author: CHADICK, Chief Justice.

text:
    A. A. LANDER, Appellant, v. E. E. BOYKIN et al., Appellees.
    No. 7337.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 28, 1961.

      Spencer C. Relyea, III, Burford, Ryburn & Ford, Dallas, for appellant.
    Thomas J. Cook, Cook & Booth, Dallas, C. B. Stanley, Houston, for appellees.
   CHADICK, Chief Justice.

This is a suit for the unpaid balance due under the terms of a contract. The trial court entered judgment for such balance and an attorney fee. The judgment is affirmed.

The appellees, E. E. Boykin and Clifton Burleson, doing business as Perma-Top Paving Company, brought this suit in a District Court of Dallas County against A. A. Lander, the appellant. As plaintiffs in the trial court, Boykin and Burleson plead and relied for recovery upon a written contract for spreading base material and asphalt topping on a parking lot connected with Lander’s business establishment. Lander, as one of his several defenses, interposed the two year statute of limitations, Sec. 4, Art. 5526, Vernon’s Tex.Civ.St.; pleading the written instrument relied upon by Boykin and Burleson was insufficient as a matter of law to constitute a contract in writing. It is conceded by all parties that the suit was filed more than two and less than four years after accrual of the cause of action, and suit on the claim would be barred unless the claim is evidenced by or founded upon a contract in writing coming within the ambit of the four year limitation statute, Sec. 1, Art. 5527.

A jury trial was had, and on the basis of jury answers to the special issues submitted the trial court awarded Boykin and Burle-son $4,571.00 with interest from the date their claim accrued and an attorney’s fee of $1,000.00, together with the costs, etc. Lander has briefed two points of error. The first concerns the trial court’s failure to sustain his limitation defense; the second asserts an attorney fee was erroneously allowed.

The terms of the written instrument relied upon by Boykin and Burleson as a contract was proven by secondary evidence. A carbon copy of the instrument was introduced and evidence was offered that the original had been delivered to Lander. The original could not be produced. After examination of the signature appearing upon the copy, Lander conceded that he signed it. This copy was forwarded as an original exhibit to this court. What appears to have been handwritten insertions are illegible in certain instances. The following is a practical reproduction of the instrument:

Houston 5, Texas
Date April 26,1953
Name Mr. A. A. Lander
Address- — -- Phone-
Site Grading Yes
Hauling & Loading Yes
Fill Material None
Culverts None
Clearing
Base Material 5" of C/S fill
Watering & Rolling Yes
Topping Material 1" A.S. Topping
Equipment Rental
Miscellaneous Topping for Concrete @ 60 per
Total Sq. Yds. (Illegible) @ 1.70
Total for Job (Illegible)
Remarks: Work will start when notified by Mr. Dave Wharton
Perma-Top Paving Company By E. E. Boykin
A. A. Lander Customer Accepted

The signed instrument used the term ‘customer’ to describe Lander, thereby indicating he was a buyer or purchaser, and as such ‘accepted’ and agreed to buy ‘work [that] will start when notified by Mr. David Wharton’, such work including ‘site grading’, ‘hauling and loading’, ‘watering and rolling’ '5" of C/S fill material’, ‘1" A.S. topping.’ Parol evidence was admitted to explain the terms used in the instrument and to prove part of the agreement that is not legible on the copy introduced. This evidence showed that ‘C/S’ meant concrete stabilized shell; ‘A.S. Topping’ meant asphalt surface topping, and ‘topping for concrete @ 60‡ per’ meant topping on existing concrete pavement was to be done @ 60‡ per square yard. Other parol evidence was admitted showing that the written agreement provided for payment to be made on the basis of the square yardage laid at the rates indicated. That is, that the work done in making the concrete stabilized fill and paving, ■except over existing concrete slab, was to be paid for at the rate of $1.70 per square yard, and the topping over existing concrete @ 60‡ per square yard. Although some ambiguity as to other terms and provisions may exist, the instrument construed as above has all the essential elements of a contract. The contract, simply rendered, obligates one party to do some work of a certain nature, and obligates the other party to pay for the work on the basis of the square yardage of paving done.

The appellant’s basic contention is that the written instrument thus construed did ■not purport to show an important provision •of the agreement actually made by the parties; that is, the area and square yardage to be paved. The error Landers asserts is not that secondary evidence was inadmissible but that proof of these contractual provisions rests in parol. He thus reaches the final conclusion that as these contractual •obligations respecting quantity and place are not evidenced by a written contract, Sec. 4, Art. 5526 is a bar to prosecution of the suit as the action is for debt not evidenced by a contract in writing.

In Shaw v. Bush, Tex.Civ.App., 61 S.W. 2d 526, 528, w. r., it is said that a written instrument subject to the provision of Sec. 1, Art. 5527 must “ * * * contain a contract to do the thing for the non-performance of which the action is brought.” This requirement was approved in Cowart v. Russell et al., 135 Tex. 562, 144 S.W.2d 249, and Hatcher et al. v. State et al., 125 Tex. 84, 81 S.W.2d 499, 98 A.L.R. 1213. A majority of the Supreme Court in International Printing Pressmen & Assistants’ Union of North America v. Smith, 145 Tex. 399, 198 S.W.2d 729, 736 stated the rule in this language :

“It has been held in this State that ‘in order for an action to be one for an indebtedness evidenced by or founded upon a contract in writing, as referred to in the above quoted statute * * * the written instrument relied upon must itself contain a contract to do the things for the nonperformance of which the action is brought.’ * * * However, it is not indispensable that the written instrument relied upon contain an express promise to do the things for the nonperformance of which the action is brought. It is sufficient if the obligation or liability grows out of a written instrument, not remotely but immediately, or if the written instrument acknowledges a state of facts from which, by fair implication, the obligation or liability arises. And while parol evidence is not admissible to establish the promise it is admissible to show performance on the part of the plaintiff and a breach on the part of the defendant.”

The Texas Courts have not had occasion to discuss in detail the meaning of the language “evidenced by or founded upon any contract in writing” as used in Sec. 1, Art. 5527. But in the last case cited the Supreme Court of Texas quoted with approval the language used by the Supreme Court of Utah in Bracklein v. Realty Insurance Company, 95 Utah 490, 80 P.2d 471, 476, wherein it discussed a similar statute and said:

“ * * * ‘a cause of action is “founded upon an instrument in writing” when the contract, obligation, or liability grows out of written instruments, not remotely or ultimately, but immediately.’ * * * that if the fact ■of liability arises or is assumed or imposed from the instrument itself, or its recitals, the liability is founded upon an instrument in writing. If the instrument acknowledges or states a fact from which the law implies an obligation to pay, such obligation is founded upon a written instrument within the statute. If the writing upon its face shows a liability to pay, such liability is on a written instrument within the statute of limitations. So, also, is an action in which the instrument in writing itself contains the contract or promise to pay or do the thing, to compel the doing of which the action is brought. The promise must arise directly from the writing itself and be included in its terms. An obligation being established by a writing, a promise to pay or to perform is implied. By necessary inference of law and fact such promise is embodied in the language of the writing although it may not be expressed in words.”

The claim of the appellees, Boykin and Burleson is one that grows out of and is founded upon a contract in writing as that term is used in Sec. 1, Art. 5527, although resort to parol evidence must be made to prove the place where the work was done and the compensation earned by performing according to the contract’s terms. It follows that the action is not barred by the provisions of Sec. 4, Art. 5526. No Texas case with a similar fact basis has been cited, but the conclusion expressed finds support in the expressions and reasoning of several cases, such as Kerby et al. v. Collin County, Tex.CivApp., 212 S.W.2d 494, 3 A.L.R.2d 804, n. w. h.; Ferguson v. Parker, Tex.Civ.App., 176 S.W.2d 768, refused, w. o. m.; Hester and Wise v. Chin, Tex.Civ.App., 162 S.W.2d 450, n. w. h.; Smith v. Continental Supply Company, Tex.Civ.App., 283 S.W. 1082, n. w. h.

In another jurisdiction it was held that parol evidence was admissible to show the quantity of goods purchased and the price thereof in a suit upon a written contract which provided that the seller would sell to the buyer reasonable quantities of its products at current wholesale prices, and the buyer agreed to buy upon such terms. See W. T. Rawleigh Co. v. Graham et al., 4 Wash.2d 407, 103 P.2d 1076, 129 A.L.R. 596. The expressions of the several Texas cases cited herein, though dicta in some instances, seem to be in harmony with the conclusions stated in 129 A.L.R. where it is said:

(p. 606) “The courts have generally held the statute of limitations pertaining to written contracts, writings for the payment of money or property, or other writings concerning contracts, is applicable where the necessity of introducing evidence dehors the written contract sued upon is merely to show performance of the contract on the part of the Plaintiff, and a breach on the part of Defendant. * * *
(p. 611) “The necessity of introducing evidence extrinsic to a written contract to establish the amount of money to which the Plaintiff is entitled under such contract, where there appears from the written contract an obligation of the Defendant to pay money of some amount, conditionally, or unconditionally, does not render inapplicable a statute of limitations pertaining to written contracts or writings for the payment of money.”

