author: CLAYTON, Justice.

text:
    SUNLAND SUPPLY COMPANY, Inc., Appellant, v. The STATE of Texas, Appellee.
    No. 5693.
    Court of Civil Appeals of Texas. El Paso.
    May 12, 1965.
    Rehearing Denied June 2, 1965.

      Irion & Rash, El Paso, for appellant.
    Waggoner Carr, Atty. Gen., Watson C. Arnold, T. B. Wright, Fred Spence, Asst. Attys. Gen., Austin, for appellee.
   CLAYTON, Justice.

This is a condemnation case filed by the State of Texas as condemnor-appellee against the appellant corporation, con-demnee. The award of the commissioners to appellant was $34,100.00. Objections and exceptions to this award were filed in the County Court at Law of El Paso County, Texas by the condemnee. No issue was made as to the right and power of the con-demnor to take the property, the sole issue being that of the fair market value of the property taken. In a trial before a jury this single issue was answered, “$35,-500.00.” From judgment on this finding, condemnee appealed.

In appellant’s first point of error, objection is made to the action of the court in excusing a juror who had, on voir dire, indicated he might give more credence to appellant’s side of the case, since he was acquainted with one of appellant’s attorneys. From an incomplete record of what took place, it seems that the court then took over questioning of the juror and was told by the juror that the latter was not sure in his own mind that he could weigh the evidence without having his acquaintance with the attorney weigh with him, also. The court then excused the jur- or, and appellant complains that it was not allowed an opportunity to “rehabilitate” the venireman before he was excused. As stated, there is not here a complete record of the voir dire examination, nor is there any bill of exception taken on the complained-of point. It appears that this matter is governed by the decision in Bashrum v. Vinson, 330 S.W.2d 538 (Tex.Civ.App., 1959, ref., n.r.e.), and under such authority this first point of error is overruled.

By Points of Error Nos. II and III appellant complains of the action of the court in excluding his Exhibit No. 17 (a color picture of the interior corner of one room of the condemned building) and confining the jury’s consideration of other exhibits (Nos. 1 through 16, 18 through 23 being other color photographs of the interior of the condemned building, and Nos. 25 through 34 being black and white photographs of both the interior and exterior of the building) to a consideration of only the walls, floors and ceilings portrayed in such exhibits. All these exhibits save one (the exterior photograph) show merchandise, being displayed for sale, storage or repair, and also office furniture and equipment, and in particular No. 17, the excluded photograph, shows only a portion of a room almost entirely taken up by merchandise displays and advertisements. We cannot see that the exclusion of this exhibit, under the circumstances, was harmful to appellant, especially so since it is cumulative of other exhibits which were admitted in evidence for properly limited consideration. Finally, the trial judge is accorded considerable discretion in the admission or exclusion of photographic evidence. Texas Law of Evidence, McCormick and Ray, Vol. 2, § 1465, pps. 320, 321. City of Fort Worth v. Barlow, 313 S.W.2d 906, 913 (Tex.Civ.App., 1958, ref., n.r.e.); State v. Clarke, 383 S.W.2d 953 (Tex.Civ.App., 1964, n.w.h.). The second and third points of error are overruled.

By Point of Error No. IV appellant complains of the action of the court in excluding as an exhibit a roughly drawn plat or diagram of the floor plan of the property in question on which were marked the camera angles of defendant’s photographic exhibits Nos. 1 through 34. The plat was sketched before the jury and these various camera angles shown by arrows, but the drawing was excluded as an exhibit and the jury not allowed to take it with them in their deliberations. If this was error, we believe it to be harmless error, since the actual photographs were admitted as exhibits and the rough plat, not drawn to scale, was, if anything, cumulative of the picture evidence and did not add any illumination of vital controverted issues. In that respect, the case of Dallas Ry. & Terminal Co. v. Durkee, Tex.Civ.App., 193 S.W.2d 222, cited by appellant, is distinguishable. Point IV is overruled.

Point of Error No. V asserts error in the court’s refusal to allow testimony as to the insignificant cost of bringing the load limit of the main floor of the condemned building within limits required by the City Building Code for M-l or light manufacturing usage. The building, when taken, was used for commercial sales of radio, television and electronic supplies and appliances, as well as the stocking and repair of those and related merchandise. The testimony offered and excluded, as seen by testimony offered under the bill of exception, would have shown that with an expenditure of approximately $980.00 on the main floor of the building could have been supported and strengthened to the allowable minimum limits for light manufacturing under the building code. Appellant takes the position that the testimony was admissible to show the acceptability of the property for such usage, or, as stated in the bill, “to show the cost of curing of a curable obsolescence or depreciation, in order to make it achieve a status of its highest and best use”. Appellant cites and quotes from State v. Carpenter, 89 S.W.2d 194, a Commission of Appeals opinion adopted by the Supreme Court. This opinion was enlarged by the Supreme Court in City of Austin v. Cannizzo, 267 S.W.2d 808, 815, in which the court states:

“We are unwilling to lay down a hard and fast rule that in arriving at market value consideration may never be given to a use for which property is reasonably suitable and adaptable but which use is presently prohibited by a zoning ordinance. It is a matter of common knowledge that cities frequently lift zoning ordinances or reclassify property in particular zones when the business or wants of the community justifies that type of action in the interest of the general public welfare. At the same time, we cannot announce a rule, except in general terms, that should be applied in all cases where zoning ordinances or other legal restrictions existing at the time of the taking prohibit the use of the property for purposes other than those to which it is devoted. If the trial judge is satisfied from the evidence as a whole that there is no reasonable probability that existing restrictions may be lifted within a reasonable time, he should exclude evidence of value based on use for any purposes other than those to which it is restricted. On the other hand, if it appears reasonably probable to the trial judge that the wants and needs of the particular community may result, within a reasonable time, in the lifting of restrictions, he should admit testimony of present value based on prospective use of the property for purposes not then available. Whenever such testimony is admitted it would not do violence to the definition of ‘market value’ suggested in the Carpenter case by adding thereto so as to have it read: You are instructed that the term ‘market value’ is the price which the property would bring when it is offered for sale by one who desires, but is not obliged to sell, and is bought by one who is under no necessity of buying it, taking into consideration all of the uses to which it is reasonably adaptable and for which it either is or in all reasonable probability will become available within the reasonable future. This definition will permit the jury to give such weight to the probability of the lifting of restrictions as it thinks a prospective purchaser would give.”

There are factual differences between these two cases and the one at hand, since the former deal with zoning ordinances and the present case has to do with the City Building Code. We take the principles involved to be the same, however. But in the present case the proffered testimony was not correlated to the time of the taking and the City Building Code was not properly proven up. Nor is there any showing that the expenditure referred to in bringing the property up to the requirements of the building code for M-l light manufacturing would enhance the market value of the premises. We see no abuse of discretion on the part of the trial court in rejecting the testimony under the circumstances, and we therefore overrule Point No. V.

The appellant complains in Point of Error No. VI that the court erred in denying appellant the opportunity of voir dire examination of appellee’s appraisal witness outside of the presence of the jury, thus permitting testimony of the witness on direct examination relative to a “comparable” sale which was shown on cross-examination not to meet the test of comparability, as set out in Point of Error No. VII. When the appellee’s appraisal witness was on the stand on direct examination, testifying to the “income approach” to the value of the condemned property, the witness was asked by appellee if he had with him pictures of the properties which he had considered in arriving at his conclusions. The witness presented certain pictures which the court reporter was asked to mark as exhibits. At this point appellant asked that he be allowed to take the witness on voir dire examination in the absence of the jury. He was allowed to take the witness on voir dire, but only in the presence of the jury. The appellant excepted to this ruling and declined to conduct his examination in the presence of the jury. Thereafter the witness went into his “market value” approach to the value of the property and placed this value in round figures as $35,500.00, the exact figure found by the jury in answer to the sole issue. In his direct testimony the appraisal witness used as a comparable the sale of some premises which in the record came to be known as the sale from “Fuentes to Friedman”. On cross-examination the appellant brought out that this was a foreclosure sale under a deed of trust and the price paid was $13,675.00, the highest bid. The witness justified his consideration of this sale as a comparable sale by saying that he had confirmed the sale with the purchaser, Friedman, who told him that the price paid was “true market value” and that he “would not have paid a dime more for it”. The appraisal witness further testified that he had included this sale in his report as a foreclosure sale. The appellant called the purchaser Friedman to the stand and the latter denied that he had ever at any time made the statement to any person that he considered he had paid full market value for the property he bought. On appellee’s cross-examination the purchaser said, “I think I got a steal”, and “I think it was worth at least double what I paid for it”, and that some appraiser had called him and was told by the purchaser that the property had been a very good buy, that he had paid much less than it was worth but at no time told the caller that he thought that he had paid the fair market value of the property; that he had bought the property for the land and had torn down the building that was on it, using only some of the walls and part of the foundation and had built a two-story building on the land because he considered it a good corner and valuable for commercial purposes.

