author: CHAPMAN, Justice.

text:
    Ted R. DICKEY d/b/a Ted R. Dickey Company, Appellant, v. Richard D. BIRD, Appellee.
    No. 7232.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 25, 1963.
    Rehearing Denied April 1, 1963.

      Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellant.
    Williams, Broughton & Forbis, Childress, for appellee.
   CHAPMAN, Justice.

This is an appeal from a summary judgment granted by the trial court.

Ted R. Dickey d/b/a Ted R. Dickey Company sued Richard D. Bird for recovery of a real estate broker’s commission alleged to be due him for the sale of the El Rancho Motel in Childress, Texas.

Appellee Bird pleaded Section 28 of Article 6573a V.T.C.S. as a bar to recovery, which article provides in part as follows:

“No action shall be brought in any court in this State for the recovery of any commission for the sale or purchase of real estate unless the promise or agreement upon which action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunder lawfully authorized.”

His motion for summary judgment was supported by affidavits and depositions which he contends entitled him to the judgment rendered. Included in the motion and as a part thereof were exhibits “A”, “B”, and “C”, being the written exclusive listing contract between the parties, a letter terminating the exclusive listing as of June 12, 1961, and the purchaser’s affidavit showing Ted R. Dickey never contacted him prior to July 11, 1961, and that he contacted Mr. Bird in August thereafter and purchased the motel the following day.

Appellant Dickey pleaded the exclusive listing contract was cancelled but that it was continued as a general listing;, that he continued to advertise the motel; that he located the purchaser; was the producing cause of the sale; and that ap-pellee in continuing to encourage him and represent to him he had a written listing and to negotiate with prospective purchasers was estopped to assert the statute of frauds as a defense. The trial court also had before it the depositions of both appellant and appellee.

The exclusive listing contract dated on April 12, 1961, provided in part as follows:

“I hereby grant and give you the sole and exclusive right to sell the same for a period of sixty days from this date and thereafter until notified by me in writing(All emphases herein are ours.)

It further provided that if it was sold by anyone during said time for the price and upon terms acceptable to the seller he would pay Mr. Dickey a brokerage commission of $10,000.

We believe the letter terminating the written exclusive listing contract must be construed in connection therewith and as a part thereof in order to determine if the contract by the parties was continued as a written general listing. If it was not then clearly the summary judgment was properly granted. It is without contradiction that the written listing contract was an exclusive listing and that the exclusive feature thereof was terminated effective June 12, 1961. If the letter terminating it is free of ambiguity, then it’s academic that its construction is a matter of law for the court.

The letter of June 2, 1961, terminating the exclusive listing, omitting the formal parts, is as follows:

“In keeping with our exclusive listing contract dated April 12, 1961, this is to advise that said exclusive listing shall terminate on June 12, 1961. We would like very much for you to sell the El Rancho Motel for us, but do not feel inclined to continue the exclusive listing after June 12, and this letter is to notify you of the termination of said exclusive listing on June 12, 1961.
“With kindest personal regards, and trusting that you can sell the El Rancho for us prior to June 12,1 remain * * ”

As stated in effect by our Supreme Court in a comparatively recent decision, the law texts and court decisions contain a plethora of definitions of the words “ambiguous” and “ambiguity” and the terms are often used to denote a single lack of clarity in language. Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 and cases cited under Syl. [1].

That court has also said:
“If a written contract is so worded that it can be given a certain or definite legal meaning or interpretation, it is not ambiguous. It follows that parol evidence is not admissible to render a contract ambiguous, which, on its face, is capable of being given a definite certain legal meaning. This rule obtains even to the extent of prohibiting proof of circumstances surrounding the transaction when the instrument involved, by its terms, plainly and clearly discloses the intention of the parties, or is so worded that it is not fairly susceptible of more than one legal meaning or construction.” Lewis v. East Texas Finance Co., 136 Tex. 149, 146 S.W.2d 977, 980.

Then in a later decision the court, after citing the Lewis case for the above holding, said:

“The converse of this is that a contract is ambiguous only when the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper one.”

By way of further explanation of the two statements the court continued in the case just cited to say:

“In other words, if after applying established rules of interpretation to the contract it remains reasonably susceptible to more than one meaning it is ambiguous, but if only one reasonable meaning clearly emerges it is not ambiguous. In the latter event the contract will be enforced as written and parol evidence will not he received for the purpose of creating an ambiguity or to give the contract a meaning different from that which its language imports. * * * Neither in this latter event may the rule of strong construction against the author be invoked. That rule is applied only where a contract is open to two reasonable constructions. * * * ‘The rule that expressions will be interpreted against the person using them applies only where, after the ordinary rules of interpretation have been applied, the agreement is still ambiguous.’ ”

In applying the rules of law just stated to the exclusive listing contract and the letter terminating it, the instruments do not appear to show ambiguity. The contract between the parties was that appellant had the sole and exclusive right to sell for a period of sixty days from April 12, 1961, “and thereafter until notified by me in writingThat notification was made by the June 2 letter above quoted and the exclusive listing was terminated at the end of the sixty-day period provided. Throughout the first paragraph of the letter it referred to their exclusive listing, which to that date was without question the only type listing between them. If there could have been any doubt from the first paragraph of the letter (which referred only to their exclusive listing) that by terminating the exclusive listing appellee was leaving the broker a general listing, the second paragraph seems to have completely eliminated any such inference by saying, “trusting that you can sell the El Rancho for us prior to June 12, I remain * ⅜ If the seller was leaving the agent a general listing, that paragraph was completely sur-plusage, and we have no legal right to so construe it.

Our Supreme Court in Citizens National Bank in Abilene v. Texas & P. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003, 1006 has said:

“It is the duty of the court, in determining the meaning and intent of a contract, to look to the entire instrument; that is, the contract must be examined from its four corners. Stated in another way, the contract must be considered and construed as an entire instrument, and all of its provisions must be considered and construed together. It is not usually proper to consider a single paragraph, clause, or provision by itself, to ascertain its meaning. To the contrary, each and every part of the contract must be construed and considered with every other part, so that the effect or meaning of one part on any other part may be determined.”

Our Court in Daltex Cattle Co. v. Hill, Tex.Civ.App., 43 S.W.2d 605 has held:

“ * * * where the agent’s right to sell is limited to a time certain, he is not entitled to commissions if no sale is effected, within that time, even though the owner subsequent to the expiration of the exclusive agency sells to one with whom the agent has been negotiating, unless the agency was terminated fraudulently, or the owner prevented a sale by the agent within the time specified.”

There is nothing in the record to show the agency was terminated fraudulently nor that the owner prevented a sale within the time specified.

Appellant insists in effect that a fact issue was raised by the letter of June 2 which he says changed the exclusive feature to a nonexclusive written listing contract. We believe what we have already said effectively disposes of that contention.

He also insists that fact issues were raised by appellee representing to appellant that the original written contract was extended as a general listing and that it was orally extended prior to June 12, 1961.

Rule 166-A V.A.T.R., the summary judgment rule, provides that if the motion for summary judgment is made by the moving party, the adverse party prior to the day of hearing may serve opposing affidavits. The rule then provides the judgment may be summarily rendered “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show * * * there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Section (e) thereof then provides that both “[sjupporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

If it may be said that any oral representation made by Mr. Bird to Mr. Dickey that changed the exclusive listing to a general listing was admissible on any theory urged by appellant, such representations and oral statements would have to have been shown, if made by affidavit, to have been admissible in evidence and that affiant was competent to testify to the matters therein stated. Rule 166A—V.A.T.R.; Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 399.

Appellant made such affidavit and in it said that at the time of the sale he held a written listing signed by Mr. Bird designating him as real estate agent and by the terms of which he was to receive a commission of $10,000. He also made affidavit that Mr. Bird at no time ever cancelled the listing or asked affiant to cease his efforts to sell the property, but instead continued to encourage him to sell it. However, in his deposition he admitted the only written instruments he had between himself and Mr. Bird were the two heretofore discussed (the written exclusive listing and the termination letter), a list of daily sales of rooms in the court, and some photostatic copies of telephone calls from Oklahoma City to Childress. The list of daily sales showing a 56-day period does not show if the list was made prior to June 12, 1961, nor do they show they were sent prior to that date. He simply states in his deposition that “I have a statement from him on the daily sales of the court to a certain date.”

The photostatic copies of telephone calls between Oklahoma City and Childress, some of which were between June 2 and June 12, when considered together with his deposition, furnished some evidence of the fact that he had some conversations with Mr. Bird or some of his partners by telephone between June 2 and June 12, 1961. We have very carefully studied Mr. Dickey’s affidavit and deposition and have not found one word showing that Mr. Bird or anyone authorized to do so made any oral statement between June 2 and June 12, 1961, which authorized him to continue to work on the sale of the motel under a general listing.

