author: BELL, Chief Justice.

text:
    Cecil Blaffer HUDSON, Appellant, v. J. Edwin SMITH et al., Appellees.
    No. 14386.
    Court of Civil Appeals of Texas. Houston.
    May 20, 1965.
    Rehearing Denied June 10, 1965.

      Levert J. Able and Miller B. Walker, Jr., Houston, and R. Dean Moorhead, Austin, for appellant.
    Al Schulman and W. James Kronzer, Houston, for appellees.
   BELL, Chief Justice.

This is an appeal from a judgment in favor of J. Edwin Smith and the law firm of Smith & Lehmann of which he was a member, by which recovery was had of the sum of $130,000.00 as an attorney’s fee for services rendered by Smith as an attorney in representing Mrs. Hudson in her divorce suit, together with an attorney’s fee allowed appellees’ attorney for representing them in this suit. The jury found that a reasonable fee for Smith’s services in the divorce suit was $165,000.00. Admittedly he had been paid $45,000.00 and this was credited on the judgment. The jury also found $10,000.00 to be a reasonable fee for the attorney employed by appellees to prosecute this suit. The suit was for $300,000.00.

For several months during the year 1960, appellant and her then husband were having extensive and severe disagreements concerning budgetary matters and the handling of their children. Appellant wished to have an attorney available to consult with her from time to time on these matters. She reached an agreement with Mr. Smith on a retainer of $150.00 per month. She had not at such time decided upon filing suit for divorce. In the latter part of 1960 she decided to file a suit for divorce and on November 1, 1960 Smith filed a suit on her behalf seeking a divorce, custody of the two children, and a division of community property.

On January 20, 1961, Smith wrote appellant a letter setting forth the terms of the agreement with regard to the attorney’s fee that would be paid for Smith’s handling of all matters involved in the divorce proceeding. The substance of the letter was that Mr. Smith could not set his fee because he did not know the full extent of the litigation that would be involved. He then set out the guides that would be followed in fixing the fee. They were as follows:

1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to properly conduct the cause.

2. The customary charges of the Bar for similar services.

3.The amount involved in the controversy and the benefits resulting from the services.

There then followed the statement that these were applicable guides designated oy Canon 11 of the Code of Ethics of the State Bar of Texas, Vernon’s Ann.Civ.St. following article 320a-l and Canon 12 of the American Bar Association. There was also the statement that if appellant questioned the reasonableness of the fee, Mr. Smith, upon request, would submit the matter to the court for determination as to whether it was reasonable. It was further stated that attempt would be made to have the fee adjudged against Mr. Hudson, but it was pointed out this must finally be determined by the court but if any part of it was adjudged against Mr. Hudson it would be deducted from the total fee earned.

From September or October, 1960, when Mrs. Hudson determined she would sue for a divorce, until some time in October, 1962, Mr. Smith was the sole attorney for Mrs. Hudson. While Mr. and Mrs. Hudson and their attorneys were engaged in a proceeding before a Master in Chancery, who had been appointed by the court, Mrs. Hudson, on October 8, 1962, sent a telegram to the Master stating Mr. Smith no longer represented her. She then engaged one attorney to represent her in the phase of the suit pertaining to the divorce and another firm to handle the phase with regard to her property rights. However, it appears that Mr. Smith was retained to remain in the case to consult and advise with other counsel. Thereafter, Mr. Smith cooperated with and assisted other counsel. Unquestionably the overwhelming amount of the work done was done by Mr. Smith prior to the entry of other counsel and other counsel usefully employed the results of his work, which he readily made available to them, in their negotiations for settlement. Finally, in March, 1963, a property settlement agreement was reached and a judgment for divorce, without real contest, was rendered in favor of Mrs. Hudson and she was granted custody of the children subject to certain rights in Mr. Hudson.

Appellant, for reversal, makes the following basic claims:

1. The court was in error in quashing a subpoena duces tecum that had been issued for the individual income tax returns of Mr. Smith for the years 1958 through 1962 and in not examining the returns to see what information was material to the controversy. Too, that these errors were compounded by the refusal of the court to permit the introduction of material parts of such returns so appellant could perfect her bill of exception. Related to these complaints is one that it was error for the court not to allow interrogation of Mr. Smith about his income for these years and that appellant was not allowed to perfect her bill of exception by developing such facts through questioning Mr. Smith.

2. The court erred in excluding a letter from Mrs. Smith to Mrs. R. L. Blaffer, mother of Mrs. Hudson, dated October 12, 1962. The substance of the letter asked Mrs. Blaffer to assist in obtaining payment of a bill rendered to Mrs. Hudson a month before. It also related to Mr. Smith’s then being ill.

3. The court erred in admitting in evidence the letter from a successor attorney to Mrs. Blaffer setting out the terms of his employment by Mrs. Hudson. It was written in order to obtain a guarantee of the attorney’s fee by Mrs. Blaffer. It contained 'a statement dealing with the emotional state of Mrs. Hudson. It was also executed by Mrs. Hudson.

4. The court was in error in excluding testimony concerning a fee charged by another law firm in a previous divorce proceeding between the Hudsons.

5. That it was error to allow attorney’s fees for the attorney employed to bring this suit because there had been no requisite demand by Mr. Smith for his attorney’s fee prior to filing this suit.

6.There was error on the part of the Judge of the 133rd District Court of Harris County in striking appellant’s Second Amended Original Answer when it had been permitted to be filed by the Judge of the 61st District Court of Harris County.

Appellant contends that each of these asserted errors was of a quality to require reversal. Nowhere is it claimed by a point of error, or an assignment, that the amount of the judgment is excessive. The position of appellant is that the judgment would not have been for as great an amount had it not been for the asserted errors and thus each of them was harmful. There was really no contention on trial that there was not some additional attorney’s fee owed though a general denial put appellees on proof of such fact. However, even appellant’s witnesses testified a reasonable fee for the work done would be from $75,000.00 to $90,000.00.

Mr. and Mrs. Hudson were married in 1945. Each was, at the time, wealthy in their respective right. Each owned oil and gas interests, other real estate, corporate stocks and valuable paintings. Mr. Hudson was head of Hudson Engineering Company and Hudson Oil & Gas Company. During the marriage of the parties their respective separate estates increased in value and there was the accumulation of a community estate. The parties, through their respective representatives, sought to keep their respective separate estates and the community estate segregated. There is evidence that each purportedly kept a set of accounts on their respective separate estates and each had an account purporting to represent community receipts and expenditures. We take it that Hudson kept a set of accounts representing what he considered to be a separate estate accumulation and what he considered constituted community receipts and disbursements. The same is true of Mrs. Hudson. As is usually true, there resulted, to some extent, a co-mingling of the estates or at least both parties so claimed. As is so frequently true, when love is gone suspicion and bitterness take its place. The result is, particularly where the various estates aggregate several million dollars, as is true here, there is a necessity for detailed examination of the facts to determine property rights. Too, each parent becomes convinced that only he or she has the welfare of their children at heart and that he or she only knows what will best serve the children’s welfare.

The record in this case will give an idea of the magnitude of the work done on the divorce case by Mr. Smith. The direct examination of Mr. Smith, which elicited a statement of the work he did and the time he spent, alone covers 478 pages of the statement of facts, and the whole of his examination, including cross-examination, covers some 680 pages. The attorneys for both sides used the same hypothetical question to propound to the expert witnesses. It catalogued the work done by Mr. Smith and was 74 legal size pages long. We should here note that appellant, in using the question for one of her witnesses, eliminated the time Mr. Smith testified he spent, and with regard to her other witness additionally eliminated the statement that Mr. Smith was responsible for securing the divorce settlement. The whole statement of facts contains 1013 pages. We have read the entire statement. In addition, there are 60 exhibits as a part of the record, many of which are several pages long. We have familiarized ourselves with them. There are various pleadings, orders, inventories and appraisals that were a part of the divorce proceedings. Not in the record are various voluminous depositions taken in connection with the divorce proceedings as well as the testimony taken before the Master in Chancery. While they are not in the record, the evidence reflects the time spent in the hearings and the number of pages of testimony taken.

Mr. Smith alone testified as to the time spent by him on work relating to the divorce suit. He kept no time sheets and his testimony was of his recollection of the time spent on the various items of work. He stated that 75% of his time for the two years was spent on the case. The hours were calculated to be about 4,680. This included 19 days actually spent in taking depositions that aggregated 2644 pages of testimony. These were the depositions of Mr. and Mrs. Hudson, Mr. Hinson, the business manger for Mr. Hudson, and Mrs. Howton, business manger for Mrs. Hudson. The purpose of these depositions, apart from the grounds for divorce and the matters bearing on custody, was to establish the character of the property, whether separate or community, claimed by the parties. This, in many cases, required tracing of funds used in the acquisition of the property. Mr. Smith testified in substance that it was necessary, in preparation for the taking of the depositions, to spend many more hours, he specifying the time, in going over the various books and other documentary evidence with persons familiar with them, that such a time consuming preparation is advisable and necessary is a fact well known to all lawyers. Each party, it should be remembered, was claiming an interest in items of property that the other claimed was either separate property of the claimant or community property. The proceeding before the Master in Chancery consumed 19 days and 1659 pages of testimony were taken. There were three inventories covering real estate, other than royalty, identifying appellant’s property, that aggregated 40 pages. The royalty interest inventory consisted of 140 pages. There were extensive inventories covering insurance, jewelry, corporate stocks, and paintings or other art objects. With regard to royalties and real estate, because of disputes concerning the status of some of the items, it was necessary to examine title papers and trace funds. The same is true as to tracing funds into some art objects. For instance, Mrs. Hudson claimed as her separate estate some art objects valued at over $700,000.00, but the claim was complicated because of checks from the community payable to art galleries in the amount of $150,-000.00. There was stock in Hudson Oil & Gas Company, most of which Hudson claimed was his separate property while Mrs. Hudson claimed much of it was community. Eventually a community interest was established, so Mrs. Hudson from this alone realized about $4,000,000.00. There was a great difference of opinion concerning whether there was any community interest in Hudson Engineering Company. Her claim that there was resulted in her receiving other properties offsetting in substantial part such claim because Hudson was very desirous of retaining all interest in that vast business entity. There was a dispute concerning how much community interest there was in a valuable home in Newport, Rhode Island.

