed by the city council about the same time as the two named ordinances attacked in the trial court. This ordinance changed lots in the adjacent area of Elwood Place Addition to an R-3 zoning district.

Prior thereto Basic Ordinance 1695 had been amended by Ordinance No. 4665, adding thereto Section 8-B to provide regulations intended to encourage higher density, multi-family developments at locations in or near the central part of the city or in the immediate vicinity of population concentrations and activities such as Texas Technological College.

A jury was impaneled to pass upon the controversial facts but during the trial all parties agreed the jury might be dismissed and all issues of fact determined by the court. Judgment was rendered in which the City of Lubbock and Robert Burr were permanently and perpetually restrained and enjoined from issuing a Specific Use Permit for construction of a private apartment project provided for in Ordinances Nos. 4870 and 4870-A and said city and Kimsey Miller were permanently and perpetually restrained and enjoined from issuing a building permit for the construction of any structure of the character of a private apartment project as provided for in the last two named ordinances.

Section 14-A.l of the City of Lubbock’s basic zoning ordinance No. 1695 is titled “Specific Use Permits.” It provides that the city council, after public hearing and proper notice to all parties affected, after recommendation from the Planning and Zoning Commission, and numerous other provisions may authorize the * * * location of any of the following uses in the specified districts.” Among those is 14 — A.1-9 reading: “Private apartment projects on a minimum site of two and one-half acres or on one block of street frontage, whichever is smaller in a district.” Construction of Section 14-A.1-9 presents one of the legal problems to be later discussed.

The case is before us upon fifty-seven points of alleged error. Appellants, under their first Statement of Facts, Argument and Authorities group thirty-eight of their various points. Under Points 1 and 2; 6 through 9, 12, 17, 18, 22, 28, 30, 33-36 and 44 they challenge the holding of the trial court to the effect that the zoning was an arbitrary and unreasonable abuse of the city’s discretion; a violation of the police powers was detrimental to the private interest of the parties surrounding the areas, and that the zoning bore no substantial relationship to the general health, safety, morals or general welfare of the community.

The trial court made thirty-two pages of original findings of fact and conclusions of law and an amendment thereto, additional findings, and also refused certain requests for additional findings.

The use of the type permit here under consideration; i. e., a Specific Use Permit, to amend a comprehensive zoning ordinance has been recognized and approved by the courts of Texas. Stearman v. City of Farmers Branch, 355 S.W.2d 541, (Tex.Civ.App.-Dallas, 1962, writ ref’d n. r. e.); Clesi v. Northwest Dallas Imp. Ass’n, 263 S.W.2d 820 (Tex.Civ.App.-Dallas, 1953, writ ref’d n. r. e.).

Even with the rapid growth of some of the cities of Texas and the resulting escalation of zoning controversies, the controlling questions are rarely, if ever, the same in any two cases. However, the courts of Texas have established some basic legal principles we believe applicable here that appear to have been consistently adhered to by the appellate courts. Among these principles are the following:

1. Courts should not interfere with such actions of the city council unless it appears that the ordinance represents a clear abuse of discretion, and an extra-ordinary burden rests on the one attacking the ordinance. “ ‘ * * * to show that no conclusive, or even controversial or issuable, facts or conditions existed which would authorize the governing board of the municipality to exercise the discretion confided to it.” City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477 (1955).

2. “The presumption of validity accorded original comprehensive zoning applies as well to an amendatory ordinance.” City of Waxahachie v. Watkins, supra. See also Weaver v. Ham, 149 Tex. 309, 232 S.W.2d 704 (1950) and Clesi v. Northwest Dallas Imp. Ass’n, supra.

3. “In either case the courts have no authority to interfere unless the change is clearly unreasonable and arbitrary.” City of Waxahachie v. Watkins, supra.

4. “ Tf the question is fairly debatable as to whether the zoning ordinance is arbitrary and unreasonable and has no substantial relation to public health, safety, morals, or general welfare, the court will not interfere.’ ” City of Corpus Christi v. Jones, 144 S.W.2d 388, 398 (Tex.Civ.App.-San Antonio, 1940, writ dism’d, jdgmt corn).

5. “Since it is an exercise of the legislative power of the city’s council, the ordinance must be presumed to be valid.” City of Waxahachie v. Watkins, supra.

6. Whether appellees met their burden to show there were no controversial or issuable facts which would authorize a city council to exercise its discretion in the manner here complained of presents a question of law, not of fact, and in deciding it the court should have due regard “ * * * to all circumstances of the city, the object sought to be attained and the necessity for the ordinance.” City of Waxahachie v. Watkins, supra.

7. “ * * * if there is an issuable fact as to whether the ordinance makes for the good of the community, the fact that it may he detrimental to some private interests is not material.” City of Waxahachie v. Watkins, supra, citing Edge v. City of Bellaire, 200 S.W.2d 224, 227 (Tex.Civ.App.-Galveston, 1947, writ ref’d n. r. e.). (Emphasis added.)

It is common knowledge in this 7th Supreme Judicial District that Lubbock has rapidly increased its population in recent years, of which we may take judicial knowledge. The evidence shows Texas Tech had doubled in its number of students in the last ten years before trial and Mr. Pennington, Vice-President of Business Affairs at the school, testified there is at present insufficient housing for students; that the Board of Directors had established a policy of inviting private capital to erect off-campus housing; that the institution does not believe it can construct sufficient housing for its students; that if the school continues its present growth there will be 25,000 students by 1968, 35,000 by 1975 and 36,700 by 1978. The last estimate was projected by the Coordinating Board of the Texas College and University System. He also testified the construction of the proposed twelve-story apartment would be acceptable to the school and in approving the project he took into consideration the parking facilities and parking area shown on the exhibits here in evidence.

Don Osborn, a realtor for sixteen years and past president of the Lubbock Realty Board, testified in effect that in his opinion the construction of the proposed apartment would adhere to the public welfare and would increase the value of the surrounding property. He gave an instance of an owner of a lot in the adjacent territory who lived in Mineral Wells. He had offered the lot for as little as $2,000. When there was some talk of the apartment project he was able to sell it for $5,000. Two months later that buyer sold it for $10,000. There is other testimony from realtors to the effect that the construction of the building would make the area one of the most prestigious in Lubbock and would add a taxable item of moire than $4,000,000 for the community.

Dr. Green, a witness for appellees, lives on 20th Street just across from the proposed structure. He testified he works for the state in the museum at the college and that in his opinion the building of the apartment would devalue his property. However, he admitted on cross-examination he had friends who are reasonable people who disagree with him.

There is also testimony by others to the effect that the construction of the building would devalue the property in the area and would not be to the best interests of the city.

Appellees admit by brief that “ * * * in the trial court the presumption is that the zoning ordinances are valid until it be shown to the court by evidence at the trial that there are no issuable facts or substantial facts to support the ordinances,” then rely on Weaver v. Ham, supra, to sustain their contention to the effect that the city acted arbitrarily, unreasonably, capriciously, and abused its discretion; that the ordinances are discriminatory, do not bear any substantial relation to the public health, safety, morals or general welfare; and constitute unjustifiable spot zoning.