Any extention of the contract past the termination date, subject to Section 28 of Article 6573a, in order to raise a fact issue of waiver or estoppel, would have had to be made while the contract was still executory, before the expiration of the agency contract. Evans v. Shipp, Tex. Civ. App., 327 S.W.2d 679 (writ dismissed); Davis v. Freeman, Tex.Civ.App., 347 S.W. 2d 650, 655 (NWH).

It has also been held that an oral modification of a written contract as to extension of time which does more than just extend the time is void. Parks v. Underwood, Tex.Civ.App., 280 S.W.2d 320 (NRE). This alleged extension did more than just extend the time because it changed an exclusive listing to a general listing and failed to limit the time.

It is true that appellant’s affidavit stated he had a written contract at the time of the sale and that at no time did appellee ever cancel the listing. Such statements are clearly conclusions of law in this record and would not be admissible in the trial on its merits under the authority of Tobin v. Garcia, supra, or Gaines v. Hamman, Tex., 358 S.W.2d 557, 562. Such statements were clearly an effort to interpret the letter of June 2, 1961. As such, they were legal conclusions that would not be admissible in evidence and a motion to strike them was filed by appellee for those reasons.

Further, a genuine issue of a material fact cannot be said to have been raised by allegations made in unverified pleadings in this case in view of the fact that they were controverted by other components of the summary judgment record, in the absence of admissible statements of fact in counter affidavits or other summary judgment components. Wilkinson v. Powell, 5 Cir., 149 F.2d 335; Savoy v. Graham Memorial Auditorium Ass’n, Inc., Tex.Civ. App., 329 S.W.2d 352 (NWH) and cases there cited.

Under the record made here, if the case had been tried to a jury on its merits the court would, we believe, have been compelled to grant the movant an instructed verdict. Under such a situation then, the motion for summary judgment was proper. Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, 500. It follows then from what we have already said that we believe appellant failed to show opposing evidentiary data sufficient to raise an issue as to a material fact and accordingly, the judgment of the trial court must be affirmed.

      . It lias been held that cases construing the statute of frauds, Article 3995 V.T. C.S., are applicable in construing the similar language of the Real Estate License Act. Evans v. Shipp, Tex.Civ.App., 327 S.W.2d 679 and cases there cited.

      . Universal O. I. T. Credit Corp. v. Daniel, supra.

      . The termination date provided for both in the contract proper and the letter.


source: Caselaw Access Project

author: LANGDON, Justice.

license: Public Domain

text:
    James B. TURNER et al., Appellants, v. Edward L. KEENE, Appellee.
    No. 16391.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 22, 1963.
    Rehearing Denied April 19, 1963.
    James B. Turner and Eugene Chambers, Houston, for appellants.
    Sonfield & Sonfield, Robert L. Sonfield and Robert L. Sonfield, Jr., Houston, for appellee.
   LANGDON, Justice.

This is a suit for attorney’s fees initiated by the appellants James B. Turner and Eugene Chambers, licensed attorneys in Houston, Texas, against Edward L. Keene, the appellee herein, for professional services rendered in a case reported in Tex.Civ. App., 340 S.W.2d 859, styled Keene et al. v. Reed et al., hereinafter referred to as the Reed case, which sought to enforce covenants and deed restrictions.

The appellee denied under oath the claim of appellants.

The trial was to the court without a jury on March 21, 1962. It resulted in judgment for the defendant, appellee herein. Judgment was signed and entered on April 9, 1962.

No request was made for conclusions of fact and of law and none were filed.

By their only assignment of error the appellants contend that the judgment of the trial court is not supported by the evidence.

The opinion of the Supreme Court of Texas in the case of Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114, is applicable to this case. Therein it was stated: “No findings of facts or conclusions of law were requested of or filed by the trial judge. The trial court’s judgment, therefore, implies all necessary fact findings in support of the judgment. In seeking to determine whether there is any evidence to support the judgment and the implied findings of fact incident thereto ‘it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.’ Austin v. Cochran, Tex.Com.App., 2 S.W.2d 831, 832; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696.”

Under the above holding if the judgment of the trial court can be sustained by considering only that evidence most favorable to it and disregarding entirely that which is opposed to it or contradictory in its nature, such judgment must be affirmed.

We believe that the evidence supports the judgment.

The following statement of the facts represents a summary of the testimony of the appellants, the appellee and other witnesses who appeared in the trial court.

The appellant Chambers and the appellee Keene are resident owners of property in the Southcrest addition, a residential subdivision in Houston, Harris County, Texas. The lots in the addition are restricted to single family dwellings.

The resident owners in the addition had a club known as the Southcrest Civic Club and designated certain members to serve on the Restrictions Committee. This committee concluded that Herbert L. Reed and other property owners were in violation of the deed restrictions. This information was presented at a meeting of the civic club attended by the appellee and the appellant Chambers. The club voted to institute proceedings to enjoin the reported violations. A discussion was had as to an attorney to handle the litigation and the appellant Chambers suggested that it would not be necessary for the civic club to employ counsel because he being an attorney could and would file the necessary suits without fee, the club paying only the court costs and other incidental expenses involved. On this basis the appellant Chambers was authorized to file cases against Reed and others. Necessarily one or more of the property owners in the addition would have to be named as plaintiffs. The appellee Keene volunteered and he, J. N. Chancellor and the Southcrest Civic Club were accordingly made plaintiffs in the Reed case. Later on motion of the defendant in the Reed case the civic club was dismissed because it was not a property owner in the addition. Ail costs incident to the filing of the suit and in appealing from an adverse judgment of the trial court were paid by the civic club. The appellant Chambers filed several similar suits naming other property owners of the addition as plaintiffs. All of such suits were decided adversely to the plaintiffs and in each the civic club paid all of the expenses incident to the filing and trial of the cases.

During the period of the litigation the civic club paid a total of $1,417.50 to the appellant Chambers for costs and fees. None of such money was earmarked as a fee in any particular case.

The appellant Chambers testified that the whole matter of his employment originated with the civic club and he would never have filed suit if the civic club had not assured him of their permission to go ahead. That it was the Restrictions Committee with which he had his understanding and agreement about filing suit.

The appellant James B. Turner testified that he never did see Keene, the appellee, during the time the Reed case was being tried. That he did not know him and that he never talked to him on the phone or otherwise. “My only knowledge of him is through Mr. Chambers.” He never had any conversation or discussion with the Restrictions Committee of the civic club and “ * * * never talked with anyone in connection with that organization or anyone out there in the subdivision.”

The appellee testified that he saw Mr. Chambers one time before the original suit was tried in the district court and “That was in his office by the law library about fifteen minutes before the case opened.”

We are convinced that the trial court did not commit error in entering judgment against the appellants. There is ample evidence to support it. The judgment of the trial court is affirmed.


text:
    OCHILTREE COUNTY, Appellant, v. Wyatt C. HEDRICK, Appellee.
    No. 7222.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 21, 1963.
    Rehearing Denied March 11, 1963.
    Linn & Helms, Spearman, G. R. Close and Gene E. Steed, Perryton, for appellant.
    Allen, Allen & Reavis, Perryton, for ap-pellee.
   CHAPMAN, Justice.

Wyatt C. Hedrick instituted this suit against Ochiltree County, a political subdivision of the State of Texas, to recover for alleged architectural services in connection with a proposed county hospital. In Plaintiff’s Original Petition he alleged the total cost of the contemplated hospital would have been at least $1,600,000, that his compensation was to be 6% of that amount and asked recovery of $96,000. He alleged in the alternative he was entitled to $22,500 for valuable services rendered and asked for $50,000 exemplary damages. In Plaintiff’s First Amended Petition he alleged essentially the same, prayed again for $96,000 and in the alternative for $24,-000 for services rendered. In Plaintiff’s Second Amended Petition, upon which he went to trial, he pleaded a cause of action upon a quantum meruit or implied contract type of proceeding and alleged $24,000 to be the reasonable value of services rendered.

Despite the fact that the record is void of any probative evidence showing the county accepted any of the services rendered or benefited any whatever therefrom, the case was submitted upon a question that simply inquired of the jury the reasonable value of the architectural services rendered. They answered $13,912.50 and the court rendered a judgment for that amount, together with 6% per annum interest from that date. It is from such judgment appeal is perfected to this court.

At the invitation of the county a number of architectural firms appeared before the commissioners’ court on April 21, 1961. W. H. Myers, a public relations representative and associate of Mr. Hedrick, appeared for him. On behalf of Mr. Hedrick Mr. Myers offered to perform the work for a fee of 6% of the actual construction cost, which was not to exceed $1,600,000. It is uncontradicted that it was understood between Mr. Myers and the county that the hospital was to be constructed with money derived from bonds it was contemplated would in the future be voted by the qualified voters of Ochiltree County. Mr. Myers offered on behalf of Mr. Hedrick to prepare two preliminary plans and conduct a survey and it was agreed that if the bond issue failed there would be no architectural fees due.

