author: MORRISON, Judge.

text:
    Anthony Martin ZILKA, Appellant, v. The STATE of Texas, Appellee.
    No. 37311.
    Court of Criminal Appeals of Texas.
    Dec. 16, 1964.
    Rehearing Denied Jan. 27, 1965.
    John B. Reese, of Neal, Hazlewood & Wolfram, Amarillo, (Above firm on appeal only) Joseph H. Pool, Amarillo, for appellant.
    George E. Dowlen, Dist. Atty., Canyon, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is rape; the punishment, life.

The witness Jones testified that appellant, accompanied by the injured girl, came to the farm where he was living on the morning of the day in question, that appellant reported to him that the girl had “slid off the car seat down on the floor and hit a piece of iron”, and that after they entered his house and at appellant’s request, he tore up a sheet which appellant used to make two separate diapers in an effort to stop the flow of blood from her private parts. He testified that appellant stated that “the man that gets her won’t get no cherry” when referring to the injured girl. Jones stated that instead of working on an automobile as they had planned he accompanied appellant back to his home and thence to the hospital where appellant was arrested.

The girl’s mother testified that she was married to the injured girl’s natural father but that she had been living with appellant for some time and was in the process of divorcing her husband. She further testified that she planned to marry Tony, the appellant, by whom she had borne another child. She stated that the injured child was three years old and was in good health when she left home on the morning in question, but was injured when she and appellant returned and that appellant admonished her not to say anything about the injury. She stated that when appellant left to see about getting some money she went next door and summoned her neighbor, Mrs. Poole, who looked at the girl and advised her to “call the law”. She testified that she and appellant carried the girl to the hospital where appellant told the doctor that the child had been “hurt with a screw driver”, but that after examining the child the doctor reported that she had been raped.

Mrs. Poole testified that in response to Mrs. Andrews’ plea for help she found the injured child lying on the bed with blood on her body and clothes, that the child looked up at her and said “he hurt me” and when the child’s mother asked “who hurt you?”, the child replied, “Tony did.”

The record reflects that witnesses Jones and Andrews (the girl’s mother) referred to appellant as “Tony” throughout their testimony.

Dr. Hand testified that he examined the bloody vagina of the injured child and found a tear three-fourths of an inch wide and four or four and one-half inches deep and that an examination of a swab revealed “several dead sperm” along the full length of the vagina.

Appellant testifying in his own behalf admitted two prior felony convictions in the State of Pennsylvania, denied that he raped the child, but admitted that she was bleeding from her private parts at the time he first saw the witness Jones and did not claim that the child was with anyone else prior to his meeting with Jones.

The jury resolved the issue of fact against appellant, and we find the evidence sufficient to support the conviction.

By brief and in argument appellant contends that the court erred in admitting the testimony of Mrs. Poole as to the outcry of the injured child. The State relies upon our opinion in Haley v. State, 157 Tex.Cr.R. 150, 247 S.W.2d 400, and we agree that such holding is here controlling.

He next contends that the court erred in not charging the jury on circumstantial evidence. The case most nearly in point we have concluded is Hale v. State, 164 Tex.Cr.R. 482, 300 S.W.2d 75. There we said that the testimony of the doctor plus the outcry took the case, out of the circumstantial evidence rule.

Finding no reversible error, the judgment is affirmed.


source: Caselaw Access Project

author: DENTON, Chief Justice.

license: Public Domain

text:
    James H. BRADLEY et al., Appellants, v. ESTATE of Mrs. Myrtle GRAY et al., Appellees.
    No. 7421.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 21, 1964.
    Rehearing Denied Jan. 18, 1965.

      Cowsert & Bybee, Hereford, Boedeker & McCann, Levelland, A. W. Salyars, Lubbock, for appellants.
    ‘Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellees.
   DENTON, Chief Justice.

This is a summary judgment case. Suit was brought to cancel two lease contracts on approximately 2451 acres of land in Deaf Smith County, Texas. The trial court granted plaintiffs below a summary judgment cancelling the lease contracts on the ground the lessees subleased the land without the consent of the landlord in violation of Article 5237, Vernon’s Ann.Civ.St. The trial court further rendered judgment against all defendants jointly and severally for the sum of $21,287.38, the value of the ■crons produced from the land for the year 1963.

Mrs. Myrtle Gray, a widow, owned the land in question. > She died December 23, 1962, and the executors of her estate qualified on January 13, 1963. During Mrs. «.Gray’s lifetime she entered into written lease contracts with James H. Bradley as guardian of his two minor sons as lessees. The two leases under attack were executed on December 5, 1958, and March 20, 1959, respectively. Each lease called for an annual cash rent, and each lease was to extend to December 31, 1965, or until the 1965 wheat crop was harvested. The leases contained no specific language either permitting or prohibiting subleasing by the lessees. The Bradleys subleased the land in question to J. B. Crawford for a three-year period beginning January 1, 1963. The appellants Bradley and sons and Crawford have filed separate briefs; however they bring forward substantially the same points of error. Each appellant contends the trial court erred in granting appellees’ motion for summary judgment on the grounds a material issue of fact was raised by the pleadings, affidavit, and depositions; the lease contract between the Bradleys and Mrs. Gray permitted subleasing; and the summary judgment evidence raised questions of waiver, estoppel, or ratification on the part of appellees.

In passing upon a motion for summary judgment, all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the opposing party is entitled to the benefit of every reasonable inference which can be properly drawn in his favor. Gulhenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Womack v. Allstate Ins. Co., 156 Tex. 467, 296 S.W.2d 233. The law is now well settled as to how the rule relative to the burden of proof is to be applied where a party moves for a summary judgment in an action where the opposing party has pleaded an affirmative defense. In such cases the movant is entitled to have a summary judgment if he demonstrates by evidence that there is no material fact issue upon the elements of his cause of action, unless the opposing party comes forward with a showing that there is a disputed fact issue upon the affirmative defense. Gulf, Colorado & Santa Fe Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492. The McBride case is also authority for the proposition that affirmative defenses must he raised by some means other than mere pleadings.

Subsequent to the filing of their amended petition, plaintiffs below filed their unverified motion for summary judgment. This motion alleged the pleadings, depositions, and admissions on file show there was no genuine issue as to any material fact and alleged it was entitled to a judgment for full recovery as a matter of law. The defendants filed verified replies to the motion for summary judgment. The replies consisted of pleadings which adopted their amended answers, alleged such pleadings raised genuine issues of fact; an affidavit of J. B. Crawford; and made reference to the exhibits which included the depositions of James H. Bradley, J. B. Crawford, and John D. Aikin, a co-executor of the Estate of Myrtle Gray and one of the plaintiffs below. This was the status of the case when a hearing was held. The trial court granted plaintiffs’ motion for summary judgment in addition to the judgment for plaintiffs for the value of the 1963 crops produced by Crawford. The record contains the two written leases, admissions of the subleasing to Crawford by Bradley, and possession of the premises by Crawford. An examination of appellees’ summary judgment evidence as shown by the depositions and interrogatories reveals appellees had sustained their burden to show there was no genuine issue of fact as to the cause of action asserted by them. In our opinion this evidence entitled plaintiffs to a summary judgment unless the defendants below raised a fact issue pertaining to their affirmative defense of waiver by summary judgment evidence presented by them.

It is well settled, and appellees agree, that the rights accruing to a lessor under the provisions of Article 5237 may be waived. Nelson v. Seidel, (Tex.Civ.App.), 328 S.W.2d 805, (Refused, NRE), and cases cited therein. The question which then presents itself is whether or not appellants have presented sufficient evidence to raise an issue of a material fact. Appellants’ pleadings, which can not be considered as evidence, included pleadings of waiver and estoppel by way of prior subleasing by Bradley; knowledge and acquiescence by Myrtle Gray and her attorney; and knowledge and acquiescence to subleasing by the executors of the Gray Estate after Mrs. Gray’s death, thus consenting to such subleasing and thereby waiving their right to cancel and terminate the lease contracts. Appellants further pleaded appellees made no demand for possession of the land until October 15, 1963, some four months after Crawford had allegedly informed one of the executors of the Estate that he was subleasing the land from the Bradleys. In support of these pleadings Crawford by affidavit stated he informed Aikin, one of the executors and an appellee here, in June of 1963 that he subleased the land in question from Bradley; that Aikin did not inform him at that time that Bradley had no authority to sublease the property; that possession of the land was not demanded until' October of 1963; and that between June and October of 1963 Crawford harvested his potato crop from the land, cultivated and irrigated his maize crop; and plowed, irrigated, and fertilized some of the land in preparation for a 1964 wheat crop. Crawford’s deposition on file corroborated these assertions contained in his affidavit. By deposition Aikin testified he was informed by a third party in June of 1963 that Crawford had subleased the land from Bradley, but he was unable to discuss the matter with Bradley until August of 1963.. At that time Aikin testified he learned of the-sublease to Crawford. Aikin further said he had previously notified Bradley that he-would not accept further rental checks. However, Bradley testified he transmitted', a check to Aikin on August 1, 1963, for rents due under one of the leases. It is undisputed this check was retained by Aikin-but was not cashed.