The record shows the property to the north of the zone change area on the east side of College Avenue is commercial for several miles; that the same applies to both sides of 19th Street east of the zone change area; that there are a few residences immediately west but they are joined on the west of them by the Lutheran Student Center, a private apartment project, St. Mary’s Hospital, parking lots and other non-resident uses. On College Avenue south of 19th Street and the College Avenue intersection there is property commercially zoned and used between 19th and the alley between 19th and 20th, residences on College Avenue to 23rd Street, then additional commercial usage of the property.

We conclude from the facts stated, other facts shown in the record, and the authorities above cited that there were issuable facts which tend to establish that the legislative body of the City of Lubbock did not abuse its discretion in zoning the property here involved to the Specific Use Permit, provided it conforms to the necessary area or space. It will be noted that in City of Waxahachie v. Watkins, supra, the Supreme Court of Texas in referring to the police power used the conjunction “or” in the language, “health, safety, morals or general welfare,” as do other authorities. City of Corpus Christi v. Jones, supra; Weaver v. Ham, supra.

When due regard is given to all circumstances of the city, the object sought to be obtained in providing housing for boys who are students in Texas Technological College in order that more girls might be provided housing on the campus, the extra taxes the privately owned apartment would pay the taxing authorities, the attractiveness the building would contribute to the less attractive commercial property in the area, as shown by the exhibits, we feel compelled to hold that appellees failed to show there were not any “ * * * conclusive, or even controversial or issuable, facts or conditions” existing which would permit the governing board of the municipality to exercise the discretion confided to it in granting the zone change area. The evidence clearly shows that reasonable minds could differ as to whether such rezoning was in the bést interest of the public health, safety, morals or general welfare of the community, and particularly the general welfare.

. We are not unmindful of the statement in Weaver v. Ham that “ * * * power to vary conditions of zoning ordinances * * * should be exercised * * * with due regard for the preservation of the rights of others acquired under original zoning ordinances.” We believe such statement may be reconciled with the holding in City of Waxahachie v. Watkins, supra, wherein the same court held “ * * * if there is an issuable fact as to whether the ordinance makes for the good of the community, the fact that it may be detrimental to some private interest is not material,” citing Edge v. City of Bellaire, supra.

There is little analogy to the facts in the respective cases. In the Weaver v. Ham case the city council had rezoned a lot ISO feet by 300 feet comprising only approximately one-fifth of the area of the block completely surrounded by single family residences and three blocks away from any commercial uses, and even those were not totally unconnected with continual residential uses. As the facts above related show, much of the territory around the zone change area in the instant case is already commercial. Additionally, there is not shown by the facts in that case as valid a necessity existing for the zone change as in our case, “all the circumstances of the city, the object sought to be attained” being considered. The Weaver v. Ham case is authority for an example of spot zoning, which we do not believe exists in our case and we believe the trial court was in error in so finding. See also Burford v. City of Austin, 379 S.W.2d 671 (Tex.Civ.App.-Austin, 1964, writ ref’d n. r. e.); B. E. M. Homeowners Ass’n v. City of Fort Worth, 372 S.W.2d 364 (Tex.Civ.App.-Austin, 1963, no writ).

The next group of points have to do with the questions of whether the zone change area does not comprise 2j/£ acres or does not contain “ * * * one block of street frontage between intersecting streets, whichever is smaller in any district.”

Numerous findings of fact and conclusions of law were made by the trial court. Among those were Findings of Fact Nos. 11 and that part of 17 which finds: “The zone change area does not have one block of street frontage between intersecting streets,” and Conclusions of Law No. 6 making the same conclusions of law represented in the two fact findings just mentioned. These are to the effect that the Specific Use Permit provided for in Ordinances Nos. 4870 and 4870-A permits the construction of the apartment upon a site that does not contain 2½ acres or one block of street frontage between intersecting streets,, as required in Section 14 — A.l-9 under Specific Use Permits of the Basic Ordinance No. 1695.

Ordinance Nos. 4870 and 4870-A based upon the request made in Zone Case 1369 provides the Specific Use authorized by the ordinance is for a private apartment project and that applicants shall comply with certain conditions, to-wit:

“A strip of land on the west side of College Avenue extending from 19th Street to 20th Street and averaging 40' to 43' in width, as shown on the site plan shall be dedicated to the public for College Row. Said dedication to be made prior to issuance of a building permit.”

The second paragraph of Subsection 3 under Section 4 of the ordinance provides the conditions imposed, one of which we have just quoted, shall not be construed as conditions precedent to the granting of a Specific Use Permit, but shall be construed as a condition precedent to the granting of a building permit and the certificate of occupancy.

Section 5 of the ordinance then provides that the conditions imposed by Section 4 thereof shall not be construed as reducing the area of such zone change below 2½ acres as required by Section 14-A.1-9.

A strictly technical reading of the ordinance would suggest, as we held in our first opinion, that the ordinance did not preclude the granting of a zone change to a Specific Use Permit but that it did require 2½ acres before a building permit or certificate of occupancy could be issued and it therefore was contrary to the requirement of Basic Ordinance 14-A.1-9. However, in a further study of Ordinance 4870-A it appears by the language of Section 5 of the ordinance that the city was attempting to comply with 14-A.1-9 by requiring the zone change area to have 2½ acres at the time the specific zone change was granted but as a condition of building and occupancy the owner must dedicate the described strip. This holding is not inconsistent with the ordinary requirements by cities that certain parts of lots on which buildings are constructed shall be used for sidewalks, alley rights-of-way, etc. The 2½ acres are still on the property, and title is still in the owners. They are just required “ * * * for the purpose of protecting the health, safety * * * and general welfare of the public generally, users of streets in the area, and surrounding property owners” to dedicate the designated strip for the use of the public as a condition for securing a building permit and certificate of occupancy. Our court has held in Beene v. Bryant, 201 S.W.2d 268 (Tex.Civ.App.-Amarillo, 1947, no writ) as follows:

“An ordinance * * * should be construed in its entirety, giving effect to every part of it and it should be construed most strongly against the contestant and most liberally in favor of the best interest of the public. Ordinances are to be construed according to the ordinary meaning of the language used therein, and the proper grammatical effect of their arrangement, but a literal construction will not be given where it will defeat the purpose of the ordinance. The intention of the City Commission should be ascertained, if possible, in construing a city ordinance and the manifest purpose of the ordinance must be given effect, if it is capable of such construction, so as to express its real purpose and not what its purpose might have been. An ordinance should be reasonably construed and not in a manner repugnant to common sense and it should be construed more as to substance rather than as to form. Any reasonable doubt as to its construction or validity should be resolved in its favor and if it be susceptible of two constructions, one valid and the other void, the former should be chosen, especially if it be for the best interest of the general public.”

When we apply the rules just stated to the subject ordinances, we believe they may be held to be valid.