The result was that in the settlement finally agreed upon, Mrs. Hudson retained practically all of her claimed separate estate and received as her share of the community some $6,000,000.00. The settlement was finally reached when other counsel were primarily representing Mrs. Hudson, but it was not, when we consider the amount accruing to Mrs. Hudson, substantially greater than Mr. Smith was able to obtain but which she refused. There can be no doubt under the evidence that the work product of Mr. Smith, was employed as the primary basis for settlement.

In addition to the above there were several short hearings regarding custody of and visitation with the children. Longer conferences between counsel preceded the hearings. There was an ancillary hearing with regard to partition of the parties’ interest in a very valuable New York apartment, it being valued at about $150,000.00. There were briefs on legal questions involved.

Two very outstanding members of the trial bar of Harris County gave their opinion as to a reasonable fee for the services rendered by Mr. Smith. One gave his opinion that $300,000.00 would be a reasonable fee, and the other was of the view that $400,000.00 was reasonable.

Two other very outstanding members of the Harris County Bar testified for the appellant. One of them testified that a fee of from $75,000.00 to $90,000.00 would be reasonable. In the hypothetical question asked him he was asked to assume the facts stated in the 74 page statement were true except the time Mr. Smith testified he had given. The other witness was asked to exclude the time and that Mr. Smith had been instrumental in substantial part in bringing about the settlement but to assume the truth of the other facts stated in the 74 page question. He felt $75,000.00 would be a reasonable fee.

The first complaint concerns the quashing of the subpoena duces tecum for Mr. Smith’s individual income tax returns for the years 1958 through 1962. There are eight points of error relating to the court’s action in this regard. Each point really amounts to an assignment of a different reason as to why the action was error and why it was error for the court not to examine the returns. Too, why it was error not to allow development of a bill of exceptions.

We hold there was no error in the court’s action in quashing the subpoena, in not allowing evidence from Mr. Smith about his income; and, in not examining the returns.

When the case was assigned for trial and before voir dire examination of the jury, appellees made a motion denominated “Motion in Limine” asking the court to instruct counsel for appellant not to make reference to income tax returns or earnings of Mr. Smith. The motion was sustained. Thereafter, on October 16, the trial having commenced on October 7, appellant’s counsel obtained a subpoena duces tecum for Mr. Smith’s income tax returns for the years 1958 through 1962. On motion of appellees the subpoena was quashed. In connection with action on the motion counsel for appellant stated he wanted the returns because he wanted “to know his total income in his law practice over a five year period.” The court stated the record should show that this was appellant’s purpose in seeking the returns. The court then sustained the motion and stated that the total income for any or all of the years was immaterial and irrelevant to any issue in the case and therefore even the court had no right to examine and inspect the returns. Appellant’s counsel was then asked if that perfected his bill of exception and counsel replied he would have to ask Mr. Smith what his income was for purposes of his bill. The court stated he would permit this and then it was stipulated that Mr. Smith would refuse to answer. Appellant sought nothing further. She at no time stated any other purpose for wanting the returns. Here she asserts she wanted the returns so she could show the time spent on other work, the value Mr. Smith put on his time and what he charged for similar services. She contends this would be relevant in contradicting the testimony of Mr. Smith as to the time he spent on Mrs. Hudson’s case. Too, she here contends the information would tend to show no loss of income due to time spent on the Hudson case.

We fail to see the materiality of Smith’s total income on the issue as to what is a reasonable fee in a given case. This was the only purpose stated to the court for seeking the returns and oral testimony from Smith. We are of the view that where testimony is offered for a stated purpose for which it is not material and therefore not admissible, and the court sustains an objection, there is no error in the court’s action, even though in retrospect it may be felt it was admissible for an unstated purpose. It is not for the court to ferret out some conceivable grounds of admissibility. McCormick and Ray, Texas Law of Evidence, Second Ed., Sec. 21, p. 19.

Further, whether work by Mr. Smith on this case resulted in a loss of other employment or earnings is not an issue in this case. The letter of Mr. Smith setting out the basis of his fee did not include the element of loss of other employment. While the Canons of Ethics referred to and the suggested Minimum Fee Schedule of the Texas Bar include as a factor that may properly be considered the loss of other business, Mr. Smith’s letter did not include such as an element to be considered. The letter specifically points out, after enumerating the elements to be considered, these are “applicable guides designated” by the specified Canons of Ethics. All applicable guides specified in the Canons are not adopted. Too, nowhere in the testimony does Mr. Smith claim he lost any earnings or employment because of work on the Hudson case. Also, it is to be remembered that Smith was in the partnership of Smith & Lehmann. We feel we judicially know that the individual returns would not show information on individual clients, time spent on a given case or piece of business. It would show income received from the partnership. Even the partnership return shows nothing about time spent on individual clients. It shows total income and expenses. The books of the firm show the detailed information. Even if Smith had individual clients, his individual returns would not show his clients or time spent on each client. This appears from a person’s account books. Too, income received in a given year may be for work done in other years.

Too, to seek from the returns the names of clients, the time spent on each, the nature of the work, and the fee charged would too remotely bear upon the issues in the case. Cloud v. Zellers, 158 Tex. 253, 309 S.W.2d 806; Mrs. Baird’s Bread Co. v. Hearn, 157 Tex. 159, 300 S.W.2d 646.

The attempt to obtain the income tax returns was an effort to discover information. Where income tax returns are involved, there is necessarily an invasion of privacy. The result is that our Supreme Court has been very careful to keep this invasion at a minimum and allow it only if, and to the extent that, the ends of justice require. Maresca v. Marks, 362 S.W.2d 299 (S.Ct.). The court has also given us guides that should be followed in requiring production of income tax returns. In the case of Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434, the Supreme Court held that a pleading showing relevancy and materiality was a condition precedent. It said:

“All parties to our present cause proceed on the theory that discovery will be only as to evidence relevant and material to the main action. With this we agree, and we hold that such relevancy and materiality should be shown in the written application or petition asking for the bill of discovery, or by the pleading in the main cause.”

Here there was no proceeding under a bill of discovery but there was not the requisite pleading in the main cause or even oral pleading.

We also note that there was no assignment of error in appellant’s Amended Motion for New Trial of error by the trial court in refusing to examine the returns or in allegedly refusing to allow the use of the returns to perfect a bill of exception. The alleged errors are, therefore, waived. We also feel there was never any request to the trial court that the judge examine the returns or that the returns be produced so a bill could be completed. We think this is reflected by the recital above of what occurred in connection with the motion to quash the subpoena.

For all of the above reasons appellant’s complaints here, concerning any action taken by the trial court with regard to the income tax returns are overruled.

The court excluded on objection a letter written October 12, 1962, by Mrs. Smith, the wife of J. Edwin Smith, to the mother of Mrs. Hudson. It was written, or so the court could have found under the ⅝ vidence, without the knowledge or consent of Mr. Smith. Mrs. Smith was not a witness in the case. The letter was written while Mr. Smith was in the hospital for a few days. The substance of the letter was that Mr. Smith was in the hospital and experiencing a deep depression. She stated they had financial obligations to meet and she wished the mother would see that appellant paid the bill that was a month old. The theory of the offer was it was an admission by the wife who had a community interest in the money and would corroborate Mrs. Hudson’s contention that Mr. Smith was ill and could not take care of her case. The bill referred to was one from Smith & Lehmann for $15,000.00. From time to time as work progressed a bill contemplating payment on the fee was sent. Three of such bills for $15,000.00 were paid and were deducted from the amount found by the jury.

There was no error in excluding the letter.

In the first place, the letter would not be an admission admissible against Smith & Lehmann. If evidence is offered generally which is admissible as against some of the parties but not against others and the court excludes the evidence, there is no error. Luvual v. Henke & Pillot, 366 S.W.2d 831 (CCA), ref., n. r. e.

Further, an admission by the husband or wife is not admissible against the other unless it was authorized. McCormick and Ray, Texas Law of Evidence, Second Ed., Sec. 1170; O’Fiel v. Janes, 220 S.W. 371 (CCA), writ ref.

In any event, the evidence would be purely cumulative because Mr. Smith testified fully admitting this illness. Too, the illness was but for a few days in October, 1962, and shortly thereafter the evidence from other sources shows he was actively engaged in the Master’s hearing.