A review of the summary judgment evidence presented by appellants- shows they have raised a material fact issue, relative to the affirmative defense of waiver. By depositions and affidavit it is shown the executors of the Myrtle Gray Estate were informed of Crawford’s sublease in June of 1963. No objection was made to Crawford’s sublease at that time, and no demand for possession was made until some four months later. In the meantime Crawford expended labor and money in harvesting and preparing the land for further use. In our opinion this raises a fact issue as to whether or not the executors relinquished their right to cancel the lease contracts. This is an issue which should be passed upon by a trier of the facts. We therefore conclude the trial court erred in granting the summary judgment. In view of this holding, it is unnecessary to discuss other points of error presented by the appellants.

The judgment of the trial court is reversed, and the cause is remanded for a trial on the merits.


author: RENFRO, Justice.

text:
    SHELL OIL COMPANY, Appellant, v. Frank MAHLER, Appellee.

      No. 16585.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 11, 1964.
    Rehearing Denied Jan. 15, 1965.
    Jones, Fillmore, Robinson & Lambert, and Kenneth Ray Farabee, Wichita Falls, for appellant.
    Prothro & Sellers, and Oliver Kelley, Wichita Falls, for appellee.
   RENFRO, Justice.

Plaintiff Mahler recovered a judgment .against defendant Shell Oil Company for the loss of six cows.

Plaintiff was holder of a grazing lease on one hundred acres of land owned by a Mrs. Carson.

Defendant owned an oil and gas lease and had two oil wells on the same land. Carson No. 1 was still producing as of April, 1963; Carson No. 2 was not.

On the morning of April 27, plaintiff found six of his cows dead, laying in a row over a sizzling wire between two poles ■owned by defendant, one pole being near Carson No. 2.

The jury found that the act of defendant in leaving the power line to No. 2 charged with electricity after the well was disconnected was negligence and a proximate cause of the death of plaintiff’s cows.

Defendant, by appropriate points of error, contends there was no evidence to support the findings of negligence and proximate cause.

According to the defendant’s Production Foreman for Archer County: The electric -power lines to Carson No. 2 were originally installed in December, 1951, and No. 2 was operated on electricity until 1955; at that time a gas engine was installed but the original power lines were left in place; in March, 1959, purchased power was available and No. 2 was again operated by elec■tric pump; No. 2 was temporarily abandoned in December, 1961, and, though not ■plugged, was abandoned with the Railroad Commission’s permission on January 8, 1962; casing was left in the well and the electric power disconnected as it was “because of a planned water-flooding pro•gram; electric power was disconnected from the well at the top of a power pole; disconnecting electrical power at the top •of the pole is considered safe and acceptable way of temporarily disconnecting .a pumping unit installation.

All seem to be in accord that “The cause for the wire falling was due to a lightning bolt striking either the top phase or the second phase, causing the dead end to bum and to break loose and to fall to the ground.” At least no witness disputed such conclusion.

Plaintiff’s witness Roberts testified: “I have never seen lightning take any particular spot. It will just hit anywhere. * * * It is attracted to the power lines.”

There was no evidence of probative force that lightning is more apt to strike a charged wire than a “cold” wire.

During the night of April 26 there had been a thunderstorm accompanied by lightning.

The only negligence issue submitted to the jury was whether defendant was negligent in leaving the line to No. 2 charged with electricity after production ceased.

There was no evidence of defects, improper equipment, failure to inspect, etc.

Defendant was not charged with violation of any statutory requirement or regulation.

Plaintiff relies on Texas Power & Light Co. v. Culwell, 34 S.W.2d 820 (Tex.Comm.App., 1931), wherein it is held: “Even if it be conceded the radio wire was cause to break by being struck by lightning, * ⅜ £ (defendant) cannot escape liability if its negligence was a contributing cause to the injury ⅜ * *. The intervention of an unforeseen and unexpected cause is not sufficient to relieve a wrongdoer from consequences of negligence, if such negligence directly and proximately co-operates with the independent cause in the resulting injury.” The court, in the above case, however, continues: “Here the undisputed evidence shows that it was both practicable and feasible to insulate the electric wire so that the current would not escape therefrom in the event the radio wire should come in contact therewith.”

In the instant case there is no evidence that anything the defendant did or failed to do amounted to negligence.

While the jury was not hound by defendant’s evidence that the electrical power was disconnected in a safe and acceptable way, there is no evidence to the contrary.

We think the holding in West Texas Utilities Co. v. Dunlap, 175 S.W.2d 749 (Eastland Civ.App., 1943, no writ hist.), is applicable and controlling in the instant case. The court said: “The question is: Do the facts alone, that appellant was not at the time supplying electricity to Baird Refining Company and that it could, with little expense, have shut off the current at a point outside of the Baird Refining Company’s property line, constitute the failure to do so negligence? We do not think so. The authorities relied upon, with one possible exception, imply, if they do not express the fact, that a new or greater degree of danger resulted from the condition of the disconnected wires. In this case there is no evidence tending to show that the line, charged as it was, was any more dangerous to anyone after the discontinuance of service than it had been at all times during the ten or eleven years previously while supplying electricity to the refinery. Then whence springs the duty, if any, involved? As said in connection with another question, no statute imposes such a duty. Was the hazard to the deceased any greater or different in character after the discontinuance of service than it was before? There was no evidence of it It is elementary that absent a duty there can be no negligence. Independent Eastern Torpedo Co. v. Carter, Tex.Civ.App., 131 S.W.2d 125, and the authorities there collated.

“If facts giving rise to a greater or different hazard, or danger, resulting from failure to cut off the current were absent, as we conclude, then it is immaterial what considerations may have motivated appellant in not cutting off the current.”

There was no evidence of probative force that the hazard created by the wire in question was any greater after the discontinuance of production on Carson No. 2 than before.

Although the Dunlap case has no writ history, it was cited with approval by the Supreme Court in Houston Lighting & Power Company v. Brooks, 161 Tex. 32, 336 S.W.2d 603 (1960), following the statement: “We hold that the accident and injuries complained of were not in a legal sense foreseeable consequences of the acts or omissions charged to petitioner, so whether we measure the duty by the measuring stick of foreseeability and say that the petitioner breached no duty it owed respondent and was therefore not negligent, or whether we say in any event petitioner’s conduct was not in any of the respects complained of a proximate cause of the unforeseeable consequences, we arrive at the conclusion that liability was not established.”

As did the Supreme Court in the Brooks case, we conclude liability was not established.

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

Reversed and rendered.


author: GRISSOM, Chief Justice.

text:
    Bentura C. OLIVARES, Appellant, v. SERVICE TRUST COMPANY, Appellee.
    No. 3927.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 20, 1964.
    Victor A. Speert, San Antonio, for appellant.
    Bradford F. Miller, San Antonio, for appellee.
   GRISSOM, Chief Justice.

Service Trust Company sued Bentura C. Olivares in the County Court seeking to recover $205.90, alleged to be due on a promissory note, plus interest and attorney’s fees. Plaintiff also alleged that it held a mortgage on a television set as security for payment of said note and prayed for foreclosure of its lien. Thereafter, plaintiff filed an affidavit for sequestration alleging therein that the value of the television set was $175.00. Plaintiff did not allege in its petition the value of the mortgaged property. The defendant did not before rendition of the judgment in any manner complain of plaintiff's failure to allege the value of the mortgaged property. Judg-. ment was rendered for the plaintiff for the amount due on the note, interest, attorney’s fees and foreclosure of the mortgage lien. Olivares has appealed.

Appellant’s only point is that the court erred in rendering the judgment because appellee did not allege the value of the mortgaged property upon which it sought foreclosure. He contends that because of said failure to allege the value of the mortgaged property the County Court did not have jurisdiction. Appellee’s counterpoint is to the effect that appellant did not before rendition of the judgment except, or in any manner point out to the trial court the defect, or omission, in plaintiff’s pleading which it now asserts as ground for reversal and, therefore, under the provisions of Texas Rules of Civil Procedure, rule 90, appellant waived such omission and the judgment should be affirmed. Rule 90 provides that “every” defect or omission in a pleading not specifically pointed out to the trial court before" rendition of judgment shall be deemed waived by the party seeking a reversal because of such defect or omission. We overrule appellant’s point and sustain appellee’s counterpoint. Appellant’s contention appears to be supported by Valadez v. White Stores, Inc., Tex.Civ.App., 367 S.W.2d 216. If so, we do not follow its holding. The primary purpose of the Texas Rules of Civil Procedure is to dispose of cases on the merits. The precise point presented by the appellant was presented in white horse case's and overruled in Litterst v. Edmonds, Tex.Civ.App., 176 S.W.2d 342, 344, (Ref. W.M.) and Weisenberger v. Lone Star Gas Company, Tex.Civ.App., 257 S.W.2d 331, 333, (Writ Dis.). These decisions have often been cited and appear to have the approval of our Supreme Court. Our decision is also sustained by Texas Osage Co-Op Royalty Pool v. Kemper, Tex.Civ.App., 170 S.W.2d 849, 852, (Writ Ref.); Roper v. Winner, Tex.Civ.App., 244 S.W.2d 355, 358; Baker v. Highway Insurance Underwriters, Tex.Civ.App., 209 S.W.2d 979, (Ref. N.R.E.); Erminger v. Daniel, Tex.Civ.App., 185 S.W.2d 148, (Ref. W.M.), and Hilley v. Hilley, Tex.Civ.App., 305 S.W.2d 204, (Ref. N.R.E.).

The judgment is affirmed.


author: WILSON, Justice.

text:
    WANDA PETROLEUM COMPANY et al., Appellants, v. Leonard Earl REEVES, a Minor, BNF, et al., Appellees.
    No. 4277.
    Court of Civil Appeals of Texas. Waco.
    Dec. 17, 1964.
    Rehearing Denied Jan. 7, 1965.