If we should be in error in the holding just made, then we say the requirement of the dedication strip in Ordinance 4870-A is in conflict with Section 14-A.1-9 of the basic ordinance, is invalid for that reason, is surplusage, and should not be considered to affect the remaining portions of the ordinance, which is complete without such condition. It has been held: “A municipal ordinance may be void as to some of its provisions and valid as to others. Where the ordinance is severable, so that invalid provisions may be eliminated and a valid ordinance left, the invalidity of a part will not invalidate the whole.” City of Fort Worth v. Atlas Enterprises, 311 S.W.2d 922 (Tex.Civ.App.-Fort Worth, 1958, writ ref’d n. r. e.).

Accordingly, we hold the enactments of Ordinances Nos. 4870 and 4870-A were not invalid as constituting unjustifiable spot zoning, that they were substantially related to the general welfare of the community involved and that the enactments of such ordinances did not constitute arbitrary and unreasonable abuse of discretion on the part of the city counsel of the City of Lubbock. 'We also hold the zone change area contains as much as 2½ acres within the meaning of the subject ordinances. In the event we should be in error in the conclusion just made, then we hold the requirement of the dedication strip is in conflict with Section 14-A.1-9 of the basic ordinance, is invalid and should not be considered to affect the remaining portions of Ordinance 4870-A, which is complete without such condition.

Accordingly, the judgment of the trial court is reversed and rendered in favor of Intervenors and the City of Lubbock.


author: CLAUDE WILLIAMS, Justice.

text:
    Chellie BRADLEY et al., Appellants, v. STRAUS-FRANK COMPANY, Appellee.
    No. 16904.
    Court of Civil Appeals of Texas. Dallas.
    April 14, 1967.

      Neil Brans, of Brans, Higginbotham & Berry, Dallas, for appellants.
    Kenneth R. Guest, of Matthews & Matthews, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

Action to foreclose a contractual lien on personal property. Straus-Frank Company brought this action against Chellie Bradley and her husband, Arthur M. Bradley, alleging that the defendants had executed and delivered to plaintiff an instrument designated a “Collateral Agreement” by the terms of which defendants had created a lien on an automobile and the cash value of two life insurance policies to secure the payment of an indebtedness evidenced by promissory note executed by Gene Bradley and Wilburn Wiley in favor of plaintiff. Plaintiff alleged that the indebtedness had not been discharged and that the defendants had failed and refused to deliver the automobile and the life insurance policies to plaintiff so that the car might be sold and the cash value of the policies be realized, and the proceeds applied to the payment of the indebtedness. It was also alleged that Gene Bradley and Wilburn Wiley had been adjudicated bankrupts and discharged in bankruptcy and for that reason they were not made parties to the action.

Defendants denied that a valid lien had been created by the collateral agreement executed by them and further contended that the indebtedness owed to the plaintiff was extinguished by virtue of discharges in bankruptcy of the makers of the note.

Following a nonjury trial judgment was rendered decreeing the existence of a lien upon the automobile and proceeds of the insurance policies and declaring said lien foreclosed. The court directed the sale of the automobile in question with the proceeds thereof being applied to the balance of the indebtedness and also directed that the insurance policies be delivered to plaintiff’s attorneys. At the request of defendants the trial court filed findings of fact and conclusions of law.

The facts are virtually without dispute. On June 30, 1965 Gene M. Bradley, son of Mr. and Mrs. Bradley, appellants herein, and Wilburn Wiley, made, executed and •delivered to Straus-Frank Company their promissory note in the principal sum of ■$4,500. On the same date appellants Arthur M. Bradley and wife Chellie Bradley made, executed and delivered to Straus-Frank Company an instrument designated “Collateral Agreement” which contained, inter alia, the following material provisions:

“COLLATERAL AGREEMENT
“The undersigned, for a good and valuable and sufficient consideration, agree with STRAUS FRANK CO. (hereinafter called ‘Company’) as follows: As collateral security for the payment of all debts, obligations or liabilities now or hereafter existing, absolute or contingent, of GENE M. BRADLEY, to Company (hereinafter called ‘indebtedness’), the undersigned hereby assign, transfer to and pledge with Company the following described property this day.
(1) 1962 Plymouth automobile, motor #2127-101356, owned by Mrs. Chellie Bradley as her separate property.
(2) $1,000.00 life insurance policy on life of Mrs. Chellie Bradley, beneficiary being Arthur M. Bradley. Franklin Life Insurance Company #247552.
(3) $2,000.00 life insurance policy on life of Arthur M. Bradley, beneficiary being Mrs. Chellie Bradley. Southwestern Life Insurance Company, policy # 121738.”
“In the event of the nonpayment of any indebtedness when due, or upon the happening of any of the events specified in the last preceding paragraph, Company may then, or at any time thereafter, at its election, apply, set off, collect or sell in one or more sales, with or without any previous demands or demand of performance or notice or advertisement, the whole or any part of the collateral in such order as Company may elect, and any such sale may be made either at public or private sale at its place of business or elsewhere, or at any broker’s board or securities exchange, either for cash or upon credit or for future delivery, at such price as Company may deem fair, and Company may be the purchaser of any or all collateral so sold and hold the same thereafter in its own right free from any claim of • the undersigned or right of redemption. Demands of performance, notices of sale, advertisements, and the presence of property at sale are hereby waived, and Company is hereby authorized to sell hereunder any evidence of debt pledged to it. Any sale hereunder may be conducted by an auctioneer or any officer or agent of Company.
“The proceeds of the sale of any of the collateral and all sums received or collected by Company from or on account of such collateral shall be applied by Company to the payment of expenses incurred or paid by Company in connection with any sale, transfer, or delivery of the collateral, including the expense of compliance with any state or federal securities act affecting the disposition of any collateral, to the payment of any other costs, charges, attorney’s fees, or expenses mentioned herein, and to the payment of the indebtedness or any part thereof, all in such order and manner as Company in its discretion may determine. Company shall pay any balance to the undersigned or to the person or persons entitled thereto upon proper demand being made therefor.”
“Each of the undersigned waives any right to require Company to (a) proceed against any person, (b) proceed against or exhaust any collateral, or (c) pursue any other remedy in Company’s power, and waives any defense arising by reason of any disability or other defense of any other of the undersigned or any other person, or by reason of the cessation from any cause whatsoever of the liability of any other of the undersigned or against any other person. Until all indebtedness shall have been paid in full, none of the undersigned shall have any right of subrogation, and each of the undersigned waives any right to enforce any remedy which Company now has or may hereafter have against any other of the undersigned or against any other person and waives any benefit of and any right to participate in any collateral or security whatsoever now or hereafter held by Company.”
“Venue of any action arising out of this agreement is fixed in Dallas County, Texas. Upon Demand, the aforesaid automobile will be delivered to Company in Dallas, Texas. All other covenants herein are performable in Dallas, Dallas County, Texas.”