On April 25 thereafter Mr. Myers was notified by a letter from the county judge that the four commissioners of Ochiltree County had voted to retain his firm as architects for the proposed Ochiltree County Hospital. About nine days thereafter Mr. Myers, and W. E. Parrish, an architect from the firm, arrived in Perryton for the purpose of conducting a survey. On May 23 thereafter Mr. Myers appeared before the commissioners’ court with some preliminary plans. Seven changes were suggested in those plans, but on May 24 thereafter the commissioners’ court rescinded its previous motion in which it had retained Wyatt C. Hedrick. He then filed a claim for $68,000. He later asked to be reinstated. The county did not act on the claim and refused to reinstate him.

Suit was filed and the parties stipulated at a pre-trial hearing that the bond issue to finance the hospital construction submitted in August 1961 was rejected by the voters. Thus, the question to be decided is whether under this record Mr. Hedrick could recover under a quantum meruit or implied contrary theory for the amount assessed by the jury. The first issue submitted was as follows:

“What sum of money, if any, do you find from a preponderance of the evidence was the reasonable value, if any, of the architectural services rendered by plaintiff, if any, until the date plaintiff was notified by defendant that plaintiff was discharged?”

At the close of the testimony motion for instructed verdict was made which raised the question of the claim being based upon an alleged contract which was ultra vires the powers of the commissioners’ court. The right of recovery was also questioned on the proposition that any payment for services was conditioned upon the hospital bond issue passing, which failed. Those questions were also before the court on an n. o. v. motion and the above quoted issue was objected to on the grounds that any recovery for services were to be paid out of bond funds which never became available and there was no evidence and insufficient evidence to submit the issue for reasonable value of services for preliminary plans and specifications never accepted.

Article 11, Sec. 7 of the Constitution of Texas, Vernon’s Ann.St. provides in part as follows:

“ * * * no debt for any purpose shall ever be incurred in any manner by any city or county unless provision is made, at the time of creating the same, for levying and collecting a sufficient tax to pay the interest thereon and provide at least two per cent (2%) as a sinking fund.” (Emphases added.)

The term “debt” as used in the above constitutional inhibition has been held to be any pecuniary obligation imposed by contract, except such as was, at the date of the contract, within the lawful and reasonable contemplation of the parties, to be satisfied out of the current revenues for the year or out of some fund then within the immediate control of the county or city. McNeill v. City of Waco, 89 Tex. 83, 33 S.W. 322; Stevenson v. Blake, 131 Tex. 103, 113 S.W. 2d 525; Texas & New Orleans R. R. Co. v. Galveston County, 141 Tex. 34, 169 S.W.2d 713.

The record is without contradiction that at the date of the agreement by the Ochiltree County commissioners’ court with Mr. Myers for architectural services such services were not to be satisfied out of the current revenues for the year or out of some fund then within the immediate control of the county. On the contrary they were to be paid out of bond money to be voted on in the future and no fees were to be due if the bond issue failed. Therefore, the county acting through its commissioners’ court entered into a contract that was invalid under Article 11, Sec. 7 of the Constitution of Texas because it was ultra vires the powers of the -commissioners’ court. This is true because a debt was sought to be incurred without provisions being made at the time for levying and collecting a sufficient tax to pay the interest thereon and provide at least two per cent (2%) as a sinking fund, as required by the constitution.

But as heretofore stated the suit finally sought to be prosecuted in this case was not upon the contract but was in the nature of quantum meruit, an implied contract by the county to pay for benefits it allegedly received. Here again we can find no relief for appellee. In the first place there is not any probative evidence that they received any benefit from the architectural services. On the contrary the only plans presented were rejected, were never used, Mr. Hedrick was discharged, and another arrangement made for use of plans upon which to base the bond issue. Secondly, there is a great amount of authority to the effect that there can be no recovery in quantum meruit or on an implied contract if the commissioners’ court would not have the power and the authority to make the contract sought to be implied. Nunn-Warren Pub. Co. v. Hutchinson County, Tex.Civ.App., 45 S.W.2d 651 (writ refused); Pritchard & Abbott v. McKenna, Tex.Civ.App., 343 S.W.2d 752. In the Hutchinson County case our court held:

“ * * * ‘the county may not be held liable upon an implied contract or quantum meruit unless the commissioners’ court was authorized to make the contract sought to be implied; nor is the county estopped to set up as a defense the want of authority in making the contract. The other party to the agreement is not in the situation of one who has acted innocently or without knowledge of the circumstances. One who deals with the county is charged with notice of the regulations; and a custom which ignores the law cannot be invoked for the purpose of validating a transaction which is otherwise invalid.’ ”■

The Hutchinson County case from which we have just quoted is a writ refused case announced since 1927 so we must give it the same authority as if it had been written and announced by the Supreme Court. 15 T.J.2d 600, Sec. 139; City of San Angelo v. Deutsch, 126 Tex. 532, 91 S.W.2d 308, 312.

In the Pritchard case above cited the Houston Court of Civil Appeals quoted at length from both case law and textual authority to the same effect and cited among many other cases our Hutchinson County case. The Houston court in discussing this question said in part as follows:

“The law is well settled that where services are performed and materials furnished to a county under an invalid contract made by the Commissioners Court, there can be no recovery in quantum meruit or implied contract if the Commissioners Court did not have the power and authority to make such contract. See 14 Amer.Jur., p. 212, Counties, § 44, where it is stated:
“ ‘On the other hand, it is established by the weight of authority that a county cannot be held liable to pay for the benefits received under an express contract which was beyond the power of the county to make; a county cannot bind itself impliedly where it cannot bind itself expressly. Thus, the doctrine of implied liability cannot be invoked to render a county liable for the value of services performed in its behalf under a contract that was ultra vires from the standpoint of the county.’ ”

We are not unmindful of the fact that the Pritchard case was reversed in 162 Tex. 617, 350 S.W.2d 333 but upon other grounds. That court in doing so nowhere rejected the rules announced in Syl. 11 of the Court of Civil Appeals opinion upon the question here under discussion. To do so we believe it would have had to overrule authorities it had theretofore approved.

A quantum meruit action is one which proceeds independent of the contract to recover for value of work done, instead of upon the contract for the contract price. Childress v. Smith, 90 Tex. 610, 40 S.W. 389; Magee v. I. & G. N. Wood & Coal Co., Tex.Civ.App., 269 S.W.2d 498, 503 (N.R.E.). However, the contract sought to be implied was itself illegal because it sought to create a debt against Ochiltree County without a showing that within the lawful and reasonable contemplation of the parties it could be satisfied out of the current revenues of the year or out of some fund then within the immediate control of the county.

A quantum meruit action even in those cases holding that one may recover for services furnished to a county or city under a contract they had the valid right to enter into but which they entered into invalidly rest their holdings upon equity and justice; a fortiori, recovery then would certainly require equity and justice under an invalid implied contract.

We fail to find any equity favoring appel-lee in this case because it was understood from the beginning that if the bond issue failed there would be nothing due for architectural services.

Our Supreme Court in City of Houston v. Finn, 139 Tex. 111, 161 S.W.2d 776, 777, said:

“The rule correctly stated is that in such instances the municipality is liable on an implied contract to pay the reasonable value of the property or services furnished to and accepted by it. In the instances under discussion the illegal agreement is not enforced as a contract. To the contrary, the illegal agreement as such is not enforced at all. The contract that is enforced is one that the law implies, because justice demands that a municipality shall not be permitted to receive and retain the benefits of an agreement without paying the reasonable value of such benefits.” (Emphases added.)

Thus, even if it should be said, arguendo only, that Ochiltree County had the power to enter into the contract it had with Mr. Hedrick but which was not legally entered into so as to make it a binding contract, he still could not recover on the implied contract because the county did not receive and retain the benefits, if any, of any services rendered and because he agreed he could recover only if the bond issue passed. He did his work knowing that contingency. Even the contract sought to be implied was contingent upon the bonds being voted. Otherwise, there was no need for architectural services.

We have given careful study to the line of cases represented by Sluder v. City of San Antonio, Tex.Com.App., 2 S.W.2d 841 and Cochran County v. West Audit Co., Tex.Civ.App., 10 S.W.2d 229. In all those cases the plaintiffs proved the cities or counties accepted the services sued for and benefited therefrom. The record in our case is directly contrary thereto and appel-lee is void of equity upon which to depend. For all the reasons stated, the judgment of the trial court is reversed and rendered that plaintiff take nothing.


author: BATEMAN, Justice.

text:
    William J. REID et al., Appellants, v. NORTEX CONSTRUCTION COMPANY, Inc., et al., Appellees.
    No. 16151.
    Court of Civil Appeals of Texas. Dallas.
    March 15, 1963.
    Rehearing Denied April 12, 1963.