      Vinson, Elkins, Weems & Searls, B. Jeff Crane, Jr., and Gay Brinson, Jr., Houston, for appellants.
    Brown, Kronzer, Abraham, Watkins & Steely, Houston, for appellees.
   WILSON, Justice.

The chief problem in this automobile death case relates to the jury’s answer to the damage issue. Five minor chilldren of deceased as plaintiffs recovered a judgment based on favorable liability findings. In our opinion a valid judgment could not be rendered on the verdict as to damages, and we reverse.

The petition alleged the plaintiffs had been damaged in the sum of $3000 for each year of their minority by the death of their mother. Their ages at the time of suit were alleged to be 14, 12, 9, 7 and 6 years. The court’s charge contained 26 special issues, the last of which was the damage issue. It inquired what sum “if paid now in cash” would compensate the minors, and authorized consideration of such sum as would fairly and reasonably compensate them “for such maintenance and support, if any” as deceased “had she lived, would have contributed to them and each of them from and after the date of her death,” what deceased “would have expended for the education” of each of the children “after the date of her death,” and the value of her care, nurture and guidance “during their minority.” The form of the charge is not the subject of complaint.

The damage issue instruction concluded as follows: “Answer by stating the amount, if any, in dollars and cents which you find as to each of the minor plaintiffs(listing them). The court reporter prepared an “answer sheet” which listed the numbers of the issues, 1 through 26, with a typed two-inch blank line after each, and a blank line for the foreman’s signature. The sheet as prepared, however, neither listed the plaintiffs, nor provided separate blanks for each. Neither court nor counsel saw the answer sheet before it was delivered with the charge to the jury upon retirement. After the jurors announced they had reached a verdict, and before the answer sheet was examined by court or counsel, the parties “waived the reading of the issues themselves” when the verdict was returned.

When the answer sheet was returned into open court by the jury it was examined by the court and counsel in the belief it was the verdict, and counsel advised the court there was no objection to its form. It was received and ordered filed, and the jury was discharged. The jury was not polled. The charge proper was not inspected. The blanks after the numbers designating the corresponding liability issues had been filled on the answer sheet, hut that following No. 26, the damage issue, was not filled. Instead, following the foreman’s signature, the names of the five plaintiffs were written in the order they had been listed under the damage issue instruction, with “$1300” placed after each name.

Not until after the discharge of the jury was it discovered that there had been written after each plaintiff’s name as listed in the instruction under the damage issue in the charge proper: “1300.00 per year”.

Four days after the jury was discharged and had separated, appellees’ counsel filed a motion for judgment asserting that in pleading and jury argument for all parties •damages had been treated as “so much money per year during minority,” and the necessary implications of the verdict required entry of judgment for each plaintiff of $1300 during the remaining periods of their respective minorities. Affidavit of all jurors was attached, stating that “all the jurors unanimously agreed that each •child should be awarded $1300 per year following the death of Mrs. Reeves until that child reached 21 years of age.” A hearing was conducted at which the foreman testified to the same effect, and that the jury considered and arrived at “an amount per year per child during each year of their minority.” The foreman testified she recorded the answer following the issue itself in the charge proper “because there weren’t blanks provided on the answer sheet considered applicable to each child.” She wrote on the answer sheet, she said, “for the judge. I figured it would be easier for him to read so I wrote down the names of the children and the amount awarded them per child.” She testified, “We figured up how much it would add up to, which would be $74,000 or $74,500.” This sum was not recorded, she said; “I just assumed they could add.”

Judgment was rendered for a total of $75,400. The court found as a fact that the answer and finding of the jury was “as recorded by the jury opposite the name of each minor plaintiff,” following the damage issue in the charge proper.

Appellants’ initial position is that the “answer sheet” constituted the verdict, and judgment should have been rendered for plaintiffs upon the answer contained therein for a total of $6500. Appellees argue that what is before us, and what was resolved by the trial court was a “reconciling of ambiguities in the ‘verdict.’ ”

We do not adopt either position. In our opinion there was no basis for judgment and, the jury having been discharged, a new trial should have been ordered.

As they appear from their face, we perceive no determinative reason for according precedence to the answer written out of its designated space on the “answer sheet” (where, inadvertently, no blanks for apportionment were provided), over that written out of place in the available space following the instruction in the charge proper. The two answers, standing alone, make it impossible to ascertain what was found. We overrule appellants’ contentions that judgment should have been rendered on the verdict.

If it may be argued that the foreman omitted or failed to insert the words, “during minority” after “$1300 per year,” and that the omission was a clerical mistake contrary to the unanimous vote of the jury, rendition of judgment would nevertheless not be authorized. Where by the amendment of the verdict “the damages [would be] increased or diminished, and the substantial rights of the parties thus changed, when the verdict has been affirmed in open court, and the jury have separated and become accessible to the parties, the only remedy for a mistake is by setting the verdict aside and granting a new trial.” Burchfield v. Tanner, 142 Tex. 404, 178 S.W.2d 681, 683.

Where there is a unanimous mistake of the jury in the nature of a clerical error, i. e., when the verdict returned is “different unanimously from the verdict as assented to in the jury room at the time of voting,” or consists in an omission to state correctly in writing the verdict regularly arrived at, and the jury has been separated after discharge, “the only remedy” for the mistake, “is by setting the verdict aside and granting a new trial.” Caylat v. Houston East & West Texas Ry. Co., 113 Tex. 131, 252 S.W. 478, 482. After considering the public policy involved in denying a correction, it was held in the Caylat case that a new trial is the “full measure of relief against the mistake.”

Appellees urge, however, that the plaintiffs’ petition prayed for damages in a stated amount for each child “for each year of their minority,” and that the damage issue was so argued to the jury. The court’s charge does not submit that measure, however. It does not limit the jury to the period of minority except as to the element of “care, nurture and guidance.” The additional elements of expected contribution for “maintenance and support” and the amount deceased “would have expended for the education of such children and each of them from and after the date of her death” were not so restricted by the charge to the period of minority. They are unlimited as to time.

Appellees argue the present verdict is not of the “unanimous mistake” type. It is not necessary for us to decide whether it is to be classified within that category. We recognize that courts should try to interpret an ambiguous verdict so as to uphold the judgment, First Federal Savings & Loan Ass’n of Dallas v. Sharp, Tex.Sup., 359 S.W.2d 902; and that the record should be examined in an effort to ascertain the jury’s intent, State v. Hale, 136 Tex. 29, 146 S.W.2d 731; Traders & General Ins. Co. v. Wilder, Tex.Civ.App., 186 S.W.2d 1011, 1013, writ ref. If it be assumed first, nevertheless, that the “verdict” is actually what was written on the charge proper, and not that written on the answer sheet; and if it be further assumed that the jurors unanimously intended that the words “during minority” be inserted after “$1300 per year,” and that these facts can be ascertained from the pleadings, evidence and record of the trial (aside from affidavits and testimony of jurors in attempted explanation of ambiguity), the verdict will nevertheless not authorize rendition of the judgment.

First, the birthdates of the five children are not in evidence, and there is nothing to show what portion of one “year” is to be the basis for fixing the maturity date for each child or for computing the portion of $1300 to be adjudged for that “year”. This possibly could be cured by remittitur.

There is then the problem of determining the sum which “if paid now in cash” is to be a basis for judgment. This is the inquiry the charge submitted. “$1300 per year” is not a sum to be paid “now” in cash. Appellees imply we should assume the jury applied a discount to some larger amount, or used some other formula for arriving at the sum to be paid now in cash. To assume this is to speculate as to intent in the face of a specific finding of a per-annum amount which obviously ignores difference in ages which make an equal annual amount for each child as a sum to be paid “now” incongruous.

The verdict is ambiguous doubtless because of inadvertence in preparation of the verdict form under the pressure of trial conditions, and an understandable omission to observe the status of jury action before discharge. While the findings of a jury “may be liberally aided by the contents of the record, and enforced, when, if so aided, there can be no uncertainty as to the intention of the jury, mere conjecture cannot be resorted to.” Gulf, Colorado & Santa Fe Ry. Co. v. Hathaway, 75 Tex. 557, 12 S.W. 999. “ 'As to the true construction of such a verdict, neither the lower court’ nor an appellate court 'is permitted to speculate. The verdict must find all the issues made by the pleading in language which does not admit of mistake. It should be the end and not the continuation of the controversy.’ ” Northern Texas Traction Co. v. Armour & Co., 116 Tex. 176, 179, 288 S.W. 145, 146.

Appellants’ other points, including those asserting insufficiency of the evidence, are overruled. Reversed and remanded.


text:
    Harry M. FARHA, Appellant, v. Eugene M. ELAM, Appellee.
    No. 16583.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 4, 1964.

      Rehea ring Denied Jan. 16, 1965.

      Kramer & Kramer, and Kenneth B. Kramer, Wichita Falls, for appellant.
    Schenk & Wesbrooks, and Perry Wes-brooks, Wichita Falls, for appellee.
   RENFRO, Justice.

Appellant herein, Harry M. Farha, alleged he formed a partnership with appel-lee, Eugene M. Elam, effective September 1, 1959, with main office in Wichita Falls, residence of appellee, and a branch office in El Paso, residence of appellant; that the partnership terminated at the Wichita Falls office on March 31, 1960, and at the El Paso office on May 10, 1960.