Next appellant complains of the admission in evidence of the letter from Mr. Foreman, the new counsel employed to represent Mrs. Hudson in only the divorce suit, in matters pertaining to the divorce. The letter was written to the mother of Mrs. Hudson and was signed by Mrs. Hudson as well as the mother. It is dated October 25, 1962. It provided for a fee, payable absolutely, of $100,000.00. The letter contained this statement:

“The reason for this firm commitment and your guarantee as to payment * * * is the volatile and highly emotional state in which I find Mrs. Cecil Hudson at the time I am approached for employment. There is always the possibility she will decide to dispense with my services even as she has heretofore done with Mr. J. Edwin Smith.
“I am advising you that it would be advisable if we were able to retain the services of Mr. J. Edwin Smith in this case. I hope you will elect to do so. * * * We contemplate that Mr. Smith will remain in the case. * * ”

When the letter was first offered it was excluded. Then Mrs. Hudson testified and in her testimony was blaming Mr. Smith for not working on the case, and testifying about his alleged illnesses. Too, she testified he was to continue in the case purely as a matter of “professional courtesy”.

We think the letter was admissible. By signing the letter without taking exception to statements contained in it concerning her emotional state, she adopted the statements. Texas Reciprocal Ins. Ass’n v. Stadler, 140 Tex. 96, 166 S.W.2d 121; McCormick and Ray, Texas Law of Evidence, Second Ed., Sec. 1149. The admissions could be considered by the jury in determining whether it was Mrs. Hudson’s emotional state instead of Mr. Smith’s illness that was the cause of misunderstanding. Too, it served to impeach Mrs. Hudson because it showed that instead of Mr. Smith’s being retained purely as a matter of professional courtesy he was retained because he could be of valuable assistance to appellant. The statements in the letter, adopted by Mrs. Hudson, were inconsistent with her testimony and could be used to impeach her.

Too, we are of the view that the letter fixing the fee in the very same case, under the facts of this record, made the letter admissible on the issue of the reasonableness of Mr. Smith’s fee. Neither was a contingent fee. Both were provided by agreement though the amount of Mr. Smith’s fee was not set out in his letter. However, a reasonable fee based on the factors set out in the letter was to be paid. Riggs, Ferris & Geer v. Lillibridge, 2 Cir., 316 F.2d 60.

The assertion that the letter was a privileged communication between attorney and client was not made at the time it was offered, and such objection was thus waived. However, it was not privileged because written to a third party. Too, it was delivered, without objection, at the time Mrs. Hudson’s deposition was taken, so any privilege was waived.

The complaint of exclusion of evidence concerning the amount of rttor-ney’s fee charged Mrs. Hudson in a previous divorce proceeding against Mr. Hudson cannot be appraised because appellant did not perfect a bill of exception and there was no denial of the right to perfect a bill. A motion in limine asking that appellant not go into the fee was sustained, the court stating not to go into it in the presence of the jury. However, appellant was told she could go into it in the absence of the jury. No effort was thereafter made to develop this evidence even for purposes of a bill of exception. Granting or denying a motion in limine does not preserve error. Hartford Accident & Indemnity Company v. McCardell, Tex., 369 S.W.2d 331.

Even if we be in error in holding the trial court’s actions were not erroneous, we are of the view that any error was harmless. Rules 434, Texas Rules of Civil Procedure. In an effort to show harm, appellant particularly stresses that the evidence shows a trial lawyer’s productive time is about 1500 hours per year. There was evidence to this effect but there was evidence also that his productive time was from 2500 to 3000 hours per year. Frankly, an attorney who has productive time of only 1500 hours per year just isn’t working. We do not understand appellant’s mathematics. Mr. Smith testified he took no vacations, frequently worked at night and on Sundays. Too, on the few trips he took, such as to visit his ill father, he took some files in this case with him and worked on them while in San Marcos. Further, time is only one factor considered in determining the fee. It is also noticed that the witnesses for appellant testified to a reasonable fee of $75,000.00 to $90,000.00. Appellee’s witnesses testified to $300,000.00 and $400,-000.00. The jury fixed a relatively median fee. In fact, it was closer by many thousands of dollars to the fee fixed by appellant’s witnesses.

As we before stated, we have read the entire record and, based on the whole record, we can find no harm resulting from any asserted error.

There was no error in the action of the 133rd District Court in striking the Second Amended Original Answer of appellant. On August 12, 1963 the case was by agreement set for trial for October 7. Appellant, with leave of the 61st District Court, without notice to appellees, filed such answer. Under Article 199, Vernon’s Ann. Tex.Civ.St, the judge of any district court in Harris County may dispose of any matter for any other judge that pertains to any pending case. The appellant showed no diligence in filing the answer. It was filed less than 7 days before the case was set for trial and it was discretionary with the trial court as to whether he should strike the answer. Rule 63, T.R.C.P. Davis v. National Acceptance Corporation, 233 S.W.2d 321 (CCA), ref., n. r. e.; O’Meara v. Saunders, 199 S.W.2d 689 (CCA), ref., n. r. e.; Weaver v. Bogle, 325 S.W.2d 457 (CCA), n. w. h.

The answer alleged the following defensive matters:

1.Allowance of the $150.00 per month that appellant had paid as a retainer.

2. Allowance of what had been paid other attorneys before and after Smith’s employment.

3. Illness of Smith.

4. Involvement of Smith in other suits to the detriment of appellant.

The illness of Smith and his work on other matters were evidentiary on the ultimate issue of his attorney’s fees. There was full development of the evidence on these matters. What was paid other attorneys was not to be deducted in the suit. The only offer of evidence by appellant was as to what was paid other attorneys, which has been discussed above.

The $45,000.00 that Smith had admittedly received on account was deducted from the amount found by the jury. Smith’s contention was that the $150.00 monthly retainer arranged prior to any talk about a divorce suit was to cover matters not relating to the divorce. This was gone into without objection on trial. By the evidence we think a fact issue was raised. By admitting testimony the issue was tried by consent. Appellant, had she asked to be allowed to file a trial amendment, would have been entitled to file it. She made no such request. If a trial amendment were filed she, on proper request, would have been entitled to a special issue, but she did not ask for an issue. This defense was, therefore, waived. See Rules 66, 67 and 279, T.R.C.P.

Finally, appellant contends that there should have been no attorney’s fee allowed Smith for the attorney representing him in this case because no demand was made by Smith on appellant for his attorney’s fee prior to filing of his intervention in the divorce suit and prior to his filing his suit in the District Court for his attorney’s fee. Related to this is the asserted error that her requested special issues, inquiring as to whether Smith made such demand and if so what the amount of the demand was, were erroneously refused.

The attorney’s fee was allowed under Article 2226, V.A.T.S. for personal services rendered. It provides in part that “any person having a valid claim against a person * * * for personal services rendered * * * may present the same to such person ⅜ ⅝ * . an(j jf expiration of thirty (30) days thereafter, the claim has not been paid or satisfied, and he finally obtains a judgment for any amount thereof as presented for payment * * * he may also recover * * * a reasonable amount as attorney’s fees * *

No formal written bill was ever sent appellant. However, in November, 1962, after appellant had sent the telegram to the Master in Chancery that Mr. Smith no longer represented her (She never sent any such written message to Mr. Smith), Mr. Smith discussed the balance of his fee with Mrs. Hudson and she stated she would pay him no more than $5,000.00. In December, 1962 or January, 1963, Mr. Smith discussed his fee with one of appellant’s attorneys and was told appellant would pay no more than $25,000.00. The appellant herself testified that after the telegram to the Master in Chancery she talked with Mr. Smith and told him she was not going to pay him any more money. On January 29, 1963, appel-lees filed a plea of intervention in the divorce proceeding pending in the Court of Domestic Relations No. 2 of Harris County, suing for his attorney’s fee of $300,000.00 and allowed for a'credit of the $45,000.00 already paid. He asked for no attorney’s fee for the attorney filing the petition in intervention. He asked the judge of that court to fix his fee as was contemplated by his letter of employment to appellant. Appellant then, joined by Mr. Hudson, made a motion to strike the intervention, or alternatively to sever the claim for attorney’s fee. In the motion it was recited there was a dispute between appellant and Mr. Smith as to the amount of this attorney’s fee and that appellant, under the property settlement agreement, assumed any obligation for fees to any of her attorneys. On February 13, 1963, the cause of action set up in the petition in intervention was severed and the cause transferred to the 61st District Court. On July 25, 1963, in said district court appellees filed their “Second Amended Plea in Intervention” and for the first time asked for an attorney’s fee for his attorney in this case.

It is not required by Article 2226 that the claim be presented 30 days prior to the filing of suit. It is only necessary that a claim be presented and if it is not paid within 30 days an attorney’s fee is recoverable in any suit where the claimant recovers a part of the claim if he is represented by counsel. Gateley v. Humphrey, 151 Tex. 588, 254 S.W.2d 98.

We are of the view, however, that when appellees filed their intervention in the divorce suit claiming a reasonable attorney’s fee of $300,000.00, this was, under the facts of this case, a sufficient presentation of the claim. No attorney’s fee for the attorney representing appellees was asked. Appellant opposed a determination in the divorce proceeding of an attorney’s fee and asked dismissal of the intervention, or, in the alternative, that the matter be severed and transferred to the district court. Except as an incident to the trial of the divorce suit and a judgment against the husband for his wife’s attorney’s fee, the Domestic Relations Court would have no jurisdiction to award attorney’s fees. The controversy between the wife and her attorney would be a matter cognizable, depending on the amount involved, in the district or county court. Here it would be the district court. At the time of the motion to dismiss or to transfer, it was established that appellant would be liable for the fees to her attorneys. This plea in intervention was a sufficient presentation. It was not until many days more than 30 after this that appellees filed what they denominated “Second Amended Petition in Intervention” in the case in the district court and for the first time asked for an attorney’s fee for their attorney. The purpose of the requirement for presentation of a claim is to allow the person against whom it is asserted an opportunity to pay the claim in 30 days after she has notice of the claim without incurring an obligation for attorney’s fee. No particular form of presentation is required. Huff v. Fidelity Union Life Ins. Co., 158 Tex. 433, 312 S.W.2d 493; National Life & Accident Ins. Company v. Dove, 141 Tex. 464, 174 S.W.2d 245.