      Clair F. Achenbach, Dallas, for appellants.
    J. E. Abernathy, McKinney, for appellees.
   BATEMAN, Justice.

Appellants brought this suit against Nor-tex Construction Co. Inc. (herein called Nortex) and its president D. A. Terry for actual and exemplary damages. They allege that several years after they acquired their homes in a certain addition near Renner, Texas, not within any municipality or water district, Nortex purchased the water well from which the homes of appellants and other residents in the addition had been served at flat monthly rates, and then “unilaterally” attempted to change the rates by installing water meters and establishing a graduated schedule of rates. Appellants also alleged that the water furnished by Nortex was inadequate both in quantity and in quality; also that appellees trespassed upon the property of appellants and invaded their privacy in connection with the installation of water meters; also that ap-pellees without probable or reasonable cause had the appellant Wulfe arrested and taken before a justice of the peace, who quashed the complaint.

The jury found in answer to special issues (1) that the failure of appellees to observe the flat monthly rates after October 1961 resulted in no damages to appellants; (2) that appellees did not fail to provide an adequate supply of water to appellants; (3) that appellees did not fail to provide an adequate quality of water to appellants; (4) that appellees did not commit any trespass upon property of appellants; (5) that appellee Terry was not prompted by malice and did not act without probable cause in making the affidavit upon which the warrant for Wulfe’s arrest was issued; (6) that the complaint against Wulfe was not terminated in his favor; and (7) that the terms for installation of water meters, repairs and water rates charged by appel-lees were reasonable, fair and just. Judgment was rendered upon the verdict that appellants take nothing. We affirm this judgment.

By their first point of error appellants challenge the correctness of the court’s action in overruling their motion for judgment non obstante veredicto “upon the conflict of the answers of the jury to Special Issues 1 and 2 and Special Issue 39.” This point is without merit. In the first place, no such ground is mentioned in the motion for judgment n. o. v. In the second place, no conflict exists between the jury findings mentioned, as hereinbelow demonstrated. In the third place, even if such a conflict existed, it could not be the basis for a judgment n. o. v. in favor of appellants, but at most a ground for a new trial. In answer to the first two special issues the jury found (1) that before October 1961 there was a certain flat rate base for water from appellees’ well, and (2) that appellees failed to observe the terms thereof after October 1961. In answer to Special Issue No. 39 the jury found that the terms for installation of water meters, repairs and water rates charged by appellees, as set forth in detail in the issue, were reasonable, fair and just. Appellants did not prove any contractual or other right to a continuation of the flat rates they were paying prior to October 1961. Therefore, we fail to see how there could be any conflict in these findings, and the point is accordingly overruled.

Appellants also contend that the aforesaid answer to Special Issue No. 39, as well as the findings that appellees did not fail to provide either an adequate supply or adequate quality of water, that appellees did not commit any trespass on appellants’ property, and that the affidavit leading to Wulfe’s arrest was not prompted by malice or made without probable cause, were all against the great weight and preponderance of the evidence. We have considered and weighed all of the evidence and cannot say from such examination that any of the findings so questioned are so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, ISO Tex. 662, 244 S.W.2d 660. In our opinion, all of such findings are amply supported by the evidence. Accordingly, these points are overruled.

Appellants next say the court erred in not setting aside the jury’s answer td Special Issue No. 30-A, wherein it was found that the complaint against appellant Wulfe was not terminated in his favor. They argue that the act of the justice of the peace in marking on the warrant the words “invalid complaint” is tantamount to a termination in favor of the accused. However the justice of the peace testified that the case had not been dismissed but was still pending. The words “invalid complaint” on the back of the warrant, undated and unsigned, would not constitute an adjudication in any sense of the word, or even a dismissal. This point is likewise overruled.

Appellants’ next contention is that the court erred in setting aside the jury’s answers to Special Issues Nos. 34, 35, 36 and 37 and “then failing to make specific findings as required by law.” The jury found in answer to Special Issues Nos. 34— 37 that appellees invested $4,000. in the water system and expended an average of $192.04 per month for the operation and maintenance of it. These issues were evidently submitted in connection with appellants’ attack on the reasonableness of the rates charged by appellees. Appellees filed a motion to disregard such findings as not supported by pleadings or evidence, and also moved the court to make special findings that the rates charged were reasonable, fair and just and not extortionate. In its judgment the court sustained both motions and made a specific finding that the charges of appellee Nortex for water meters, repairs and water were reasonable, just and fair (setting out specifically the graduated schedule of water rates exactly as contained in Special Issue No. 39, in answer to which the jury had said that such charges and rates were reasonable, fair and just). This point is overruled for two reasons: (1) the appellants themselves said in their motion for judgment n. o. v-that the jury findings in answer to Special Issues 34, 35 and 37 should be disregarded by the court as being without support in the evidence and therefore cannot very well complain of the action of the court in doing so; and (2) the court did make the specific findings as to reasonableness of charges.

Although appellants’ petition does not so indicate, they argue in this court that their right should have been determined under the provisions of Art. 1128, Vernon’s Ann.Tex.Civ.St. but that the trial court disregarded said statute. This statute is inapplicable to the facts of this case; it is a part of Section 4, Chapter 10, Title 28, V. A.T.S. Title 28 relates to the general subject of “Cities, Towns and Villages”; Chapter 10 relates to “Public Utilities” in cities, towns and villages and Section 4 relates to “Judicial Regulation” of such public utilities and consists of Articles 1125-1132, the gist of which, for our purposes, is that cities and towns may invoke the jurisdiction of district courts to fix and establish utility rates. We find no warrant in the law for individuals to invoke such jurisdiction for such purpose and for this additional reason, appellants’ point last mentioned must be overruled.

Appellants next contend that the trial court erred in admitting evidence relating to the cost of the water system and expenditures in connection with its operation. This point is not germane to any assignment of error in the motion for new trial and may therefore not be considered here. Rules 374 and 418, Vernon’s Texas R.C.P.; Johnson Aircrafts v. Wilborn, Tex. Civ.App., 190 S.W.2d 426, 428, err. dis. Moreover, neither the point nor the statement under it directs our attention to the particular evidence complained of; nor does the record reflect that any objection was made by appellants at any time such evidence was offered. For these additional reasons we hold that the point is not properly presented and will not be considered.

Finding no error in the record requiring reversal, the judgment is affirmed.

       Special Issue No. 36 merely inquired as to whether appellees had expended monies for the operation and maintenance of the water system and well. The jury’s answer thereto, which appellants did not move the court to disregard, was “They have.”


author: PHILLIPS, Justice.

text:
    John A. GARCIA et ux., Appellants, v. Jack F. COOK, Jr., Appellee.
    No. 11065.
    Court of Civil Appeals of Texas. Austin.
    April 3, 1963.
    Rehearing Denied April 24, 1963.

      M. N. Garcia, Austin, for appellants.
    Dorothy Giberson Croom, Austin, for ap-pellee.
   PHILLIPS, Justice.

This suit was brought by Jack F. Cook, Jr. an attorney, hereinafter referred to as appellee, to recover certain attorney’s fees from Dr. John A. Garcia and his wife, Mary Sue Garcia, hereinafter referred to as appellants. The suit arose in the Travis County Court at Law where after a trial before the court, judgment was awarded appellee for past due attorney’s fees of $175.00 plus $125.00 in attorney’s fees for this cause.

In reality both parties hereto are appellants. Dr. Garcia and his wife are appealing from the judgment in its entirety while Jack F. Cook, Jr. has appealed only from that portion of the judgment wherein he was awarded the sum of $175.00 rather than the $250.00 for which he sued.

John A. Garcia filed suit for divorce against his wife on November 5,1958; however, she was never served with citation and the evidence established and the Trial Court so found, that Dr. Garcia and his wife continued their normal marital relationship after the divorce petition was filed.

In February 1961, Mrs. Garcia approached appellee in church, told him that her husband had filed for divorce, that the suit had been filed for some time but that now he was insisting on trying it. Appel-lee asked Mrs. Garcia to come by his office and she did so on February 20, 1961.

On February 24, 1961, appellee filed a general denial in behalf of Mrs. Garcia. This was more than two years after Dr. Garcia had filed his suit for divorce in 1958.

Sometime after filing a general denial in behalf of Mrs. Garcia, appellee filed a cross-action for divorce and asked for and received a Temporary Restraining Order and Temporary Injunction against appellant, John A. Garcia, as well as an Order of Child Support Pendente Lite. The Garcias have six children all under eighteen. Appellant, John A. Garcia did not contest any of the actions filed by the appellee in behalf of appellant Mary Sue Garcia, nor has John A. Garcia ever filed any pleadings in respect to the divorce suit other than the original petition he filed in 1958.