Contemporaneous with the execution of the collateral agreement appellants executed a written assignment to Straus-Frank Company of the two life insurance policies referred to in the collateral agreement. The credit manager of Straus-Frank Company testified that the note had been credited with a certain cash -payment and had also been credited with the sum of $1,400 which had been borrowed on one of the insurance policies. It was stipulated that appellants were in possession of the Plymouth automobile and the policies of life insurance described in the collateral agreement and that prior to the institution of the suit demand had been made upon appellants to deliver the three items of personal property to either Straus-Frank Company or to the attorneys for the plaintiff. It was also stipulated that Gene M. Bradley and Wilburn Wiley, the makers of the note in question, had been discharged in bankruptcy by the United States District Court for the Northern District of Texas and that during the pendency of such bankruptcy proceeding Straus-Frank Company had been listed as one of their creditors and such company had filed a claim in the bankruptcy proceedings.

The trial court found as a fact that appellants had made, executed and delivered to appellee the collateral security agreement as partial security for payment of the promissory note executed by Gene Bradley and Wilburn Wiley; that demand had been made upon appellants to deliver the automobile and the two life insurance policies described in the collateral agreement to ap-pellee but they had refused to comply with such demand; that the indebtedness remaining due on the note in question is $2,854.28, together with accrued interest thereon. The court concluded as a matter of law that the collateral security agreement executed by appellants to appellee is supported by a valid and sufficient consideration; that such instrument created a valid lien in favor of appellee upon the properties described in said instrument; that the adjudication of ■ Gene Bradley and Wilburn Wiley as bankrupts and their discharge in bankruptcy did not affect the validity of the collateral security agreement executed by appellants and that the collateral security agreement is legally enforceable against them by appellee; that appellee is entitled to possession of the automobile and the policies of insurance; that appellee is entitled to foreclosure of its lien on said automobile and is entitled to effect all rights assigned by virtue of the assignments of the respective policies of life insurance.

Appellants urge reversal and rendition of the judgment against them in eight points of error, briefed together. Their contentions may be condensed into four general categories: (1) that the collateral agreement cannot be construed as a pledge since there was no physical delivery of the personal property covered therein and hence the court was in error in declaring the existence of a lien; (2) that if the collateral agreement be deemed in law to be a mortgage then the same cannot be legally foreclosed because the indebtedness which the lien allegedly secures has been extinguished by bankruptcy proceedings in the federal court; (3) that appellee by filing its claim in the bankruptcy proceeding made an election of remedies which precludes a judgment in this court; and (4) the judgment rendered does not accord with the prayer for relief. We shall discuss these contentions in the order enumerated.

Appellants correctly state the requisites of a contract of pledge to be (1) a valid debt, (2) delivery of the personal property to secure payment of the debt, and (3) the continued possession of the security by the pledgee with the right of redemption in the pledgor. 46 Tex.Jur.2d 196. It is, of course, necessary to the validity of a. pledge that possession of the collateral be delivered to the pledgee, or to someone for him and. until the possession and right of control to the property has passed from the owner there can be no pledge, but only an executory contract to pledge. 46 Tex.Jur.2d 198.

However, the trial court did not construe the written instrument to be a pledge agreement. Implicit in the trial court’s judgment and conclusions of law is the fact that the parties, by their written agreement, intended to create a lien upon personal property and that such lien was susceptible of being enforced by a court of equity. We agree with appellee’s contention that the collateral agreement has been construed by the trial court correctly, and must be construed by us, to be a mortgage or an equitable mortgage, rather than a pledge agreement as contended by appellants.

It is well settled in our jurisprudence that an equitable lien may be created by any express agreement in writing which sufficiently indicates a person’s intention to make some particular property a security for a debt or obligation. It is essential to the existence of an equitable lien arising from express contract that the agreement deal with specific property which must be so described that it can be identified and there must be an intention to create the lien which is clearly apparent from the language of the instrument itself together with the attendant circumstances. 36 Tex.Jur.2d, Liens, § 16, pp. 692-693; Berkey & Gay Furn. Co. v. Sherman Hotel Co., 81 Tex. 135, 16 S.W. 807; Industrial Lumber Co. v. Texas Pine Land Ass’n, 31 Tex.Civ.App. 375, 72 S.W. 875, error ref.

In construing the real purpose and intent of the parties to such transactions courts examine the substance of the agreement rather than the form thereof or the title applied thereto. As stated by Justice Denman of the Supreme Court in Eckford, et al. v. Berry, 87 Tex. 415, 28 S.W. 937: “If, upon the whole case, it appears that the real purpose of the transaction was to secure the payment of a debt, the instrument will be held to be a mortgage, no matter what may be its form.”

This court, speaking through Chief Justice Bond, in Williams v. Greer, Tex.Civ.App., 122 S.W.2d 247, said:

“After a transaction resolves itself into a security, whatever may be its form, and whatever name the parties may choose to give it, is in equity a lien. * * * It is not necessary that a lien is created by express contract or by operation of the statute; courts of equity will apply the relations of the parties and the circumstances of their dealings in establishing a lien based on right and justice. 37 C.J. 307, 308.”

see also First National Bank in Big Spring v. Conner, Tex.Civ.App., 320 S.W.2d 391.

We think that an examination of the collateral agreement which is the prime subject of this controversy leads to the definite conclusion that it was the intention of the parties that appellants would, for a valuable consideration, create an express lien upon the personal property described therein in favor of appellee to secure the indebtedness of a third person.

Accordingly, we find no error by the trial court in determining that the collateral agreement in question clearly reflected the intention of the parties to create a lien on the property described and that such lien may be enforced by a court of equity.

Appellants’ next contention is that if the instrument is not a pledge agreement, as first contended, then it is a mortgage and since the indebtedness which the mortgage secures has been extinguished by a discharge in bankruptcy there is no lien subject to foreclosure. This contention is •without support in the law and must be overruled.

While it is true that the federal court discharged Gene M. Bradley and Wilburn Wiley, the original makers of the note, in bankruptcy, yet it must be borne in. mind that it was appellants’ obligation, contractual in nature, to mortgage personal property to secure the indebtedness of their son. The law is well settled that a discharge in bankruptcy is personal to the bankrupt and does not generally cancel, release or impair the liability of a surety or a person jointly liable for a debt. Dominion Culvert & Metal Corp. v. United States Fidelity & Guaranty Co., 238 S.C. 452, 120 S.E.2d 518, 92 A.L.R.2d 1244; Johnson v. Bondurant, 187 Kan. 637, 359 P.2d 861; Helms v. Holmes, 4 Cir., 129 F.2d 263, 141 A.L.R. 1367.

The Congress in enacting the bankruptcy statutes specifically stated that: “The liability of a person who is a co-debtor with, or guarantor or in any manner a surety for, a bankrupt shall not be altered by the discharge of such bankrupt.” 11 U.S.C.A., ;§ 34. Thus it was clearly the intention of the Congress not to unnecessarily interfere in any way with the remedies of the creditor against persons responsible to him other than the bankrupt himself. Rosenthal v. Nove, 175 Mass. 559, 56 N.E. 884; 9 Am.Jur.2d, Bankruptcy, § 772, pp. 575-576.