On February 1, 1962, appellant filed suit for partnership accounting.

Appellee pleaded that architectural partnership between himself and appellant was illegal, void and unenforceable under Article 249a, Vernon’s Ann.Tex.Civ.St.

The court entered summary judgment for appellee.

Appeal is based on alleged error of the court in holding (a) that appellee was not estopped to assert defense of illegality; (b) that, as a matter of law, the partnership was illegal under Art. 249a, V.A.T.S.; (c) the illegality, if any, of the partnership precluded recovery by appellant; (d) that Art. 249a is constitutional.

Pertinent to this appeal are the following sections from Art. 249a:

Section 1: “In order to safeguard life, health, and property, and the public welfare, and in order to protect the public against the irresponsible practice of the profession of architecture by properly defining and regulating the practice of architecture, no person shall practice architecture, as herein defined, within this State, * * * unless he be a registered architect, as provided by this Act.”

Section 10(a) : “Any person, or firm, who for a fee or other direct compensation therefor, shall engage in the planning, or designing, or supervising the construction of buildings to be erected or altered in this State, by or for other persons than themselves, as a profession or business, and shall represent or advertise themselves as architects, architectural designers, or other title of profession or business using some form of the word ’architect’ shall be considered as practicing the profession of architecture in this State, and shall be required to comply with the provisions of this Act; and no person or firm shall engage in or conduct the practice of architecture as aforesaid in this State unless a registration certificate or certificates therefor have been duly issued to such person or the members of such firm as provided for by this Act, and no firm or partnership shall engage in, or conduct, the practice of architecture as aforesaid within this State except by and through persons to whom registration certificates have been duly issued, and which certificates are in full effect; but nothing in this Act shall prevent draftsmen, students, clerks of works, superintendents, or other employees or assistants of those legally practicing architecture under registration certificates as herein provided for from acting under the instructions, control, or supervision of such registered architects.”

Section 12(c) : “In the case of co-partnership of architects, each architect partner must be registered to practice architecture. No firm or partnership shall be registered to practice architecture, but may practice as such provided each architect member of such firm or partnership is a registered architect in accordance with the provisions of this Act.”

Section 13 is penal in nature and provides for a fine, and “ * * * each and every day of violation of this Act as set forth shall constitute a separate offense.”'

Appellant testified the parties orally agreed: they would be equal partners, beginning on September 1, 1959, sharing equally in profits and losses, under the name “Eugene M. Elam & Associates, Architects & Engineers”, and that appellant’s name would be added to this after he received his certificate; his name would not be in the firm name, and he would not be presented to the public as an architect, until after he obtained his certificate; the partnership would maintain one office in Wichita Falls and one in El Paso, and that appellee would tend to the Wichita Falls office and appellant would tend to the El Paso office.

It is undisputed that: neither party was licensed as an Engineer under Art. 3271a, V.A.T.S.; during the period from September 1, 1959, to May 10, 1960, appellant was not licensed and registered as an architect by the Texas Board of Architectural Examiners; appellee was so licensed during the period; during above period appellant claimed to be a partner with appellee in firm known as Eugene M. Elam & Associates, Architects & Engineers; the parties intended to practice architecture as long as the partnership should last; appellant filed the firm name in the assumed name Records of El Paso County, listing himself as a partner in the firm; his office door in El Paso carried the words, “Eugene M. Elam & Associates, Architects and Engineers”; the firm name appeared on the title pages to plans and specifications; appellant opened a bank account in an El Paso bank under partnership name, made initial partnership deposit, both parties executed signature cards as partners; both used same to pay bills and expenses of partnership, and appellant personally signed more than 100 checks on said account; appellant billed, collected, deposited and accounted for fees owed to the partnership, all in the name and on behalf of the partnership; among other things appellant prepared drawings, sketches and preliminaries, did some work on final plans and specifications and conferred with clients and prospective clients of the partnership and with contractors, builders and suppliers involved in the partnership’s projects. Appellant managed the partnership’s office in El Paso and prepared and fowarded financial statements of the partnership’s business in El Paso to the partnership’s office in Wichita Falls.

During the period in question both partners, using the partnership name, engaged in the planning of buildings to be erected in Texas for others; appellant engaged in the planning and designing of buildings to be erected for others for a fee, as did ap-pellee ; appellant represented himself to others to be a partner in Eugene M. Elam & Associates, Architects and Engineers; appellant’s income tax return for 1960, signed by him, listed his occupation as architect; he told all clients he was a partner with appellee under the firm name of Eugene M. Elam & Associates, Architects and Engineers; he never claimed any other relationship with appellee; he represented to prospective clients that the firm did architectural work, and used the word “architect” in conversations with clients and prospective clients, though did not refer to himself as an architect; that he participated in carrying out the work of the partnership; principal business of partnership was designing and planning buildings and supervising their construction; appellant sent statements to various clients for architectural services or architectural fees signed by himself.

The foregoing undisputed facts show, in our opinion, that the partnership agreement was in violation of the statute and that the parties practiced architecture in violation of law.

In Clark v. Eads, 165 S.W.2d 1019 (Fort Worth, Civ.App., 1942, ref., w.m.), it was held that “the statute is patently designed to permit ordinary carpenters and contractors, and other persons who make no pretense of being architects, to draw house plans and to build or supervise the building of structures. It was not intended to permit architects who generally hold themselves out as such to practice their profession without a license simply by resorting to the expedient of explaining to their clients that they had no license.”

The court in Herold v. City of Austin, 310 S.W.2d 368 (Austin Civ.App., 1958, ref., n. r. e.), stated: “Obviously the court was correct in Eads in holding that the plaintiff was required to obtain a .license and that without one he could not recov-

In Mabry v. Priester, 333 S.W.2d 684 (Houston Civ.App., 1960, reversed on other grounds), it was held: “All cases decided in Texas involving an architect suing for a fee have held that recovery may not be had unless the architect has registered, because it is unlawful for him to practice without registering, as provided by Article 249a, Vernon’s Ann.Texas St. * * * The statutes regulating the practice of architecture are for the purpose of protecting the public, just as are statutes regulating engineers and dealers in securities. In those cases it is also held that the contract of a person not complying with its provision by qualifying is not enforceable. M. M. M., Inc. v. Mitchell, 153 Tex. 227, 265 S.W.2d 584; Kadane v. Clark, 135 Tex. 496, 143 S.W.2d 197; Gray v. Blau, Tex.Civ.App., 223 S.W.2d 53, n. r. e.”

The contract before us was made in violation of Art. 249a, and under the law of this state the courts will neither aid in its enforcement nor relieve a party who has executed it. Morrison v. City of Fort Worth, 138 Tex. 10, 155 S.W.2d 908 (1941). Further, appellant cannot sustain his recovery without reliance on the illegal contract and thereby his recovery is defeated. Pioneer Mut. Compensation Co. v. Diaz, 142 Tex. 184, 177 S.W.2d 202 (1944); Stone v. Sterling Mutual Life Ins. Co., 127 S.W.2d 345 (Galveston Civ.App., 1939, no writ hist.).

In Perkins v. Lambert, 325 S.W.2d 436 (Austin Civ.App., 1959, writ. dism.), it is said: “It is the general rule that as between the parties to a contract prohibited by law estoppel cannot give it validity. * * * The force of a statute can not be impaired, controlled or limited by contract”

The purposes of the Act, as stated in Section 1, are to safeguard life, health, property and the public welfare, and to protect the public against the irresponsible practice of the profession of architecture.

The Act, in some respects, could have been written with more clarity. All doubts, however, are to be resolved in favor of the legislative enactment, Houston & Great Northern Railroad Co. v. Kuechler, 36 Tex. 382; 12 Tex.Jur.2d p. 388, § 44, and a statute under constitutional attack is to be construed valid if reasonably possible. County of Cameron v. Wilson, 160 Tex. 25, 326 S.W.2d 162 (1959); Duncan v. Gabler, 147 Tex. 229, 215 S.W.2d 155 (1948); Newton Lumber Co. v. Newton County Water Supply Dist., 328 S.W.2d 461 (Fort Worth Civ.App., 1959, no writ hist). We see no constitutional objection to the law.

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

Affirmed.


author: ARCHER, Chief Justice. HUGHES, Justice

text:
    ARVIN HARRELL COMPANY, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee.
    No. 11250.
    Court of Civil Appeals of Texas. Austin.
    Dec. 16, 1964.
    Adams & Browne, Beaumont, for appellant.
    Clark, Thomas, Harris, Denius & Winters, John Coates, Austin, for appellee.
   ARCHER, Chief Justice.

This is an appeal from an order denying appellant a mandatory injunction requiring appellee to furnish appellant telephone service upon appellants making a reasonable deposit.

Appellant applied to the telephone company for service and after considerable discussion the appellee agreed to install a telephone conditioned on appellant making a deposit of $500.00 which appellant declined to do.

The suit was filed by appellant against ap-pellee in the sum of $1,000.00 for actual damages, and exemplary damages in the sum of $5,000.00, with additional sum of $3,750 as attorney’s fees in the trial of the case.

Appellant sought an order directing ap-pellee to make the installation of telephones, as requested, and to enjoin the company from oppressive and capricious conduct in requiring appellant to deposit $500.00.