The allowance of an attorney fee was proper, as Art. 2226 authorizes the recovery of reasonable attorney fees in a suit upon a claim of the nature of that asserted here. See Langdeau v. Bouknight, Tex., 344 S.W.2d 435; Ferrous Products Co. Inc. v. Gulf States Trading Co., Inc., 160 Tex. 399, 332 S.W.2d 310; Southwest General Construction Co. v. Price, Tex.Civ.App., 267 S.W.2d 855, n. w. h.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: FRASER, Justice.

license: Public Domain

text:
    CITY OF KERMIT, Texas, a Municipal Corporation et al., Appellants, v. Mrs. M. RUSH, a Widow et al., Appellees.
    No. 5476.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 11, 1961.
    Richard C. Milstead, Calvin W. Wesch, Kermit, for appellants.
    John R. Lee, Kermit, for appellees.
   FRASER, Justice.

This is an appeal from a judgment of the District Court of Winkler County, Texas, declaring certain portions of Ordinance No. 172 of the City of Kermit, Texas, to be null and void, and permanently enjoining appellants from enforcing any and all of said provisions of this ordinance.

The ordinance provided that: “Each separate house, residence, apartment building, structure, trailer house and/or mobile home, shall have a separate water meter, or pay a separate monthly minimum charge for water.” The appellees maintained that they, as apartment house and. trailer park owners, were being discriminated against in that the classification requiring them to pay minimum water rates for each unit was arbitrary and unreasonable. The appellant city had assessed one minimum water rate per month against such businesses as hotels and motels, classifying them as single unit users, and classified apartment houses and trailer parks as multiple unit users, charging them a monthly minimum water rate for each occupied living unit.

The trial court heard the matter without a jury and declared the ordinance to •be null and void, and permanently enjoined • appellants from enforcing such provisions •of Ordinance 172.

The appellants maintained that this dis'■tinction between motels and apartment hous•es and trailer park operators was not an unreasonable or arbitrary distinction or dis•crimination.

The appellees maintained that there was -no sound basis for the enforcement of the •ordinance, and that it was arbitrary. These contentions were based largely on the fact that some of the motels, paying one mini■mum water rental rate per month, at vari•ous times had one or more permanent or family type residents. They further point •out that it cost the city the same amount to supply water to the one meter at the motels as it did to separate meters located •at the multiple unit installations; that there was no more service required and -no burden on the city distinguishing one from the other, and the city was not required to spend additional money for either type of service; and, for these reasons, the ordinance and its enforcement was •arbitrary and unjustly discriminatory.

We believe this matter to have been settled by the case of Caldwell v. City of Abilene, 260 S.W.2d 712, 714, decided by the Eastland Court of Civil Appeals, to which •decision a writ was refused. It appears, from reading the Caldwell case, that the •ordinances of the two cities were very similar. The court, in that particular case, defined the occupants of the apartments as resident users, and referred to tourist •camps and motels and such as places where itinerant trade is predominant. (It did not say exclusive.) In that case, as here, there was no difference in the cost of supplying service to the different types of units, and the court held that the evidence was not •sufficient to show that the City of Abilene acted in an arbitrary and unreasonable manner, or was guilty of unreasonable discrimination. The court says:

“It is well established that a municipal corporation operating its water works or other public utility has the right to classify consumers under reasonable classification based upon such factors as the cost of service, the purpose for which the service or product is received, the quantity or amount received, the different character of the service furnished, the time of its use or any other matter which presents a substantial difference as a ground of distinction.” (Citing 73 C.J.S. Public Utilities § 27, page 1049; 43 Am.Jur. 689; 50 A.L.R. 121; and American Aniline Products, Inc., v. City of Lock Plaven, 288 Pa. 420, 135 A. 726, 50 A.L.R. 121.)

It was further brought out that in that case, as in the one before us, the city agreed to furnish meters for each unit of the multiple unit installations so that the owner of the installation would not have to be responsible, but that the water would be contracted and paid for by the occupant. This case further states as follows:

“The unquestioned weight of authority in other states is that a city may classify its users on the basis of a family or business unit and base its charge for the service upon such unit, and may make a minimum charge for each such unit.” (Cases cited thereunder.)

The court then, in disposing of the case, states as follows:

“The fact that the city furnishes its water and sewerage disposal service to hotels and tourist camps and other places where itinerant trade is predominant under an industrial classification with only one minimum charge, even though some of the units in some of these places are used as family units, is obviously a discrimination against appellants. In our opinion, however, such discrimination is not, under the facts and circumstances in evidence in this case, an arbitrary and unreasonable one. The interest and needs of the numerous water users served by a city are such that it is improbable, if not impossible, that any classification or rate basis could be devised which would not in some way discriminate against some of the users. If appellants should prevail in this case, there would be a discrimination against consumers in single unit dwellings. Not every discrimination, however, is condemned, but only a discrimination that is arbitrary and without a reasonable fact basis or justification.”

The court then points out that the owners involved could have additional meters installed for each separate unit. .

It was also urged in that case that the differentiation in water rates must be based upon the economic factor of cost, and any classification for rate purposes not so based is arbitrary and unreasonable. The court says:

“We cannot agree with this contention. Many factors are properly con- ■ sidered in determining the reasonableness of a classification and there is no one factor which is of itself controlling to the exclusion of all others. Each case must be decided upon its own facts and the burden of proof is on the party claiming an unreasonable discrimination. Ford v. Rio Grande Valley Gas Co., 141 Tex. 525, 174 S.W.2d 479.”

In the case before us, the ordinance required that each unit of a multiple unit installation would be assessed, when occupied, the minimum monthly water rate, but that hotels, motels and such would pay only one minimum water rate. We believe that the Caldwell case, cited above, in which the Supreme Court refused a writ, is controlling in the matter before us. The ordinances are very similar, as are the facts, and we believe the reasoning to be specific with regard to the matter before us.

Without belaboring the point any farther, we believe the matter before us has been judicially determined as set forth above, and we do .not find-any area of distinction sufficient to take this case out from under the ruling and reasoning of the said Caldwell case.

Appellees have also argued that the ordinance in question has been unreasonably and arbitrarily enforced. It is well settled that, here again, the burden of proof is upon the party so alleging, and the presumption of legality exists until overturned. We do not believe that this burden has been met, and therefore hold that the record does not establish arbitrary or unreasonable enforcement of the ordinance. We do not believe that unreasonable enforcement in any event would vitiate the ordinance which is otherwise legal.

For these reasons the appellants’ points are sustained, and the decision of the trial court is reversed and rendered in favor of appellants, and the permanent injunction granted by the trial court is canceled and dissolved.

CLAYTON, J., not sitting.


author: WILSON, Justice.

text:
    Lelah E. POLK, a Feme Sole, Appellant, v. C. S. COLEMAN et. al., Appellees.
    No. 3926.
    Court of Civil Appeals of Texas. Waco.
    Nov. 9, 1961.
    Rehearing Denied Nov. 30, 1961.

      Cooper K. Ragan, John L. Russell, Houston, for appellant.
    McClain & Harrell, Conroe, for appel-lees.
   WILSON, Justice.

Appellant sought an injunction against appellees and the recovery of damages for wrongful cutting and removal of timber ■.from her land. She executed a timber deed selling and conveying to one of appellees “all of the pine saw log timber 10 inches in diameter and larger at the stump, and all of the pine pulp wood timber 8 inches and larger at the stump, and all of the hardwood timber (except magnolia) 12 inches in diameter 10 inches above the ground, and larger, at the time when cut hereunder” growing on her land.

Appellant did not seek to reform or set aside the deed, but pleaded various representations alleged to have been made to her by grantee as to its contents and meaning. She alleged and here contends the quoted instrument gave no right to cut pine timber (as distinguished from hardwood) less than 8 inches in diameter, measured at a point 10 inches above the ground. Appellees contended the instrument was clear and unambiguous, that parol evidence was not admissible to vary its terms or to aid in construction. Over ap-pellees’ objection, and without pleading, appellant was permitted to adduce evidence as to the height of a “customary stump” and the customary meaning of “cutting at the stump.” Her witnesses testified that in the area a “customary stump would be 10 inches from the ground.” Having unsuccessfully attempted to exclude this evidence, appellees then introduced evidence that the term, as used in the area, meant “as close to the ground as possible”.

The court submitted a special issue inquiring: what is “the usual and customary height in this area” at which pine timber is cut where the deed does not specify cutting height, but provides only that diameter is to be measured “at the stump.” The jury answered, “as near the ground as possible.” Appellees’ objections to the charge are not before us, but appellant objected to this issue on the grounds the deed was unambiguous; that it fixed cutting height of pine at ten inches above ground, and consequently inquiry as to custom was immaterial and constituted an effort to vary the terms of the deed. She here says the court erred in overruling her motion to disregard the finding.