We have carefully considered the matters raised in these two points of error— Nos. VI and VII — and have concluded that they must be sustained. Appellee’s appraiser indicated that he knew the meaning of market value, having given a fairly accurate definition of the term in the following language: “Market value is the highest price estimated in terms of money that a property would bring if offered for sale in the open market, given a reasonable time for this property to sell and being bought by a purchaser and selling by a seller, neither of which are under any form of duress”. The appraiser said he had not tried to keep the nature of this sale back and had outlined in his report that this was a foreclosure sale, so that in all likelihood appellee’s attorneys were as fully informed as the appraiser of the character of the transaction, yet the matter went before the jury and the appellant was placed in the position of having to rely on cross-examination to develop his claim to the objectionable qualities of the transaction. This might have been avoided had he been allowed to present his objections on voir dire examination in the absence of the jury. We cannot say that the error thus resulting was harmless, especially since the market value as found by the jury was precisely in the same amount as the rounded-out figure given by this appraisal witness. Robards v. State, 285 S.W.2d 247, 249 (Tex.Civ.App., 1955, ref., n. r. e.). Points Nos. VI and VII are sustained.

Points of Error Nos. VIII through XII relate to the introduction of various State’s pictorial exhibits. As stated before, the trial court is accorded considerable discretion in the admission or exclusion of photographic evidence, and since no abuse of such discretion is revealed in these points of error, the same are overruled.

Point of Error No. XIII is directed at statements made by or questions on cross-examination asked by counsel for appellee which appellant claims amount to fundamental error. The witness was the Executive Vice-President of appellant company, by whom counsel for appellee was attempting to prove up a letter from the Texas Highway Department to -appellant preparatory to the attempted introduction of such letter in evidence. Part of the contents of this letter had been previously excluded and upon objection of appellant’s counsel the introduction of the letter was denied at this time. During the cross-examination counsel for appellee asked the witness: “Isn’t it a fact, Mr. Grosser, that you and Mr. Shapiro [the President of the company] want to make considerable profit on the building even now after having used it for twenty or thirty years?” Objection was sustained to this inquiry. We feel that these matters were definitely objectionable and the rulings of the court were proper, but we do not feel that the record reflects fundamental error.

Finding no error or need for discussion in Point No. XIV, the same is overruled. This is true also of Point No. XV.

By granting appellee’s motion in limine to suppress evidence the court ordered the suppression of any evidence, question, answer or- allusion whatever to the fact that the United States Government would or might contribute 90% of the cost of acquiring the right of way and of constructing a highway thereon. This is called to our attention by Point of Error No. XVI, with the complaint that counsel for appellee, in jury argument, violated the terms of its own motion and the court’s order on several occasions. Appellant points to language used by counsel for appellee such as: “ * * * what should the State of Texas pay, and the people of Texas pay, for this building that they are taking for the purpose of building a new highway thereon”; “Now, I tell you, if the State has to pay for this old property * * *»■ “this corporation [appellant] wants the State of Texas to set them up in a new building, to set them up in a new location, a better location, and give them enough money to do it where they won’t be out a dime * * * ”; “* * * the prices that the State pays in proportion to what it is is the same for all * * *” and the like. This language is improper and should be strictly avoided in the event of another trial, but since objection was not made to the language at the time it was used, nor any bill of exceptions taken, (Prichett v. Highway Insurance Underwriters, 309 S.W.2d 46, 50 (Tex.S.Ct., 1958), Point No. XVI is overruled, as are also Points Nos. XVII, XVIII and XIX, for the same reasons.

Points of Error Nos. XX, XXI and XXII are “shotgun” points and complain of the cumulative effect of the errors set out in the previous points. In view of our decision to reverse and remand this cause for reasons stated above, we find it unnecessary to act under these points or to comment upon the same, and comment is here omitted.

This cause is reversed and remanded to the trial court for new trial.


source: Caselaw Access Project

author: LANGDON, Justice.

license: Public Domain

text:
    E. M. RUSSELL, M. D., et al., Appellants, v. Grace GARRETT et al., Appellees.
    No. 16647.
    Court of Civil Appeals of Texas. Port Worth.
    June 18, 1965.

      Borden, Hand & Zellers and I. B. Hand, Weatherford, for appellants.
    Fulgham & Grogan and Frank E. Ful-gham, Weatherford, for appellees.
   LANGDON, Justice.

This appeal is from two cases, consolidated by agreement for trial, involving the construction of a single will.

The pertinent facts stipulated to by the parties and appearing of record are:

July 27, 1900 — T. S. and Emma Cogdell were married. There were no children of the marriage by adoption or otherwise. Their marriage to one another was the only marriage for either. Prior to marriage a 570 acre tract of land was conveyed to T. S. Cogdell and subsequent to marriage a 112 acre tract was conveyed to him.

April 10, 1920 — T. S. and Emma Cogdell executed a joint, mutual and contractual will.

July 23, 1920 — T. S. Cogdell died.

October, 1920 — Emma Cogdell probated the joint will as the will of T. S. Cogdell and qualified as the independent executrix of the estate. She took possession of all the community and separate property belonging to her and to T. S. Cogdell to the exclusion of the legatees and devisees under the will and all others. She leased the two tracts of land for several years and sold various other tracts of land inventoried in the T. S. Cogdell estate and appropriated the proceeds derived from lease and sales exclusively to her own use and benefit. All debts, if any, owed by T. S. Cogdell at the time of his death were paid.

Under the provisions of the joint will the survivor was to receive a life estate in all property, real, personal and mixed without the power to sell any of the real estate, “with remainder in fee as follows. * * * ”

The defendants and cross-plaintiffs (ap-pellees herein) are the legatees and devisees named in the will of T. S. and Emma Cog-dell to receive the remainder estate.

January 29, 1963 — Emma Cogdell died in Weatherford, Parker County, Texas. The joint will probated in 1920 as the will of T. S. Cogdell was probated as the will of Emma Cogdell. It was not opposed.

All of the property listed in the inventory of the T. S. Cogdell estate, except the two tracts of land above described, was disposed of by Emma Cogdell during her lifetime and the proceeds appropriated to her use and benefit. There is no other property in the Emma Cogdell estate.

January 4, 1964 — Parker County, Texas, owner and operator of Campbell Memorial Hospital, and E. M. Russell, M. D., in separate suits filed in the District Court obtained judgments against Grace Garrett, administratrix of the estate of Mrs. T. S. (Emma) Cogdell. The plaintiffs (appellants herein) in the two causes of action above described thereafter filed separate suits against Grace Garrett, individually and as administratrix of the Estate of Mrs. T. S. (Emma) Cogdell, deceased, and the re-maindermen or representatives thereof under the joint will of T. S. and Emma Cog-dell, seeking to subject the two remaining tracts of land, previously described, to liens for payment of the two judgments. The defendants (appellees herein) filed cross-actions in trespass to try title.

Trial to the court without a jury resulted in judgment that plaintiffs (appellants) take nothing as to their suits and that the defendants recover title and possession of the tracts of land from plaintiffs.

By three points of error the appellants contend the court erred in holding that title to the two tracts vested in appellees upon the death of T. S. Cogdell in 1920 and were not subject to liens or charge for the payment of the debts of Emma Cogdell, deceased, including expenses of the administration of her estate.

We affirm.

“A remainder is vested where there is a person (or persons) in being who would have an immediate right to possession on the termination of the intermediate estate. It is an immediate right of present enjoyment, or a present right of future enjoyment; * * 37 Tex.Jur.2d 41, “Life Estates, Remaindermen, Etc.”, § 23. In § 22, page 40 of the same text it is stated, “The law favors the vesting of estates at the earliest possible period. Accordingly, a remainder will not be construed as contingent where it can reasonably be taken as vested.” Caples v. Ward, 107 Tex. 341, 346, 179 S.W. 856 (1915); Moore v. Moore, 198 S.W. 659 (San Antonio Civ.App., 1917, ref.); Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588 (1954), and cases cited therein.

At the death of T. S. Cogdell in 1920 the remaindermen each took a vested remainder subject to Emma Cogdell’s life estate. Having probated the will and having accepted the benefits. thereunder, she was estopped to change any of its provisions. Any change in the will or the handling of the estate of Emma Cogdell in a manner repugnant thereto could not have affected the rights of the beneficiaries thereunder. The 1920 joint will attached to that property belonging to T. S. and Emma Cogdell at the time of T. S. Cogdell’s death. Murphy v. Slaton, and Moore v. Moore, supra.

In the latter case it was held that at the time Mrs. Moore signed a note and deed of trust she owned only a life estate which terminated on her death and the holder of the note was limited to the exact title she had. She could mortgage only her life estate. Upon her death the life estate terminated and the remaindermen obtained their portion of the estate free from the debt. See also Larrabee v. Porter, 166 S.W. 395 (Austin Civ.App., 1914, ref.).