Plaintiff stated that it would make a $50.00 deposit and that defendant had refused to malee the installation until a deposit of $500.-00 was made, and that plaintiff was unable to make such deposit.

A hearing was had on April 10, 1964, and on April 28, 1964, an order was rendered, in part as follows :

“It is accordingly ORDERED, ADJUDGED AND DECREED that the prayer of the Plaintiff for a temporary mandatory injunction requiring the Defendant, Southwestern Bell Telephone Company, to install telephone service for the Arvin Harrell Company without a cash deposit of $500.00 or the separate guaranty of a responsible party, he and the same is in all things denied with costs adjudged against the Plaintiff.”

The appeal is based on eight points and are to the effect that the trial court erred in denying a mandatory order directing appellee to furnish telephone service to appellant because appellee had contracted to do so, and in denying such order upon the payment of $19.50 or $50.00 as deposits respectively.

We do not believe the trial court abused its discretion in denying a mandatory injunction.

The Supreme Court, in Story v. Story, 142 Tex. 212, 176 S.W.2d 925 held:

“It is the office of a temporary injunction to maintain the status quo pending the determination of the controversy between the parties.”

The purpose of an injunction is to maintain the status quo.

In Kane v. Gulf, C. & S. F. Ry. Co. et al, Tex.Civ.App., 176 S.W.2d 965, no writ history, it was held:

“Hence the granting of a mandatory temporary injunction, in the face of such consequences, would have completely disrupted, rather than maintained, the status quo theretofore existing in regard to the very matter in controversy.”

A temporary mandatory injunction will be granted only with great caution and in case of extreme hardship.

International & G. N. Ry. Co. v. Anderson County, Tex.Civ.App., 150 S.W. 239, affirmed 106 Tex. 60, 156 S.W. 499.

The record does not disclose any perceptible or specific damage. Appellant at the time of the hearing had telephone service at an answering service. An employee of such service answers all calls made to appellant.

On November 19, 1963, Harrell and Whit-low Elzner had a conversation with an employee of appellee and the appellee discovered that Elzner was interested in the organization and that he had filed for bankruptcy owing appellee $400.00 or $500.-00.

Article 1440, Vernon’s Ann.Civ.St, provides for installing services as a condition precedent to furnishing the same and the utility shall pay 6% interest per annum on such deposit. The telephone company has the right to require deposits.

Community Natural Gas Co. v. Moss, Tex.Civ.App., 55 S.W.2d 224, 225, no writ history.

We believe appellee’s requirement of a $500.00 deposit or a separate guaranty was reasonable.

Arvin Harrell, the President of appellant is employed by a local funeral home as a mortician on a monthly salary, and his qualifications as a joint contractor as he related are:

“My experience in the building business has been my association with Mr. Elz-ner. I mean, I would be employed by him for a period of approximately a year, and I was connected with the building quite a bit then. But my knowledge of the building business is not great. That is the reason I have Mr. Elzner hired to run the business for me. I am in the funeral business. I am just president of the corporation. I confer with him on these situations.”

Mr. Elzner is the only employee of appellant and was a building contractor until he went into bankruptcy in 1963.

• The evidence was insufficient to justify the issuance of a temporary mandatory injunction.

The judgment of the trial court is affirmed.

Affirmed.

HUGHES, Justice

(dissenting;.

The plain unvarnished facts of this case are that appellee agreed to furnish appellant the telephone service it desired without requiring any deposit until appellee learned that appellant had in his employ one Whit-low Elzner who was indebted to appellee in the sum of several hundred dollars.

Appellant is a private corporation with authorized capital stock of $50,000.00, with at least $2000.00 in liquid assets, and is not shown to have any debts except for a typewriter.

Mr. Whitlow Elzner does not have any interest in the appellant corporation. He-is only its employe.

Appellee pleaded that its requirement, of a $500.00 deposit from appellant was “a. nondiscriminatory measure which is customary with business situated similarly to the Arvin Harrell Company and operating under circumstances comparable to those involved herein.”

Appellee offered no proof of this allegation nor did it offer any proof that it requires any customer to make a deposit for service.

No one would deny that a public utility,, such as appellee, is subject to the rule prohibiting unreasonable or unjustified discrimination in rates and service. City of Texarkana v. Wiggins, 151 Tex. 100, 246 S.W.2d 622.

Appellee has no legal right to deny appellant service upon the sole ground that it employs a person who is persona non grata to appellee. This is a collateral matter. Sec. 43, Am.Jur. p. 588; 73 C.J.S. Public Utilities '§ 7, p. 998. In Nueces County Water Improvement District No. 1 v. Spring, 139 Tex. 297, 162 S.W.2d 155, n. w. h., the San Antonio C.C.A., Justice Norvell writing, stated, “It is well settled that ⅛ public utility ■corporation can not refuse to render the service which it is authorized by its charter (or by law) to furnish, because of some collateral matter not related to that service.’ ”

In Garner v. City of Aurora, 149 Neb. 295, 30 N.W.2d 917, it was held that a public service corporation cannot refuse to furnish public service because patron is in arrears with it because of some collateral or independent transaction, not strictly connected with particular physical service.

In 47 Tex.Jur.2d, Public Utilities and Service, Sec. 5, p. 397, it is stated, citing Texas Court decisions, that a public utility, unjustifiably refusing service “may properly be compelled by either prohibitory or mandatory injunction, or by mandamus.”

The telephone service desired by appellant is shown to cost $13.50 per month, a $5.00 installation fee and not subject to its being used for long distance calls.

There is no provision in appellee’s franchise or in the ordinances of Austin relative to deposits for service. It is not denied, however, that under Art. 1440, V.T.C.S., a public utility may require deposits to be made.

Since this record shows, without dispute, that appellee is discriminating against appellant in demanding a $500.00 deposit or other security without legal justification, I would reverse and render judgment granting appellant a mandatory writ of injunction or mandamus requiring appellee to furnish appellant the requested service upon it posting a reasonable and proper bond not to exceed $100.00, and paying the customary installation and other fees, and its dissolution conditioned on paying, without delinquency all service charges.

I respectfully dissent.

      . The following is taken from appellee’s brief:
      “An examination of the facts surrounding the alleged contract breach are as follows:
      “1. On November 19, 1963, Arvin Harrell and Whitlow Elzner went to the office of Southwestern Bell Telephone Company and had the following conversation with a telephone employee, Mr. Dunbar:
      “ ‘Q That is when Mr. Elzner and you had conference with Mr. Dunbar?
      ‘“A Well, I didn’t. Mr. Elzner did. I was just along with him at that day. We had been on some other business at that day, and I just went to the telephone company with him. I was just sitting in on the conversation. And Mr. Elz-ner brought up the subject that Mr. Harrell would like to put in a telephone there at that address, [Mr. EIzner’s home] that he was going into business out here, and we were setting up a business, and he would like to have a phone put in there. And I said, “Yes,” to Mr. Dunbar, “that is what I want to do."
      “ ‘Q Now, actually, I think I said December 19th; that was November 19, 1963, or about there, was it not?
      “ ‘A It was about there.
      “ ‘Q All right, sir. And you were told at that time that a deposit for $500 would be required or a personal guarantee in order to do what you wanted to do?
      “ ‘A No, I wasn’t told.
      “ ‘Q Well, you heard Mr. Dunbar tell Mr. Elzner that?
      ‘“A Yes.-
      “2. On March 24, 1964, Arvin Harrell asked that telephone service be furnished the Arvin Harrell Company by giving it a number to be answered at the Hastings Answering Service. The telephone company agreed to do so and required no deposit because it was the type of service which would probably not be used for long distance calls.
      “3. Arvin Harrell talked with Mrs. Hastings, of Hastings Answering Service, on the morning of March 25, 1964, about having service installed at Whitlow EIzner’s homo and Mrs. Hastings called the appellee for narrell and requested in his behalf that Southwestern Bell put a telephone in Elznor’s home.
      “4. At this point the telephone company discovered the involvement of Elz-ner and ever since has refused to give the Arvin Harrell Company service without the $500.00 deposit or a guaranty of a responsible person.
      “This all occurred after Mr. Elzner had filed for bankruptcy owing the appel-lee $400 or $500.”

      . Now an Associate Justice of the Texas Supreme Court.


author: NORTHCUTT, Justice.

text:
    TEXAS ROOFING COMPANY et al., Appellants, v. J. H. WHITESIDE, Jr., et al., Appellees.
    No. 7426.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 21, 1964.
    Rehearing Denied Jan. 18, 1965.

      Brock, Wright, Waters & Galey, Thomas J. Griffith, Jr., Lubbock, for appellants.
    McWhorter, Cobb, Johnson & Cobb, Lubbock, for appellees.
   NORTHCUTT, Justice.

This is an appeal from the judgment of the 72nd District Court of Lubbock County, Texas, denying a temporary injunction sought by appellants, Texas Roofing Company, L. R. Rampy and L. W. Rampy, prohibiting the Board of Trustees of Lubbock Independent School District from expending public funds. It was appellants’ contention that said trustees let a certain contract for roofing on three new school buildings without prior advertisement or competitive bids as required by statute and for the further reason the contractual terms could permit additional consideration to a public contractor in violation of the State Constitution.