We are further of the view, under the facts of this case, no formal presentation was necessary because appellant herself testified that shortly after October 8, 1962, she told Mr. Smith she was not going to pay him any more attorney’s fee because he wasn’t entitled to any. Too, at another time she stated she would pay no more than $5,000.00, and through her then attorney she informed Smith she would pay no more than $25,000.00. Under such circumstances presentation is waived because such would be a useless gesture. Lang v. Harwood, 145 S.W.2d 945 (C.C.A.), no writ history; City of El Paso v. Pan American Supply Co., 251 S.W.2d 742 (C.C.A.), ref., n. r. e.

Affirmed.


source: Caselaw Access Project

author: ARCHER, Chief Justice. HUGHES, Justice

license: Public Domain

text:
    E. A. VARNER, Appellant, v. J. A. SMITH et al., Appellees.
    No. 11296.
    Court of Civil Appeals of Texas. Austin.
    May 26, 1965.
    Rehearing Denied June 16, 1965.
    Small, Small & Craig, C. C. Small, Jr., Austin, for appellant.
    Camp & Camp, Cameron, R. H. Whilden, W. G. Winters, Jr., Houston, for appellees.
   ARCHER, Chief Justice.

This is a suit in trespass to try title brought by appellant as plaintiff below against appellees to recover title and possession to a tract of 45 acres of land out of the Fernando Rodriquez Three League Grant in Milam County, Texas. Appellees plead not guilty and adverse possession under the ten-year statute of limitations. Ap-pellee, J. A. Smith, claims title to the tract subject to an oil and gas lease in favor of the appellee, Shell Oil Company. Appellee, Shell Oil Company, claims title to such lease. Trial was before a jury. At the close of the evidence four special issues were submitted and after the jury had returned its verdict thereon, the trial court granted appellees’ motion for judgment non obstante veredicto on the grounds that appellant had failed to discharge his burden of proof to establish a record title from the sovereignty and that the evidence raised no issue of fact. Appellant timely filed a motion for new trial and an amended motion for new trial, which was overruled by the trial court on the 28th day of August, 1964, from which action this appeal has been taken.

The appeal is predicated on three points to the effect that the trial court erred in granting the motion of defendants for judgment non obstante veredicto, in holding that appellant failed to establish a record title from the sovereignty, and in failing to render judgment for appellant.

This was tried with a jury on four issues and in response to these issues the jury found (1) that appellee Smith had not acknowledged the ownership of the 45 acres to be in appellant’s predecessors in title; (2) that Smith had had peaceable and adverse possession of the 45 acres using and enjoying the same continuously for as long as ten years prior to the filing of the suit; (3) that Smith had repudiated the title of appellant and those under whom he claimed; and (4) that Smith had not been in adverse possession of the 45 acres during a continuous period of ten years between the date of repudiation and the date of the filing of the suit.

Appellees moved for judgment non ob-stante veredicto, and the trial court granted such motion on the grounds that the plaintiff had failed to establish a record title from the sovereignty, and therefore the evidence raised no issue of fact, and rendered judgment accordingly for appellees.

We believe that plaintiff did plead and prove a record title to the land except insofar as defendant J. A. Smith’s interest in his mother Mrs. Lecie Smith’s estate was concerned, and as to the location of the land on the ground.

Plaintiff offered into evidence the Fernando Rodriquez three-league grant from the sovereignty to Samuel Williams, attorney for Rodriquez, dated October 29, 1833, and a deed from Samuel M. Williams, attorney, dated August 5, 1934 to Edward Brewster to the west league.

In 1835 Fernando Rodriquez, reciting that he had not previously sold or authorized anyone else to sell, conveyed the three leagues to Joseph Thomas. Subsequently the Thomas title through mesne conveyances was acquired by James R. Ham, who conveyed it to Edward Brewster in 1878, and the two chains of title merged.

J. J. Goodrum acquired title to a tract of 320 acres in a deed from Charlotte S. Gregory by Attorney George Butler on November 12, 1872 descibed as “all those certain tracts of land, out of the Hernando Rodriquez of Two survey leagues situated in Milam County, Texas, and known as Subdivision of the Southwest quarter of Section I and the North west quarter of Section J per surveys made by J. J. Kidd and containing one hundred and sixty acres each tract making in all three hundred and twenty acres.”

Mrs. M. A. Davis and others, as “all of the heirs of J. J. Goodrum, dec., also Mrs. Sallie W. Goodrum, Guardian of the Estate of her two minor children will make a deed as soon as she can procure an order * * * ” conveyed to J. M. Cupp and J. S. Smith “all that certain tract of land containing three hundred and twenty acres of land situated in Milam County, Texas. Beginning at the N. E. corner of sec. J. Thence S 70 W 950 vrs. to a Black Jack marked X. Thence S. 20 E. 950 vrs. to a B. J. marked X. Thence N. 70 E. 1900 vrs. to a B. J. marked X. Thence N. 20 W. 950 vrs. to a B. J. marked X. Thence S. 70 W. 950 vrs. to the place of beginning.”

The named minor children, Willie R. Goodrum and Selvin Smith Goodrum, appointed L. E. Laurence, Jr. their attorney to recover possession of land as heirs of J. J. Goodrum, and conveyed an undivided one-half interest in said land.

On January 21, 1924 Laurence conveyed his interest in a tract of 320 acres to Willie and Selvin Goodrum, as a reconveyance.

On May 13, 1924 Willie R. Goodrum, Selvin Smith Goodrum and Mrs. Sallie W. Goodrum conveyed to L. E. Laurence, Jr. an undivided interest in 45 acres, describing it.

On June 2, 1924 L. E. Laurence and wife sold an undivided one-half interest to W. M. Plaster, describing it.

On May 17, 1963 Willie R. Goodrum conveyed all of his interest in 45 acres, describing it to E. A. Varner.

On July 5, 1963 W. M. Goodrum, individually and as attorney in fact for a number of other persons, conveyed to E. A. Varner all of the undivided interest in 45 acres, describing it by metes and bounds.

On July 10, 1963 W. M. Plaster et al., claiming to be heirs of W. M. Plaster, conveyed to E. A. Varner all of their undivided interest in the 45 acre tract, describing it, and on the same day Pliny Plaster, a daughter of W. M. Plaster, conveyed her undivided interest in the 45 acres to E. A. Varner.

There were embodied in the several conveyances affidavits as to heirship of the respective estates.

J. M. Cupp and J. S. Smith partitioned among themselves the lands conveyed to them by Mrs. W. A. Davis et al., and there was conveyed to J. S. Smith and wife Lecie Smith a tract of land containing 70.4 acres.

On May 8, 1924 J. S. Smith, “for myself and as survivor of the community estate of myself and my deceased wife Lecie Smith * * * for the purpose of effecting a partition of the 320 acre tract of land hereinafter mentioned and of effecting a compromise and settlement of that certain suit No. 9085 styled Willie R. Goodrum, et al. vs. J. S. Smith, et al., pending in the District Court of Milam County, Texas.” conveyed to Willie R. Goodrum and Selvin Smith Goodrum that 45 acres, describing it.

Mr. Smith had not qualified as community survivor and was not joined by any of his children.

Appellant contends that J. A. Smith is a naked trespasser, because of the testimony given by Smith in which he stated that he was not claiming by reason of inheritance but by reason of being a trespasser. This is only a part of Smith’s testimony in which he testified that he was born on the 320 acre tract, and that he had never lost possession of the land, that he put a fence around it for a pasture, and that he claimed the land now, and fenced it in 1928 and had claimed it ever since, that he paid taxes on 3354 acres with further testimony as to his claim. The witness testified further as to improvements he made on the land.

We believe that the land is so identified that a surveyor could go upon the premises and locate the 45 acre tract, but a survey will be necessary to definitely locate the boundaries.

There was introduced an ownership map constructed by the employees of an abstract company as testified to by the manager, and the area described as the J. J. Good-rum 320 acre tract is shown, and the subdivisions of the 320 acre tract by J. S. Smith and J. M. Cupp, who had acquired title from Mrs. M. A. Davis et al. are reflected, which we insert herein:

Appellee Smith in his answer adopts the description as set out in plaintiff’s pleadings as the land he claims, and is not in doubt about the location of the land himself.

The plaintiff has plead and offered testimony as to his ownership of the 45 acre tract and insofar as those deeding the land owned it, title became vested in him.

We recognize that plaintiff was required to recover on the strength of his own title and must allege the acreage with descriptive boundaries and may" recover a less amount than sued for. Plaintiff has an undivided interest in the 45 acres with J. A. Smith, who owns in part by inheritance from his mother and any interest he may have acquired by limitation.

We believe that there was presented a question of fact as to land owned by J. A. Smith as an heir of his mother, Lecie Smith, and as to a limitation title plead and claimed by J. A. Smith.

The trial court erred in rendering judgment for appellee.

The judgment of the trial court is reversed and remanded for a new trial.

Reversed and remanded.

HUGHES, Justice

(dissenting).

This case, in my opinion, should be either affirmed or reversed and rendered. There is no assignment of error by either party which, if sustained, requires a remand. I am of the opinion that the judgment of the trial court should be reversed and rendered in behalf of appellant for the recovery of an undivided one-half interest in the 45 acre tract in suit.

I will not attempt to retrace the com- • píete title to the 45 acre tract but will only discuss what, to me, are its controlling aspects.