We find no merit to appellants’ contentions that Emma Cogdell “elected not to take under the will of T. S. Cogdell”, or that since the joint will was contractual in nature the provision in paragraph one directing “our just debts be paid as soon as the same can be conveniently done”, would subject the two tracts of land and in particular the community tract to the debts of Emma Cogdell.

The fact that Emma Cogdell disposed of all of the personal property of the estate and in spite of the prohibition against it sold certain other tracts of land inventoried in the T. S. Cogdell estate is a matter between her and the remaindermen. It did not alter the rights of the latter under the joint will or the status of the property. Trimble v. Farmer, 157 Tex. 533, 305 S.W.2d 157 (Tex.Sup.Ct., 1957).

“It is a well settled rule that life estates in personal property are not favored. By this is meant that the first taker will be given an absolute fee, instead of a life estate, unless the language of the instrument clearly and unequivocally manifests a different intention. It is also well settled that as regards personal property, language that usually confers a life estate, unless followed by a gift over, vests title absolutely.” 37 Tex.Jur.2d, “Life Estates, Remainders, Etc.”, p. 14, § 6, and cases cited.

All points of error are overruled and the judgment of the trial court is affirmed.


author: BATEMAN, Justice.

text:
    FIRST NATIONAL BANK IN DALLAS, Independent Executor, Appellant, v. R. Dean HAWN, Appellee.
    No. 16492.
    Court of Civil Appeals of Texas. Dallas.
    May 14, 1965.
    Rehearing Denied July 2, 1965.

      Matthews, Payne, Pace, Sands & Ben-ners, Fred H. Benners, Dallas, for appellant.
    Earl Luna and Ben Atwell, Dallas, for appellee.
   BATEMAN, Justice.

This is a suit on a promissory note for $4,610.92. Two judgments were rendered, and the sole question presented here is whether the first was such a final judgment as would preclude the entry of the second. Appellee R. Dean Hawn filed suit on the note on March 20, 1962 against Jack Story and Murray Samuell. Both defendants were served and both answered by their attorney. Payments in the sum of $3,000 were made while the suit was pending. Appellee filed a motion for summary judgment against Story and Samuell for the unpaid balance of $1,610.92. On July 4, 1963, while the motion was pending, Sam-uell died. On August 28, 1963, without filing or making any suggestion of Samuell’s death, appellee presented his motion and obtained summary judgment against Story alone for $1,610.92 with interest, attorney’s fee and costs. The judgment also provided that execution issue. No mention of Sam-uell appears in this judgment. Appellee requested an abstract of this judgment and had execution issued thereon.

Thereafter, on December 10, 1963, no part of that judgment having been paid or collected, appellee filed in the same suit a suggestion of Samuell’s death and obtained a writ of scire facias addressed to the appellant First National Bank in Dallas, Independent Executor of the Estate of Murray Samuell, Deceased, ordering it to appear and defend the suit for Samuell’s estate. Appellant answered and pled that the judgment of August 28, 1963 was a final judgment and res judicata and moved the court to quash the writ of scire facias. The motion to quash was overruled and on June 12, 1964 the second summary judgment was rendered, similar to the first except that it was against Jack Story and the appellant, jointly and severally, and except that no attorney’s fee was included.

By its first point of error appellant says that the trial court erred in issuing the order for scire facias, in overruling the motion to quash and in entering the second judgment because the first was a final judgment, not only by its terms, but also according to the circumstances of the case and the intent of the parties. We agree with appellant.

When one of the defendants died during pendency of the suit appellee had the right, under Rules 152 and 155, Vernon’s Texas Rules of Civil Procedure, to have suggestion of death entered on the record and then either have the representative of the deceased defendant brought in by scire facias or proceed against the surviving defendant. He chose the latter course, except that no suggestion of death was filed.

Appellee argues that the first judgment was interlocutory because it did not dispose of all the parties. It is true that no order was entered discontinuing the action as against Samuell, which perhaps would have been the better practice, but we do not think the absence of such an order, or of an order of severance prevented the judgment of August 28, 1963 from being a final judgment. Under the facts and circumstances shown by this record, Samuell was as effectively dropped as a defendant as if an order of dismissal had been entered. Ridley v. McCallum, 139 Tex. 540, 163 S.W.2d 833, 836. As a matter of law, his death removed him as a party, for a suit cannot be maintained against a dead man. Neither was his estate a party in the absence of affirmative acts making it a party and notifying its representative. The estate could easily have been substituted for Samuell as a defendant, but appellee did not see fit to avail himself of this privilege. Blum v. Goldman, 66 Tex. 621, 1 S.W. 899; Baker v. Arnett, Tex.Civ.App., 106 S.W.2d 849, wr. dism. At the time of the first judgment, therefore, Story was the only defendant in the case.

Moreover, Rule 301, T.R.C.P., provides, inter alia, that “Only one final judgment shall be rendered in any cause except where it is otherwise specially provided by law.” Having elected to proceed under Rule 155 against the surviving defendant, approving a judgment against that defendant, final in form, and having execution issued under that judgment, and that judgment having become final at the expiration of thirty days after its date (Rule 329b), appellee had no right to re-enter the suit on December 10, 1963 and at that late date suggest Samuell’s death and endeavor to reinstate the suit as to his legal representative. Cash v. Kosberg, Tex.Civ.App., 374 S.W.2d 773, wr. ref. n. r. e. The first point of error is sustained.

It is not necessary for us to pass on appellant’s second point of error, which is submitted alternatively.

For the reasons stated, the judgment appealed from is reversed and judgment is here rendered that the writ of scire facias addressed to appellant be quashed.

Reversed.


author: PHILLIPS, Justice.

text:
    REAVES & BECKER COMPANY, Appellant, v. The WILKES COMPANY, Appellee.
    No. 11313.
    Court of Civil Appeals of Texas. Austin.
    June 16, 1965.
    Rehearing Denied July 7, 1965.

      Sneed & Vine, J. P. Darrouzet, J. B. Sel-man, Austin, for appellant.
    Don L. Baker, Thomas H. Watkins, Austin, for appellee.
   PHILLIPS, Justice.

During the years 1961, 1962 and 1963, appellant purchased duct work, air conditioning and heating equipment from appellee and paid for these items. As there was some question as to whether appellee’s sales were subject to the tax imposed by Article 20.02 (Taxation General) V.A.T.S., it did not bill appellant for the sales tax; however, on a determination being made by the State Comptroller that the tax was due and owing, appellee billed appellant for $209.49 for such tax. Appellant refused to pay; hence, this lawsuit.

The trial court granted judgment to ap-pellee for the full amount of the tax, plus attorney’s fees. We affirm this judgment.

Appellant does not contend that the items sold to it were not amenable to the tax. Neither does it deny that the sales tax was not paid, nor plead the Statute of Limitations or Laches or any other matter relating to lapse of time.

Appellant under its first point of error asks this question and we quote from their brief: “The question under this point of error is squarely presented to the court. Can a retailer (appellee) not charge a sales tax^ and sue thereafter on ‘account’ and recover it?”

We answer this question in the affirmative.

All of the abovementioned items (with the exception of two valued at $57) were sold to appellant while Article 20.02 was in effect. This article was amended in 1963 and the effect of this amendment will be discussed later. Art. 20.02 provided that the tax imposed should be collected by the retailer from the consumer. The statute did not state when the tax was to be collected nor did it state that if the retailer fails to add the tax on the invoice that is originally sent that the tax is not due and owing. The law merely states that the retailer shall collect the sales tax due and owing to the State from the consumer. This is exactly what the appellee attempted to do and brought this law suit when appellant refused to pay the tax.

Appellant maintains in its second point of error that appellee was not entitled to relief in that it was acting under a mistake of law. As we understand appellant’s position, this contention is predicated on the fact that appellee did not bill appellant for the tax as appellee was uncertain for a time as to whether the tax was due on the transaction in question. We overrule this point. The reason for appellee not having collected the tax when it first billed appellant is immaterial. The law imposed the duty upon it to collect the tax. This it is attempting to do.

Appellant’s third point of error is that of the trial court in granting judgment to appellee for attorney’s fees as such fees are not recoverable here under Article 2226, V.C.S.

We overrule this point. Article 2226 provides for the collection of attorney’s fees where a case is filed upon a sworn account for material furnished. Article 20.02 as amended in 1963 provides:

“Every retailer shall add the sales tax imposed by Article 20.02 of this Chapter to his sale price and when added the tax should constitute a part of the price, shall be a debt of the purchaser to the retailer until paid, and shall be recoverable at law in the same manner as the purchase price.” Art. 20.021.

Admittedly the tax for two of the items in question billed at $57 comes under the above quoted amendment. The parties have stipulated that if attorney’s fees are recoverable here, $150 would be a reasonable amount. We hold that the above quoted amendment to Article 20.02 authorizes the collection of attorney’s fees where a retailer attempts to collect the sales tax due on material furnished just as in any other suit brought under Art. 2226.