The school trustees had employed Mc-Murtry and Craig, architects and engineers, to prepare plans and specifications for the construction of three school buildings here in question. The plans and specifications were approved by the trustees. Among other provisions set out in said plans or specifications there were the following two provisions :

“If before or after the execution of the contract, the contractor has submitted a list of sub-contractors which has been approved by the architect, and the change of any sub-contractor on such list is required by the owner after such approval, the contract price shall be increased or decreased by the difference in cost occasioned by such change.”
“Allowance. General Contract shall allow the sum of $7,600.00 for each building for roofing and sheet metal ■work as specified below. Should work cost more or less, he will he reimbursed or Owner will receive credit. After the award of the General Contract, successful general contractor shall submit to the Owner at least three bids from established roofing companies, acceptable to the General Contractor and the Owner will accept one of these bids, based on past performances of the various roofing companies.”

The trustees advertised for bids on general construction as provided for by Article 2752a. A contract for general construction of the three school buildings in question was let to Hunter Brothers Construction Company. The trial court held that said contract included roofing of the three buildings. Under this record we do not believe any other construction could be placed upon said contract The specifications provide the general contractor to do the roofing. The trustees of the school district have the right to contract for erection of buildings and superintend the construction of the same. Article 2752, Texas Civil Statutes.

Independent school boards possess only the powers expressly conferred on them by law or necessarily implied from the powers so conferred. Harlingen Independent School Dist. v. C. H. Page & Bro., 48 S.W.2d 983 (Com.App.). It would be naturally implied that the trustees would have the authority to refuse to accept bids and to determine whether they would agree to permit a contractor to sublet any portion of the contract. Surely, if they had the right to refuse to permit the contractor to sublet any portion of the contract, they have the right to know whether the sub-contractor is competent or not. Craven v. Davison, Tex.Civ.App., 260 S.W. 1100, affirmed Tex.Com.App., 276 S.W. 193.

Several of the trustees testified as to trouble they had had with roofing contractors, including this appellant. The requirement set out in the contract with Hunter Brothers only required that they submit to the trustees the names of three contractors that were suitable to Hunter Brothers. Five names were submitted to the trustees. The appellants proved the bids of all the sub-contractors for the roof construction were presented to Hunter Brothers. The appellants’ bid was the lowest bid by $111.00 per building involved. The Board of Trustees approved Hamilton Roofing Company as a roofing sub-contractor, being one of the sub-contractors that was submitted to appellee by Hunter Brothers which we think they had the right to do under Article 2752.

The relation of the trustees and Hunter Brothers was based upon the contract between them, and the relation 'between Hunter Brothers and the sub-contractors was based upon their contracts. There was no express privity of contract between the trustees and the sub-contractors. Consequently, the trustees were under no obligation to advertise for bid on the roofing work as a general contractor made the agreement as to the roofing under their general contract with appellees. The advertising for bids on the roofing was had when the trustees advertised for bids on general construction. American Surety Co. v. Shaw, 69 S.W.2d 47 (Com.App.)

As to appellants’ contention that the school board upon contract specifications permitted extra compensation to a contractor after the contract had been entered into in violation of Article 3, Section 52 of the Texas Constitution, Vernon’s Ann. St., we cannot agree. The second paragraph above set out in the specifications does not set a contractual amount the contractor was to receive but the $7,600.00 is only a figure for the contractor to consider in presenting his bid. The specifications further provided if the roofing calls for more, he will be paid the extra cost; and if the cost was less than the $7,600.00, the school was to have the credit for the difference. It will be noticed the bid accepted was for $7,261.00, being $339.00 the school would be entitled to receive as credit for and not extra payment to the contractor. We know of no rule requiring the trustees to accept the lowest bid. Article 2752, Texas Civil Statutes, provided the trustees shall contract for the erection of the building and superintend the construction of the same. It is stated in the case of Stapleton v. Trussell, Tex.Civ.App., 196 S.W. 269: “ * * * there is nothing in the law that arbitrarily requires such board to accept the lowest bid that may be received. As specified in the law, their power in making such contracts is general, and in the absence of limitations they are required merely to act faithfully and in the exercise of their best judgment so as to best serve the interest of their district.” Under the terms above set out in the specifications as to the $7,600.00 is nothing more than a step taken by the trustees in attempting to avert the trouble they had had as to poor roof construction as shown in this record.

As to appellants’ contention the court erred in arbitrarily refusing to invoke the rule separating witnesses from the court room during the trial, we are unable to see from this record anything to indicate the trial court abused its discretion. It is stated in the case of Medrano v. City of El Paso, Tex.Civ.App., 231 S.W.2d 514, as follows:

“Rule 267, R.C.P., merely provides the witnesses may be sworn and removed out of the court room. The provision is directory and not mandatory. Such has been the interpretation of Arts. 644 and 647, C.C.P., from which the rule is taken. Hahn v. State, 13 Tex.Cr.R. 409, 165 S.W. 218, at page 221.
“The application of the rule rests in the sound judicial discretion of the trial Court, and that discretion will not be reviewed on appeal unless it appears there has been a manifest abuse thereof. (The case just cited) See also Brown v. State, 136 Tex.Cr.R. 567, 127 S.W.2d 295; (2-3); Texas Indemnity Ins. Co. v. Hubbard, Tex.Civ.App., 138 S.W.2d 626 at page 628 (3-4). Such has been the rule applied in a long line of criminal cases by the Court of Criminal Appeals wherein a stricter construction is applied than in civil cases.”

We have carefully considered each of appellants’ assignments of error and overrule all of them.

Judgment of the trial court is affirmed.


text:
    H. C. JANES et al., Appellants, v. J. E. MORTON et al., Appellees.
    No. 7411.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 30, 1964.
    Rehearing Denied Dec. 28, 1964.

      R. H. Munsterman, Levelland, for appellants.
    Allison, Mann & Allison, Levelland, for appellees.
   DENTON, Chief Justice.

This case involves the allocation of county road and bridge funds to the respective commissioners precincts of Hock-ley County, Texas. The suit was brought by H. C. Janes, the County Commissioners of Precinct 2, and three others who are residents and taxpayers of that precinct. The defendants, appellees here, were the three other County Commissioners, the County Judge, the County Auditor, and the County Treasurer. Plaintiffs below sought a review of the commissioners court order of August 2, 1963, distributing the road and bridge fund; sought to declare the order invalid, and to enjoin the defendants from carrying out such order. The trial judge, sitting without a jury, denied the relief sought and this appeal was perfected.

The allegations and proof disclosed that on August 2, 1963, the commissioners court of Hockley County passed an order dividing the road and bridge fund among the four commissioners precincts as follows: Each precinct was allocated twenty-five per cent (25%) of the ad valorem tax money; and the funds received from “highway tax money” and the “lateral road money” to be apportioned to each precinct according to the following percentages: Precinct 1: 27.-456%; Precinct 2: 16.553%; Precinct 3: 25.400 %; and Precinct 4: 30.591%. When the total road and bridge fund is considered, the various precincts received the following approximate percentage of the total fund: Precinct 1: 27%; Precinct 2: 19%; Precinct 3: 25%; and Precinct 4: 29%. The road and bridge fund is made up from these three sources.

Appellants’ eleven points of error are directed largely to the alleged errors in the trial court’s findings of fact and conclusions of law and its failure to make additional requested findings. However, the principal question to be decided is the validity of the commissioners court’s order distributing the road and bridge funds. Appellants contend the order is invalid on the grounds the commissioners court acted arbitrarily, and that they failed to exercise any discretion but acted without ascertaining facts upon which to make a proper determination. The authority by which the commissioners court distributes the road and bridge fund is derived from Article 6740, Vernon’s Ann. Civ.St. The material portion of that article reads as follows:

“The commissioners court shall see that the road and bridge fund of their county is judiciously and equitably expended on the roads and bridges of their county, and, as nearly as the condition and necessity of the roads will permit, it shall be expended in each county commissioners precinct in proportion to the amount collected in such precinct.”

The record shows the percentage of the taxable property evaluations in the respective precincts for the year of 1963 were as follows: Precinct 1: 14.9%; Precinct 2: 54.6%; Precinct 3 : 16.0% ; and Precinct 4: 14.3%. There were 315.75 miles of county maintained roads in Precinct 1; 190.95 miles in Precinct 2; 287.10 in Precinct 3; and 351.80 in Precinct 4. The precentage of traffic over the county roads was as follows: Precinct 1: 30.46%; Precinct 2: 18.16%; Precinct 3: 24.95%; and Precinct 4: 26.43%. The average age of the precincts’ equipment was shown to be 6.1 years for that in Precinct 1; 2.4 years in Precinct 2; 4.9 years in Precinct 3; and 5.9 years in Precinct 4. The record also includes information relative to the traffic count on all county roads, motor fuel used, equipment repairs for certain periods, the number of wet weather lake crossings in the various precincts, and the square miles of area in each precinct.

Appellants contend that the commissioners court order was arbitrary by allocating each precinct twenty-five per cent (25%) of the ad valorem tax money, and that they used no discretion in allocating funds received from automobile registration and gasoline tax funds, and that the allocations of the latter two funds were based solely on percentage of roads within each precinct. As we understand it appellants urge that notwithstanding the August 2, 1963 order recited a number of factors which were considered in making the allocations, the majority of the commissioners court in fact did not consider these factors but decided upon a mathematical formula and allocated the funds to fit such formula. Appellants seem to take the position a commissioners court must study and deliberate the material factors in open sessions before making an order distributing the road and bridge fund. We know of no such rule of law making such a requirement. In considering a similar contention, the Dallas Court of Civil Appeals in Garland v. Sanders, 114 S.W.2d 302 (Writ Dismissed), held:

“No particular procedure is prescribed for the commissioners’ court to follow in ascertaining the condition and necessities of the roads and bridges in the county. They are at liberty to pursue their own method, and it is entirely beyond the province of the courts to control their discretion in this respect, or to determine how the road and bridge fund shall be expended; this, too, being a matter within the peculiar province of the commissioners’ court, free from interference by the courts so long as the action of the commissioners’ court is not arbitrary, or taken without having given due consideration to the conditions and necessities of the roads of the county.”