We agree with counsel for all parties that the instrument is not ambiguous in this respect. If we sustain appellant in her contention that the issue is consequently not material, then failure to disregard the issue would not require reversal as is urged. We think it is clear the only restriction on cutting height fixed by the language of the deed is that concerning hardwood, and the only reasonable construction of the deed is that the language “10 inches above the ground” is not applicable to pine, under the terms of the instrument. Further, since appellant chose to try the case on the theory that “at the stump” should be interpreted on the basis of custom, she should not be heard to complain that the jury found against her on conflicting evidence.

Appellees admitted that an independent contractor cut some pine less than eight inches in diameter at the stump. The jury found the quantity of timber so cut to be 14 cords, and its value before cutting to be $4 per cord. Judgment against ap-pellees was based on these findings. Appellant says the proper measure of damages was the manufactured price of pulpwood from trees wrongfully cut, at $15 per cord; and contends the court erred in refusing her requested issue which would have asked whether pine timber cut less than 8 inches in diameter “at the stump 10 inches above the ground” was removed by grantee “wilfully and without being in good faith, while knowing he did not have a lawful right to do so.” Appellant apparently recognizes the measure of damage announced in Cummer-Graham Co. v. Maddox, 155 Tex. 284, 285 S.W.2d 932, 934, that where the cutting of timber not included in the deed is done in good faith under a claim of right, recovery of stump-age value, and not manufactured value, is allowed. Here, however, the issue requested and refused is restricted to timber cut less than “10 inches above the ground”, and the court did not err in refusing to submit the issue under Rule 279, Texas-Rules of Civil Procedure. Thomas v. Billingsley, Tex.Civ.App., 173 S.W.2d 199, 200,. writ ref.; Jones v. Rainey, Tex.Civ.App., 168 S.W.2d 507, 510, writ ref. The evidence is certainly not undisputed on the issues of good faith and claim of right as to the undersized timber actually cut.

We have carefully examined appellant’s, other points, which present no reversible error, and are overruled.

Affirmed.


author: GRISSOM, Chief Justice.

text:
    Winter GORDON, Appellant, v. AETNA CASUALTY & SURETY COMPANY, Appellee.
    No. 3669.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 24, 1961.
    Rehearing Denied Dec. 8, 1961.

      Heflin, Kirk, Van Keuren & Baggett, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellee.
   GRISSOM, Chief Justice.

This is a workmen’s compensation case. Winter Gordon sued Aetna Casualty & Surety Company to recover for total and permanent disability caused by an injury on October 23, 1957, while Gordon was working for W. G. Smith Company. A jury found that on said date, while working for said company, claimant suffered an injury which caused total incapacity for.seven weeks. It also found that said seven weeks incapacity began on October 24, 1957. Claimant has appealed.

Appellant contends the judgment should be reversed because the court refused to admit myelographic films and the testimony of Dr. Brown that in his opinion Gordon had a herniated disc and that' the films showed it. The statement of facts filed contains only the testimony of Dr. Brown.The defendant agreed only that said statement of facts was a correct statement of said doctor’s testimony^ Defendant expressly stated in the agreement that it did not consent to the filing of same as a partial statement of facts. Said statement of facts shows that Dr. Brown performed a myelo-gram on appellant and made the' films on January 28, 1961. In addition to the jury findings mentioned, that is, that Gordon sustained the injury which is the basis for this suit on October 23, 1957, and that as a result he was incapacitated for seven weeks beginning on October 24, 1957, the jury found that any incapacity plaintiff had at the time of the trial, in 1961, was caused solely by an injury he suffered on September 30, 1958, while he was working for a different employer.

Appellee says, and we think correctly, that appellant did not comply with Texas Rule of Civil Procedure 377. When a reversal is sought because of the -exclusion of evidence, it is the duty of an appellant to bring up- a statement of facts which contains all the evidence material to the point urged as error. This could have been done in the various ways pre-mitted by R.C.P. 377. None of the methods provided for has been followed by appellant.

Appellant says the proffered testimony- should have been admitted in rebuttal to the testimony of defendant’s medical witnesses and as confirmatory proof of other evidence presented by him. The record does not show that there was other evidence which the proffered testimony could rebut or confirm. The record does not show that the excluded evidence was not merely cumulative. It is not shown that the rejected testimony was material or that it probably would have changed the results. This court cannot know that evidence of a condition existing in 1961 is material to an effort to show incapacity resulting from an accident in 1957. This is emphasized by the jury finding that any incapacity appellant had at the time of the trial, in 1961, was caused solely by an accident which happened on September 30, 1958, while appellant was working for a different employer.

To obtain a reversal of the judgment, appellant had the burden to show that rejection of the proffered testimony 'was error and that it was reasonably calculated to cause and probably did cause rendition of an improper judgment. Texas R.C.P. 434. In applying said rule we are required to examine the record as a whole. Southwestern Greyhound Lines v. Dickson, 149 Tex. 599, 236 S.W.2d 115, 120. See, also, Stovall v. Scofield, Tex.Civ.App., 325 S.W.2d 221; Maddox v. Gulf, Colorado & Santa Fe Ry. Co., Tex.Civ.App., 293 S.W.2d 699 (Ref. N.R.E.) ; Baker v. Rutherford, Tex.Civ.App., 293 S.W.2d 669 (Ref. N.R.E.). We are required to indulge every reasonable presumption consistent with the record in favor of the correctness of the judgment. McElyea v. Parker, 125 Tex. 225, 81 S.W.2d 649, 653. To illustrate :: the evidence may have been conclusive to-the effect that if appellant had a ruptured disc at the time of the trial, in 1961, that it was caused by the 1958 accident and not. by the one suffered in 1957.

We are required to treat this as an áppeal without a statement of facts. Dyche v. Simmons, Tex.Civ.App., 264 S.W.2d 208 (Ref. N.R.E.). Application of the rules stated by this court in- Robinson v. Howard County, Tex.Civ.App., 287 S.W.2d 234 (Ref. N.R.E.), requires an affirmance of the judgment. It is so ordered.


text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Clyde BARTLETT, Appellee.
    No. 5478.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 8, 1961.
    Rehearing Denied Dec. 6, 1961.

      McDonald, Shafer & Gilliland, Odessa, for appellant.
    Warren Burnett and A1 Taylor, Odessa, for appellee.
   FRASER, Justice.

This is a compensation case wherein the jury returned a verdict for the plaintiff for total and permanent disability, to be paid in a lump sum, upon which verdict the court returned its judgment; and the appeal, accordingly, is before us for disposition.

We will take up appellant’s points in the order in which they were presented and briefed by both parties.

Appellant’s first point is that the trial court committed error in refusing to admit into the record copies of verified records of various criminal convictions of the plaintiff. We do not believe that the court committed any error in excluding the copies which were tendered, and further feel that if error there was, it was not of such stature as might reasonably be calculated to cause the rendition of an improper judgment. Appellant argues, of course, that the actual photostats or verified copies of the various judgments of conviction, et cetera, would be more impressive to the jury in that they were offered for the purpose of impeachment, and leans heavily upon the statement that plaintiff’s case depends on plaintiff’s testimony. However, it must be noted that witness • Littlefield was with plaintiff on the day he was injured, and saw the accident; that his employer, J. E. McCain, talked to him the day of the injury; and, after listening to his complaint, sent him to a doctor. Further, three doctors testified for plaintiff — one, Dr. Leigh, stating that he had treated plaintiff for a back injury on 69 different occasions, and further that plaintiff had back, nerve and nerve root damage. Plaintiff’s wife and neighbor also testified as to his condition after the injury, and another neighbor testified that he had given plaintiff medication to stop pain. In view of the fact that plaintiff produced an eye witness to his fall, supplemented by the other witness, McCain (his employer), and the medical testimony of the three doctors, his wife, and his neighbor, it does not seem clear that plaintiff’s case rested, in its entirety, on his testimony. Impeachment, of course, is a very valuable right, but we do not think it has been here violated. Appellant relies heavily on Texas Employers’ Insurance Association v. Curry, Tex.Civ.App., 290 S.W.2d 767 (n.r.e.) by this court. However, in that case there was a very distinct variance between the testimony of the plaintiff and the contents of the records, the testimony in its variance, of course, being highly favorable to the plaintiff. In the case before us, the plaintiff appears to have testified frankly and his statements appear, to he substantially in accordance with the tendered records. He was examined and cross-examined about his criminal background,- and we do not see any substantial variance in his testimony and the contents of the records such as to require that such records be produced in order to refute his testimony. We have examined these records, and our impression is that in view of the plaintiff’s testimony, there would have been little harm in admitting them, and even less harm in excluding them. They describe some of his offenses as “car theft”, “jumping bail”, “simple burglary”, and a violation of the United States Penal Code (by number). He admitted all of these matters and was subjected to cross-examination. We therefore overrule this point, as we cannot see where the exclusion of the records constitutes reversible error. Kansas City, M. & O. Ry. Co. of Texas v. Foster, Tex.Civ.App., 38 S.W.2d 391.