We also hold that attorney’s fees are recoverable in a suit for the tax on the remaining items involved here.

While Art. 20.02 before amendment was silent as to the method of collection, upon amendment in 1963, we find the following provision:

“In addition to the application of this Act with respect to transactions occurring on and after the effective date hereof, the definitions, exemptions and other provisions hereof are intended to clarify the prior law (Chapter 24, Acts 1961, Fifty-seventh Legislature, First Called Session) and shall not be considered in construing or applying the prior law in such a manner as to cause or result in the imposition of any tax thereunder which would not have been imposed under the prior law in the absence of this Act.” Art. 20.01.

This amendment was for the purpose of clarification and was not intended to change the substantive law prior thereto. Thus the sales tax itself, by statute, becomes a debt arising out of a transaction involving the transfer and sale of personal property, such debt is recoverable in the manner presented here and in such case attorney’s fees are recoverable.

The judgment of the trial court is affirmed.

Affirmed.


author: GREEN, Chief Justice.

text:
    Sue Verne MOODY, Appellant, v. Charles B. MOODY, Appellee.
    No. 124.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 10, 1965.
    John H. Flinn, Sinton, for appellant.
    Lee Mahoney, of Mahoney, Shaffer & Hatch, Corpus Christi, for appellee.
   GREEN, Chief Justice.

This appeal was filed on October 27, 1964. Nothing has been filed by appellant in the cause since that date. Neither brief nor motion explaining absence of brief and requesting extension of time has been furnished the court by appellant. By letter dated April 20, 1965, our clerk notified counsel for both parties that the cause was set for submission and oral argument at 9:00 a. m. on June 2, 1965. On May 25, 1965; appellee filed his motion to dismiss the appeal for lack of prosecution, and on May 27, 1965, a brief for appellee was filed. No written reply has been made to either on behalf of appellant.

On June 2, 1965, the case was called in open court, and the lawyers for appellant and appellee appeared and both were granted leave to present oral argument. No brief or motion was tendered for filing by appellant, and no effort was made to show good cause for failure to file brief, or to show that appellee has not suffered material injury by such failure. Under such circumstances, appellee is entitled to have his motion to dismiss the appeal granted. Rules 414, 415, Texas Rules of Civil Procedure; Aldridge v. Clinton Park Development Co., Tex.Civ.App., 187 S.W.2d 255; Liberty Mut. Ins. Co. v. Thrasher, Tex.Civ.App., 190 S.W.2d 596, writ ref.; Maples v. Jackson, Tex.Civ.App., 311 S.W. 2d 464, writ ref. n. r. e.; Western United Realty Company v. Shaw, Tex.Civ.App., 356 S.W.2d 205, writ ref.; Garrett v. The State of Texas, Tex.Civ.App., 365 S.W.2d 670; Moorman & Singleton v. Simmons, et al., Tex.Civ.App., 360 S.W.2d 548, writ ref., Tex.Sup.Ct., 364 S.W.2d 188.

Appeal dismissed.


author: SELLERS, Justice.

text:
    Samuel H. MAGNESS, d/b/a Magness & Son Poultry Processors, Appellant, v. E. L. HERIDER, Appellee.
    No. 125.
    Court of Civil Appeals of Texas. Tyler.
    June 24, 1965.
    W. S. Barron, Bryan, Wardlow Lane, Center, for appellant.
    Henry L. Scott, Trotter, Childs, Forten-bach & McClure, Houston, Robert Fair-child, Fairchild & Hunt (on appeal only), Center, for appellee.
   SELLERS, Justice.

This is an appeal from an order of the District Court of Shelby County overruling the defendant’s Plea of Privilege to be sued in the county of his residence.

E. L. Herider, as plaintiff, brought this suit in the District Court of Shelby County against the defendant, Samuel H. Magness, doing business as Magness & Son Poultry Processors, to recover upon a written contract for poultry grown by plaintiff in Shelby County, Texas, and delivered to defendant in Shelby County, Texas. The prayer is for judgment for the sum of $7,670.07, with interest, court cost, and attorney’s fee.

The defendant filed his Plea of Privilege to be sued in Brazos County, Texas, his alleged residence. The plaintiff filed a Controverting Plea to the Plea of Privilege of defendant, and paragraph 3 of said Controverting Plea is as follows:

“That the verified allegations of Plaintiff’s original petition show and aver, and it is a fact, that Defendant contracted in writing with Plaintiff to perform an obligation at a definite place expressly named within Shelby County, Texas, to wit:
“Plaintiff’s place of business in Center, Texas, all as is more particularly alleged in paragraph III of Plaintiff’s verified original petition, and that by virtue of Subdivision 5 of Article 1995, Vernon’s Annotated Texas Civil Statutes, suit is properly maintainable against Defendant in Shelby County, Texas, and this Honorable Court has venue thereof.”

It will be observed that this suit is to recover for poultry sold to plaintiff and delivered in Shelby County, Texas. No question is raised about the delivery. The sole question here is, Does the contract provide for the payment of the poultry in Shelby County, so that venue can be sustained under Section 5 of Article 1995 of the Revised Civil Statutes? This provision is as follows:

“Contract in writing — If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

The only language with respect to where the payment for the poultry is to be made found in the contract is as follows:

“6.01. Within three (3) days of the date of any delivery of chickens under this Agreement, Buyer shall pay to Seller on account an amount equal to the Live Poultry Market Price for such chickens as determined by the mostly market of the Southwest Poultry Exchange on the date of delivery. Provided, however, that with regard to deliveries made during the last week of any calendar month, payment for such delivery shall be made no later than the first day of the next succeeding month.
“6.02 For purposes of Paragraph 6.01 and 6.03 of this Agreement payment shall be deemed to have been made by Buyer to Seller upon the delivery by Buyer to Seller of cash or Buyer’s check payable to the order of Seller, or by Buyer’s placing in the United States mail its check payable to the order of Seller, and addressed to Seller in Center, Texas.”

As we construe this language, it leaves the option with the defendant in this case as to where he will pay. Surely, he could pay in cash anywhere, or by check anywhere, or by check mailed to the plaintiff at Center, Texas. It would seem that such an arrangement in the written contract wholly fails to meet the requirement of Section 5, Article 1995 of the Venue Statute, for the reason that a particular county alone is not named for payment. Albin v. Hughes, Tex.Civ.App., 304 S.W.2d 371. Here it is said:

“Our Supreme Court has stated that the statute in question would hardly be taken as intending that a single obligation would be performable in two distinct counties for venue purposes. Rorschach v. Pitts, 151 Tex. 215, 248 S.W.2d 120, at page 123. This Court has heretofore held that the phrase ‘a particular county’ means a county that is fixed and certain, made so by the terms of the contract, and not subject to be changed at the will of the obligee. Bryson v. Oliver Farm Equipment Sales Co., Tex.Civ.App., 61 S.W.2d 147.”

The fact that some obligations not involved in the suit may be performable under the contract in the county where suit is brought will not sustain venue. 59 Tex. Jur.2d 435 lays down this rule:

“Under this provision the essential obligation for venue purposes involving a written contract is that of payment, and where no place for payment is specified in the contract no exception to the general rule of domicil is involved. The fact that some obligation not involved in the suit may be performable under the contract in the county where suit is brought is not sufficient to sustain venue. * * * ”

The judgment of the trial court is reversed and the cause ordered transferred to the District Court of Brazos County, Texas.


author: MASSEY, Chief Justice. RENFRO, Justice

text:
    Terry Earl BROGDON, Appellant, v. Doris BROGDON, Appellee.
    No. 16651.
    Court of Civil Appeals of Texas. Fort Worth.
    June 11, 1965.
    Rehearing Denied July 16, 1965.
    Friberg & Parish and Elmer H. Parish, Wichita Falls, for appellant.
    John E. McKelvey, Electra, for appellee.
   MASSEY, Chief Justice.

This is an appeal from an order denying appellant’s motion for reduction of child support payments.

Appellee was granted a divorce from appellant in March, 1961. She was awarded custody of the three young children. Appellant was ordered to pay $300 per month child support, and to pay the balance due on an automobile which was awarded to the appellee.

On June 6, 1961, at appellant’s request, the support payments were reduced to the sum of $200 per month until the appellant paid the balance of $2,913 due on the automobile. The judgment provided for resumption of $300 per month support payments when the automobile payments were completed.

In December, 1964, appellant filed a motion for reduction of the $300 per month support payments on the ground that he could not pay said amount because of greatly reduced income. His request was denied.

Appellee testified she was employed at a salary of $250 per month. She was “barely” able to support the children on the $200 monthly support payments and her salary.