Appellee alleged in the Trial Court that Mrs. Garcia employed him in good faith to represent her in the divorce suit, related to him probable grounds for defense of the suit and probable grounds for a cross-action for divorce against John A. Garcia, and requested appellee to contest Garcia’s suit for divorce, to file a cross-action against Garcia for divorce, to obtain a restraining order and injunction against the defendant and to obtain alimony pendente lite for Mrs. Garcia, to advise and assist her concerning their community property and the Federal Tax Claims against such property and to do other things necessary to protect the legal rights of Mrs. Garcia.

Appellants defended on the theory that the legal services rendered by appellee in behalf of appellant Mrs. Garcia were unnecessary.

The Trial Court made extensive findings of fact and certain conclusions of law. We will recite only those findings necessary to the determination of this case.

The Trial Court found that subsequent to the filing of the divorce petition by John A. Garcia in 1958, defendants John A. Garcia and Mary Sue Garcia, lived together as husband and wife. That defendant, Mary Sue Garcia, did not want to be divorced and that she acted in good faith in employing appellant to represent her, and had probable grounds for defense of said divorce suit. That appellant represented defendant Mary Sue Garcia, from February 20, 1961 until September 27, 1961, at which time defendants John A. Garcia and Mary Sue Garcia had previously become reconciled and appel-lee was discharged as attorney for Mary Sue Garcia. That appellant filed a cross-action for Mary Sue Garcia even though she did not want a divorce, because she stated that if a divorce was granted she wanted to be the one receiving the divorce. That appellee received no money for his services until after he was discharged as attorney for Mary Sue Garcia. That on September 27, 1961, appellee rendered his final bill to the defendants for his services rendered in the amount of $350.00; that on or about January 2, 1962, the defendant, John A. Garcia, paid appellee the sum of $100.00. That all of the legal services performed by plaintiff for defendant Mary Sue Garcia, were of the reasonable value of $350.00. That immediately prior to the employment of appellant by defendant Mary Sue Garcia, defendant John A. Garcia, insisted that his said wife employ an attorney so that they could obtain a divorce trial ; and that at the time of said employment and subsequent thereto, defendant John A. Garcia was insisting on obtaining a divorce trial.

The Trial Court made the following conclusions of law: That the appellee was bound by his bill of April 14, 1961, in the amount of $95 for the services rendered to defendant Mary Sue Garcia for February and March 1961. That the reasonable value of legal services performed by appel-lee for defendant Mary Sue Garcia, for the period of April 1, 1961, through September 27, 1961, was $180.00. That the reasonable value of the attorney fees for representing Mrs. Garcia was $125.00.

This suit is determined by the rules expressed by this court in Neblett & Norman v. Goukas et ux., Tex.Civ.App., 40 S.W.2d 1113, (1931), no writ history. Here the appellants sued for attorney’s fees for their services in a suit for divorce in favor of the wife against the husband. After the suit was filed a reconciliation was effected between the parties, and the wife, as plaintiff, declined to prosecute the suit further and to pay appellants any fee. The defense to this suit was that the wife, at the time she employed appellants, did not have sufficient grounds for divorce; that such services of appellants were wholly unnecessary. The court rendered judgment for ap-pellees, husband and wife.

In affirming the judgment, this court said, “The principle on which a husband may be held liable for attorneys’ fees for services rendered his wife in a divorce suit is that such services are for necessaries furnished the wife. Before they can be so deemed, and the husband or the community chargeable therefor, it is now well settled in this state that such services must be rendered ‘in the prosecution or defense of a bona fide suit for divorce, based upon good grounds, instituted and conducted in good faith and upon probable cause.’ ” Citing cases.

The court continued, “And where reconciliation, favored by the law, has been effected, and the wife declines to appear and prosecute such suit, the burden rests upon the attorneys who claim such fees to show not only that they acted in good faith but that their client also acted in good faith and upon probable cause.” Citing cases.

The petition of divorce in the Neblett case discloses ample grounds for such divorce and was sworn to by the wife. At the trial of the case there was no competent evidence, excluding the petition and her statements to her attorneys, that the wife had probable cause for divorce. The Trial Court found, under the proof offered, that she did not have probable grounds. This court held that if she did not have such grounds, she did not act in good faith and the services of her attorneys were not for necessaries.

In the case presently before us, the Trial Court found that Mrs. Garcia had acted in good faith in consulting an attorney and her husband had urged her to do so as he wanted a divorce; however, their actions spoke much louder than their words. The Trial Court also found that the defendants had never ceased to live together as husband and wife after the husband had filed for divorce.

The testimony discloses that the appellee and Mrs. Garcia were members of the same church. That he saw the Garcias together at several church functions after Mrs. Garcia had called upon him seeking legal advice. After bringing out these facts, counsel for the Garcias asked the appellee:

“As far as you know, they may have lived together ? ”

The appellee answered:

“It is possible.”

John A. Garcia’s petition for divorce, which was entered in this lawsuit as an exhibit, made a general allegation of cruelty as grounds. Whatever specific acts of cruelty might have been proved against Mrs. Garcia at the trial for divorce would have been condoned as a matter of law by their continued living together as man and wife. Bippus v. Bippus, 246 S.W.2d 502, Tex.Civ.App., 1952; 20 Tex.Jur.2d Sec. 50 and cases there cited.

Appellee either knew or should have known under the existing facts that Garcia’s suit for divorce could not have been successful, and further, that his defense of Mrs. Garcia was to a lawsuit that obviously was not “a bona fide suit for divorce, based upon good grounds, instituted and conducted in good faith and upon probable cause” as the rule in the Neblett case requires.

The testimony shows conclusively that the various orders obtained by appellee for child support, and restraining orders against Garcia were completely useless and unnecessary. Such orders were never contested. There was absolutely no evidence that the children were not being cared for or that Dr. Garcia should be restrained in any manner whatsoever. Other than the filing of the original suit, the Garcia family life was never materially altered in any way.

The Trial Court found that Mrs. Garcia did not want a divorce but that if one was granted, she desired that it be granted her. The cross-action for divorce was not warranted under the facts and the law as they existed. All of the services performed by appellee were pyramided upon the divorce action brought by Garcia two years previously which was patently not brought and conducted in good faith.

The rule laid down in the Neblett case places the burden upon the attorney in a case such as this to show that he acted in good faith and that his services were necessary. The appellee has failed to meet the test. Long v. Lewis, 210 S.W.2d 207, Tex.Civ.App., 1948, writ ref., n. r. e. Consequently, neither Dr. Garcia nor the community estate can be charged with a bill for his services.

In his brief appellee cites Fasken v. Fasken, 260 S.W. 698, Tex.Civ.App.; Thompson v. Thompson, 231 S.W.2d 496, Tex.Civ. App.; and Danache v. Danache, 296 S.W.2d 821, Tex.Civ.App., as authority that a distinction is drawn between cases where the wife sues for divorce and cases where the wife is defending a divorce action brought by the husband. He argues that the cases require good faith on the part of the wife in either instance but require a showing of “probable grounds” for divorce only where the suit is brought by the wife. That the reason for this rule is that often the wife’s defense is the husband’s lack of adequate legal grounds for divorce.

Without passing on the correctness of the rule appellee has drawn from these cases, these cases are not controlling here. In the Fasken case the husband brought suit against the wife for divorce and was successful. The court allowed attorney’s fees for the wife’s defense ruling that the wife was entitled to defend her marital rights where such defense was brought in good faith and attorney’s fees were necessaries whether she was successful or not. The Thompson case has facts and holding similar to the Fasken case. In the Danache case the husband brought suit for divorce, the wife defended, the court refused to grant the divorce, however, allowed the wife attorney’s fees.

In each case cited by appellee attorney’s fees were allowed for the defense of a bona fide suit for divorce instituted and conducted in good faith. Such was not the case here.

In view of our holding, it is unnecessary to discuss the point of error raised by ap-pellee.

The record indicates the case was fully developed and we conceive of nothing that could be gained by another trial. The judgment of the court below will therefore be reversed and judgment here rendered that appellee take nothing by his suit.

Reversed and rendered.

      . During the pendency of this litigation the Federal Government had filed tax liens against the Garcias’ property.

      . Appellee maintained that this was not a final bill for services rendered to date but was merely in the nature of a retainer.


author: ARCHER, Chief Justice.

text:
    McCULLOCH COUNTY, Texas, Appellant, v. J. S. HAYS, Appellee.
    No. 11052.
    Court of Civil Appeals of Texas. Austin.
    April 3, 1963.
    Rehearing Denied April 24, 1963.

      Davee & Davee, Brady, for appellant.
    Newman & McCollum, Brady, for ap-pellee.
   ARCHER, Chief Justice.

Motion for Rehearing filed by the appellant has been filed and we have concluded to withdraw, our opinion rendered in this cause on February 27, 1963, and to reverse and render this cause, and direct the ap-pellee to remove the fence from the roadway area and to reconstruct it on the old fence line from which it was moved.