Appellant’s second point complains of the court’s action in entering an award that the compensation be paid in a lump sum. This matter has been adjudicated to be largely discretionary with the trial court. Texas Employers’ Ins. Ass’n v. Cooper, Tex.Civ.App., 194 S.W.2d 819 (n.r.e.).' We believe there was sufficient evidence to justify the court’s discretionary action in awarding a lump sum judgment. The plaintiff testified that he had no independent income and had no pension “or anything like that.” He testified that he had borrowed money from relatives and from his lawyer. He testified that he could not hold down a job, and had had to borrow medicine from a neighbor. He and his wife testified that she had had to go to work and was still working. As was said by our Commission of Appeals, in the case styled Consolidated Underwriters v. Saxon, 265 S.W. 143, 146, “the lump sum is discounted and only its present value is paid when a lump sum is allowed. Hence no hardship is worked on the insurance company or association by such a settlement. Its only [proper] contention justly to be made would be that a proper discount had not been made.” Therefore, we do not find merit in appellant’s second point, and it is accordingly overruled.-

Appellant’s third point complains of a remark by the trial judge, and assigns error in the failure of the trial court to grant a mistrial because of such remark. We have examined the record and, finding no error in this incident, overrule same without further discussion or elucidation, as it is clear that the trial judge was merely making a non-controversial grammatical suggestion.

Appellant’s fourth point complains of the court’s action in failing to submit an issue to the jury with reference to Wage Rate Method No. 1. It will be well to bear in mind that plaintiff’s injury occurred in 1958. We believe the rule to be that where there occurs no controversy during the trial, only slight evidence is necessary to be produced by the plaintiff to negative Method No. 1, thereby justifying the submission of issues as to Methods 2 and 3. In this case the plaintiff testified that he had worked only a month or so for his employer before the injury; that, prior to that time, he had worked as a carpenter or carpenter’s helper in Arkansas. It is true that this is uncorroborated testimony of a party to the suit, but the employer or subscriber himself testified that he didn’t believe anybody had or would have been employed in the past twelve months for 300 days as an operator of heavy equipment, and further testified that the plaintiff had worked for him only 30 or 35 days before the alleged accident. This is not a case where complaint is made of the court’s action in disregarding jury findings, but is based on the court’s failure or refusal to submit an issue with reference to Method No. 1. We believe that the plaintiff here has enough evidence in the record to warrant the court in declining to submit an issue as to Method No. 1 of the Wage Rate. Traders & General Ins. Co. v. Jenkins, Tex.Civ.App., 144 S.W.2d 350 (no wr. hist.); Texas Employers’ Ins. Ass’n. v. McKay, Tex.Civ.App., 205 S.W. 2d 833, (aff’d. 146 Tex. 569, 210 S.W.2d 147) ; National Indemnity Underwriters v. Blevins, Tex.Civ.App., 129 S.W.2d 734. This point is therefore overruled.

Appellant’s points all having been overruled, the decision of the trial court is affirmed.


author: RENFRO, Justice.

text:
    Ides A. TURNER et ux., Appellants, v. STATE of Texas et al., Appellees.
    No. 16261.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 10, 1961.
    Rehearing Denied Dec. 8, 1961.
    Jennings, Montgomery & Dies, and Roy M. Dies, Jr., Graham, for appellants.
    Patrick A. Myers, County Atty. of Jack County, Jacksboro, for appellees.
   RENFRO, Justice.

The State of Texas and Jack County, acting through the Commissioners’ Court of said County, brought condemnation proceedings for the acquisition of an easement over 8.719 acres of land belonging to Ides A. and Juanita M. Turner. The Turners appealed from a judgment based upon a jury verdict, which awarded them $1,166.66 for the land taken and $3,000.00 as diminution in value of the remainder.

Appellants contend in their first eight points there was no evidence to show compliance with certain procedural matters prior to trial on the merits.

Points 9-14 claim the evidence was insufficient to support the jury’s findings concerning the before and after value of the remainder; and point 15 complains of a remark made by the trial court in response to a request by appellants’ attorney for time to perfect a bill of exception.

Appellants did not file a motion for new trial. The filing of a motion for new trial, with certain exceptions, is a prerequisite to appeal in jury cases. Rule 324, Texas Rules of Civil Procedure. The points raised on appeal do not bring the case within any of the exceptions set out therein.

Since appellants did not file a motion for new trial, all alleged errors set out in the above points were waived. Rule 374; O’Connor v. Gable, Tex.Civ.App., 298 S.W.2d 209; Dial Temp Air Conditioning Co. v. Faulhaber, Tex.Civ.App., 340 S.W.2d 82; Houston-American Finance Corp. v. Travis, Tex.Civ.App., 343 S.W.2d 323.

The judgment is affirmed.


text:
    J. J. UTITZ, Jr., Appellant, v. William GLUCKMAN et al., Appellees.
    No. 3931.
    Court of Civil Appeals of Texas. Waco.
    Nov. 9, 1961.
    Rehearing Denied Nov. 30, 1961.
    Ernest L. Sample, Beaumont, for appellant.
    W. G. Walley, Jr., Beaumont, Alvin Diamond, Houston, for appellees.
   WILSON, Justice.

Appeal from order sustaining appellee’s plea of privilege. Appellant relies on subdivisions 5 and 13 of Art. 1995, Vernon’s Ann.Civ.Stat.

Subd. 13 is not applicable, as appellant’s action is not a suit for partition of property; and it may not be converted into such a suit by so denominating it in the controverting plea. Gilbert v. Gilbert, 145 Tex. 114, 195 S.W.2d 936.

Appellant alleged the terms of a 1958 “joint venture agreement” executed by appellee, certain provisions of which it claimed appellee breached. The contract does not expressly name any county or definite place therein in which any obligation sued upon is to be performed, and thus Subd. 5 is not available as an exception. Rorschach v. Pitts, 151 Tex. 215, 248 S.W. 2d 120, 123. The contract states the purpose of the parties to be that of acquiring merchandise in connection with a sale “to be held on premises leased by Jay’s of Beaumont, Inc.” The mere designation of a corporate name which includes the name of a place does not meet the venue requirement of Subd. 5, even if it had referred to place of performance of the specific obligation sought to be enforced. Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610, 611.

Affirmed.


text:
    Charles R. HOUGH, Appellant, v. Mary D. McMILLAN, Appellee.
    No. 3908.
    Court of Civil Appeals of Texas. Waco.
    Nov. 9, 1961.
    .Rehearing Denied Nov. 30, 1961.
    King, Sharfstein & Rienstra, Beaumont, for appellant.
    Stephenson & Stephenson, Orange, for appellee.
   WILSON, Justice.

Mrs. McMillan sued her son-in-law, Hough, and another for damages arising out of an automobile collision, alleging she was a “passenger” in his car which collided at an intersection- with a vehicle driven by the other defendant. Judgment was rendered in favor of this codefendant on a jury verdict, and in favor of Mrs. McMillan against her son-in-law,. who appeals.

Hough’s sole contentions are that Mrs. McMillan was a guest, under Art. 6701b, Vernon’s Ann.Civ.Stat.; and that as a matter of law they were not engaged in a joint enterprise. The jury found against him on both these issues, having found only ordinary negligence on his part, as driver.

Hough, his wife (Mrs. McMillan’s daughter) and their child frequently traveled to Mrs. McMillan’s house for weekend visits, as they did on this occasion, spending the night in her home. The present visit, however, was unexpected. It was customary on these visits for Mrs. McMillan and her daughter to prepare meals, and for Hough to pay for groceries. On such previous occasions Mrs. McMillan had sent her younger daughter to the store for food, or an older son had carried her to the store. Early on the morning of the accident, Mrs. McMillan testified, a neighbor called on her to borrow bread, “I told her I didn’t have any, and fact of the business I didn’t have enough groceries to feed them all that morning.” This conversation awakened Hough, who testified Mrs. McMillan looked in the ice box and “said maybe we’d better go to the grocery store, and I said, ‘Well, fine, I’ll take you’.” Hough then gave her money to buy groceries. Mrs. McMillan testified, “He just got hungry, and he’s the one that said ‘Let’s go get something for breakfast’.” She enumerated the breakfast food items she had selected and intended to buy, including bread and coffee. She testified she had not planned the noon meal; “When I got to the store I guess I would have got more.” She had no means of transportation; her younger daughter and others in the home were asleep. She said she had sufficient food for herself and younger child, but not enough for the Hough family. The neighbor, Mrs. McMillan and Hough drank coffee and talked until 8 A.M., when the three started to the store in Hough’s car. On this trip the collision occurred. Mrs. McMillan had never driven an automobile, had no driver’s license and knew nothing of driving a car. We believe this is a comprehensive summary of all the evidence on the issues presented/

To establish a joint enterprise it was necessary for Mrs. McMillan to prove con-currént existence of (a) a joint interest with Hough in the object and purpose of the trip,, and (b) “an equal right, express or implied, to direct and control the conduct of each other in the operation of the conveyance”, or the “joint right of control of the car’s operation.” Straffus v. Barclay, 147 Tex. 600, 219 S.W.2d 65, 68. There is nothing in this record to suggest that Hough had in any respect relinquished “his exclusive right to control the manner of driving his automobile” to his mother-in-law who had “no knowledge of driving”. Since this element is completely lacking, no joint enterprise existed. Bonney v. San Antonio Transit Co., 160 Tex. 11, 325 S.W.2d 117, 119.