Appellant testified: his income, because of decreased prices for cattle and diminishing income from oil royalty, dropped from $18,000 in 1960 to $4,100 in 1964; the combined income of appellant and his present wife was $3,485.60 in 1962, and of that amount his wife earned $2,300; in 1963 the combined income was $6,000, of which $2,-157 was earned by his wife; his wife will lose her job in January; he owns some farm and ranch land, all of which is heavily mortgaged ; the price of cattle declined fifty per cent for 1963; operating expenses, however, are rising; Production Credit Co. has a lien on his cattle and equipment to secure an $18,000 indebtedness; he is required to pay over to the Credit Company all proceeds of cattle sales; during current year he borrowed $500 from his mother and $1,-000 from his father-in-law for living expenses ; he is going “deeper in debt” all the time and if required to pay $300 per month child support will “just go that much deeper.”

The appellate court will not disturb the trial court’s child support order unless there is a clear abuse of discretion. Brito v. Brito, 346 S.W.2d 133 (El Paso Civ.App., 1961, ref., n. r. e.) ; Madden v. Madden, 365 S.W.2d 427 (Fort Worth Civ.App., 1963, no writ hist.) ; Beaird v. Beaird, 380 S.W.2d 730 (Dallas Civ.App., 1964, no writ hist.).

The amount of support in cases of this kind is always dependent not only upon the needs of the child but upon the ability of the parents to contribute. Art. 4639a, Vernon’s Ann.Tex.Civ.St.

In determining the duty of the father to supply necessaries to his children after divorce, it is to be borne in mind that his duty corresponds to his financial ability, having due regard to all his lawful obligations. Gully v. Gully, 111 Tex. 233, 231 S.W. 97, 15 A.L.R. 564 (1921); Barlow v. Barlow, 282 S.W.2d 429 (El Paso Civ.App., 1955, no writ hist.) ; Angel v. Todd, 368 S.W.2d 224 (Houston Civ.App., 1963, no writ hist.).

Appellee did not in this case contradict, deny or rebut any part of appellant’s testimony concerning his financial condition, nor did she attack his credibility.

Appellant’s testimony that his income dropped from $18,000 in 1960 to $4,100 in 1964 was undisputed, as was his testimony as to increased expenses, debts, mortgages, etc.

If his testimony were true, and it was not disputed, contradicted or rebutted, it is manifest appellant was financially unable to pay $300 per month, taking into account his financial condition, the needs of the children, and all circumstances shown in the record.

However, in our opinion, the trial court was entitled to disbelieve the testimony of appellant, he being an interested party and such evidence having a character which appellee could not readily rebut. Obviously he did disbelieve it.

Judgment affirmed.

RENFRO, J., dissents.

RENFRO, Justice

(dissenting).

In my opinion the appellant was, under the undisputed evidence, entitled to some reduction in support payments. I would reverse and remand.


author: SHARPE, Justice.

text:
    Eleanor G. CRAWFORD et al., Appellants, v. Edna HAYWOOD et al., Appellees.
    No. 121.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 10, 1965.
    Luther E. Jones, Jr., Corpus Christi, Roger Butler, Robstown, for appellants.
    Bob Spann, of McDonald & Spann, Corpus Christi, for appellees.
   SHARPE, Justice.

This appeal is from a judgment rendered in favor of appellees (Landlords) against appellants (Tenants) for rentals due under a written lease and for foreclosure of Landlord’s liens.

In 1959, appellants Eleanor G. Crawford and Elizabeth Crawford, d/b/a Jane’s Special Diets, leased a store building in Corpus Christi, Texas, from appellees Edna Janssen (who later became Mrs. Haywood) and Rueben Janssen, for a period of five years. On August 2, 1960, the parties entered into a new written lease agreement for a period of five years beginning September 1, 1960 and ending September 1, 1965, providing for a rental of One Hundred Thirty Four ($134.00) Dollars per month. In the Spring of 1963, appellants notified appellees that they would vacate the premises and thereafter did so. Appellees filed suit on November 2, 1963, alleging that the amount of Eight Hundred Eighty Two ($882.00) Dollars was then owing by appellants and that such sum would increase One Hundred Thirty Four ($134.00) Dollars per month during the pendency of the suit. On August 25, 1964, after non-jury trial, judgment was rendered for appellees in the amount of Two Thousand Two Hundred One ($2,201.38) and 38/100 Dollars, representing the amounts owing by appellants to that date. Pursuant to the request of appellants, the trial court filed findings of fact and conclusions of law.

Appellants’ brief contains two points of error. However, on oral argument of this case, they waived their point 1, leaving for our consideration point 2 reading as follows:

“The trial court reversibly erred in refusing to admit into evidence and apply the law to testimony offered by appellants tending to rebut appellees’ essential claim that the lease contract in question was subsisting as of the time of trial.”

Appellants’ point is based upon exclusion by the trial court of testimony given by appellee Mrs. Haywood, as shown by Bill of Exception, in substance as follows: After appellants abandoned the building in question, she secured the keys thereto; she offered the premises for sale and placed signs on the premises both before and after appellants vacated, indicating the same were for sale; after appellants vacated, advertisements were placed in the newspapers and a sign was placed in the window of the building that the premises were available to be rented; in order to re-lease, the walls were painted and some blocks on the floor were repaired; she, personally, exhibited the premises to several persons who apparently were interested in leasing it, and on such occasions she unlocked the door of the building with the key in her possession. Appellants argue that if such testimony of Mrs. Haywood had been admitted by the trial court, it would have supported a finding that appellees had re-entered and resumed possession, and that such finding, if made, would have supported a conclusion that the lease, particularly under paragraph 13 thereof, had terminated as of the time appellees resumed possession.

By their Reply Point Four, appellees contend that the defense now relied on by appellants under their point 2 was not available to them under their pleadings, which consisted only of a general denial to ap-pellees petition based upon the written lease dated August 2, 1960; and, particularly because appellants did not file verified pleadings under Rule 93, Texas Rules of Civil Procedure, concerning execution of such lease or the failure or lack of consideration for it, nor did they plead any affirmative defense under Rule 94, T.R.C.P.

It has long been held that a tenant relying upon either express surrender or surrender in fact of a lease by the landlord must affirmatively plead and prove the same and that a general denial does not raise such issue. This has been the rule both before and after the adoption of the Texas Rules of Civil Procedure. See Smith v. Irwin, 289 S.W. 113 (Tex.Civ.App., 1926, n. w. h.), wherein the court said:

“Appellants contend that appellee, having answered by a general denial only, was not entitled to prove a release or waiver of the contract on the part of appellants. With this contention we are in accord. Appellee was entitled under his general denial to introduce any evidence tending to refute the allegations in appellants’ petition, but, in our opinion, was not entitled, in the absence of any pleading to that effect, to prove an express surrender or surrender in fact.”
“As we understand the evidence in this case, there is no dispute either as to the execution of the contract, leaving of the premises by appellee, or the failure of appellee to pay the rent stipulated in the contract. We think the proof of those facts is sufficient to show a cause of action on the part of appellants, and that, if any facts existed which would excuse appellee from liability, the burden was on him to allege and prove them. As said in 13 C.J. 763:
“ ‘A party who asserts that performance of the contract on his part has been excused has the burden of establishing the facts relied on for such excuse. And after proof of the execution of the contract and the breach by defendant, the burden is on defendant to show an excuse for the breach.’ ”

In this case appellants did not plead any matter which would constitute an avoidance of the lease agreement or which would excuse their non-performance of it. Under such conditions and in the light of appellees’ objections the trial judge properly excluded the testimony relied upon by appellants under their point 2. See Stewart v. Kuskin & Rotberg, Inc., 106 S.W.2d 1074 (Tex.Civ.App., 1937, n. w. h.) ; Drollinger v. Holliday, 117 S.W.2d 562 (Tex.Civ.App., 1938, n. w. h.); Nelson v. Seidel, 328 S.W.2d 805 (Tex.Civ.App., 1959, wr. ref. n. r. e.); Rules 93 and 94, T.R.C.P.

Among other things the trial court found, in substance, that after appellants notified appellees they were going to vacate the premises, appellees elected not to accept a surrender of the lease; that appellees placed appellants on notice of their intention to enforce the lease and appellants’ liability thereunder, although appellees, subject to appellants’ continued liability, offered to allow a sub-tenant or to help in finding one.

Although the trial court originally excluded the testimony of Mrs. Haywood, which has hereinbefore referred to, the record shows that such testimony was considered by the lower court along with that admitted on the trial in making the finding that appellees had not elected to accept a surrender of the premises in question. A review of such testimony reflects that it would not have required the trial court to find that appellees had accepted a surrender of the premises or to conclude that the lease had terminated, under paragraph 13 thereof, or otherwise. Under such conditions the exclusion of such testimony, if error, would be harmless. Rule 434, T.R. C.P.