This suit was instituted by appellant against appellee seeking a mandatory injunction requiring appellee to remove an obstruction, a fence, from a county road approximately .3 of a mile in length, and diverting a part thereof, a strip 10 to 12 feet in width and being off the north part of the road.

The case was tried without a jury, and after a trial the court denied the appellant all relief on the grounds that there was no evidence to support the allegations or claim made by appellant, and entered judgment for appellee.

Appellant bases his appeal on the assigned error of the court in rendering judgment for appellee.

Appellant offered the testimony of a number of witnesses, some of whom were officials of the county and one, Oscar Betzel, the commissioner of the precinct in which the road is located, who testified that he had been commissioner for 5 years and was acquainted with the road and worked it several times during the years 1957 to 1960, and that it was used as a public road, and as commissioner, had possession of the road.

The witness testified as to conversations he had with Mr. Hays, the appellee, in the summer of 1960, in fact, several in regard to the road. That the first conversation was several years ago with Mr. Hays in regard to clearing the fence, fence right-of-way, and he would clean the right-of-way; that Mr. Hays wanted some posts and that he, the commissioner, said he would help with the posts and that Hays agreed to clear this fence out to get the brush out of the way and later on did so, but on a later date moved his fence over into the roadbed, south of the old fence, some 10 or 12 feet; that he did not give Hays consent to move the fence.

All of the other testimony was concerned with the existence of the road for a long period of time, and of the usage of the roadway by the public and the maintenance by the county.

The road is, as stated, less than Yz of a mile in length and extends from the Coleman Road through a community center and ends at the residences of two families.

Mr. Bud Frost, who lived on the road in question testified:

“Q Has there ever been any period of time when it was discontinued as a public road?
“A Not as I know of.
“Q And they have used that uninterrupted and continually?
“A Yes, sir.
“Q For more than 50 years?
“A Yes, sir.
ijt ⅝ ⅝ ⅝ # Jji
“Q Do you know when that road was fenced, Bud?
“A Well, not the exact date, now. It was either ’25 or ’26.
“Q ’25 or ’26. How do you recall that date, Bud?
“A Well, they moved them stores and things from over there over to where they are now.
* * * * * *
“Q Do you own any land adjoining that road?
“A South of it.
“Q South. Did you build the fence along the right-of-way ?
“A No. My daddy did.
“Q Your daddy. In 192S or 1926, do you know who built the north fence?
“A Joe.
“Q Joe who?
“A Hays.
“Q All right. Now, do you know where the old fence was, do you?
“A Yes, sir.
“Q Prior to the year 1960?
“A I think so.
“Q Do you know where the new fence now is ?
“A Yes, sir.
“Q Where the old fence was, as regards the old fence, where does the new fence set ?
“A Well, I’d say eight or ten feet south.”

Appellee offered no evidence; hence this, as well as all other testimony was undisputed.

There was introduced a small map of the area but we are unable to insert such herein as to be of assistance to an understanding of the case. The road turns off the Coleman Road in a circular direction, but westward to its end, passing the center and ending at the residence of Mr. Frost after turning south for a short distance.

The evidence must be viewed in the light most favorable to the judgment of the Trial Court, and sustained if there is evidence to support it, and this we have done but do not believe the court was justified in rendering the judgment denying appellant the relief sought.

The granting or refusal to grant injunctions is within the sound discretion of the Trial Court and the exercise of which will not be disturbed on appeal in the absence of a clear showing of abuse of discretion, but we believe the court abused his discretion in not ordering the fence restored to its former place.

Motion for rehearing granted and the judgment of the Trial Court is reversed and judgment is rendered for appellant.

Reversed and rendered.


author: McDONALD, Chief Justice.

text:
    J. WEINGARTEN, INC., Appellant, v. Joseph E. REAGAN et ux., Appellees.
    No. 4098.
    Court of Civil Appeals of Texas. Waco.
    April 4, 1963.
    Rehearing Denied April 25, 1963.

      Vinson, Elkins, Weems & Scarls, B. Jeff Crane, Jr., and W. H. Drushel, Jr., Houston, for appellant.
    Talbert, Giessel, Cutherell & Barnett, Robert C. Barnett, Houston, for appellees.
   McDONALD, Chief Justice.

This is an appeal from a judgment for plaintiff in a slip and fall case. Plaintiffs instituted suit against defendant for injuries sustained by Mrs. Reagan when she slipped and fell on a “bean” lying on the floor in defendant’s store. Trial was to a jury which found:

1) Plaintiff slipped and fell on a green bean in defendant’s store.
2) Defendant or its employees had actual knowledge of the presence of the bean on the floor, prior to plaintiff’s fall.
3) Following such actual knowledge of the presence of the bean on the floor, defendant, (or its employees) was negligent in failing to remove the bean from the floor.
4) Such negligence was a proximate cause of plaintiff’s injuries.
5) Plaintiff did not fail to maintain a proper lookout for objects on the floor.
7) The occurrence was not an unavoidable accident.
8) Plaintiffs’ damages are $3750.

The Trial Court rendered judgment for plaintiffs on the verdict.

Defendant appeals, contending:
1) There' was no evidence that defendant or any employee of defendant had any knowledge of the presence of the bean on the floor.
2) There was no evidence that defendant or any employee of defendant other than a Mrs. Myrick, had any opportunity to remove the bean from the floor prior to the accident.
3) Plaintiff was guilty of contributory negligence, in failing to keep a proper lookout, as a matter of law, and such negligence was a proximate cause of her injuries.

We revert to Contentions 1 and 2. It is undisputed that Mrs. Reagan slipped and fell on a green bean in defendant’s store. Mrs. Reagan testified that after she was picked up they found a green bean on the heel of her shoe. She then testified:

“They took me to the produce girl to call someone to help me. The produce girl said, T told the boy to remove those beans.’ ”

Counsel for defendant objected on the ground that the evidence was hearsay; such objection was overruled by the court.

Mrs. Reagan then testified:
Q. “What did she say?”
A. “She said, T told the boy to get those beans off the floor, but I see he didn’t do it.’ ”

Defendant contends the foregoing was hearsay; was not res gestae; and should have been excluded.

Unless the foregoing was admissible, there is no evidence to support the jury’s finding to Issue 2.

Such testimony is admissible as an admission. Admissions are received as exceptions to the hearsay rule. Prior declarations or statements of a person are admissible against him to show he had knowledge of existing facts. 24 Tex.Jur.2d p. 227; Galveston, H. & S. A. R. Co. v. Fitzpatrick, Tex.Civ.App., Er.Ref., 91 S.W. 355. And the assertions of an agent or employee are admissible against the principal or employer as an exception to the hearsay rule, provided the declaration was one of fact as distinguished from a mere opinion. Texas Gen. Indem. v. Scott, 152 Tex. 1, 253 S.W.2d 651, 655; 2 Tex. Law Evidence, McCormick & Ray, Sec. 1164.

Mrs. Reagan testified that the produce girl (an employee of defendant) said “I told the boy to remove the beans.” Such is admissible as proof that the produce girl knew the fact that the beans were on the floor. The record reflects that all defendant’s employees were fully instructed to immediately pick up any produce that had fallen on the floor, as soon as they know it is there. Contentions 2 and 3 are overruled.

Contention 3 is that Mrs. Reagan was contributorily negligent as a matter of law, in failing to keep a proper lookout. The jury found that she did not fail to keep a proper lookout. Contributory negligence is a defense, the burden of proof of which is on the defendant. The record reflects that Mrs. Reagan was 64 years of age; had gone to defendant’s store to buy groceries; that she secured a grocery basket and proceeded to the produce department; that she was walking across th,e floor when she fell on a green bean. We think the jury was justified in answering the issue as it did, and that Mrs. Reagan was not contributorily negligent as a matter of law. Contention 3 is overruled.

The judgment of the Trial Court is affirmed.


author: DAVIS, Justice.

text:
    Jerry SADLER et al., Appellants, v. T. J. POOLE, Jr., et al., Appellees.
    No. 7465.
    Court of Civil Appeals of Texas. Texarkana.
    March 26, 1963.
    Rehearing Denied April 23, 1963.

      Will Wilson, Atty. Gen., Ben M. Harrison and Tom Burrus, Asst. Attys. Gen., Austin, John E. Bailey, Houston, for appellants.
    Leland B. Kee, Angleton, Alex Pope, Jr., Fort Worth, for appellees.
   DAVIS, Justice.

A temporary injunction. A trespass to try title suit with a permit to sue the State. The trial court granted a temporary injunction against the Commissioner of the General Land Office and as Chairman and a member of the School Land Board, the Governor of the State of Texas, a member of the School Land Board and the Attorney General of Texas, a member of the School Land Board, and each of them, their employees and assistants pending a final hearing and determination of the cause of action, enjoining and restraining them from receiving or accepting any bid or bids, and from leasing or attempting to lease for mineral development, or any other purpose, any of the lands described in appellees’ petition, or located within the boundaries of the grants and patents in Brazoria County, Texas, heretofore issued by the State of Texas, the Republic of Mexico and the States of Coahuila and Texas. The sole question to be decided by this court is whether or not the trial court abused its discretion in granting the temporary injunction based upon the facts in the case.