Appellants’ next contention, that appellee cannot here recover because of an election of remedies, cannot be sustained for several reasons. In the first place, this contention is being asserted for the first time on appeal. The record reveals that no effort was made in the trial court to assert the defense of election of remedies. The trial court made no findings of fact or conclusions of law with reference to such contention. Appellants urged no objections or exceptions to the court’s findings of fact and conclusions of law as filed. Secondly, appellants did not plead the defense of election of remedies.

In the case of McKenzie v. Carte, Tex. Civ.App., 385 S.W.2d 520, the court considered and overruled identical contentions as made here. The court said:

“The appellants did not object to the findings of fact filed nor did they request any additional findings or conclusions of law. The appellants did not urge the defense of election of remedies in the actual trial of the case, nor did they plead such defense. Betty v. Tuer, 292 S.W. 271 (Tex.Civ.App.1927); Holland Texas Hypotheek Bank v. Broocks, 266 S.W. 183 (Tex.Civ.App.1924, wr. ref.); Nelson v. Seidel, 328 S.W.2d 805 (Tex.Civ.App.1959, wr. ref. n. r. e.).
“In 21 Tex.Jur.2d 210, § 11, Election of Remedies, it is said:
“ ‘The defense of election of remedies, if relied on to defeat recovery, must be specifically pleaded. Pleading is essential regardless of whether a defense is regarded as one of estoppel, election, or waiver. The defense of election must be presented in the trial court, and cannot be urged for the first time on appeal. And the party who sets up the defense of election must show that his opponent actually had two valid, available, and inconsistent remedies, and that he undertook to pursue one.’ ”

Finally, appellants contend that the judgment in several respects, and especially with reference to the order directing them to deliver the insurance policies to Matthews & Matthews, attorneys for appellee, does not conform to the; prayer for relief in appellee’s pleadings. While it is true that the specific prayer for relief does not accord with the court’s judgment yet the petition does contain a general prayer for. relief which, when considered in the light of the entire record, justified the court’s judgment. It has been held that under a general prayer any relief appropriate to the facts proved at the trial may ordinarily be granted and it is for the court to declare what form of relief is appropriate under the pleadings and the evidence. 45 Tex.Jur.2d, § 49, p. 458; Clark v. Wisdom, Tex.Civ.App., 403 S.W.2d 877.

We have carefully reviewed all of appellants’ points and finding no reversible error reflected therein they are overruled.

The judgment of the trial court is affirmed.

Affirmed.


author: SHARPE, Justice.

text:
    Romeo RENDON, Appellant, v. GULF OIL CORPORATION, Appellee.
    No. 331.
    Court of Civil Appeals of Texas. Corpus Christi.
    April 20, 1967.
    Rehearing Denied May 11, 1967.

      Ralph Alexander and Travis Hiester, of Kelley, Looney, McLean & Littleton, Edin-burg, for appellant.
    J. W. Patterson, Jr., of Cox & Patterson, McAllen, for appellee.
   OPINION

SHARPE, Justice.

This appeal is from an order of the district court granting a temporary injunction in favor of Gulf Oil Corporation, ap-pellee, prohibiting and restraining Romeo Rendon, appellant, from refusing to permit appellee and those under contract to it from having free ingress and egress to and from a five acre tract of land situated in Hidalgo County, Texas, and further restraining appellant from interfering in any way with the building of a road along the south boundary line of said tract to permit ingress and egress to the drilling site, and from interfering with the construction and maintenance of all pits, drilling equipment, tanks and other apparatus used in the drilling of an oil or gas well on said tract.

Appellee, Gulf Oil Corporation, as plaintiff, alleged in substance the following: That it is the owner of an oil and gas lease dated August 11, 1964, on the tract in question; that defendant Rendon is the owner of the surface of said property; that under said lease plaintiff, as lessee, is granted the privilege of locating a drilling site for oil and gas on said property and has the right of constructing a road to provide ingress; and egress to and from a drilling site and the right to locate equipment such as is necessarily and customarily used in the operation of drilling oil or gas wells on. said property; that plaintiff had entered into a contract with third parties to locate a rig and drill a well on said tract and to construct a road along its south boundary connecting with U. S. Highway 281; that said lease among other things provided that the lessee shall pay the owner of the leased premises a reasonable sum for damages resulting to the premises or improvements which may be caused by or result from the operations of the lessee under said lease; that said five acre tract is not under cultivation, has no improvements or citrus trees thereon and no business activities are being conducted thereon, and no reason exists to deny plaintiff its right to locate a drill site thereon; that defendant without valid or legal reason has arbitrarily refused to permit plaintiff’s agent or the agents of its contractor to come upon the premises and to commence the construction of a road or the setting up of a drilling rig; that such conduct on the part of defendant is unwarranted and contrary to the legal rights of plaintiff and is causing damage to it at least in the sum of $1700.00 per diem; that unless defendant is restrained he will cause irreparable injury to plaintiff for which there is no adequate remedy at law; that defendant has an adequate remedy at law for all damages that he may sustain or which may be sustained in due course after drilling operations have commenced. Plaintiff prayed for a temporary restraining order without notice and upon hearing for temporary injunction.

Rendon filed an unsworn original answer in which he denied generally the allegations of Gulf’s petition and further denied “that the proposed uses by the Plaintiff of the property which is the subject of this action are in all things reasonable and necessary for the fulfillment of any purported right that Plaintiff might have, but instead would show unto the Court that such use or proposed use by Plaintiff is arbitrary and unreasonable and would in effect deprive Defendant of the substantial use and enjoyment of his property and would render his property substantially valueless.” By way of cross action Rendon alleged in substance that Gulf had unlawfully entered upon his property and damaged same in connection with the establishment of a drilling site or other obnoxious installation and that he was entitled to recover $20,000.00 for actual damages and $40,000.00 for exemplary damages against Gulf as cross-defendant.

The trial court required Gulf to give bond in the amount of $10,000.00 in connection with the orders granting temporary restraining order and temporary injunction.

On this appeal appellant urges three points of error as follows:

“FIRST POINT OF ERROR
The Trial Court erred in granting a temporary injunction in this cause for the reason that by its said order, and by the temporary restraining order which preceded it, the Trial Court in effect removed Appellant from his prior, peaceable possession of realty and instead gave possession of such realty to Appellee, who had never been in possession; thereby changing the status quo rather than preserving it, and also granting Appellee in substance all of the relief which it sought, which action of the Court infringed upon Appellant’s constitutional right to a trial by jury of property rights at a hearing on the merits.
SECOND POINT OF ERROR
The Trial Court erred in granting the temporary injunction in question for the reason that Appellee failed to demonstrate a probable claim to the property in question, or to the right to possession thereof.
THIRD POINT OF ERROR
The Trial Court erred in granting the temporary injunction in question for the reason that Appellee failed to demonstrate probable irreparable injury to it if the injunction were not granted, or the inadequacy of any remedy at law.”

We have concluded that appellant’s points should be overruled and the judgment of the trial court affirmed.