A review of the record reveals a longstanding division of thought by the commissioners as to the proper division of the road and bridge fund. Ill feeings were exhibited by the various commissioners on previous discussions of the subject. It is not disputed that the County Judge and appellant Janes left the commissioners court session during the discussion which later resulted in the passage of the order in question. Although different explanations were given as to why the two decided to leave the discussion, it is relevant only in that it indicates the tension that had existed over a period of time. Such a state of affairs is unfortunate but is not material to a disposition of this case.

The leading case interpreting Article 6740 is Stovall v. Shivers (Tex.Civ.App.) 129 Tex. 256, 103 S.W.2d 363 (Opinion Adopted). The court used the following language:

“That article requires that the road and bridge funds of all counties shall be judiciously and equitably expended. It further requires that such funds shall, as nearly as the condition and necessity of the roads will permit, be expended in each commissioners precinct in proportion to the amount collected in such precinct. The dominant purpose of this statute seems to be to require that the road and bridge fund shall be expended in each commissioners precinct in proportion to the amount collected therein. In this regard, the statute means that each precinct shall prima facie be entitled to its own funds, and in the absence of any reasons to the contrary they should be so divided and expended. However, the duty to expend the funds in the proportion above mentioned is not an absolutely inflexible one. This is evident from the fact that the dominant purpose of the statute is qualified to the extent that the court by clear implication is given the right to expend the road and bridge fund in a proportion other than in the proportion in which they are collected when the conditions of the roads in the respective precincts creates a necessity so to do. We think, however, that the requirement to expend the fund in the proportion mentioned cannot be avoided except in cases or conditions of necessity. Of course, the commissioners court has the right to exercise its sound judgment in determining the necessity, but it cannot act arbitrarily in regard to such matter.” (Emphasis added)

There the court held the commissioners court acted arbitrarily when it divided the road and bridge fund equally among the four precincts, even though Precinct 1 paid 73% of the taxes collected for the road and bridge fund. Precinct 1 had as much traffic as all other county roads in the county; Precinct 1 had as many creeks and rivers and lowlands as the other three precincts combined; and the same precinct had a predominance of heavy truck traffic as the result of a large oil field within the precinct. These and other stated conditions strongly favored, a larger share of the road and bridge fund should be allocated to that precinct. In our opinion the facts and conditions of the present case are clearly distinguishable from the Stovall case.

The ultimate question to be decided here is whether or not the commissioners court order judiciously and equitably expended the road and bridge fund by considering the conditions and needs of the roads together with the proportional amount each precinct had collected. Even though the predominate purpose of Article 6740 seems to require that such fund shall be expended in each commissioners precinct in proportion to the amount collected therein, the duty is not “an absolutely inflexible one.” Stovall v. Shivers, supra. Allocations in proportion to the amount collected from each precinct is required if the need and conditions of the roads do not warrant a departure from such method of allocation. The Stovall case is also clear in its holding that the commissioners court has the right to exercise its sound judgment in determining this necessity even though it cannot act arbitrarily in making such a decision.

If the commissioners court’s order reflected it acted arbitrarily without exercising any discretion or clearly abusing its discretion, the trial court has the power to review, and prevent its enforcement. Article 5, Section 8 of the Constitution, Vernon’s Ann.St.; Article 1908, V.A.C.S.; Alley v. Jones (Tex.Civ.App.) 311 S.W.2d 717 (Refused, NRE). The court has no authority to enter an order allocating the funds. This is the sole duty of the commissioners court. In addition to the above-mentioned events relative to the taxable property evaluations, tax money paid, miles of road in each precinct, percentage of traffic, general condition of the roads, average age of each precincts’ equipment, size of the precincts, and wet weather lake crossings, the record contained testimony of other factors taken into consideration by the commissioners who approved the allocations. In spite of the allegations and inferences found in this record to the contrary, the three commissioners who are appellees here positively testified that these conditions outlined above were considered by them in passing the order under consideration. There is further evidence the individual commissioners had considered various factors and conditions pertaining to this order over a period of several months. After reviewing the record we are of the opinion, and so hold, the order of August 2, 1963, was not arbitrarily passed without regard to the needs and requirements of the roads and bridges of the several precincts of Hockley County. We think the action of the commissioners court was supported by substantial evidence. Under this record we cannot say the majority of the commissioners court failed to exercise its sound judgment in reviewing the conditions of the county prior to the making of the allocations of the fund to the respective precincts. We conclude the trial court’s findings and conclusions which form the basis for the judgment entered were supported by the evidence.

Appellants further contend the trial court erred in refusing to make some 43 additional findings and conclusions. The requested findings are either evidentiary, not ultimate or controlling, or in conflict with the findings made by the trial court. The trial court’s refusal to make the requested findings does not constitute reversible error since such findings were disposed of directly or indirectly by the findings filed by the court. Wentz v. Hancock (Tex.Civ.App.) 236 S.W.2d 175 (Error refused); Hoyt v. Geist (Tex.Civ.App.) 364 S.W.2d 461.

We have considered all points of error brought forward and all points not specifically discussed are overruled. The judgment of the trial court is affirmed.

CHAPMAN, J., not sitting.


author: WALTER, Justice.

text:
    UNION BANK & TRUST COMPANY, Appellant, v. SERVICE TRUST COMPANY, Appellee.
    No. 3926.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 18, 1964.
    Rehearing Denied Jan. 15, 1965.
    W. R. Smith, San Antonio, for appellant.
    James N. Castleberry, Jr., Bradford F. Miller, San Antonio, for appellee.
   WALTER, Justice.

Service Trust Company filed suit against Richard H. Day and Union Bank and Trust Company. The suit against Day was on a note executed by him for $4,036.00, payable to Service and for foreclosure of a chattel mortgage lien on a 1961 New Moon three bedroom mobile home. Union Bank and Trust Company was also claiming a lien against the mobile home. Service Trust Company’s suit against Union Bank and Trust Company was to determine which lien was superior. Service pleaded:

“That at the time the aforesaid lien of Plaintiff was created on the aforesaid chattel, to-wit; One 1961 New Moon 3 Brm. Mobile Home, Serial No. 55X1301870, the said chattel was, under and by virtue of the provisions of the Texas Certificate of Title Act, Article 1436-1, Vernon’s Annotated •Penal Code of the State of Texas, a motor vehicle subject to a ‘first sale’, and Section 41 of said Article 1436-1 provides:

“‘No lien shall be valid on any motor vehicle which is hereafter the subject of a first sale, or be enforceable against any such motor vehicle unless there is noted on the importer’s ór manufacturer’s certificate the date, name, and address of the mortgagees whose rights arise out of or are incident to such first sale by reason of the execution of any written instrument by the transferee.’

That at the time the aforesaid lien of Plaintiff was created on said chattel, the title of the Defendant Richard H. Day to the said chattel was evidenced by a Manufacturer’s Certificate of Origin, as required by the said Texas Certificate of Title Act, and the said Manufacturer’s Certificate of Origin contained no notation thereon of any outstanding lien whatsoever in favor of the Defendant Union Bank and Trust Company, or any other person; that at such time, Plaintiff had no actual or constructive notice of any lien of any kind in favor of, or claimed by, the Defendant Union Bank and Trust Company, or any other person.”

Union claims a lien on the same mobile home under the provisions of Article 5499a-51, Vernon’s Ann.Tex.Civ.St., known as Texas Uniform Trust Receipts Act.

In a non-jury trial the court held that Service Trust Company’s lien was superior to that of Union. The mobile home was sold at a judicial sale for $3,142.40. The court ordered his clerk to pay the proceeds of the sale to Service to be applied on Day’s debt to it. Union has appealed. It contends the court erred in holding that the chattel mortgage lien held by Service under the Texas Certificate of Title Act was superior to the lien held by Union under the Texas Uniform Trust Receipts Act. Service has a cross point that the court erred in holding that Union was engaged in interstate commerce.

Richard H. Day operated a business known as Day’s 77 Mobile Home Sales in San Benito, Texas buying and selling new and used mobile homes.

On December 19, 1960, Union wrote a letter to Day concerning an agreement of floor plan financing with trust receipts on mobile homes. The letter is signed by a Vice-President of Union. The following appears after his signature:

“DEALER’S ACCEPTANCE
I (we) hereby accept the terms of the within Agreement.
Day’s 77 Mobile Home Sales Dealer
By: Richard H. Day
Dated: 12/27/1960.”

Service objected to the introduction of the letter because it had not been shown that Day signed it. The letter was received in evidence for a limited purpose “ — in order to show the sequence of the events, and negotiations and not as to the authenticity or to the matters set forth therein.”

There appears in the record a “Statement of Trust Receipt Financing” dated December 27, 1960, signed by Union and Day which was filed in the Office of the Secretary of the State of Texas on January 3, 1961. The filing of this statement was in compliance with subdivision 2 of section 13 of Article 5499a-51, known as the Uniform Trust Receipts Act. This Statement of Trust Receipt Financing was executed pursuant to the letter agreement of Union and Day.