On December 13, 1832, Coahuila and Texas and the Republic of Mexico granted a patent to Parker Williams covering approximately 1107 acres of land in Brazoria County, Texas, as abstract No. 137, describing said land by metes and bounds.

On February 11, 1886, the State of Texas granted a patent to Rebecca A. Murrie to a tract of land covering approximately 1280 acres of land in Brazoria County, Texas, as abstract No. 587, and describing the land by metes and bounds.

On July 3, 1847, the State of Texas granted a patent to William H. Butler to approximately 1476 acres of land in Brazoria County, Texas, as abstract No. 154, and describing the land by metes and bounds.

On August 30, 1847, the State of Texas granted a patent to Joseph H. Gamble to approximately 1476 acres of land in Brazor-ia County, Texas, as abstract No. 194, describing said land by metes and bounds.

On August 28, 1849, the State of Texas granted a patent to Calvin Sumrels (sometimes spelled Sumrall, or Sumerall) to approximately 1476 acres of land in Brazoria County, Texas, as abstract No. 368, and describing said land by metes and bounds.

According to the evidence, the State of Coahuila, the Republic of Mexico and the State of Texas granted all the title to all of the real estate described in the foregoing patents. The appellees, James L. Ducroz, et al., now own and hold all the titles described in said patents. The patents are presently outstanding, valid, and uncancelled grants by the responsible sovereigns and their authorized representatives.

In 1931, the Texas Legislature enacted a statute, Article 5421c, “Regulating sale and lease of school lands, public lands and river beds; Board of Mineral Development Created”. The statute has been consistently amended, the last amendment being in 1957. Under the statute, the Commissioner of the General Land Office is given the right to. determine whether or not the lands offered for lease or sale is public free school land. According to the statute, the land involved m this lawsuit is not vacant or unsurveyed. The appellees are “Good Faith Claimants”. Under a well written opinion by Justice Smedley in Schneider v. Lipscomb County Nat. Farm Loan Ass’n., 146 Tex. 66, 202 S.W.2d 832, 172 A.L.R. 1, the Commissioner of the General Land Office committed an error in deciding that any of the lands involved in the foregoing patents was unsurveyed or public free school land. It is pointed out in said opinion how the Attorney General of the State of Texas under Art. 5420, Vernon’s Ann.Rev.Civ.St, which has been in effect since 1900, not only authorized, but makes it the duty of the Attorney General to institute suit for the recovery of any public lands that are held, occupied or claimed by any person or corporation adversely to the State. The institution of such suit in the name of the State and the recovery of final judgment in its favor for title and possession constitutes the most authentic and effective assertion and enforcement of the State’s title. The claimants were claiming under patents issued by the various governments. Fisher et al. v. Barber, Tex.Civ.App., 21 S.W.2d 569, N.W.H.

A prior lawsuit had been filed by the ap-pellees in 1951. The suit culminated in the Supreme Court of Texas. The court found that the temporary injunction had been dissolved and that the School Land Board had issued leases upon certain portions of the land involved. Poole v. Giles, 151 Tex. 224, 248 S.W.2d 464. There was a sharp dissenting opinion in the case by three of the Judges of the Supreme Court. They took the position that the judgment of the trial court should be affirmed. The Court of Civil Appeals had already dissolved the injunction because the State of Texas had not granted permission to be sued. Giles v. Poole, Tex.Civ.App., 239 S.W.2d 665.

The appellants take the position that the injunction suit is in conflict with and in violation of Article 5421c. The action of the Commissioner of the General Land Office in declaring the property to be vacant and unsurveyed school land is in violation of said Article. Since the “Good Faith Claimants” were in possession of the property, claiming the same under the patents issued, if the State is actually claiming title to any of the property that is covered by the patents. It was the duty of the Attorney General to file suit to cancel the patents, or to recover the portions of the lands the State now claims.

Much has been written on the question of injunctions, but in view of the fact that this is a suit in trespass to try title, it was the duty of the trial court to issue the temporary injunction and prevent the issuance of oil, gas and mineral leases that would place a cloud upon the titles until the final disposition of the trespass to try title suit. Cargill v. Buie, Tex.Civ.App., 343 S.W.2d 746, W.R., N.R.E., and authorities therein cited.

The judgment of the trial court is affirmed.


author: NORTHCUTT, Justice.

text:
    E. P. WATKINS et al., Appellants, v. BURROUGHS CORPORATION et al., Appellees.
    No. 7236.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 18, 1963.
    Rehearing Denied March 25, 1963.

      John J. Watts, Odessa, for appellants.
    Evans, Pharr, Trout & Jones, Lubbock, for appellees.
   NORTHCUTT, Justice.

This is an appeal from an order of the court granting a summary judgment on behalf of the defendants, Burroughs Corporation and Frank M. Taylor. It is stipulated by designation of the contents of the record and by agreement of the parties that the depositions of Frank M. Taylor, Jo Ann Watkins, and Betty Foster would serve as a Statement of Facts in this cause. The appellants alleged in the trial court that the defendants, Burroughs Corporation and Frank M. Taylor, were negligent in the following respects, to-wit:

“The Plaintiff would show that the defendant, Burroughs Corporation, was negligent because the defendant, Frank M. Taylor, was driving an automobile in the course and scope of his employment for Burroughs Corporation, and while driving that automobile Taylor committed several acts of negligence, to-wit :
“(a) He was driving said automobile at a speed which was excessive and negligent under the circumstances then and there existing ;
“(b) He was following a vehicle too closely in violation of Article 6701D, R.C.S. of Texas, and such violation constituted negligence as a matter of law;
“(c) He attempted to pass a school bus which was slowing down to turn;
“(d) He failed to reduce his speed as he approached the rear of the school bus;
“(e) He failed to reduce his speed as he approached an intersection;
“(f) He failed to give warning to the vehicles following him that he was about to reduce his speed suddenly;
“(g) He failed to keep a proper lookout;
“(h) He failed to drive his vehicle upon the right half of the roadway in violation of Article 6701D, Revised Civil Statutes of Texas, and such violation constituted negligence as a matter of law;
“(i) He drove his vehicle across the center line of the highway in violation of Article 6701D, R.C.S. of Texas, which violation constituted negligence as a matter of law;
each and all of which acts were a proximate cause of the injuries sustained by Betty Foster, and Jo Ann Watkins and damages of plaintiff as hereinafter described.”

The trial court being of the opinion that there was no evidence of probative force to ■substantiate any of the allegations so made .granted the Motion for Summary Judgment in favor of these appellees and from that judgment these appellants perfected this •appeal. The appellants present this appeal upon one point of error contending the evidence was sufficient to raise issues of fact for the jury as to the negligence of Burroughs Corporation and its employee, Frank M. Taylor.

Miss Watkins did not know anything about how the accident occurred. Her testimony was as to what she was doing at the time of the accident and as to her damages. To determine whether there were any questions of fact to be submitted to the jury, we must look solely to the depositions of Frank M. Taylor and Mrs. Foster.

Taylor testified just before the accident in question he was following a school bus that was traveling south. The evidence of Mrs. Foster and Mr. Taylor was that the bus was on its right side of the road and that Taylor was behind the bus and had slowed down to let the bus turn to the west. Mrs. Foster testified she saw Taylor slowing ■down and knew she would have to slow ■down and took her foot off of the gas and realized she was going to have to stop. She then applied her brakes but they were wet .and did not hold. She decided she was ■going to have to stop as she was going to •get upon them before the bus and car got • out of her way. She tried to avoid hitting Taylor’s car by going off to the side of the road but the left front part of her car struck the right rear portion of Taylor’s • car, knocking him in front of the Watkin’s car that was going north. Taylor was not attempting to pass the bus but was on his proper side of the road until knocked across the center of the line in front of the Wat-kin’s car that was traveling north.

When the appellees filed their Motion for Summary Judgment, the burden was upon them of proving that there was no genuine issue of material fact. Taylor’s testimony was positive and uncontradicted showing no negligence on his part. The testimony of Mrs. Foster, the only other witness testifying concerning the acts of Taylor, corroborated Taylor’s testimony. Since there were no circumstances to discredit and impeach the testimony of both Mr. Taylor and Mrs. Foster, the trial court had to render judgment in accordance with their testimony. Nagelson v. Fair Park National Bank, Tex.Civ.App., 351 S.W.2d 925 (NRE). Judgment of the trial court is affirmed.


author: CHADICK, Chief Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Novelle R. FAGAN et vir, Appellees.
    No. 7474.
    Court of Civil Appeals of Texas. Texarkana.
    March 12, 1963.
    Rehearing Denied April 16, 1963.