At the hearing on the temporary injunction in the court below the parties stipulated that sixteen exhibits should be admitted into evidence and considered by the trial court for all purposes. In addition ap-pellee offered the testimony of Mr. Floyd White, its employee, who had the title of “Landman”. One of the exhibits considered by the trial court was the lease of said five acre tract executed August 11, 1964, filed for record on October 28, 1964 and later assigned to appellee. Another exhibit, a deed to Romeo Rendon dated March 11, 1966, contained an express provision as follows: “Subject to Mineral Reservations of record and Oil and Gas Leases of record, if any.” Appellee, as lessee under the above mentioned lease, was given the right of investigating, exploring, prospecting, drilling and mining for and producing oil, gas and other minerals, laying pipelines, building roads, power stations, telephone lines and other structures thereon, over and across lands owned or claimed by lessor adjacent thereto to produce, save, take, take care of, treat, transport and own said products on the five acre tract in question. The record further shows that appellee has established a gas unit of 351.81 acres and its geological department has located a drilling site upon appellant’s property.

The sworn petition of appellee alleged that appellant refused without just cause to permit the agents of appellee ingress and egress to the property in question for the purpose of building a road and establishing a drill site. Mr. White testified in support of such allegation and further said that the only reason appellant ever gave for refusing entrance was that he wanted a money damage settlement in advance for the anticipated damages to the surface of the five acre tract owned by him. Appellant was not personally present at the hearing on the application for temporary injunction and offered no evidence, except his counsel stipulated to introduction of exhibits tendered by appellee.

We review the order in question under the well settled rule that an appellate court will not set aside an order of the trial court granting or refusing a temporary injunction unless it be established that the trial court abused its discretion in entering the order. Railroad Commission v. Shell Oil Co., 146 Tex. 286, 206 S.W.2d 235 (1947); City of Corpus Christi v. Gilley, 379 S.W.2d 84 (Tex.Civ.App. Corpus Christi, 1964, wr. ref., n. r. e.).

It is apparent to us from the present record that the pleadings and evidence present a case of appellee’s probable right and probable injury to it. In that situation the trial court is clothed with a broad discretion in determining whether to issue a writ of injunction and such an order will be set aside only on a showing of clear abuse of the discretion. See Texas Foundries v. International Moulders and Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460. There is no abuse of discretion on the part of the trial court in the issuance of a temporary injunction if the petition alleges a cause of action and the evidence adduced tends to sustain it. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549. In this case appellee established that it had a right to use so much of the premises and in such a manner as was reasonably necessary to comply with the terms of the lease and effectuate its purpose. See Warren Petroleum Corporation v. Monzingo, 157 Tex. 479, 304 S.W.2d 362, 65 A.L.R.2d 1352; Phillips Petroleum Co. v. Cargill, 340 S.W.2d 877 (Tex.Civ.App. Amarillo, 1960, n. w. h.); Stanolind Oil & Gas Co. v. Wimberly, 181 S.W.2d 942 (Tex.Civ.App. El Paso, 1944, n. w. h.). This was the last, actual, peaceable, non-contested status which preceded the pending controversy and the status quo to be preserved. Appellant’s wrongful and forcible refusal to respect appellant’s rights under the lease disturbed that status quo and did not create one which is entitled to protection as against the showing made by appel-lee here. Transport Company of Texas v. Robertson Transports, Inc., supra, and cases cited therein at 261 S.W.2d 554. The order of the trial court did not remove appellant from possession, but, instead, prohibited him from interfering with appellee’s rights under the lease until trial on the merits, at which time all issues between the parties may be fully resolved, including those involved in appellant’s cross-action.

The case of Garcia v. Sun Oil Co., 300 S.W.2d 724, 734, 735, 736, (Tex.Civ.App.Beaumont, 1957, wr. ref., n. r. e.) is in many respects similar to the instant case. The court there held in part as follows:

“ * * * Under such an unusual fact situation, it was entirely proper that the trial court protect the evident right to possession which is in the appellee (lessee) by temporary writ of injunction, and at the same time protect any possible right of possession which the appellants may have by requiring a $25,000 bond to be posted by the appellee.”
“To warrant the issuance of a temporary writ of injunction, the applicant need only show a probable right and a probable injury. If the appellants here should prevail on final trial of the suit, they are protected against any inprovident granting of the writ and consequent loss to them by the bond posted by appellee. * * Where the pleadings and the evidence present a case of probable right and probable injury, the trial court is clothed with broad discretion in determining whether to issue the writ of injunction, and such an order will be reversed only on a showing of clear abuse of discretion.”
“ * * * To warrant the issuance of this temporary writ of injunction, the appellee was under the burden only of showing a probable right of title and possession and a probable injury to it unless the writ was granted; it was not required to establish that it will finally prevail in the litigation. Rosenfield v. Seifert, Tex.Civ.App., 270 S.W. 220; Nagy v. Bennett, Tex.Civ.App., 24 S.W.2d 778; High on Injunction, 4th Edition, Vol. 1, Sec. 5, p. 8; Transport Company of Texas v. Robertson Transports, Inc., supra.”

Appellant’s point number one is overruled.

In connection with the appellant’s second and third points of error it appears that at the hearing in the court below appellee offered to prove that it would be irreparably damaged if it should be delayed further in establishing the drill site upon the five acre tract in question. Counsel for appellant made objection to such evidence which was sustained by the trial judge. This action of the trial court becomes immaterial in view of appellee’s sworn allegations to the effect that it would be irreparably damaged. Such allegations were not specifically denied by appellant and therefore stand unrebutted. See Nagy v. Bennett, 24 S.W.2d 778 (Tex.Civ.App. Galveston 1930, wr. ref.); Texas Practice, Vol. 6, Remedies, Lowe and Archer, Sec. 337, pp. 344 — 355. In this situation the probable injury to appellee was sufficiently established.

Appellant’s points two and three are overruled.

Judgment of the trial court is affirmed.


author: COLEMAN, Justice.

text:
    Phillip KOST, Appellant, v. Frank H. LANCASTER, Appellee.
    No. 14996.
    Court of Civil Appeals of Texas. Houston.
    March 16, 1967.
    Rehearing Denied May 4, 1967.

      Richard O. Werlein, Houston, for appellant.
    Thomas G. Bousquet, Houston, for ap-pellee.
   COLEMAN, Justice.

This is a suit by a licensed agent for a real estate broker’s commission. After a trial to a jury a judgment was entered for the defendant.

The most interesting question for decision in this case is whether the unconditional promise to pay a commission to the agent contained in the contract for sale can be enforced by the agent where the sale is not completed.