In determining whether Mrs. McMillan was a “guest without payment for such transportation” under Art. 6701b we have discovered only four decisions, after extended search, which may be considered factually analogous: In Gunderson v. Sopiwnik, 75 S.D. 402, 66 N.W.2d 510, 513, defendant with his wife and child visited his sister. Due to unexpected car expense he extended his visit in her home. Plaintiff contended he was driving in order to retain his sister’s good graces to avoid motel and restaurant expense, and she was not a guest. The court said that to uphold the contention “would transcend reality”, and “The record discloses nothing other than the typical brother visiting sister occasion” ; and in reversing, held plaintiff was a guest as a matter of law.

In Hasbrook v. Wingate, 152 Ohio St. 50, 87 N.E.2d 87, 92, 10 A.L.R.2d 1342, plaintiff was defendant’s mother-in-law. She left her car at home to be available to defendant’s wife, plaintiff’s daughter. The court held that the mother-in-law and son-in-law relationship was an important factor in determining whether plaintiff was a guest. That court said that by the weight of authority the evidential effect of relationship by blood or marriage raised “an affirmative presumption which precludes the party who has rendered the services from recovering unless he can produce evidence of a specific agreement for compensation” or from which such agreement could be inferred. The court then suggested the evidence showed simply that defendant “transport the plaintiff primarily as an accommodation to his mother-in-law”, even though she contributed a small sum to car expense; and held the court should have directed a verdict for defendant. We do not imply that a rule of this stringency should be applied in the present case.

In Ethier v. Audette, 307 Mass. 111, 29 N.E.2d 707, defendant drove plaintiff to a restaurant where plaintiff could buy food to be eaten by both of them at her home. The court in reversing a judgment for plaintiff, held there was no warrant for finding she was other than a guest.

In Shapiro v. Bookspan, 155 Cal.App.2d 353, 318 P.2d 123, 126, a daughter was driving her mother home after the mother had acted as the daughter’s baby sitter, and after the daughter had taken the mother grocery shopping. The mother had helped her daughter prepare dinner, and contended that her services constituted compensation for the ride, and that the guest statute was inapplicable as a matter of law. Although the court stated all it was concerned with there was whether the non-guest status was established as a matter of law, it said, “The mother was acting as baby sitter for the daughter’s child as a matter of convenience and accommodation” and a reasonable view of the situation was that the mother’s services were gratuitous, “motivated by the love and affection she had for her daughter and the pleasure she derived from the child’s company.” The court said such family amenities are rendered without expectation of compensation, the test of guest status; and compensation “is something more than a mere exchange of favors, and this would be especially true of favors exchanged between members of a family, when neither of the persons involved would entertain a thought of compensation.” ,

In Rowan v. Allen, 134 Tex. 215, 134 S.W. 2d 1022, 1024, it was held, “The fact that the trip may have been for the mutual pleasure of the plaintiff and defendant, does not operate to change the status of the plaintiff from that of guest”, and the court said it could find nothing in “a fine friendly relationship between two families, each glad to contribute to the happiness and welfare of the other” from which it could be suggested or inferred that the relationship was to be commercialized.

Henry v. Henson, Tex.Civ.App., 174 S.W. 2d 270, 274, 275, writ refused, applies the rules that benefits to the transporter must be “of a definite tangible nature”, and there must be the element of material benefit to the defendant driver “where the elements of friendship and hospitality were not involved.” The first quoted rule was approved in Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 198, where it was said benefits there relied on were “too uncertain, remote, and speculative to be definite and tangible.”

The only definite, tangible benefit to Hough suggested or relied on by appellee here is that he would “get some groceries for breakfast”. The trip and this benefit was little more than incidental to reciprocal hospitality furnished by a mother to her daughter, her son-in-law and grandchild. We think it could not be reasonably said she prepared meals for this family circle as “compensation” for being transported to a food store in order that she might carry out the ordinary amenities of hospitable sociable reception and entertainment of her visiting loved ones. In our opinion appellee was a guest under the statute, as a matter of law.

Reversed and rendered.


author: McDONALD, Chief Justice.

text:
    Annie Kate KENNY, Appellant, v. TEXAS GULF SULPHUR COMPANY, Appellee.
    No. 3927.
    Court of Civil Appeals of Texas. Waco.
    Nov. 2, 1961.
    Rehearing Denied Nov. 30, 1961.
    Keith, Mehaffy, McNicholas & Weber, Beaumont, for appellant.
    Orgain, Bell & Tucker, Beaumont, Jos. C. Brown, Houston, for appellee.
   McDONALD, Chief Justice.

This is a suit for damages occasioned by the subsidence (or falling downward), of the surface of 41 acres of land. Plaintiff is the owner of the surface estate' of such land. Defendant is owner of the mineral estate by virtue of a mineral lease. The activities of defendant in removing the sulphur underlying plaintiff’s surface, caused subsidence (or a lowering or shifting downward) of the surface of 41 acres of the plaintiff’s lands from some 2 inches to some 3 feet. Plaintiff sought damages; exemplary damages; and a permanent injunction to prevent future sulphur mining operations by defendant. The case was tried on stipulations of fact, before the court, except for the damage issue which was tried to a jury, and resulted in a finding of $11,134.

The Trial Court entered judgment that plaintiff take nothing, and plaintiff appeals, contending:

1) The Trial Court erred in holding that the doctrine of subjacent support is not applicable where the undisputed evidence showed that the surface estate of plaintiff was caused to subside permanently by sul-phur mining operations intentionally and wilfully conducted by the defendant owner of a mineral lease hereon.

2) The Trial Court erred in denying plaintiff exemplary damages.

3)The Trial Court erred in refusing to grant plaintiff a permanent injunction to prevent defendant from continuing to mine sulphur, and cause subsidence to plaintiff’s surface estate.

A summary of the stipulations of the parties follows:

1) Plaintiff is the owner of the surface estate only, of the property in controversy, having acquired same by virtue of deed dated 24 December, 1943. (Such deed provides : “It is further understood and agreed by grantor and grantee that this deed of conveyance is intended to convey the surface rights only, and does not convey any of the minerals whatsoever”)

2) Defendant owns the sulphur leasehold estate and is and has been since June, 1958, producing sulphur from the premises (by means of the Frasch Process), under and by virtue of rights accruing to it under leases. (Such leases provide that defendant “shall have the exclusive right to mine for and produce all of the minerals underlying said premises so long as any one of them can be produced in paying quantities”; and further provides that defendants shall have “also such other privileges as are reasonably requisite for the conduct of such operations.” Such lease was executed by plaintiff’s predecessor in title and provides “all conditions and terms herein shall extend to the heirs, executors, successors in interest and assigns by the parties hereto.”

3) The “Frasch Process” of producing sulphur includes among other things the drilling of relatively shallow wells through the surface soil, the unconsolidated sediments, the limestone and calcite caprock, and into the sulphur bearing limestone and calcite situated below the surface. Once such well is drilled, then pipes are inserted therein and through the injection of superheated water, the solid sulphur is melted and recovered from pipes inside the hole by means of lifting with compressed air. Before the injection of the heated water, the sulphur is in a solid state within cavities of varying sizes in the limestone and calcite-bearing formation and supplies a part of the support to the surface of the said lands situated as those of the plaintiff. When the solid sulphur is removed, the cavities left by the removál cause a natural subsidence of the formations and soils above.

4) At the time of the creation of defendant’s leasehold estate, and at all times since, the only commercially known method of producing sulphur in the region of the Gulf Coast was by the “Frasch Process”.

5) Subsidence is a necessary, natural, reasonable, normal, inevitable, and proximate result expected from the production of sulphur by the Frasch Process.

6) Plaintiff acquired her title to said property and entered into possession of same, at a time when the instruments creating defendant’s leasehold title were of record, (and at a time when defendant’s predecessor in title, Gulf Oil Corporation, was in actual physical possession of the premises producing oil under the terms of said lease).