The 45 acre tract was part of a 320 acre tract which Mrs. M. A. Davis et al., as heirs of J. J. Goodrum, in 1900 conveyed to J. M. Cupp and J. S. Smith.

Two grandchildren, then minors, of J. J. Goodrum, Willie R. and Selvin Smith Goodrum, did not join in this conveyance, nor is it shown by the record the interest in the 320 acre tract owned by each grantor.

In 1900 J. S. Smith was married to Lecie Smith and his interest in the 320 acre tract was community property of himself and Lecie Smith. Lecie Smith died in 1920, and her interest in the 320 acre tract passed to her children of whom ap-pellee J. A. Smith is one.

In 1924, J. S. Smith conveyed the 45 acre tract to Willie R. and Selvin Smith Goodrum. This deed recited that it was for the purpose of effecting a partition of the 320 acre tract of which it was a part.

Even though this deed may not be effective as a legal partition of the 320 acres, it is effective as an equitable partition under the rule stated in Larrison v. Walker, 149 S.W.2d 172, Texarkana C.C. A., writ ref., as follows:

“The deeds of a tenant in common to specific parcels of the land are not absolutely void. They are always good as against the grantor. Such deeds do not convey or destroy any of the title of the nonjoining cotenants to their undivided interest to the lands described in the deeds. The non joining cotenants may avoid such deeds, if and to the extent only they are injured by such deeds. Though one cotenant has no power to divest the title of other cotenants by selling specific parts of the common property, yet under the well-settled doctrine of equitable partition the court in adjusting the equities of all the interested parties will protect such purchasers by setting aside to them the particular tracts purchased, if it can be done without injury to the other owners, where, as here, the acreage of the common property is of equal and uniform value; and will set aside to the non joining cotenants the equivalent of their interest in all the land out of the unsold tract if it is sufficient to satisfy same; and if the unsold tract is not sufficient to fully satisfy the interest of the non-joining cotenants, then the remainder of their interest will be satisfied out of that sold, in the inverse order of the execution of such deeds.”

See also Merriweather v. Jackson, 38 S.W.2d 599, Austin C.C.A., n. w. h.

Willie R. and Selvin Smith Goodrum conveyed an undivided one-half interest in the 45 acre tract to their attorney, L. E. Laurence, Jr. Willie Goodrum then conveyed his remaining interest in the 45 acre tract to appellant. The interest which Willie Goodrum then owned in such tract was an undivided one-fourth interest. The undivided one-fourth interest in the 45 acre tract owned by Selvin Smith Good-rum was conveyed to appellant by the established heirs of Selvin Smith Goodrum.

These facts, in my opinion, establish a record title to an undivided one-half interest in the 45 acre tract described in the pleadings.

Appellant contends that he is entitled to recover the full title to the 45 acre tract because appellee is a naked trespasser and that as a tenant in common he has this right. I cannot agree to this contention for the reason that appellee had an interest as an heir of his mother, Lecie Smith, in the 320 acre tract out of which the 45 acre tract was formed. This interest is equitable and of the nature described in the above cited authorities. This interest prevents, in my opinion, the classification of appellee as a naked trespasser.

I would reverse and render judgment for appellant for an undivided one-half interest in the lands described in his petition.


author: NORTHCUTT, Justice. CHAPMAN, Justice. DENTON, Chief Justice. NORTHCUTT, Justice

text:
    B. F. SHIPLEY, Appellant, v. SOUTHWESTERN INVESTMENT COMPANY, Appellee.
    No. 7452.
    Court of Civil Appeals of Texas. Amarillo.
    March 22, 1965.
    Rehearing Denied June 14, 1965.

      Huffaker & Green, Tahoka, for appellant.
    Clayton, Kolander, Moser & Templeton, Amarillo, for appellee.
   NORTHCUTT, Justice.

This is a venue suit. Southwestern Investment Company brought suit against B. F. Shipley to recover under a certain Dealer’s Protection Agreement, the balance due upon one certain note. That portion of the Dealer’s Protection Agreement is as follows:

“To SOUTHWESTERN INVESTMENT COMPANY:
(1) We propose to sell to you from time to time, such notes, conditional sales contracts, chattel mortgages, lease agreements or other evidences of debt, herein called “NOTES,” as are acceptable to you and acquired by us from retail purchasers of new or used passenger and/or commercial automobiles, herein called “CARS”, which notes we will endorse to you without recourse, and this agreement states the basis of your purchase thereof.
(2) We agree to purchase from you upon demand each' repossessed or recovered car tendered at our place of business; if we are out of business tender is waived, and we shall be responsible for any deficiency incurred by you in the resale of the cars, and if we are in default to you, cars may be tendered by registered mail notice sent to our last known business address. The purchase price which we will pay you in cash for such cars, and which shall be payable in Amarillo, Texas, shall be as follows: The unpaid balance due on the cars if tendered within ninety days after maturity of the earliest installment still unpaid, or if tender is delayed by redemption period, litigation, or any existing or future law or executive proclamation, then we will accept delivery of and purchase such cars from you at such time as you can make delivery thereof and pay you therefor in cash, an amount equal to the unpaid balance owing on the notes relating thereto, notwithstanding that it may exceed the' ninety days period above mentioned. It is agreed that upon suit being filed by you for foreclosure of a lien upon or for possession of such cars, with the issuance of process, such shall constitute litigation with reference thereto as that term is used herein. In any other case the purchase price of such cars shall be the ‘as is’ value of the cars, such value to be determined in accordance with the appraisal clause of standard fire and theft policies. Until repurchased by us, you may store such repossessed cars on our premises without cost, and our possession of such cars shall be merely as a bailee, with the duty to safely store for you and redeliver such cars to you on demand.”

For convenience Shipley will hereafter be referred to as appellant and Southwestern Investment Company as appellee. On July 3, 1962, appellant sold to one A. W. Gaylor a Ford automobile and other equipment and took as part payment a note and chattel mortgage securing the same. The note was for the sum of $3,634.92, payable in thirty-six monthly installments of $100.92 each. The note was made payable to appellant at the office of Southwestern Investment Company in Amarillo, Potter County, Texas. Appellant endorsed the note and chattel mortgage to appellee without recourse, except that appellant agreed to repurchase the automobile or other collateral described in the note and chattel mortgage and agreed to pay therefor the unpaid portion of the purchase price of the automobile which was the unpaid portion of the note.

Appellee brought the suit to recover of and from appellant the balance due unpaid upon the note in question alleging that pursuant to such Dealer’s Protection Agreement appellee purchased from appellant the promissory note and chattel mortgage executed by A. W. Gaylor, further alleging Gaylor defaulted in the payment of the note with chattel mortgage lien and there remained an unpaid balance of $2,780.66. As a result of such default, appellee repossessed such motor vehicle and tendered the same to appellant for repurchase under such Dealer’s Protection Agreement, whereupon appellant failed and refused to repurchase such motor vehicle from appellee, further pleading appellee sold such motor vehicle to the highest bidder and realized from the sale thereof the sum of $835.00, which was applied as a credit upon such note, leaving a balance due and unpaid upon said note the sum of $1,-945.66.

Appellant filed his plea of privilege to be sued in Terry County, the county of his residence. Appellee filed its controverting plea making its petition a part thereof seeking to retain venue in Potter County, Texas, under Section 5 of Article 1995, Vernon’s Ann.Tex.Civ.St. The trial was had to the court and judgment was entered overruling appellant’s plea of privilege. From that judgment appellant perfected this appeal. The Dealer’s Protection Agreement, note with chattel mortgage, and endorsement thereon were introduced in evidence. A stipulation was made as follows:

“It is stipulated, Your Honor, that the City of Amarillo, Texas, The City and Municipality of Amarillo, Texas, maintains and has its principal seat of government as a municipality in Potter County, Texas, and that the county seat of Potter County, Texas, is in Amarillo, Texas, in Potter County, where the principality for governmental purposes is situated, and that by reason of expansion and growth of the City of Amarillo, it has had its boundary lines and city limits extended over into Randall County, Texas.”

Appellant presents this appeal upon two points of error as follows:

“POINT NO. 1
“The trial court erred in failing to sustain appellant’s plea of privilege because there is no evidence, or at least the evidence is insufficient to show that appellant contracted in writing to perform the obligations sued upon in a particular county, that is, in Potter County, Texas as contemplated by Subdivision 5 of Article 1995 V.A.T.S.
“POINT NO. 2
“The trial court erred in failing to sustain appellant’s plea of privilege because under the contract introduced in evidence, and made the basis of this suit, appellant only obligated himself to perform the contract, that is to pay the appellee, in Amarillo, Texas, but not at any particular place in Amarillo, Texas, and it having been stipulated that Amarillo, Texas, is located both in Potter and Randall Counties, Texas, and appellee wholly failed to bring itself and this suit within the provisions of Sub-division 5, or of any other Subdivision of Article 1995, V.A.T.S.”

Section 5 of Article 1995 reads as iol-lows:

“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.”