Appellant was employed by appellee to negotiate the sale of certain real estate. No written contract was executed listing the property with appellant. However, as a result of his efforts appellee entered into a contract by which he agreed to sell the property to Continental International Corporation for $45,000.00 payable as follows:

“$500.00 cash, and the further consideration of the transfer and delivery to seller of $10,000.00 worth of stock of the Continental International Corporation based on the price of $5.00 a share; the further consideration of the assumption and agreement to pay by purchaser of the unpaid balance now due and owing on note held by Gibraltar Savings & Loan Association in the amount of $16,996.11 as of August 16, 1960; and the further consideration of purchaser procuring from Gibraltar Savings & Loan Association an additional loan in the approximate amount of $17,503.89; or an amount so that the unpaid balance on the present loan and the amount of the new loan will aggregate the sum of $34,500.00; * * *”

The contract provided that title to the property would be guaranteed to purchaser at seller’s expense by Stewart Title Guaranty Company. It provided that:

“If STEWART TITLE GUARANTY COMPANY is ready and willing to guarantee said title as above set forth to purchaser and purchaser fails, refuses, or is unable for whatsoever reason to consummate this contract in accordance with the terms hereof, and within 30 days from date of this contract, then the earnest money receipted for shall he forfeited to Seller and Agent equally (however, agent shall not receive more than the commission hereinafter set out) as agreed liquidated damage or seller may enforce specific performance of this contract.”

The contract provided that if Stewart Title Guaranty Company refuses or is unable to guarantee the title to the property for whatsoever reason upon the cancellation and return of the contract the earnest money should be returned to the purchaser, or he might enforce specific performance of the contract.

There is a provision that “Seller agrees to pay L. P. Kost, Agent, 5% of the total purchase price as a commission.” It was also provided that the contract was subject to the approval of the Board of Directors of the Continental International Corporation. The contract was dated August 23, 1960.

On August 24, 1960, the corporation, made an application for a $35,000.00 loan from Gibraltar Savings & Loan Association. On September 8, 1960, the application was returned along with a letter stating that the loan would not be granted. Clyde Austin, President of Continental International Corporation, testified that on the 9th or 10th of September, he called appellee and told him that the corporation would pay cash instead of securing the loan and demanded that appellee go through with the deal. He testified that appellee told him that he did not want to go through with the deal. Austin testified that he offered to assume the mortgage, issue the stock and pay $17,000.00 cash, and finally when appellee would not agree to any other terms, he offered to pay $45,000.00 in cash. He testified that the company was ready, able, and willing to complete the purchase on an all cash basis.

On September 20, 1960, Austin wrote ap-pellee a letter reading:

September 20, 1960
Dr. Frank H. Lancaster
1729 Sunset Blvd.
Houston, Texas
Dear Dr. Lancaster
Reference is made to our agreement with you for the purchase of the property known as 5727 Kirby Drive, Houston, Texas. Please be advised that we desire to complete this purchase on or before September 23, 1960, as called for in the agreement.
We have made our financial arrangements and are ready, willing and able to close this purchase and ask that you let us have your abstract of title or other evidence of ownership in order that our attorneys may give us an opinion on same.
Yours very truly, CONTINENTAL INTERNATIONAL CORP-
CA/en
Appellee replied to this letter by a letter dated September 22, 1960, reading:
September 22, 1960
Mr. Clyde Austin
Continental International Corporation
4608 South Main Street
Houston 2, Texas.
Dear Sir:
Your letter dated the 20th instant was received in my office this afternoon. When Mr. Kost informed me that you were unable to get the loan through the Gibraltar Savings and Loan Association as specified in the earnest money contract, I called the Gibraltar Association and was informed that the loan had not been approved as Mr. Kost had said.
It was uncertain then as to when or how you would proceed to get the money and I consulted my attorney who informed me that I was no longer obligated under the original contract. I then wrote Mr. Kost and enclosed is copy of this letter which I supposed he had discussed with you. I presumed your check had been returned as I requested.
I later talked with Mr. Kost and advised him that negotiations with your firm could be continued only on the basis of a new contract.
Since no new contract has been presented, I considered the matter closed and have again listed the property with other agents for sale.
Very truly yours,
/s/ Frank H. Lancaster
Frank H. Lancaster, M. D.
FHL :ed
Mr. Kost was in the office and advises he has returned your check.
/s/ F. H. Lancaster
Accompanying this letter was the letter to appellant dated September 8, 1960, reading:
September 8, 1960
Mr. L. P. Kost 1502 Branard Houston, Texas
I am informed by the Gibraltar people that they are unable to approve the loan to the Continental International Corporation as requested and would return the file and check for earnest money to you.
My attorney advises that this action makes our earnest money contract null and void and I request that you return the check to the Continental International Corporation and consider the transaction closed as of this date with no further obligation on my part to consummate this sale.
Yours truly,
Frank H. Lancaster, M. D.

Austin testified that after receiving the appellee’s letter of September 22, 1960, he talked to appellant asking him to see if he couldn’t complete the deal and that he called appellee, but was unable to reach him. He testified that the sale was not completed and that, as he recalled it, he got his earnest money check by letter from Gibraltar.

Mr. Kost testified that he did not return the earnest money check to Mr. Austin and that he didn’t know who returned it. He stated that after Gibraltar turned down the loan he talked to appellee, who told him that he didn’t believe the deal was going through and that he was not going to wait until the thirty day period was over. Mr. Kost then gave this information to Mr. Austin. He had no other discussion with appellee about the matter.

■Appellee testified that he had talked to the Continental people about selling them the property but they had reached no agreement, so he told Mr. Kost to contact them and see if he could work out a deal. Mr. Kost came to him with the proposition of taking some stock and “he pictured them with very glowing terms of how busy and all they were and what a fine company it was,” and he. agreed to take the stock as part payment since he was getting a fairly good cash payment which was what interested him. He testified that he knew nothing of the company and had never met any member of the organization. He testified that the deal hinged on whether they could borrow the money from Gibraltar, but that this was their suggestion. While the agreement was that Continental would assume the existing loan, it was his understanding that he would be relieved of liability on the loan.

Appellee testified that Mr. Kost told him that Gibraltar had turned down the loan and he told Kost that the deal was off if they did not make the loan. He testified that he did not think he ever saw the earnest money check and that he thought Mr. Kost handled that part of it.

He testified that he sold the property to Meyer & Balsón for some notes. He had been talking to them before he signed the contract with Continental, but the deal entailed no cash and he was interested primarily in cash. The deed to Meyer & Bal-són was dated September 23, 1960.

Appellee testified that he talked with Mr. Austin on the telephone several times before the contract was signed, but not after that time. He could not recall Mr. Austin telling him that Continental would pay cash for the property. He testified that Continental never gave him any indication that it was going to put up any money at the title company. He testified that when he received Mr. Austin’s letter, he checked with “his” bank, and while he could not get any specific information, he was told that his account did not run over four figures. He testified that he was sure that if Continental had paid $27,000.00 cash into the title company, he would have proceeded with the sale. Another time he stated that if Continental had paid $27,000.00 cash and assumed the loan balance, “very likely” he would have proceeded with the sale. He said he was interested in cash— that he would have gone through with the deal if they could have paid him all cash and no stock. In the sale to Meyer & Bal-són, Inc. he received no cash, but, instead, twelve first and second lien notes on other property with an unpaid balance of $30,-000.00. In his opinion the market value of the notes was a lesser amount. He admitted that on September 22, 1960, the final day for performance of the contract, he received Mr. Austin’s letter and replied to it. He testified that prior to that time he had told Meyer & Balsón, Inc. that if the Continental deal did not go through, he would deal with them, but he denied that he prevented the deal from going through, or refused to accept the offer of cash. He did not ask him for the money. He testified that he would have been happy to get all cash.