7) Some 110,021 long tons of sulphur have been taken from under the premises.

8) Subsidence has occurred to 41 acres of the property.

9) Defendant intends to continue production of sulphur from plaintiff’s land in the future by the Frasch Process, and additional subsidence will occur.

10) While subsidence had occurred in Texas and Louisiana, in connection with the production of sulphur by the Frasch Process, such fact was not known to plaintiff when she acquired title to the surface of the land involved, but was known generally among those familiar with the sulphur mining industry.

In summary, we have the owner of the surface of land suing the defendant mineral lessee of such land, for the subsidence of the surface of the land, as a result of the lessee’s taking sulphur out from, under the land, under the terms of the lease, by the only commercially known process for producing sulphur. There is no question but that the surface of the land has been damaged, and that it will be damaged by further subsidence, as more sulphur is removed from under the land. Plaintiff contends that though there is no statute or case in point in this exact situation, that since sul-phur is a solid, that the owner of the surface is entitled to have the defendant provide subjacent support of the surface, and that such right is absolute. Plaintiff cites: 58 C.J.S. Mines and Minerals § 278, p. 783; 1 Am.Jur. 532 ; 36 Am.Jur. 405; 32 A.L.R.2d 1309; as well as cases from Alabama, Colorado, Illinois and Pennsylvania, which sustain the doctrine of subjacent support in coal mining cases. Plaintiff contended that since sulphur is a solid, as is coal, that such authorities and doctrine should be applied.

We revert to plaintiff’s 1st contention that the trial court erred in holding that the doctrine of subjacent support is not applicable where plaintiff’s surface estate is caused to subside by sulphur mining operations conducted by the owner of a mineral lease.

It is stipulated that plaintiff owns the surface estate only, and that defendant owns the mineral interest by virtue of a valid lease. Under the laws of Texas, the mineral lessee is permitted to use so much of the premises and in such a manner as is reasonably necessary to enjoy the mineral estate conveyed by the lease, and to effectuate its purpose. Warren Petroleum Corp. v. Monzingo, 157 Tex. 479, 304 S.W.2d 362, 65 A.L.R.2d 1352. The lease' creating defendant’s sulphur leasehold estate in the land expressly granted the right to produce sulphur and necessarily contemplated subsidence as a reasonable and necessary result expected from the use of the Frasch Process, which it is stipulated by and between the. parties is the only commercially known method of producing sulphur.,

Plaintiff purchased the premises burdened with the lease. Defendant, owner of the lease, is not liable to her for the subsidence of her surface estate, since subsidence is (and is so stipulated by the parties) a necessary, natural, reasonable, normal, inevitable and proximate result expected from the production of sulphur by the Frasch Process.

Plaintiff may have the right to have her property free of subsidence caused by others, (as adjacent landowners, etc.) but when the subsidence is the natural result of the producing of sulphur under a lease, by a lessee, plaintiff cannot complain. She owns her surface burdened with the right of defendant to take the sulphur. Under an oil, gas, and mineral lease, the surface estate is servient to the mineral estate for the purposes of the mineral grant. ‘ The right to take the sulphur must be reasonably exercised with due regard to the rights of the surface owner. The plaintiff’s predecessor has granted and leased to the defendants so much of the land as reasonably necessary to effectuate the purposes of the lease, and to be used in a non-negligent manner. General Crude Oil v. Aiken, Tex., 344 S.W.2d 668; Brown v. Lundell, Tex., 344 S.W.2d 863.

There is no contention or question of negligence in the instant case, and we think that since the defendant had the right to produce the sulphur under its lease, and since it is stipulated that subsidence was a natural, normal, inevitable result of getting the sulphur by the only commercially known process, that defendant’s conduct and acts in producing the sulphur are authorized by its lease, and that the plaintiff’s right to have her land free of subsidence, was one of the rights disposed of by her predecessor in title, when the lease was made.

All of plaintiff’s points are overruled and the judgment of the Trial Court is affirmed.


author: RICHARDS, Justice.

text:
    H. G. WEST, Appellant, v. P. C. BARNES, Appellee.
    No. 10899.
    Court of Civil Appeals of Texas. Austin.
    Nov. 15, 1961.
    Rehearing Denied Dec. 6, 1961.

      Byrd & Davis, V. F. Taylor, Austin, for appellant.
    F. L. Kuykendall, Austin, for appellee.
   RICHARDS, Justice.

Suit was brought by H. G. West, appellant, in the District Court of Travis County, Texas, for compensation under a written contract executed by P. C. Barnes, appellee, on February 18, 1960, by the terms of which contract appellee granted appellant the sole and exclusive right, for a period of 180 days and thereafter until cancelled by registered mail,' to act as his real estate broker to negotiate for a purchaser for certain real estate owned by appellee in Travis County, Texas. Before the expiration of the 180 day period on August 1, 1960, appellee sold the property to a purchaser not procured through the efforts of appellant. The contract provided that in case of sale of the property by appellee or anyone acting in his behalf during the life of the contract, ap-pellee agreed to pay appellant a commission of not less than 5% of the sale price.

Appellant alleged that he had demanded payment of appellee for his commission in the amount of $5,177.00 in accordance with the terms of the contract, which appellee refused to pay. Appellant also alleged that he had been required to employ an attorney to collect the amount due him by appellee and therefore was entitled to recover a reasonable attorney’s fee in the sum of $1,750.00 under Art. 2226, Vernon’s Ann. Civ.St. Appellee answered by special exceptions, a plea in bar under Art. 3995, Sec. 4, V.C.S. and Art. 6573a, Sec. 28, V.C.S. and a general denial. On the trial of the cause before the Court without a jury judgment was entered that appellant take nothing, from which judgment this appeal was perfected. At the request of appellant the Trial Court made and filed findings of fact and conclusions of law.

Appellant’s first three points of error are that the Trial Court erred (1) in failing to find and conclude as a matter of law that appellant’s exclusive listing entitled him to recover his commission; (2) in concluding as a matter of law that the description of the land set out in the exclusive listing is so vague, indefinite and uncertain that it could not be enforced and (3) in concluding as a matter of law that the exclusive listing was not enforceable because it did not contain other essentials required to take it out of the statute of frauds.

The pertinent parts of the contract to be construed are as follows:

“Real Estate Listing Form
“H. H. West Company, Broker
“For and in consideration of your agreeing to list and your efforts to find a purchaser for my property hereinafter described, I do hereby give to you for a period of 180 days from this date, and thereafter until this agreement shall be cancelled by me in writing by registered mail, the sole and exclusive right and authority to negotiate a sale of my said property at the price and upon the terms hereinbelow set out.
⅜ ⅜ ⅜ ⅜ ⅜ ⅝
“I further agree to pay to you as a commission for such services a sum equivalent to the difference between the sale price herein specified by me and the price at which you may procure a purchaser for said property within the time limit herein set out.
“Should I, or anyone acting for me, including my heirs, sell, lease, transfer, or otherwise dispose of said real property within the time herein fixed for the continuance of the agency you shall he entitled nevertheless to your commission as herein set out, which shall be in no event less than S'% of the sale price, which I in such event agree to pay or direct to be paid.
* ⅜ * * * *
“Price I agree to take: Net to me $.940.00 per acre to be surveyed.
“Terms: 29% Down Bal in ten years with an on or before privilege
“Property: approximated 100 acres (Acres, and/or Lot No.)
“Located In: Travis County, Texas and being the same property conveyed to me by deed dated Get record Prom Travis Court House and recorded in Vol. 1605, Page 477, Travis County Deed Records.
“Owner: P C Barnes
“Located on Kramer Lane.”

In construing an exclusive agency contract similar in terms to the above contract, the Supreme Court of Texas in Neece v. A. A. A. Realty Company, 159 Tex. 403, 322 S.W.2d 597, 601, stated:

“Anyone of ordinary intelligence reading this agreement would know from its operative contractual clauses, * * * that the right to sell granted the broker was sole and exclusive and that regardless of who sold the property prior to 180 days from date (or a written cancellation of the contract thereafter), the broker would be entitled to five per cent of the sales price.”

It is undisputed that appellee read the listing agreement before he signed it, that he understood its contents and received a copy of the instrument. The written portions of the contract were supplied by appellant who was to get the date of the deed by which the property in question was conveyed to appellee from the records in the Travis County Court House in Vol. 1605, p. 477.

It was stipulated by the parties that as of February 18, 1960, appellee was the owner of 122.7 acres of the land described in Vol. 1605, pp. 477-480 of the Deed Records of Travis County, Texas, and that on or about August 1, 1960 appellee sold out of such tract of land on the basis of surveyed acres 121.82 acres to one Ben Newman for a consideration of $850.00 per acre or a total consideration of $103,547.00, appellee retaining the house in which he was living with the remaining acreage around it' which was all of the land owned by him in the Apple-gate Survey as pf February 18, 1960 'and August 1, 1960.