A lessee cannot surrender possession of demised premises and be released from the terms of a written contract of lease prior to its expiration date without the consent of the lessor; and the rights of the lessor under such lease is not ended by the lessee’s declaration of an intention to vacate and not to pay further rents. Goldman v. Broyles, 141 S.W. 283 (Tex.Civ.App., 1911, n. w. h.); Sellers v. Radford, 265 S.W. 413 (Tex.Civ.App., 1924, n. w. h.). In such instance the lessor may elect to enforce his rights under the contract against the lessee, such as the right asserted in this case to recover unpaid rentals or payments due under the lease to the date of judgment, including the period of time during which the premises were not occupied by lessee or re-leased to other persons. See 35 Tex.Jur.2d, Landlord and Tenant, Sec. 125, pp. 627-629; White v. Watkins, 385 S.W.2d 267 (Tex.Civ.App., 1965). In this case the findings of the trial court, hereinabove mentioned, are sufficiently supported by evidence, and establish that the lease in question was valid and subsisting at the time of trial herein; and the conclusion that appellees were entitled to recover based upon non-termination of the lease, was correct.

The judgment of the trial court is affirmed.


text:
    Fillmore H. SANFORD et al., Appellants, v. UNIVERSITY FEDERAL CREDIT UNION, Appellee. David T. HAKES et al., Appellants, v. UNIVERSITY FEDERAL CREDIT UNION, Appellee.
    Nos. 11317, 11318.
    Court of Civil Appeals of Texas. Austin.
    June 23, 1965.
    Rehearings Denied July 14, 1965.
    Ashton & Smith, Austin, for appellants.
    Sneed & Vine, Houghton Brownlee, Jr., Jack W. Ledbetter, Austin, for appellee.
   PHILLIPS, Justice.

Inasmuch as these two cases involve the same facts and the same law applicable thereto, they were consolidated for trial and for appeal to this Court.

The University Federal Credit Union brought suit against the appellants as comakers of two promissory notes in the amount of $5,938.69. The principal obligor on the two notes, Dr. Alfred Casteneda, is not a party to this suit.

Appellants Fillmore H. Sanford, R. K. Penny, Egidio J. Capaldi and Robert K. Young signed a blank promissory note form for Casteneda in September 1962; appellants David T. Hakes, Charles S. Watson and Donn Byrne signed a similar form for the same party in January of 1963.

Prior to the time that any of the appellants signed the blank forms and before any of the blanks had been filled in on the forms, each appellant had an agreement with Dr. Casteneda that the amount of each note, when completed, would be materially and substantially less than that which now appears on the face of the two notes.

After securing the abovementioned signatures, Dr. Casteneda took the blank notes to the University Federal Credit Union where the blanks were then filled in by the office secretary. The amount inserted was substantially in excess of the amounts authorized by appellants, and a prior loan made by Dr. Casteneda was assumed.

Dr. Casteneda defaulted in full payment and suit was for the remaining balance.

After trial, the jury found that at the time appellants signed the notes in question they had an agreement with Dr. Casteneda that the notes would be filled in for an amount materially and substantially less than the amount that now appears on the face of the notes.

Subsequently appellants filed their motion for judgment on the special issues and appellee filed its motion for judgment. The trial court entered judgment for appellee in the amount of $2,938 on one note and $1,-620.97 on the other. From this judgment appellants have appealed to this Court.

Appellants’ first point of error is that of the court in disregarding the jury’s findings of appellants’ agreement with Casteneda that the notes would be filled in for an amount materially and substantially less than the amounts that now appear on the face of the notes; that the abovementioned findings bring the case within the provisions of the Negotiable Instruments Act, which provides that a payee not a holder in due course, to enforce an instrument signed in blank against a person who became a party thereto prior to its completion, must show that the blanks were filled in strictly in accordance with the authority given; that the filling in of an amount materially and substantially greater than the amount authorized constitutes a forgery and is unenforceable in the hands of a payee not a holder in due course.

The section of the Negotiable Instrument Law applicable to this case in Section 14 of Article 5932 Vernon’s Ann.Tex.Civ. St., which is as follows:

“Where the instrument is wanting in any material particular, the person in possession thereof has a prima facie authority to complete it by filling up the blanks therein. And a signature on a blank paper delivered by the person making the signature in order that the paper may be converted into a negotiable instrument operates as a prima facie authority to fill it up as such for any amount. In order, however, that any such instrument when completed may he enforced against any person who became a party thereto prior to its completion, it must he filled up strictly in accordance with the authority given and within a reasonable time. But if any such instrument, after completion, is negotiated to a holder in due course, it is valid and effectual for all purposes in his hands, and he may enforce it as if it had been filled up strictly in accordance with the authority given and within a reasonable time.” (Emphasis added.)
Appellee is not a holder in due course.

There are relatively few cases on either of the points involved here probably due to the few persons who have felt inclined to sign notes in blank and there are no cases applicable to the facts at bar in Texas. However, we hold that this case is governed by a decision of the Indiana Supreme Court in Stout v. Eastern Rock Island Plow Co., 202 Ind. 517, 176 N.E. 844, 75 A.L.R. 1386.

Stout is apparently the leading case on the questions involved and presents a fact situation, for all practical purposes, the same as that here. The Court held that Section 14 of the Negotiable Instruments Law (Sec. 14, Art. 5932, V.A.T.S.) was applicable in that in order for the payee (not a holder in due course) to enforce an instrument signed in blank against any person who became a party thereto prior to its completion, it must be filled up strictly in accordance with the authority given. And further, that such a payee, knowing that a surety thereon has signed before the insertion of any amount therein, is put upon inquiry as to the authority of the maker to complete the note, regardless of what the maker may have represented at the time of its delivery to the payee.

There is ample evidence in the record that Casteneda had the blanks filled in for substantially more than he was authorized to.

Stout also holds that the signers of a blank note, such as the appellants herein, are not liable on the note even to the extent of the amount authorized.

Britton on Bills and Notes, Sec. 84, p. 196 approves the holding in Stout. After quoting that part of Sec. 14 set out above in italics, Britton comments as follows : “To permit recovery upon the instrument upon any terms by a holder not in due course would be enforcing the instrument to that extent — but it is just this that the statute forbids. It would seem therefore that the quoted provision should be construed just as if it read: ‘an instrument issued in incomplete form when filled up in excess of authority is void in the hands of a holder not in due course. (Citing Stout).’” Also see Asbury Park Electric Supply Co. v. Megill, 102 N.J.Law 496, 133 A. 181.

We reverse the judgment of the trial court and render this case in that appellee take nothing by its suit.

Reversed and rendered.


author: HYDE, Judge.

text:
    Viola M. KOELLING, Fay L. Schlueter, Lola L. Vogt and Junia H. Mueller, (Plaintiffs) Respondents, v. RALPH ANDERSON LUMBER COMPANY, Inc., a Corporation, (Defendant and Third-Party Plaintiff) Appellant, v. The LEIWEKE ESTATE, INC., a Missouri Corporation, N. J. Boyd, Jr., Administrator of Estate of N. J. Boyd, Sr., Deceased, Leo Muscovalley, N. J. Boyd, Jr., etc., (Third-Party Defendants), Appellants.
    No. 51285.
    Supreme Court of Missouri, En Banc.
    July 12, 1965.

      Harold D. Jones, Bock & Jones, New Madrid, for defendant and third-party plaintiff-appellant, Ralph Anderson Lumber Co.
    Hal E. Hunter, Jr., New Madrid, for third-party defendant-appellant N. J. Boyd, Jr., Adm’r of Estate of N. J. Boyd, Sr., deceased.
    Joseph B. Wentker, Robert V. Niedner, Niedner, Niedner & Moerschel, St. Charles, for respondents.
   HYDE, Judge.

Action for conversion of logs cut from growing timber, on an island owned by plaintiffs, tried by the court without a jury. Plaintiffs had judgment for $7,250.00, from which defendant has appealed. Defendant (Ralph Anderson Lumber Company, Inc.) hereinafter called Anderson, as third party plaintiff, also asked judgment (if required to pay plaintiffs) against third party defendants, The Leiweke Estate, Inc., hereinafter called Leiweke, which sold the standing timber and Boyd, who as Lei-weke’s vendee, cut the timber and sold the logs to Anderson. Judgment was entered for Anderson on its third party petition for $2,000.00 against Lieweke and for Anderson for $5,250.00 against B.oyd, from which Boyd has appealed. Leiweke defended in the trial court but has not appealed. Anderson claims the right to a judgment against Boyd and Leiweke for the full amount of any judgment awarded plaintiffs.

We ordered the case transferred from the St. Louis Court of Appeals after it reversed the judgment and ordered judgment entered for plaintiff against Anderson for $2,000.00 and for Anderson against Leiweke for that amount but in favor of Boyd and against Anderson on Anderson’s third party claim. The principal issue is whether plaintiffs are entitled to recover from Anderson the value of the logs at the time Anderson took them from the island which was $7,250.00 or whether they can only recover their value as standing timber which was $2,000.00.