There is no question but that appellant agreed to perform the obligation in Amarillo, Texas, under the terms of the Dealer’s Protection Agreement. The question then arises whether the designation of Amarillo, Texas, constitutes a definite place in Potter County, Texas, as required by Section 5. It is required that such written instrument upon which suit is founded must be signed by defendant (appellant here) and contain an express agreement on the part of defendant to perform an obligation in a particular county or a definite place in such particular county. It is stipulated in this case that Amarillo is the county seat of Potter County, Texas, where the principality for governmental purposes is situated. Consequently, it would not require the court to take judicial notice that Amarillo is in Potter County, Texas, although the court could take judicial notice of that fact. The courts of Texas judicially know that Potter is a county in Texas and also that Amarillo is a city which is the county seat of Potter County, Texas. This is “naming a particular county, or a definite place therein” by a written instrument as is required by Subdivision S of Article 1995, V.T.C.S. Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825; Heid Bros., v. Smiley, Tex.Civ.App., 144 S.W.2d 952; Yanta v. Davenport, Tex.Civ.App., 323 S.W.2d 636 (writ dismissed) and cases there cited.

Appellant contends that he only obligated himself to pay appellee in Amarillo, Texas, but not at any particular place in Amarillo, Texas, and it having been stipulated that Amarillo, Texas, was located in Potter County and Randall County, Texas, appellee failed to bring this suit within Section 5 of Article 1995. The stipulation provided that the county seat of Potter County, Texas, was at Amarillo, Texas, in Potter County where the principality for governmental purposes is situated and that by reason of expansion and growth of the City of Amarillo it has had its boundary lines and city limits extended over into Randall County, Texas. We have not been cited to a case passing upon this particular point as to a city extended into another county and neither have we found one. There is nothing in the record as to the limits of the city as chartered, but the stipulation shows it is because of the growth of the city that its limits have extended into Randall County. The courts take judicial notice that Amarillo is the county seat of Potter County, Texas. The fact Amarillo has grown to the extent its limits extend into Randall County would not change the rule that the courts could take judicial notice that Amarillo is the county seat of and located in Potter County. Further as to the contention of appellant that he only obligated himself to pay appellee in Amarillo, Texas, but not at any particular place in Amarillo, Texas, we are of the opinion to designate a particular place in Amarillo was not required. The question to be determined is not whether a certain place in Amarillo is required. The obligation was payable in Amarillo, Texas. The issue then to be determined is whether Amarillo is a definite place in Potter County as provided for under Section 5 of Article 1995. We are of the opinion, and so hold, that when appellant agreed in writing as set out in the Dealer’s Protection Agreement to perform his obligation in Amarillo, Texas, a definite place was so designated as contemplated and covered under Section 5 of Article 1995.

Judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

CHAPMAN, Justice.

Upon motion for rehearing I have concluded the original unanimous opinion announced herein by our court on March 22, 1965, was erroneous and use this means to express my disagreement with that opinion.

The instrument sued upon herein and sought to be enforced is what is designated in the record as a Dealer’s Protection Agreement between appellant, B. F. Ship-ley d/b/a Shipley Motor Company of Terry County, and Southwestern Investment Company, and for the former’s agreement to protect the latter upon all evidences of debts the motor company proposed to sell the investment company from time to time.

The evidences of debts were to be such notes, conditional sales contracts, chattel mortgages, lease agreements, etc., which the dealer acquired in connection with his retail automobile business.

The protection given by the dealer was his agreement “to purchase upon demand each repossessed or recovered car tendered at our place of business * * * and we shall be responsible for any deficiency incurred by you in the sale of the cars, * * The purchase price which we will pay you in cash for such cars, and which shall be payable in Amarillo, Texas, shall be as follows:” (All italics herein are ours.)

Then the instrument set out the method by and basis upon which the dealer would pay the investment company for any deficiencies resulting in the failure of the purchasers from the dealer to discharge the paper obligations sold by the dealer to the investment company.

The March 22, 1965, opinion correctly stated: “Southwestern Investment Company brought suit against B. F. Shipley to recover upon a certain Dealer’s Protection Agreement, the balance due upon one certain note.” The opinion also correctly stated: “Appellant endorsed the note and chattel mortgage to appellee without recourse, except that appellant agreed to repurchase the automobile or other collateral described in the note and chattel mortgage and agreed to pay therefor the unpaid portion of the purchase price of the automobile which was the unpaid portion of the note."

Thus, the suit was upon the Dealer’s Protection Agreement, the obligations therein being payable in Amarillo, Texas.

It was stipulated that the City of Amarillo, Texas, maintains and has its principal seat of government as a municipality in Potter County, Texas, and that the county seat of Potter County, Texas, is in Amarillo, Texas, in Potter County, where the principality for governmental purposes is situated, and that by reason of expansion and growth of the City of Amarillo, it has had its boundary lines and city limits extended over into Randall County, Texas.

The original opinion then correctly stated: “The question then arises whether the designation of Amarillo, Texas, constitutes a definite place in Potter County, Texas, as required by Section 5.” Of course, “Section 5” meant that exception of the exceptions to Article 1995, V.T.C.S. giving one the right to be sued in the county of his domicile. The opinion has correctly quoted that exception and then held: “We are of the opinion, and so hold, that when appellant agreed in writing as set out in the Dealer’s Protection Agreement to perform his obligation in Amarillo, Texas, a definite place was so designated as contemplated and covered under Section 5 of Article 1995.”

I find in studying the motion for rehearing and our previously announced opinion I am unable to agree with the legal conclusion just quoted and believe the following cases are contrary thereto: Albin v. Hughes, Tex.Civ.App., 304 S.W.2d 371 (N.W.H.); Great Western Loan and Trust Co. v. Montgomery, Tex.Civ.App., 376 S.W.2d 92 (writ dismissed); Wood v. John Farrell Lumber Co., Tex.Civ.App., 389 S.W.2d 133.

By stipulation Amarillo, Texas, is in both Potter and Randall Counties. Therefore, it is my opinion that the agreement to perform an obligation in Amarillo, Texas, was not such a definite place as is contemplated under Section 5 of Article 1995.

The court in Albin v. Hughes, supra, said: “ ‘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.” That rule is applicable in the instant case because the requirement of payment in Amarillo, Texas, under this record could be either in Potter County or Randall County, so the instrument does not name a county that is fixed and certain.

In Great Western Loan and Trust Co. v. Montgomery, supra, the court said:

“A written contract which leaves to either party, the obligor or the obligee, the privilege of selecting the place of performance in one or two or more counties is not, in our opinion, a contract performable in a ‘particular county, expressly naming such county, or a definite place therein, by such writing’ as required by sub. 5 * * * ”.

Finally, the Eastland Court of Civil Appeals in Wood v. John Farrell Lumber Co., supra, a case filed by an Amarillo lumber company and transferred to the Eastland Court of Civil Appeals by our Supreme Court under the rule of equalizing the dockets, has held directly opposite to the instant case.

There the instrument sued upon provides : “ * * * we, or either of us, promise to pay to the order of the Amarillo National Bank at Amarillo, Texas * * As in the instant case it was stipulated that Amarillo is the county seat of Potter County and that the corporate limits of the City of Amarillo include both land in Potter County and Randall County. It was even stipulated that the Amarillo National Bank is located in the area of Amarillo lying in Potter County. That court then held:

“In our opinion appellant’s contention is well taken. The note here sued upon does not designate ‘a particular county’ of performance or a ‘definite place therein’ as required in subdivision S. There was no promise to pay in ‘Potter County’. There was no promise to pay at the Amarillo National Bank which is located in the area of Amarillo lying in Potter County. There was only a promise to pay to the Amarillo National Bank ‘at Amarillo.’ The agreement of appellant to make payment ‘at Amarillo, Texas’ did not designate a definite place in Potter County because it could be complied with by the performance of such promise in either Potter or Randall County.”

Therefore, I believe our court was in error, that the pending motion for rehearing should be granted, and the case transferred to Terry County for trial.

DENTON, Chief Justice.

I am in agreement with the opinion of Justice Chapman. A majority of the Court is now of the opinion the judgment of the trial court should be reversed. Appellant’s motion for rehearing is hereby granted. The judgment of the trial court is reversed and remanded with instructions to transfer the cause to the District Court of Terry County.

NORTHCUTT, Justice

(dissenting on motion for rehearing).

On March 22, 1965, judgment of this court was entered affirming the judgment of the trial court in overruling appellant’s plea of privilege and thereby retaining venue in Potter County, Texas. On appellant’s motion for rehearing a majority of the court was of the opinion this court was in error in its former judgment and ordered appellant’s motion for rehearing be granted and reversed and remanded the judgment of the trial court with instructions to transfer the cause to the District Court of Terry County, Texas. I respectfully dissent to the majority opinion.

The Supreme Court in the case of Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825, held as follows:

“ ‘We think, in view of the fact that the court was holding its session in the courthouse of Galveston county, situated in the city of Galveston, and had before it a law requiring judicial notice to be taken that Galveston was thus located, it might well conclude that there was no necessity of proving that fact. We think the judgment correct, and it is affirmed.’ Traylor v. Blum et al., Tex.Sup., 7 S.W. 829, 830.
“This is a direct holding that the court trying the case will take judicial notice that Galveston is in Galveston County, Texas. It is still the law that a trial court such as tried this cause will take judicial notice of the subdivision of the State into counties, and also of the location of the county seats of these counties. McCormick & Ray, Texas Law of Evidence p. 173 et seq., Judicial Notice, Geographical Facts, secs. 104, 105, and authorities there cited. 17 Tex.Jur. p. 181 et seq., Evidence Civil Cases, sec. 14, and cases cited therein. Idem, sec. 17 p. 185.
“The stipulation shows that Burtis executed and delivered both these financial statements to Butler Bros.
“Therefore, we have an instrument in writing signed by the defendant Burtis whereby he agreed to pay for all goods sold to him on credit by Butler Bros, in Dallas. The courts of Texas judicially know that Dallas is a county in Texas and also that it is a city which is the county seat of Dallas County, Texas. This is ‘naming a particular county, or a definite place therein’ by a written instrument as is required by subdivision 5, art. 1995, Revised Civil Statutes 1925, as amended.”