Assuming that the listing agreement complied in all respects with’ the provisions of Sec. 28, Art. 6573a, V.C.S., there being no question of fraud in its execution, Indemnity Insurance Co. of North America v. W. L. Macatee & Sons, 129 Tex. 166, 101 S.W.2d 553, 556, appellant would be entitled to recover the compensation due him under the terms of the exclusive listing contract which had been breached by appellee by the sale to Ben Newman. A. A. A. Realty Co. v. Neece, Tex.Civ.App., 314 S.W.2d 384, 389, reversed on other grounds, Neece v. A. A. A. Realty Co., 159 Tex. 403, 322 S.W.2d 597; Lewis v. Smith, Tex.Civ.App., 198 S.W.2d 598, 600, error dism.; Simpson v. Mooney J. Sherman & Son Co., Tex.Civ. App., 223 S.W.2d 42, 44, no writ history; Holmes v. Holik, Tex.Civ.App., 238 S.W.2d 260, 262, error dism.

In order for appellant to recover his commission under an exclusive listing contract in accordance with the provisions of Sec. 28, Art. 6573a, V.C.S., it is necessary that the written contract shall contain a promise to pay a commission,' specifying its amount or the basis for computing ' it, naming the person to whom the commission is payable, identifying the property to be sold and be signed by the promisor or his authorized agent. Since Sec. 28, Art. 6573a is substantially in the same phraseology as Art. 3995, V.C.S. (the statute of frauds), the established rules of law governing the statute of frauds must be applied in determining the description of the land and the written memorandum of agreement must contain within itself or by reference to some other existing writing the means or data by which the particular land can be identified with reasonable certainty. Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222.

Here it is undisputed that there is a promise in writing signed by appellee to pay appellant a commission on the basis of 5% of the sale price of the land described in the memorandum should appellee or anyone acting for him dispose of such property within 180 days from February 18, 1960 and thereafter until cancelled by registered mail by appellee.

The Trial Court found that "the description of the acreage listed * * * is not described in any manner in the written listing and does not refer to any other instruments where the boundaries or description of the approximately 100 acres can be found” and “that the designation of approximately 100 acres is wholly insufficient” and that the parties never agreed as to what approximately 100 acres would be carved but of the remaining acreage of the 145 acre tract Claimed and owned by appellee. Based upon these findings of fact the Trial Court concluded, as a matter of law, that “the description of the approximately 100 acres set out in the contract of appellant and appellee is so vague, indefinite and uncertain that the contract cannot be enforced.”

It will be noted that the contract in question refers to “my property hereinafter described * * * Net to me $940.00 per acre to be surveyed * * * Property: approximated 100 acres. Located in: Travis County, Texas, and being the same property conveyed to me by deed * * * recorded in Vol. 1605, page 477, Travis County Deed Records. * ⅜ *■ Owner: P.' C. Barnes— Located on Kramer Lane.”

The use in a contract of such words as “my property” when it is shown by extrinsic evidence that the party who signed the contract owns a tract and only one tract of land answering the description in the memorandum constitutes a description sufficient to comply with Sec. 28, Art. 6573a, V.C.S.; Pickett v. Bishop, supra. Here the memorandum specifically refers to “the same property conveyed to me by deed recorded in Vol. 1605, page 477, Travis County Deed Records.” There is no question that the use of the words “my property” or “being the same property conveyed to me by deed recorded in Vol. 1605, page 477, Travis County Deed Records Owner: P. C. Barnes” meets the test more fully and completely than many other descriptions which have been held by the appellate courts of Texas to meet the standards required by the statute of frauds and Sec. 28, Art. 6573a, V.C.S.

The following descriptions have been held to comply fully with the statute of frauds not only in suits for real estate commissions but also in suits for specific performance : • “A certain tract of land being my own headright, lying on Rush Creek in the Cross Timbers”, Fulton v. Robinson, 55 Tex. 401; “* * * my place, known as the ‘James Perry Tract of Land’,” Morrison v. Dailey (Tex.Sup.) 6 S.W. 426, 427; “my interest in my lands in Lavaca County and also that in Uvalde County”, Ragsdale v. Mays, 65 Tex. 255; “Old Wes Smith Ranch”, Volkmann v. Wortham, Tex.Civ.App., 189 S.W.2d 776, 777 error dism.; “My ranch of 2200 acres”, Jones v. Smith, Tex.Civ.App., 231 S.W.2d 1003, 1004, error ref. N.R.E.; Wilson v. Fisher, 144 Tex. 53, 188 S.W. 150, 153 and authorities cited therein.

But the Trial Court also found that the words “approximated 100 acres” were wholly insufficient as a designation of the acreage in question since the deed by which" appellee acquired the title to the land in question described a tract of 145 acres and that appellant and appellee never agreed as to what 100 acres would he carved out of the remaining acreage of the 145 acre tract described in the deed.

During the trial appellant testifying in his own behalf was asked on direct examination: “Was there any discussion between the two of you as to the amount of land you were listing?”, which was objected to by appellee’s counsel as being an attempt to enlarge or add to the description contained in the contract sued upon, which objection was sustained by the Court. However on cross examination by appellee’s attorney appellant testified as follows:

“Q. Mr. West, you had examined Volume 1605, page 477 of the Travis County Deed Records prior to the time this February 18, 1960, contract was signed, had you not? A. Yes, sir, I had.
“Q. And you knew the description of the property called for 145 acres?
A. Yes, sir.
“Q. When this contract was signed, Mr. Barnes told you that he had sold about 20 acres off the east end of it, didn’t he? A. Yes, he stated that he had sold some of it, and the highway had taken some.
“Q. So you knew at the time this contract was signed that Mr. Barnes was claiming about one hundred and twenty-two or three acres, did you not?
A. Well, he indicated he did not know exactly how many acres, and the contract was predicated upon it being surveyed when sold.
“Q. You knew originally there was 145 acres shown in that original tract?
A. It did.
“Q. And he told you he had sold twenty acres of it, did he not? A. Yes.
“Q. And he told you that he had sold a little bit for highway purposes?
A. Yes.
“Q. Did he-tell you some'two or three acres? A. No, sir.
“Q. You knew that he was claiming he had about 125 acres left in that tract, didn’t you ? A. He could not be specific. He did not know, because he emphasized the fact that he wanted it surveyed when sold, and to be sold by the surveyed acreage.
“Q. As a result of your conversation at the time this contract was signed, you presumed that Mr. Barnes was claiming to have about 125 acres in that tract, didn’t you? A. Approximately.
“Q. He also told you, did he not, that he wanted to keep a few acres out of what he owned around the house for his own purposes? A. I believe Mr. Barnes made a statement that he did not want to include the house in it.
“Q. How much did he tell you that he wánted to keep out of what he owned ? A. I' don’t recall that he made a specific statement.
“Q. Didn’t he tell you that he wanted to keep four or five acres where the house was located? A. It is possible he said that, but I do not recall that he specified four or five acres.
“Q. You remember when your deposition was taken, don’t you, on October 5th? A. Yes, I do.
“Q. In that deposition once you were asked this question, and didn’t you make this answer, appearing at page 14 of your deposition:
“ 'Q Well, that was where the house was located, he was going to keep four or five acres there where he was living?’
“ ‘A That’s right.’
Didn’t you answer that? A. I recall, since you have brought that out, Mr. Kuykendall, that he did say there was several acres with the house there, four o? five acres, and he did not want-to sell that portion of it.
“Q. All right. Now, you filled in all these blanks in your own handwriting, did you ? A. Yes, sir.
“Q. So when you filled in that blank, which says approximately 100 acres, you knew at that time Vol. 1605, page 477, of the' Deed Records of Travis County called for 145 acres, didn’t you? A. Yes, I did.
“Q. So that, as a result of this listing, Mr. Barnes was listing with you approximately 100 acres out of whatever he owned? A. He was listing with me the piece of property he had, but he did not know the specific number of acres, and it was subject to being surveyed when it was sold.
“Q. At the time the deposition was taken, didn’t you testify that Mr. Barnes was listing with you approximately 100 acres of whatever he owned; didn’t you, so testify at the time the deposition was taken? A. Well, we wrote in a hundred acres or more, approximately, because we did not know the exact number of acres.”

On re-direct examination appellant was asked the following question: “Now, Mr. West, Mr. Kuykendall was asking you about'the approximately one hundred acres, which was written in, and, as I understand your answer, it was, that is correct, but based upon a survey, ■ or to be surveyed. Was that your understanding with Mr. Barnes, that the tract at the time it was sold had to be surveyed to ascertain the correct acreage?”, to which appellant answered “yes.”

In answer to the following question: “Do I understand you from answering Mr. Kuykendall’s questions that neither one of you knew exactly how many acres were contained in that tract?” appellant answered: “That’s right.”