The timber involved was on an island in the Missouri River. Plaintiffs claimed under Henry J. Mades who had a patent (in 1923) from St. Charles County for an island containing 176.29 acres. Some of this island was washed away when the river channel changed but by accretion other land was added to it until it was joined to another larger island downstream called Howell Island owned by Leiweke. There was a steep bank all along the upper end of Howell Island between it and the accretion to Mades Island, with a depression there 10 to 30 feet wide. It was stipulated by all parties that 250,000 board feet, cut after January 1, 1956, was removed from land owned by plaintiffs by Anderson, after having been cut by Boyd under his contract with Leiweke and delivered to Anderson on the river bank. Anderson made the logs into rafts and had them floated to New Madrid by its towboats.

Anderson and Boyd claim estoppel and laches against plaintiffs but we agree with the trial court’s finding against that claim for the reasons hereinafter stated. Anderson and Boyd rely on Sligo Furnace Co. v. Hobart-Lee Tie Co., 153 Mo.App. 442, 446, 134 S.W. 585; Poole v. Roloff, Mo.App., 361 S.W.2d 340, 346; H. D. Williams Cooperage Co. v. United States, CCA 8th, 221 F. 234, 236; see also 34 Am.Jur. 577-579, Logs and Timber, Secs. 133-135, annotations; 161 A.L.R. 564— 578; 69 A.L.R.2d 1344-1361. The rule stated by these authorities is that in an action for conversion, where trees are cut and removed by inadvertence or mistake, the proper measure of damages is the value of the timber in the trees cut and removed, technically known as stumpage value. However, if there was intentional or wilful cutting and removal, the owner is entitled to recover the value of his property as increased by transportation or labor, although the courts have differed as to the time and place finished products from the timber are to be valued. Likewise, an innocent purchaser from an inadvertent or good faith trespasser is liable only for the stump-age value or the timber cut and removed by the trespasser. Nevertheless, even though a purchaser from an intentional or wilful trespasser has acted in good faith, the purchaser is liable for the value of the timber at the time of the purchase or conversion by him. We, therefore, will review the evidence in the light of these principles.

It appears that Leiweke had made a contract for sale of the timber on Howell Island in 1954 and this contract was assigned to Boyd. Prior to that time (in 1923), the original patentee of Mades Island, Henry J. Mades, had conveyed a one-half interest therein to John L. Mades. Apparently both had died before Boyd began cutting operations. Plaintiffs, who lived in St. Charles County, were the heirs of Henry and most of the heirs of John lived in Illinois. A year after the timber was cut (May 1957), the heirs of John sold their interest to plaintiffs. Before any timber was cut (in 1955 according to plaintiffs) Boyd came to the store of Mr. and Mrs. Koelling two or three times inquiring about cutting timber on Mades Island but they did not give him permission to do so. Later Mr. Mayer, attorney for Leiweke, came there and talked to Mr. Koelling who told him of the claim of ownership by the Mades heirs and said there was to be a family meeting about it soon at Alton. Mr. Mayer made some investigation of records and on February 29, 1956 wrote Boyd, stating: “This is to advise you that I have been authorized to inform you to continue to cut timber on this island in accordance with your contract therefor. The Leiweke Estate, Inc. has always claimed title to all of this property, and will defend any attempted contest of its title. I am therefore further authorized to advise you that the Leiweke Estate, Inc. will defend any action involving the title to Howell’s Island and will hold you harmless from any liability arising out of such action. This letter is being written to you at your request pursuant to your discussion with Mr. A. J. Leiweke yesterday.”

Boyd began to cut timber on Mades Island in March but told Anderson’s Vice President, Lee Crisler, who scaled the logs, to mark separately “as upper end” the record of the logs taken from Mades Island. Boyd told Crisler in May that the reason for the separate record was because of plaintiffs’ claim of ownership and that the money for these logs would be held separately. Three of the plaintiffs went to the Island early in May, told the men there (including the foreman) that the land belonged to them and ordered them to stop cutting. Plaintiffs then went to a lawyer, Theodore Bruere, who contacted Mr. Mayer. After meeting with plaintiffs and Bruere, Mayer suggested that a suit be filed to determine title. Mr. Mayer said nothing came of this meeting but soon afterwards Boyd brought him a letter from William Waye, a lawyer employed by plaintiffs, which was dated May 22, 1956 and was as follows: “The Mades heirs were in my office this morning and complained you were cutting a lot of timber off of their island in the Missouri River. This land apparently belongs to the Mades, and if what they tell me is true, you might be in for heavy penalties for your conduct in this matter. Before moving any such timber it will be necessary that this matter he cleared up and I trust that you will get in touch with me at an early date so that this matter can be cleared up.” Mr. Mayer then had a conference with Mr. Waye and was informed that Mr. Waye was having' title run by an abstract company. Mr. Mayer said it was understood that no more timber would be cut on the land claimed by plaintiffs hut that processing of trees cut and lying on the ground would be completed and an escrow agreement set up to hold the money and Boyd was so informed. However, before the end of the year Mr. Waye died. In October 1956, some of the plaintiffs went to New Madrid to see Crisler and demanded payment. They also saw Boyd but were told that it was the responsibility of Lei-weke to straighten this out. Leiweke did hold $1,877.21 (based on the “upper end” record) in its bank account until 1958 when it was distributed to its shareholders. This suit was brought in 1960. Leiweke had also sold Howell Island by that time and plaintiffs sold Mades Island to the purchaser of Howell Island.

The Court of Appeals relied on White v. Yawkey, 108 Ala. 270, 19 So. 360, 32 L.R.A. 199, quoting the following: “It is sufficient to say that the modern authorities are practically unanimous in holding that the rule of just compensation for the injury sustained, which is the ideal measure of actual damages, does not require the assessment, against an inadvertent trespasser, of the accession to the value of a chattel which his labor has produced, but that he is entitled to an abatement therefor from the enhanced value. * * * The same rule prevails when trover is brought against the unintentional trespasser’s innocent vendee, who is treated as standing in the shoes of his vendor.” However, the facts of that case were thus stated: “The material facts are that, within a year prior to the commencement of the suit, one Jack Brewer cut the pine logs from the timber lands belonging to the plaintiff, and sold them to defendants, to be delivered on the banks of Pea river, where he did in fact deliver them; and that neither he nor the defendants knew at the time the cutting was done that trespasses were being committed on the plaintiff’s property, this fact not having been discovered until a survey was made, some time after the acts complained of had been performed. The defendants disposed of the logs, which were worth four cents per foot, at Pea river.. These facts were established by the plaintiff’s witness, and in regard to them there was no dispute.”

The situation here seems very different to us. We cannot hold that Boyd was an “inadvertent trespasser.” He knew of plaintiffs’ claim before he cut any timber on their island. He talked to some of them about it and was told what they claimed. There was physical evidence (a high bank and a depression between the two tracts) to support their claim. Leiweke also knew of plaintiffs’ claim from Boyd and had their attorney talk to plaintiffs; but told Boyd to go ahead on their contract, with the statement they would hold him harmless. They must have considered that plaintiffs could have some basis for their claim because from the start of cutting on that land, they had a separate record kept for the timber taken from plaintiffs’ land. They deliberately decided to ignore plaintiffs’ claim although at the trial they conceded its validity. Nor was Anderson a completely innocent purchaser because its Vice President was told to keep a separate record of this timber and before any logs were taken away from the island he knew the reason for the separate record was the claim of title made by plaintiffs. The cutting on plaintiffs’ land which began in March was not stopped when plaintiffs went to the island early in May and protested but only after they then employed a lawyer to stop it. Our conclusion is that this evidence was sufficient to support the findings of the trial court against the claims of laches and estoppel and to authorize his judgment for the value of the logs at the time they were taken from the island. Therefore, the judgment for plaintiffs against Anderson for $7,250.00 should be affirmed.

As to Anderson’s third party petition, our view is that Boyd and Leiweke should be held liable to Anderson for the full amount of the judgment for plaintiffs. The evidence sufficiently shows a breach of implied warranty of title by Boyd, the measure of damages for which, under the facts of this case, would be the purchase price paid by Anderson. Speckard v. Mendenhall, Mo.App., 253 S.W. 166, 167, and cases cited; Ivester v. E. B. Jones Motor Co., Mo.App., 311 S.W.2d 109, 111; see also Schaefer v. Fulton Iron Works Co., Mo.App., 158 S.W.2d 452, 455; 46 Am.Jur. 578, Sales, Sec. 407; 77 C.J.S. Sales § 377, p. 1323. This breach was at the instigation and direction of Leiweke under an agreement by it to hold Boyd harmless for cutting the timber without regard to plaintiffs’ claim.

The judgment for plaintiffs against Ralph Anderson Lumber Company, Inc., for $7,250.00 is affirmed. The judgment on the third party petition is reversed and remanded with directions to enter judgment for Ralph Anderson Lumber Company, Inc., for $7,250.00 against The Leiweke Estate, Inc., and N. J. Boyd, Jr., Administrator of the Estate of N. J. Boyd, Sr.