      Moore & Lipscomb, Paris, for appellant.
    Leslie Echols, C. V. Flanary, Jr., Paris, for appellees.
   CHADICK, Chief Justice.

This is a Workmen’s Compensation Law case. Consonant with jury answers to special issues a judgment was entered in the trial court awarding an injured worker the sum of $4,048.32 for 78 weeks of temporary total incapacity to labor, and to reimburse medical and hospital expense.

The injured employee was a married woman. Her husband did not join in the prosecution of her claim before the Industrial Accident Board, but became a party plaintiff on the appeal from the Board’s award. The insurer, the appellant here, excepted to the court action and moved to abate the suit. The insurer’s first point of error is directed to the action of the trial court in overruling such exception and plea.

The precise question has not had the attention of a Texas appellate court. A similar but slightly more elaborate question, in that the husband was not a party to proceedings either before the Industrial Accident Board, or in the trial court, was before the United States District Court for the Northern District of Texas in Lynch et al. v. American Motorists Ins. Co., 101 F.Supp. 946. Very similar also, was a question answered in Texas Unemployment Compensation Commission v. Frank, Tex. Civ.App., 229 S.W.2d 399. In the latter case a married woman’s claim was processed by the Texas Unemployment Compensation Commission without the woman’s husband being joined in the proceeding. On her appeal to the county court a plea in abatement was filed and thereupon the husband joined in the lawsuit. In each of these cases it was held that the court had jurisdiction. The reported opinions contain an extensive discussion of the rationale of the decisions. The reasoning will not be repeated; it is sufficient to say that insofar as this particular case and its factual circumstances are concerned, the Workmen’s Compensation Law, Art. 8307, Sec. 5, Vernon’s Tex.Civ.St., authorizes the employee and her husband to prosecute this suit. The mentioned Article allows an “interested party” not satisfied by a final ruling of the Industrial Accident Board to bring suit to set aside such ruling. The first point of error is overruled.

After carefully summarizing the evidence, the insurer argues under its next four points that (1) compensable injury was not shown by the evidence, (2) the undisputed physical facts show the workman was not injured by cold air blowing on the top and side of her head, and (3) the jury’s findings are contrary to the great weight and preponderance of evidence.

Compensability. Presently, for the purpose of reviewing the elements of a compensable injury, it will be assumed that an injury followed by incapacity to labor was proven by Mrs. Fagan. Under another heading the question of the occurrence of an injury will be noticed. Her injury is compensable under the Workmen’s Compensation Law if it was inflicted while she was engaged in the performance of her duties as an employee, and a cause of her injury was a condition (exposure to a hazard) associated with (originating in) her employer’s work. Texas Employers’ Ins. Ass’n. v. Mincey, Tex.Civ.App., 255 S.W.2d 262, W/R.; American Motorists Ins. Co. v. Steel, Tex.Civ.App., 229 S.W.2d 386, W/R.; Cassell v. United States Fidelity & Guaranty Company, 115 Tex. 371, 283 S.W. 127, 46 A.L.R. 1137; In re McNicol, 215 Mass. 497, 102 N.E. 697, L.R.A.1916A, 306; Arts. 8306, Sec. 20, 8309 V.T.C.S., see also Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S. W.2d 581.

The following is a brief summary of evidence in its most favorable aspect respecting compensability. Mrs. Fagan was employed by Hollywood-Vassarette, Munsing-wear Incorporated as a power sewing machine operator and placed at her employer’s worktable in an air-conditioned room. Air, refrigerated to a temperature of 60 degrees, was emitted at a rate of 900 cubic feet per minute from a vent located ten feet above floor level and approximately twelve feet distant from Mrs. Fagan. Within a day or two after Mrs. Fagan began work in August, the louvers in the vent were changed and so arranged that a draft or current of air was focused upon her head. The day the change was made she became sensitive to the cold air current and developed a headache, which she treated with aspirin.

The following day the stream of air made her more uncomfortable, and besides pain in the right side of her head, her neck began stiffening, and ordinary movement in that region became painful and difficult. Within less than a week she underwent medical treatment for the pain in this region of the right side of her head and neck, and an additional symptom appeared, a swelling in her neck. The swelling, a “pone”, arose in the neck region near the base of her skull. She fixed the date of the change in the vent louver and her first pain as August 2nd or 3rd, 1960. Thereafter her pain and disability rapidly progressed, resulting in hospitalization and medical treatment. A qualified physician testified that chilled air blowing upon Mrs. Fagan’s head and neck in the manner previously indicated could cause the injury she claimed. The physician diagnosed her condition as a fi-brositis affecting the occipital nerve, or occipital neuralgia.

These facts establish that on the 2nd or 3rd day of August Mrs. Fagan was injured while she was engaged in the performance of her duties as an employee by the stream of refrigerated air flowing from her employer’s air-conditioner vent. This stream of air was a hazard to which she was subjected as an employee, and a hazard she would not have been equally exposed to, apart from her employment. As the law and facts are understood, hers is a com-pensable injury.

Physical Facts. Mrs. Fagan plead that her injury was produced by cold air blowing upon the top and right side of her head and neck. The insurer claims the undisputed physical facts exclude the probability of an injury in this manner. When Mrs. Fagan was seated at her machine and worktable she faced to the northeast. The flow of material she worked upon came to her from the south, her right rear. Almost due north of her working position was the subject air vent, about ten feet above the floor and some twelve feet distant from her head. A current of air issuing out of the vent towards her would first strike her left temple. The insurer argues that the stream of air did not reach the back, and right side of her head as she claimed, but indisputably struck her left temple, a point substantially opposite the right side of her head and neck. These facts will be analyzed.

A jury might have construed this evidence as the insurer does, that once Mrs. Fagan took her seat at her machine she became absolutely immobile; a more reasonable construction would be that in the course of her work Mrs. Fagan raised, lowered, and turned her head from side to side, turned to reach for material as it flowed to her from her right and rear, and that there would be general and frequent movement of her body throughout a working day. Such movement on her part would present all sides of her head and neck generally to the air draft. There is another weakness in the insurer’s argument. Assuming the stream of cold air first reached her right temple, unlike a stream of water it would not immediately fall away. On the contrary, it would create a generally cooler atmospheric condition in the vicinity around and about Mrs. Fagan’s head than elsewhere. The proven physical facts do not exclude the occurrence of Mrs. Fagan’s injury, if any, substantially in the manner she claimed.

Weight of Evidence. This point overlaps to some extent the subjects just discussed, and goes to the proof as a whole. Space will not permit more than a suggestion of the scope of the evidence which, in its condensed form, is not altogether satisfactory in clearly demonstrating the conclusions reached.

The insurer offered evidence that there was no blast of air from the vent. As previously mentioned, Mrs. Fagan tendered testimony directly to the contrary. Testimony is in the record that occipital neuralgia clears up in a few weeks. To the contrary, Mrs. Fagan claimed to be suffering its effects even at the time of trial in December, 1961. Mrs. Fagan claimed a severe limitation in side to side movement of her head; that she could not so move it. One of the examining physicians testified to watching her at a street intersection turn her head from side to side to observe traffic. There are other incongruities, conflicts and contradictions, such as the time the vent louvers were readjusted, and the time Mrs. Fagan first claimed to feel injury or discomfort from the cold air stream, etc.

Basically the credibility of the witnesses is put in issue by evidence of this nature. Resolving such an issue is the traditional function and prerogative of the jury. The proof as a whole is not overwhelming in weight or preponderance unless a substantial part of that offered by Mrs. Fagan is disregarded as being unreliable. The jury having the benefit of observation, etc., of the demeanor of the witnesses, chose to give weight to Mrs. Fagan’s proof. This court is not in a position to say that the jury made a mistake.

The insurer’s Ninth Point of error is directed to the admission in evidence of a qualified medical witness’s reply to a hypothetical question. The question as propounded related pertinent facts in evidence, including those concerning Mrs. Fagan’s exposure to the stream of cold air from the air vent, and required the physician to state whether or not such exposure could cause occipital neuralgia. The answer given was, “It is possible”. Admission of the answer was not error. American General Insurance Company v. Barrett, Tex.Civ.App., 300 S.W.2d 358, N.R.E.; Trader’s & General Ins. Co. v. Hill, Tex.Civ.App., 161 S.W.2d 1101, N.W.H.; El Paso Electric Co. v. Beckman, Tex.Civ.App., 89 S.W.2d 470, err. dism.; Republic Underwriters v. Howard, Tex.Civ.App., 69 S.W.2d 584, err. dism. See also very similar medical testimony said to have probative force in Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581, at page 583-584.

The insurer’s remaining points of error have been carefully studied. No error is found requiring a reversal of the judgment, and the insurer’s several points are overruled. The judgment of the trial court is affirmed.