The binding effect of the contract is not expressly conditioned on the ability of the purchaser to secure a loan in the agreed amount from Gibraltar. However, the petition on which appellant went to trial contained this statement: “As shown in said contract, one of the conditions of the agreement was that the purchaser procure a loan in the approximate amount of * * * ” In his answer appellee pled: “Defendant agrees with plaintiff as pled by him that the obtaining of the loans described in such contract was a condition of the contract; a condition on which was based the obligation of the purchaser to buy, and the seller to sell, and consequently Plaintiff’s earning a commission.”

While the contract must be considered conditional, the condition was inserted for the benefit of the purchaser. The purchaser testified that he was ready to pay cash, and, in effect, waived the condition by the letter of September 20, 1960. Since this letter was received by appellee on September 22, 1960, the day preceding his sale to a third party, it is undisputed that he knew that the purchaser was insisting that the contract was a binding obligation at the time the sale was made.

The letter written by appellee to appellant on September 8, 1960, states that he has been advised by his attorney that the failure of the purchaser to secure the Gibraltar loan rendered the earnest money contract null and void and requested appellant to return the earnest money check to the purchaser and consider the transaction closed with no further obligation on appellee’s part to consummate the sale. Appellee’s action in writing the purchaser on September 22, 1960, enclosing a copy of this letter and advising Mr. Austin that he considered the matter closed and had listed the property with other agents for sale reaffirmed the position taken in the letter of September 8, 1960.

This letter, as well as the action of ap-pellee in conveying the property on September 23, 1960, effectively prevented the performance of the contract on the part of the purchaser by paying cash. The time for performance had not expired. The thirty day time limit was conditioned on Stewart Title Company being ready and willing to guarantee the title. There is no evidence that the title company was ready or willing to guarantee the title. The purchaser’s letter of September 20 requested evidence of this fact, and it was not furnished.

In Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725 (1930), the Supreme Court of Texas describes as “well established” these rules:

“ ‘A commission ordinarily becomes payable on completion of the transaction which the broker was employed to negotiate, unless there is a stipulation in the contract of employment to the contrary. If by the contract of employment the broker is merely to find a customer who is able, ready, and willing to enter into a transaction with the principal on the terms prescribed by him, the broker is entitled to compensation on performing that service, whether or not the principal completes the transaction. Thus a broker employed to find a purchaser or a vendor or to exchange lands ordinarily becomes entitled to a commission on the execution of a contract of purchase or sale or exchange, although without any fault on the part of the broker the contract is never carried out, unless there is a stipulation, express or implied, making his right to compensation depend on the performance of the contract or the happening of some other event.’ 9 C.J. p. 591, § 86b.
“ ‘A broker employed to find a purchaser or seller is not entitled to a commission where no sale is made, unless the purchaser or seller is able, ready, and willing to take or to sell the property on the terms specified by the principal, although this general rule is subject to exceptions depending on the facts of the particular case, as where the broker effects a sale with a person designated by the principal, or where the broker acts in good faith, and the principal accepts his customer and enters into a contract with him, in which case the question of the customer’s ability, readiness, and willingness is no longer open to question. On producing a person who is ready, able, and willing to take the property on the terms prescribed, the broker becomes entitled to a commission whether or not a sale is consummated, unless the failure to consummate the sale is due to the fault of the broker, or unless he waives his right to his commission.’ 9 C.J. p. 595, § 87(2).”

In the early case of Moss & Raley v. Wren, 102 Tex. 567, 113 S.W. 739 (1908), on motion for rehearing, 102 Tex. 567, 120 S.W. 847, the court said: “If the vendor of the land can enforce a specific performance of the contract to pay for it, then the broker has effected a sale, valid in law, and is entitled to his compensation. * * * ”

In Frances v. Foster, 113 Tex. 521, 260 S.W. 1023 (Tex.Com.App., 1924, opinion adopted), the court quoted the rule applied by the Commission of Appeals of Texas in Keener v. Cleveland, 250 S.W. 151, as follows : “ ‘And where the seller accepts the purchaser tendered, it is not necessary to show that he was ready, willing, and able to buy.’ ” The opinion continued:

“The position is taken in the dissenting opinion on the case now before us that the rule above stated applies only to cases of the sale of real estate where specific performance may be enforced, but upon an investigation of the authorities we cannot agree with this contention, but are of the opinion that the holding quoted is based upon the principle that, when the seller enters into a binding contract with, a purchaser acceptable to him, the seller assumes the risk as to whether or not the purchaser will be in position to perform his part of the contract, and that when such contract is so entered into by the seller the agent has performed all the duties that he can perform under his employment.”

This rule has been followed consistently by the courts of civil appeals in Texas. Miller v. Carlson, 390 S.W.2d 64 (Tex.Civ.App.-Texarkana 1965, writ ref., n. r. e.); McNeil v. McLain, 272 S.W.2d 573 (Tex.Civ.App.-Ft. Worth 1954, no writ hist.); Peters v. Coleman, 263 S.W.2d 639 (Tex.Civ.App.-Ft. Worth 1953, writ ref., n. r. e.) ; Caneer v. Martin, 238 S.W.2d 828 (Tex.Civ.App.-Waco 1951, writ dism.).

In this case appellee suggested to appellant that he negotiate a sale of the property with the buyer. Appellant entered upon such negotiations with the buyer and procured an acceptable contract, which was executed by all parties. The provision in the contract by which appellee agreed to pay a commission to appellant was not conditioned on the completion of the sale and there is no contention that such a condition was omitted from the contract by reason of fraud, accident or mistake.

The trial court erred in failing to grant appellant’s motion for instructed verdict insofar as his claim for real estate commission is concerned.

Appellant was entitled to recover reasonable attorney’s fee as authorized by Article 2226, Vernon’s Ann.Tex.Civ.St.; Texas Reserve Life Insurance Co. v. Security Title Co., 352 S.W.2d 347 (Tex.Civ.App.-San Antonio 1961). An issue was submitted to the jury to determine the amount of such an attorney’s fee. The jury’s answer “none” is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. This portion of the cause of action is ordered severed.

The judgment of the Trial Court is reversed and judgment is here rendered against Frank H. Lancaster and in favor of Phillip Kost in the sum of Two Thousand Two Hundred Fifty ($2,250.00) Dollars with interest thereon at the rate of 6% per annum from September 22, 1960. The cause of action in respect to the attorney’s fee is hereby remanded to the District Court of Harris County, Texas, for trial.

Reversed and rendered in part, and in part reversed and remanded.

WERLEIN, J., disqualified and not sitting.