All concur and STONE, Special J., concurs.


author: EAGER, Presiding Judge.

text:
    Dorothy M. CICHACKI, Respondent, v. George LANGTON, Appellant.
    No. 50964.
    Supreme Court of Missouri, Division No. 2.
    July 12, 1965.

      Mason, Gant, Gepford & Moran, Kansas City, for respondent.
    Lee D. Seelig, Kansas City, for appellant.
   EAGER, Presiding Judge.

This appeal was taken by defendant from an order granting plaintiff a new trial for error in giving an instruction proffered by defendant. There is no evidence in our transcript, nor is there any stipulation concerning the evidence. The petition is one for damages for personal injuries because of an automobile collision; it was filed against three defendants but dismissed as to two at the beginning of the trial. It alleged, in substance: that plaintiff had been traveling northerly on Blue Ridge Road and was entering Winner Road to travel westerly, whereas defendant George Langton was driving a car westerly on Winner Road “to the rear” of plaintiff; that defendant negligently overtook and collided with the rear of plaintiff’s car. Several grounds of negligence were alleged, including negligently failing to keep a lookout, the negligent failure to yield the right of way, negligently colliding with the rear of plaintiff’s car, and negligently failing to stop, slow or swerve. The prayer was for $15,500. The answer of two defendants, including the present appellant, consisted of denials, an admission that the streets were public streets in Kansas City, and a general plea of contributory negligence. The instructions are shown in full in the transcript.

Plaintiff submitted her case by two separate instructions numbered 2 and 3. In No. 2 she submitted that defendant “failed to exercise the highest degree of care to keep a careful and continuous lookout for vehicles ahead of him, and “particularly the automobile driven by Plaintiff,” and that he was thereby negligent. In No. 3 she submitted that plaintiff stopped in obedience to a stop sign controlling traffic on the ramp leading from Blue Ridge Road to Winner Road, that defendant, at a point approximately 100 feet east of that intersection, “signalled his intention to make a right turn” but continued to drive on west on Winner Road and collided with plaintiff’s car, and that defendant was thereby negligent.

The controverted instruction of defendant was as follows, being No. 7: “The Court instructs the jury that if you find and believe from the evidence that the plaintiff in this case failed to stop at the stop sign at the entrance of Winner Road and Blue Ridge Road when approaching a through highway from the south and this was one of the causes of the said collision mentioned in the evidence then your verdict should be for the defendant.”

Since both parties hypothesized the fact that there was a stop sign at the intersection, we shall assume that there was, even on this very “skimpy” record. In his Instruction No. 6, defendant submitted contributory negligence of plaintiff in failing to keep a lookout. As already indicated, the verdict was for the defendant. In her motion for a new trial, plaintiff specifically attacked Instruction No. 7, both as a converse and as a contributory negligence instruction. The motion sufficiently raises the points which we discuss here. In granting a new trial, the court entered the following order: “Plaintiff’s Motion for a New Trial must be sustained for the reason that Instruction Number 7, offered by the defendant, is the converse of plaintiff’s Instruction Number 3, in that it directs a verdict for defendant if the jury should find that plaintiff failed to stop at the stop sign. Said instruction completely disregards and fails to converse or otherwise refer to plaintiff’s Instruction Number 2, which is a disjunctive submission of primary negligence and failure to keep a look-out. No other intruction was offered conversing plaintiff’s instruction number Two.

“WHEREFORE, it is ordered, adjudged and decreed that plaintiff’s Motion For A New Trial be sustained.”

Considerable confusion has arisen from appellant’s brief and argument as to just what this instruction is. In other words, is it a converse instruction or a contributory negligence instruction ? All of the cases cited in that brief involve converse instructions ; in at least three places the statement is made that the instruction was a converse of one of the essential elements of plaintiff’s theory. In two places it is stated that it was a mere contributory negligence instruction. In one sentence it is stated that it was a contributory negligence instruction and “was a converse of one of the elements * * At the oral argument counsel for appellant was asked most specifically what his theory was and he stated that it was a contributory negligence instruction and that he did not “rely on it” as a converse instruction.

Actually, it makes little difference what the defendant’s theory was; the ultimate question is whether the instruction was proper on either or any theory, or bad on both. We consider it from that standpoint. As a converse, the instruction is clearly erroneous. Defendant cites the following cases: Dell’Aria v. Bonfa, Mo., 307 S.W.2d 479; Liebow v. Jones Store Co., Mo., 303 S.W.2d 660; Fontana v. Davis, Mo.App., 382 S.W.2d 835; McCarty v. Milgram Food Stores, Inc., Mo., 252 S.W.2d 343. None of those cases involved situations where the plaintiff had submitted two or more grounds of negligence in the disjunctive. The principle quoted from Fontana, supra, to the effect that a defendant may converse one or more of the essential elements of plaintiff’s theory of recovery or may offer an exact converse of his verdict-directing instruction is perfectly sound when applied to a case where there is one sole submission of negligence or where two or more are submitted in the conjunctive. It is not applicable where two or more different grounds of negligence are submitted by the plaintiff in the disjunctive, either in one instruction or in separate instructions. Martin v. Lingle Refrigeration Co., Mo., 260 S.W.2d 562; Fellman v. St. Joseph Power & Light Co., Mo., 334 S.W.2d 60; Samuels v. Klimowicz, Mo., 380 S.W.2d 418. In such event, the converse verdict-directing instruction “ ‘ * * * must require a finding on all the charges of negligence submitted by plaintiff.’ ” Samuels, supra, and cases there cited, 380 S.W.2d loe. cit. 420. Here plaintiff had submitted her theory of failure to keep a lookout in one instruction, and her alternate theory that defendant signalled a right turn but negligently proceeded on and struck her car in the rear in another; these theories were most certainly submitted in the disjunctive, with a verdict being directed if defendant was found negligent on either theory. Defendant selected one element from the latter instruction, No. 3, and conversed it; giving him the benefit of any doubt as to whether Instruction No. 7 was a proper converse of an essential element of that submission, it completely ignored plaintiff’s submission of a negligent failure to keep a lookout, and it was necessarily erroneous as a converse instruction under all of the Missouri authorities.

On the other possibility, we note that the instruction does not appear to have been prepared or submitted as a contributory negligence instruction. That theory would seem to be an afterthought. Defendant submitted and the court gave Plaintiff’s Instruction No. 6, which rather carefully followed the usual form of a contributory negligence instruction on plaintiff’s claimed failure to keep a lookout; it required a finding that plaintiff “failed to exercise the highest degree of care” in that regard, that such failure on plaintiff’s part was negligence, and that such negligence, if any, directly and proximately contributed to cause the injuries. Instruction No. 7 does not require a finding of negligence or the use of any specified degree of care, nor does it require a finding that any such negligence contributed to cause the collision and the injuries. The latter requirement might conceivably be supplanted by the requirement that plaintiff’s act, namely, that he “failed to stop at the stop sign,” was “one of the causes” of the collision, but the omission of the requirement of a finding of negligence in some form is fatal to a contributory negligence instruction. See, generally, for the requirements: Danner v. Weinreich, Mo., 323 S.W.2d 746; Myers v. Searcy, Mo., 356 S.W.2d 59; Barrett v. Town of Canton, 338 Mo. 1082, 93 S.W.2d 927; Capriglione v. Southwestern Bell Telephone Co., Mo., 376 S.W.2d 205. The ne cessity of such a finding deals with a substantive element, since otherwise there is no requirement of a finding of a failure to use the highest degree of care, or ordinary care in a proper case. In Instruction No. 7 there was no reference whatever either to a failure to use the highest degree of care or to a finding of negligence. On its face, the instruction is fatally erroneous.

We note that in certain instances of violations of municipal ordinances, where the respective ordinance is in evidence and a violation is expressly submitted in the instruction, the act itself may constitute negligence per se and the jury may be so instructed. Dickerson v. St. Louis Public Service Co., 365 Mo. 738, 286 S.W.2d 820; Wells v. Henry W. Kuhs Realty Co., Mo., 269 S.W.2d 761, 47 A.L.R.2d 1038. But the act should be expressly hypothesized along with a direction that such an act would constitute negligence; or, if the violation is merely used as evidence of common law negligence, the instruction should require an express finding of negligence, as such. Floyd v. St. Louis Public Service Co., Mo., 280 S.W.2d 74. There is no record here of any ordinance of Kansas City, and no violation of any ordinance was submitted. We do not take judicial notice of city ordinances. Under these circumstances, the mere failure to stop at a stop sign may not be deemed to constitute negligence per se, and a finding of negligence should have been required. We have gone far in assuming that there was substantial evidence to support the instructions generally, with no évidentiary record and no stipulation; we shall certainly not assume that an ordinance of Kansas City was received in evidence.

In addition to the foregoing reasons, the instruction was sufficiently misleading and confusing, when considered in connection with the plaintiff’s submissions and with defendant’s own Instruction No. 6 to justify the court in granting a new trial.

The action of the trial court was correct. The order is affirmed and the cause is remanded.

All of the Judges concur.