If we were wrong in holding that since the courts of Texas judicially know that Potter County is a county in Texas and also that Amarillo is a city which is the county seat of Potter County, Texas, is naming a particular county or a definite place therein as required by Subdivision 5 of Article 1995, venue should be sustained in Potter County for another and additional reason. The balance due on the note was the sum appellee sought to recover. The Dealer’s Protection Agreement provided the price appellant agreed to pay was the unpaid balance due on the cars if tendered within 90 days after maturity of the earliest installment still unpaid. The installment could refer only to the monthly installments provided for in the note, as that was the unpaid balance.

The note in question was payable to the order of appellant at the office of the Southwestern Investment Company in Amarillo, Potter County, Texas. The endorsement of the note by appellant in part is as follows:

“Pay to the order of Southwestern Investment Company without recourse, except that undersigned agreed to repurchase the automobile or other collateral described herein upon repossession, and will pay therefor the unpaid portion of the purchase price. * * * ” (Emphases mine.)

The unpaid portion of the purchase price was the unpaid balance due on the note which appellant agreed to pay in Potter County, Texas. I am of the opinion the Dealer’s Protection Agreement and the note must be construed together under the terms of the appellee’s pleadings. I am of the opinion the trial court was correct in overruling appellant’s plea of privilege.


author: SHARPE, Justice.

text:
    SOUTHERN PACIFIC COMPANY, Appellant, v. Troy HAYES et al., Appellees.
    No. 109.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 20, 1965.
    Rehearing Denied June 17, 1965.

      Conde N. Anderson, of Houchins, Anderson, Smith & Null, Victoria, for appellant.
    Willett Wilson, Houston, for appellees.
   SHARPE, Justice.

This is an appeal from a judgment condemning a railroad right-of-way easement across three lots owned by appellees, fronting on Williams Street in the City of Port Lavaca, Texas. The awards to the property owners aggregated $6,880.00, allocated as follows: (1) To Troy Hayes, $1,640.00, of which $540.00 was for a right-of-way easement across a strip 20.33 feet by 54.2 feet located in the right-of-way for Williams Street, and $1100.00 for damages to the remainder of the lot, (2) to H. A. Lundin and wife, $2,300.00, of which $540.-00 was for a similar easement to that of Hayes, and $1,760.00 for damages to the remainder of the let, and (3) to C. Sachtle-ben and wife, $2,900.00, of which $540.00 was for a similar easement to those just mentioned, and $2,360.00 for damages to the remainder of the lot. Originally, the suit was brought by appellees for injunction and damages against appellant on account of the building of an industrial spur track in the right-of-way of Williams Street at the front of appellees’ lots. However, the case ultimately resolved into a condemnation proceeding as set out in a cross-action filed by appellant.

The judgment awards were based upon a jury verdict consisting of answers to twelve special issues. Four special issues were submitted as to each of the three lots here involved; two of such issues inquired about the value of the strip (each 20.33 by 54.2 feet) located in Williams Street before and after the taking of a right-of-way easement for railroad purposes; and the remaining two issues inquired concerning the value of the remainder of each lot before and after the taking of the easement over the said strip in the Street.

The properties involved are three adjoining lots, being the rear portions of lots numbers 2, 3 and 4, in Block 5, South Park addition to the City of Port Lavaca, Texas. Block 5, above mentioned, is bounded by La Salle Street on the South, Williams Street on the North, Austin Street on the East, and Leona Street on the West. Said Block 5 is widest next to Austin Street (211.5 feet) and is narrowest at Leona Street (96.8 feet). The properties here involved are the rear portions (approximately one-half) of lots 2, 3 and 4 facing on Williams Street. There are houses facing on La Salle Street on the front portions of each of said lots with driveways and garages. There is no alley between the houses facing on La Salle Street, and those facing Williams Street. Appellees’ lots here involved do not have driveways or garages. A drainage ditch, known as the “Corporation Ditch” lies along the front portion of said lots next to Williams Street and is approximately 12 feet in width. Said ditch, in effect, separates the rear portion of the lots upon which appellees’ houses are located from Williams Street, and, since the construction of the railroad spur tract here in question, from the easement for Railroad purposes. The plat of said subdivision, made in 1948, shows that the front property line of appellees’ lots to be at the South boundary of Williams Street, but it is conceded here that appellees own the fee title (subject to such street easement) to the center of Williams Street, a distance of approximately 27.5 feet from said property line. Appellees each have a small foot bridge built across the “Corporation Ditch” for the purpose of ingress and egress to their houses. When the railroad spur track was built in 1962, the paved portion of Williams Street was moved northward and said railroad tracks were located between the “Corporation Ditch” and the street. In addition to the two easements mentioned for the street and ditch, appellees’ properties were also burdened with an additional easement of five feet in width for utilities. Photographs in evidence show that a series of poles run along the front portion of appellees’ lots between the “Corporation Ditch” and Williams Street.

Appellant urges seventeen points of error. However, we have concluded that error is demonstrated by appellant’s points 7, 8, 9, 10, 11, 12b, 14b and 16b and that the judgment must be reversed for the reasons hereinafter given. Points 12b, 14b, and 16b relate to the sufficiency of the evidence to support the answers of the jury to special issues 1, 2, 5, 6, 9 and 10, fixing the damages allegedly suffered by appellees in connection with the strips of land located in Williams Street; they are closely connected with points 3 and 5. Points 7, 8 and 9 relate to an instruction given by the trial court in connection with special issues 4, 8 and 12, concerning the value of the remainder of appellees’ properties after the taking of the strips in Williams Street. Points 10 and 11 relate to improper jury arguments made by counsel for appellees. Said points will be discussed in the order last mentioned.

Appellant’s points 12b, 14b and 16b assert that the trial court erred in rendering judgment for appellees based upon the findings of the jury fixing the values of the strips in Williams Street, each 20.33 by 54.2 feet, before and after the taking of the railroad easement. The value of each strip before the taking was fixed at $595.00, and afterward at $55.00, or a net difference of $540.00; special issues 1 and 2 applied to appellees Hayes, 5 and 6 to appellees Lundin, 9 and 10 to appellees Sachtleben. We agree with appellant’s contentions made under subdivision b. of points 12, 14 and 16, that the evidence is insufficient to support the findings of the jury in answer to the special issues just mentioned.

The only witness called by appellees who testified to dollars and cents values of the properties here involved was Mr. Tom Toney of Port Lavaca, Texas, a licensed real estate broker and building contractor. He said he was able to estimate values in said area and that he was familiar with appellees’ properties. When Mr. Toney was first asked by counsel for appellees about the strip in Williams Street belonging to Hayes, the following occurred:

“Q. * * * could you give us your opinion of what the value of that 20.33 feet by 54.2 feet occupied by the railroad was before the spur track was placed in the street there?
Mr. ANDERSON: (counsel for appellant). Pardon me, Your Honor. We object. The question is not related to the proper measure of damages. We contend it is the market value in Calhoun County, Texas, and this witness has not been shown to be qualified as an expert as to measure of damages.
Q. I would ask you, do you know the value of that, Mr. Toney, before the placement of the railroad there from your experience as a real estate man ?
A. That piece of land in front of the lot?
Q. Yes sir.
A. I would appraise that portion—
MR. ANDERSON: Your Honor, we renew our objection.
COURT: The objection will be overruled.
MR. ANDERSON: Note our exception.
A. Considering that section in front of the lot as a part of the lot 20 feet, approximately, as an extension of the lot, it would be the front portion of the lot, we appraise that on Mr. Hayes at $500.-00.
MR. ANDERSON. May I have a continuing bill?
COURT: Yes, sir.”

The record discloses that throughout the examination of the witness Toney, counsel for appellant endeavored to determine what kind of “value” he was testifying about with reference to the small strips in Williams Street. On direct examination, said witness talked about “values” and “fair values”. On cross-examination he was asked how he attributed any value to the said three strips of land which were already subject to public use as a street. He first said that such parcels had an intrinsic value, because they furnished access to the houses on the rear portions of the lots. Although the subject was mentioned by him, he never did testify that such strips had a market value, and finally testified that they had a value to the railroad; which appeared to be the real basis of his “value” opinion, aside from the access which such strips afforded to the street from the remainder of appellees’ property. Mr. Toney was of the opinion that the strips involved were worth twice as much per square foot as the remainder of ap-pellees’ properties.

A complete review of the record in this case reflects that the findings of the jury as to the difference in the reasonable market value of the three strips before and after the taking of a railroad right-of-way easement over them are not sufficiently supported by evidence. It is apparent that the strips over which easements were condemned by the railroad could have very little value to the owners either before or after such condemnation. The owners could make no practical use of them, except for ingress and egress to the remainder of the lots. The railroad did not (and could not under the law) condemn the fee simple title to said strips, and the owners’ ingress and egress to their houses was affected only by having to cross the railroad tracks between the “Corporation Ditch” and the street.

Ordinarily, the value of an owner’s fee simple title to a strip of land burdened by a street easement is of but nominal value. It has been held that where an easement requires practically the exclusive use of the surface and the owner is deprived of any beneficial use of the land, he is entitled to recover the market value of the fee from the condemnor. Thompson v. Janes, 151 Tex. 495, 251 S.W.2d 953 (1952). Conversely, in this case, where the fee title of the appellees to the strips in question was burdened with the easement for street purposes, and there existed two other easements along the front portions of said lots for the “Corporation Ditch” and utility poles and lines, it is readily apparent that there was little value in said strips and the taking of an additional easement for railroad right-of-way purposes would not affect to any great extent the reasonable market value of said strips. Appellant’s points 12b, 14b and 16b, asserting that there is insufficient evidence to support the answers of the jury to special issues 1, 2, 5, 6, 9 and 10, fixing the reasonable market values of the strips in question before and after the taking of the railroad easement, are sustained.