On July 20, 1961, Day purchased a mobile home from New Moon Homes. The manufacturer’s statement or certificate of origin to the mobile home dated July 20, 1961, designates its serial number as 55X-1301870. Such instrument transferred the title to Day. “ ‘Document’ means any documents of title to goods.” Section 1 Article 5499a-51, V.A.C.S. We are of the opinion that the manufacturer’s certificate of origin is a document within the meaning of the Act. The record shows that the mobile home was shipped on July 20, 1961, C.O.D. Title to the home therefore passed to Day on the date it was shipped. 50 Tex.Jur.2d page 521. This home was delivered to Day at his place of business on July 28, 1961. When it was delivered Day paid the full purchase price of $4,462.00 with his personal check drawn on a San Benito bank. Thereafter, on July 29, 1961 Day executed to Union a Bill of Sale and Trust Receipt which described two New Moon Homes. The manufacturer’s serial number, to the one here involved, in the Trust Receipt was given as 1301870. On the same date Day executed to Union his note for $9,183.00. On December 11, 1961 Union filed a new statement of trust receipt financing as required by section 13 of the Trust Act. On December 26, 1961 Day executed a renewal note to Union for an unpaid balance of $7,430.00.

The court made the following findings of fact which are supported by evidence:

“14. At the time Day applied to Union for the $9,183.00 loan, the mobile home which is the subject of this lawsuit, was already owned by Day, was physically present on his lot, and was a part of his existing business inventory displayed for sale.

“15. There was no agreement or obligation of any kind between Day and Union by, or under, which Day was bound to apply or allocate any of the loan proceeds received from Union to pay any particular account or indebtedness or any part thereof.

“16. On August 3, 1961, Day received from Union proceeds from the $9,183.00 loan, and deposited the same in his general business account in the San Benito Bank and Trust Company, San Benito, Texas.

“17. Day could have, and did, use the proceeds of the loan from Union to pay his general business debts and expenses, living expenses, and for any other purpose he desired.

“18. The acquisition of the mobile home which is the subject of this lawsuit by Day from New Moon Homes, Inc., on July 20, 1961, was not dependent upon, nor was it a part of, the transaction between Day and Union occurring between July 29, 1961, and August 3, 1961, as a result of which Union loaned Day $9,183.00 and Day and Union signed a Trust Receipt covering the mobile home. These two transactions were two wholly independent and different transactions.”

On January 3, 1962, Day borrowed $4,-036.00 from Service. Day executed a note for such amount and a chattel mortgage in favor of Service on the mobile home here in dispute describing it by serial number 55X1301870. On such date a manufacturer’s certificate of origin to said vehicle was delivered to Service and it noted its lien thereon as required by the Certificate of Title Act, Article 1436-1 of Vernon’s Annotated Penal Code. At such time no other lien was listed on the certificate.

The trial court’s judgment is supported by section 2 of the Trust Receipts Act and by In Re Chappell, D.C., 77 F.Supp. 573.

The court held that the manufacturer’s certificate of origin was a negotiable document within the meaning of the Trust Act. Union’s point that the court erred in so holding cannot be sustained. Southwestern Investment Company v. The American National Bank of Amarillo, Tex.Civ.App., 374 S.W.2d 318, (Writ Ref. N.R.E.) is the only reported Texas case construing the Trust Act. The Investment Company was claiming liens on fifteen used automobiles under the Trust Act. The Bank was claiming liens on the same cars under the Certificate of Title Act. One Nichols entered into a Trust Receipt Financing Agreement with the Investment Company. The Investment Company filed its statement of Trust Receipt Financing with the Secretary of State as required by the Act. Thereafter, Nichols borrowed money from the Bank for the purported purchase of the fifteen cars. Nichols delivered to the Bank clear Certificate of Titles. Thereafter, the Investment Company discovered that Nichols had sold some of the cars “out of trust.” The Investment Company contended there was a conflict between the two acts and that the Trust Act superseded the Certificate of Title Act because it was enacted subsequent to the Title Act. It also contended its lien was prior and superior. In deciding there was no conflict the court said:

“Contrary to appellant’s contention, we do not think the Certificate of Title Act and the Trust Receipts Act are in conflict. In the first instance, the Certificate of Title Act is a specific act dealing only with motor vehicles and house trailers, while the Trust Receipts Act deals with 'any chattels personal other than: money, things in action, or things so affixed to land as to become a part thereof.’ The Certificate of Title Act recognizes the existence of ‘trust receipt liens’ in Section 3 of the Act although undoubtedly it is making reference to the trust receipt known at common law. We therefore conclude the two acts are not in conflict and must be read together, and each given effect according to the facts and circumstances of the particular case. Both acts serve useful, unique purposes in present day commercial transactions.”

The court further held that the Certificates of Title were negotiable documents within the meaning of the Trust Act:

"The Texas Trust Receipts Act has not been previously interpreted by the Texas Courts. We must therefore look to other jurisdictions which have adopted similar acts. An excellent analysis of the material provisions which are identical with the sections under consideration here was made by the California court in Citizens Nat. Trust & Savings Bank of Los Angeles v. Beverly Finance Co. [127 Cal.App.2d Supp. 835, 273 P.2d 714], (Supra). The only material difference in that case and the •case at bar is that the bank there pur■chased for value a conditional sales contract from the trustee as security for money loaned on the automobile rather than taking the certificate of title as security. The court held the bank was a purchaser in good faith and the instrument so purchased was in such form as by common practice was purchased and sold as if negotiable. The court concluded the rights of the bank were superior to those of the finance company, an entruster under the California Trust Receipts Act. See also General Credit Corp. v. First National Bank of Cody, 74 Wyo. 1, 283 P.2d 1009; and Dart National Bank v. Mid-States Corp., 356 Mich. 574, 97 N.W.2d 98. As stated above, the only material distinction between this case and the case at bar are the types of instruments involved. In view of the language of identical trust receipts act provisions, we do not think this distinction is of any consequence as both instruments are of such a nature as to come within the exception of Section 9, subd. 1(a) and (b) of the Act.”

Union contends that even though a Certificate of Title is a negotiable document it does not necessarily follow that a manufacturer’s certificate of origin is a negotiable document. It is true that the Supreme Court held in Motor Inv. Company v. Knox City, 141 Tex. 53, 174 S.W.2d 482 “Reading the Act as a whole, we think it clear that every transfer of a motor vehicle, regardless of the number thereof, from manufacturer to dealer, dealer to dealer, and from dealer to ‘owner,’ as defined in the Act, constitutes a ‘first sale,’ and that it is not necessary that the vehicle be registered and a certificate of title thereto obtained as a condition precedent to the validity of such ‘first sale.’ ”

The Knox City case is not in point on the issues involved in the instant case. Section 9, subd. 1 of the Trust Act provides in-part as follows:

“Limitations on Entruster’s Protection Against Purchasers.
“Sec. 9 1. Purchasers of Negotiable Documents or Instruments.
“(a) Nothing in this Act shall limit the rights of purchasers in good faith and for value from the trustee of negotiable instruments or negotiable documents, and purchasers taking from the trustee for value, in good faith, and by transfer in the customary manner instruments in such form as are by com- - mon practice purchased and sold as if negotiable, shall hold such instruments free of the entruster’s interest; and filing under this Act shall not be deemed to constitute notice of the entruster’s interest to purchasers in good faith and for value of such documents or instruments, other than transferees in bulk.
“(b) The entrusting (directly, by agent, or through the intervention of a third person) of goods, documents or instruments by an entruster to a trustee, under a trust receipt transaction or a transaction falling within Section 3 of this Act, shall be equivalent to the like entrusting of any documents or instruments which the trustee may procure in substitution, or which represent the same goods or instruments or the proceeds thereof, and which the trustee negotiates to a purchaser in good faith and for value.”
“ ‘Purchaser’ means any person taking by purchase. A pledgee, mortgagee or other claimant of a security interest created by contract is, insofar as concerns his specific security, a purchaser and not a creditor.” Sec. 1 of Trust Receipts Act.

In Citizens National Trust & Savings Bank of Los Angeles v. Beverly Finance Company, 127 Cal.App.2d Supp. 835, 273 P.2d 714, the court quoted with approval from Canandaigua Nat. Bank & Trust Co. v. Commercial Credit Corp., 204 Misc. 946, 126 N.Y.S.2d 316 as follows :

“It is the common practice for banks and finance companies to finance the retail sale of automobiles by taking assignments from the dealer of conditional sales contracts and notes. This was the practice of the plaintiff in the present case. Such contracts and notes in the form here used are purchased and sold as if negotiable, and the plaintiff acquired the same in the customary manner and in the ordinary course of business in good faith and for value, and it comes within the protection of Personal Property Law, § 58-a, Subd. 1, and holds its title free from entrus-ter’s interest,”

“The Trust Receipts Act places-emphasis on the accepted practice of negotiability rather than technical appearances-of negotiability.” Southwestern Investment Company v. The American National Bank of Amarillo, 374 S.W.2d 318, (Writ Ref. N.R.E.). The manufacturer’s certificate was transferred to Service as if negotiated in the customary manner. Under the Trust Act, Service was a purchaser in good faith for value of a negotiable document. Service is therefore entitled to hold it free of Union’s security interest under Section 9 to the Trust Act.

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.