Appellant’s points 7, 8 and 9 complain of the trial court’s action in overruling appellant’s objections to the instruction given in connection with special issues 4, 8 and 12, which inquired, separately as to the value of the remainder of each lot, after the taking of the easement over the front portion thereof, reading as follows:

“You are instructed that in answering the preceding special issue, you may take into account the effect that the building, and the subsequent use of said spur track by the Southern Pacific Company, attendant with sounding of whistles, rattling of cars, jarring of the ground, dust and irritating smell of smoke and fuel from its switch engines, has on the adjacent property.”

Appellant’s objections to such instruction were, in substance that the same constituted a comment on the weight of the evidence; that the same assumed the truth of testimony given by appellee Sachtleben concerning the operation of appellant’s trains; and that such instruction assumed that the building and use of appellant’s spur track would have an adverse effect on adjacent property. Appellant’s objections were well taken and should have been sustained. The instruction assumed the existence of facts not in evidence, since there was no testimony with reference to dust or irritating smell of smoke and fuel from appellant’s switch engines. The instruction complained of was in part a summary of testimony which assumed the truth thereof and that the remainder of appellees’ properties had been adversely affected by the taking of the easement over the front strip of the property in Williams Street. It would have been permissible to instruct the jury in connection with the value of the remainders of the tracts involved after the taking of the railroad easement, that it might take into consideration the uses to which the strip condemned may be subjected. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 979 (1936). However, it is not proper for the trial court to assume the existence of facts not conclusively proved or by explanatory instruction or otherwise to summarize the testimony of witnesses and comment upon the weight or effect thereof. The harmful effect of such instruction, including the erroneous assumptions and comment is apparent. Fort Worth & D. Ry. Co. v. Barlow, 263 S.W.2d 278 (Tex.Civ.App.1953, wr. ref. n.r.e.); Hodges on Special Issue Submission in Texas, § 7, pages 19-24.

Appellant’s points 10 and 11 complain of the action of the trial court in overruling appellees’ objections to the argument of appellees’ counsel in two different respects, as follows:

“Depending on your own judgment, you can see whether you would want to live next to the railroad where you had all the vibration and noise and smoke.”
‡ ⅛ ⅛ ‡ ‡
“Gentlemen, I think the Railroad is trying to get to the property owners, if you want, to know the truth about that. They have a big organization, a big corporation. That’s what they represent themselves, and it is in evidence here, and they have got a lot of work to do on that track, and that’s also in evidence, to haul all this rock, and they are not doing it to lose money on.”

The ground of appellees’ objection to the first-mentioned argument was, in substance, that it asked the jurors to put themselves in the place of appellees; and to the second argument that it was based upon the disparity in the economic advantages of the parties and invited the jurors to compare their financial positions.

The first argument was a direct appeal to the jurors to put themselves in the position of a litigant and to consider their own personal feelings in arriving at a verdict instead of basing it upon the legally admitted evidence and the instructions of the court. Such argument presents reversible error. Dallas Ry. & Terminal Co. et al. v. Smith et al., 42 S.W.2d 794 (Tex.Civ.App.1931, n. w. h.); Dallas Ry. & Terminal Co. v. Curtis, 53 S.W.2d 85 (Tex.Civ.App.1932, error refused); Southern Ice & Utilities Co. v. Richardson et al., 128 Tex. 82, 95 S.W.2d 956 (1936); Macfadden’s Publications, Inc. v. Hardy, 95 S.W.2d 1023 (Tex.Civ.App., 1936, error refused) ; Gulf Casualty Co. v. Archer, 118 S.W.2d 976 (Tex.Civ.App.1938, error dismissed) ; Fambrough v. Wagley et al., 140 Tex. 577, 169 S.W.2d 478 (1943); Brooks v. Enriquez et al., 172 S.W.2d 794 (Tex.Civ.App.1943, error refused, w. o. m.); Western Union Telegraph Co. v. Sligar, 173 S.W.2d 220 (Tex.Civ.App.1943, n. w. h.); Texas & N. O. R. Co. v. Sturgeon, 142 Tex. 222, 177 S.W.2d 264 (1944) ; Kahn et al. v. Green, 234 S.W.2d 131 (Tex.Civ.App.1950, n. w. h.).

The second argument was an appeal to the jury to consider that appellant was a big corporation out to make money from the operation of the spur track over the condemned strips in question. This argument was also improper and constitutes reversible error. Brown Cracker & Candy Co. v. Castle, 26 S.W.2d 435 (Tex.Civ.App.1930, err. dis. w. o. j.); Southwestern Bell Telephone Co. v. Burris et al., 68 S.W.2d 542 (Tex.Civ.App.1934, n. w. h.); Western Cottonoil Co. v. Gillit, 270 S.W.2d 512 (Tex.Civ.App.1954, ref. n. r. e.).

We do not agree with appellees’ contention that such arguments were, in any event, harmless. The findings of the jury herein resulted in substantial awards to appellees considering the location of the properties and quality of the houses in question. In two instances the findings of the jury resulted in awards which were higher than was supported by appellees’ testimony. The jury found the value of the strip in Williams Street belonging to appellees’ Hayes to be $595.00, where the highest amount testified to was $500.00. The jury also found that the house and remainder of appellee Sachtleben’s lot had a market value of $4,300.00 before the construction of the spur track and $1,-900.00 afterward. None of appellees’ witnesses testified to a reduction of more than 50% in such value. Appellant’s points 10 and 11 are sustained.

For the reasons given, the judgment of the trial court is reversed and the cause remanded for new trial.


author: RENFRO, Justice.

text:
    C. H. INMAN, Appellant, v. W. H. CLEMENT et al., Appellees.
    No. 16633.
    Court of Civil Appeals of Texas. Fort Worth.
    May 21, 1965.
    Philip S. Kouri, and Malcolm L. Hughes, Wichita Falls, for appellant.
    Short & Smith, and Donald E. Short, Wichita Falls, for appellees.
   RENFRO, Justice.

Plaintiffs brought suit against defendant for a balance of $3,000 due on a $5,000 promissory note dated December 1, 1961.

In answer, defendant plead failure of consideration.

Defendant filed a cross-action for damages against plaintiffs, in which he alleged plaintiffs had breached a promise to erect a shopping center adjacent to defendant’s land.

Plaintiffs filed a motion, based on the pleadings and exhibits, for summary judgment.

Defendant did not file an answer to the motion for summary judgment.

The court severed the cross-action from the suit on the note and “having considered the pleadings on file and the affidavits” found that plaintiffs were entitled to judgment on the note as a matter of law.

Since the defendant did not answer plaintiffs’ motion for summary judgment, and the extrinsic evidence considered by the court was not brought forward in the record, we assume the matters presented to the court were such that, as found by the court, “they show an absence of any genuine issue as to any material fact” and the plaintiffs were entitled, as a matter of law, to judgment on the note. McFarland v. Connally, 252 S.W.2d 486 (Fort Worth Civ.App., 1952, no writ hist.); Rolfe v. Swearingen, 241 S.W.2d 236 (San Antonio Civ.App., 1951, ref., n. r. e.); Savoy v. Graham Memorial Auditorium Association, 329 S.W.2d 352 (Fort Worth Civ.App., 1959, no writ hist.); Gray v. Storey, 383 S.W.2d 487 (Fort Worth Civ.App., 1964, no writ hist.).

Under the provisions of Rule 41, Texas Rules of Civil Procedure the court had authority to sever the cross-action from the suit on the promissory note. Defendant’s complaint of such severance can be sustained only if the trial court abused its discretion in granting the severance. McGee v. McGee, 237 S.W.2d 778 (Amarillo Civ.App., 1950, ref., n. r. e.).

A judgment which effectively disposes of a severed and severable phase of the case is final for the purposes of an appeal. Carter v. Skelly Oil Co., 317 S.W.2d 227 (Waco Civ.App., 1958, no writ hist.).

Defendant’s cross-action was based on an alleged contract entered into November 30, 1961, between defendant and plaintiffs, in which defendant agreed to purchase a 1.08 acre tract of land from plaintiffs and erect a motel thereon, in consideration of plaintiffs’ erecting a shopping center on land adjacent to defendant’s land within a year from date of the contract; that plaintiffs failed to perform.

The pleading setting out the cross-action did not mention the promissory note and did not set up any matter in said cross-action which would constitute a defense to plaintiffs’ cause of action based on the note.

Defendant’s cross-action therefore was one that would be the proper subject of a lawsuit independently asserted. Under the record it was not so interwoven as to involve the same identical facts and issues, nor did it, under the cross-action as plead, relate to the same subj ect matter as the suit on the note from which it was severed.

After proper severance, as in this case, the trial court could properly enter summary judgment on plaintiffs’ suit on the note. Pure Oil Co. v. Fowler, 302 S.W.2d 461 (Dallas Civ.App., 1957, no writ hist.).

It appearing that the cross-action asserted a separate cause of action which can be tried independently and involved issues and facts which were different from those in plaintiffs’ suit on the note, we cannot say there was an abuse of discretion in the severance ordered by the trial court.

All points of error are overruled.

Judgment affirmed.