In answer to ¡the question: “* * * if you can tell me the answer, Mr. West, the use of the term in that contract, ‘to be surveyed,’ what was the purpose, if you know, of the term there, to be surveyed?”, appellant answered: “Because I don’t think that the gentleman, Mr. Barnes, knew how many acres he had left, and he wanted to be paid so much per surveyed acre.” Ap-pellee did not take the stand as a witness in his own behalf.

In Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, 152, the rule as to the introduction of parol testimony as extrinsic evidence for the construction of contracts governing the sale of real estate, is stated as follows:

“The certainty of the contract may be aided by parol only with certain limitations. The essential elements may never be supplied by parol. The details which merely explain or clarify the essential terms appearing in the instrument may ordinarily he shown by parol. But the parol must not constitute the framework or skeleton of the agreement. That must be contained in the writing. Thus, resort to extrinsic evidence, where proper at all, is not for the purpose of supplying the location or description of the land, but only for the purpose of identifying it with reasonable certainty from the data in the memorandum.” (Emphasis supplied.)

See also Shook v. Parton, Tex.Civ.App., 211 S.W.2d 368, 371, no writ history.

The testimony of appellant explaining the terms “to be surveyed” and “approximated 100 acres” was elicited by appellee’s counsel upon cross examination and therefore appellee is not in a position to question its admissibility. The testimony did not attempt in any way to alter or change the terms of the written contract but merely explained and clarified the essential terms appearing therein so as to identify the description of the tract to be sold with reasonable certainty from the data contained in the memorandum.

Considering the description of the ■ land in the written memorandum as explained and clarified by the uncontradicted testimony of appellant, the only conclusion which may be drawn is that appellee gave to appellant the sole and exclusive right for a period of 180 days to act as his broker to negotiate for a purchaser for all of that portion of the 145 acre tract of land as shown in the deed to appellee, as recorded in the Deed Records of Travis County, Texas, which appellee owned on February 18, 1960.

The Trial Court’s finding that the description of the acreage was not described in any manner in the written listing by reference to any other instruments where the boundaries or description of the approximated 100 acres could be found and that the parties never agreed as to what approximately 100 acres would be carved out of the remaining acreage is without eviden-tiary basis in the record and must be disregarded. The description of the property contained in the written memorandum is sufficiently definite and certain to comply with the provisions of Sec. 28, Art. 6573a, V.C.S., as construed by the courts of this State according to the authorities hereinbefore cited and therefore the conclusion of law by the Trial Court that the description of the property is so vague, indefinite and uncertain that the contract cannot be enforced is erroneous.

The Trial Court also concluded that the contract is not enforceable for the reason that it does not contain certain other essentials which are required to constitute an enforceable contract so as to take the case out of the statute of frauds, such essentials being the rate of interest, time and amount of payments, whether the note is to be secured by a lien and when the interest is to be paid and that since those essentials were to be agreed upon in the future between appellee and a purchaser the agreement was unenforceable.

The terms of the consideration stated in the written agreement are based upon a purchase price, of $940.00 per acre for each surveyed acre owned by appellee on February 18, 1960, out of the 145 acre tract of land, of which amount 29% was to be paid in cash and the balance in 10 years with an “on or before privilege.” No rate of interest on the unpaid balance of the purchase price due in 10 years is stated in the agreement. In the absence of qualifying or explanatory words any person of average intelligence could reach the conclusion that the unpaid balance was to be payable by a note which would be secured by a vendor’s lien upon the land so sold, the note to be due and payable in 10 years from the date of the sale, which note was to contain a stipulation that the entire principal or any part thereof at the option of the maker could be paid at any time on or before its maturity date.

Appellee cites several cases in support of the Trial Court’s conclusion of law that the failure to specify the rate of interest in the contract would render it unenforceable. All of these cases involved suits for specific performance, except Hume v. Bogle, Tex.Civ.App., 204 S.W. p. 673, no writ history which was a suit for a broker’s commission based upon a verbal contract. The Court held that since the material terms thereof were left for future adjustment the contract was not a completed contract and could not be specifically enforced.

It is a well settled rule of law that a greater degree of certainty is required in the terms of a contract which is to be specifically enforced in equity than is necessary in a contract which is made the basis of an action at law for damages for its breach. Bryant v. Clark, Tex.Civ.App., 347 S.W.2d 635, 636, error ref. N.R.E.

In Simpson v. Mooney J. Sherman & Son Co., Tex.Civ.App., 223 S.W.2d 42, 43, no writ history, a card listing which failed to give the price and terms on its reverse side was attacked as being too uncertain and indefinite to be enforceable. On the reverse side of the card there were many spaces for answers to be written in, none of which were filled,' but it did contain in the printed part of the card the phrase “or at such price and on such terms as the undersigned may agree to accept therefor.” Since the contract gave the broker an exclusive right to sell the property so described for a period of 6 months at such price and on such terms as the owner agreed to accept and the sale of the property was made direct by the owner without the aid of a broker, the broker was entitled to recover his commission.

In Bohls v. Brazelton, Tex.Civ.App., 336 S.W.2d 208, error ref. N.R.E., after describing the property the card listed the sale price at $36,500.00, loan $25,000.00, but the interest and length of loan blanks were not filled in. The Court held that the card as a whole constituted an agreement to pay the broker a commission in compliance with Sec. 28, Art. 6573a, V.C.S. See also Shook v. Parton, supra.

But even if the present action was for specific performance where a greater duty of certainty is required, the Supreme Court of Texas in Colvin v. Blanchard, 101 Tex. 231, 106 S.W. 323, 324, held that a letter in which it was stated that “I will sell the lots for $19,000 and pay you 5% com. plus $50, or $1,000 com. in all, for making the sale. In other words, I want $18,000 net for my lots. Terms, $3,000 cash, bal. long time.” prescribed the terms on which the sale should be made, that is $3,000.00 in cash and the remainder on long-time notes.

Although the contract failed to state the rate of interest on the unpaid balance, the legal rate of 6% interest per annum could probably be supplied as a matter of law. The Trial Court’s conclusion that the contract was unenforceable because lacking in certain so-called essentials requisite for the enforcement of an action for specific performance of a contract for the sale of land is erroneous. Since this is an action for breach of a contract to pay a real estate commission which fully complies with the provisions of Sec. 28, Art. 6573a, V.C.S., the absence of the so-called essentials would not render the contract unenforceable.

Appellant’s first three points of error are sustained. We therefore hold that the exclusive listing agreement between appellant and appellee dated February 18, 1960, constitutes a valid, legal and binding memorandum which complies fully with the requirements of Sec. 28, Art. 6573a, V.C.S., and that appellant is entitled to recover from appellee his commission at the rate of 5% of the price for which appellee sold the property in question to Ben Newman on August 1, 1960.

Appellant’s fourth point of error is that the Trial Court erred in concluding as a matter of law that appellant was not entitled to recover an attorney’s fee under Art. 2226, V.C.S. for his personal services rendered.

Art. 2226 is in part as follows:
“Any person having a valid claim against a person * * * for personal services rendered, * * * may present the same to such person * * * and if, at the expiration of thirty (30) days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof as presented for payment to such person * * * he may also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees, if represented by an attorney.”

Appellant’s cause of action was based upon a recovery for breach of a contract and not for personal services rendered. Since it is undisputed that appellant rendered no services in procuring the sale of the land by appellee to Ben Newman and that appellant’s claim is based solely upon the contract, no attorney’s fees are recoverable under Art. 2226, V.C.S., Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75, 77; Langdeau, Receiver v. Bouknight, Tex., 344 S.W.2d 435, 441. Appellant’s -fourth point of error is overruled.

The judgment of the Trial Court is reversed and judgment is here rendered that H. G. West recover from P. C. Barnes his •commission in the sum of $5,177.00, together with interest at the rate of six per cent (6%) per annum from August 1, 1960, and that all costs of suit are taxed against ap-pellee.

Reversed and rendered.

      . The listing form is printed but the italicized words are in writing.-


author: MASSEY, Chief Justice.

text:
    Mary E. McGEORGE, Appellant, v. Ruth VAN METER, et vir, et al., Appellees.
    No. 16257.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 10, 1961.
    Rehearing Denied Dec. 8, 1961.

      Hardwicke, Pladdaway & Pope, Claude D. Brown and Arthur Pladdaway, Fort Worth, for appellant.
    Sewell & Forbis, and James E. Forbis, Decatur, for appellee.
   MASSEY, Chief Justice.

Judgment of the trial court was rendered for plaintiffs, Ruth Van Meter, et vir, ét al., in a suit for trespass to try title against Mary E. McGeorge. From the judgment the defendant appealed.

Judgment affirmed.

The controversy involves an undivided one-half of the minerals underlying a certain tract of land in Wise County, Texas. For our purposes we may assume that appellant stands vested with the surface of the premises, and with the one-half of the minerals not in controversy. She succeeded to this property by inheritance from her husband, Arthur McGeorge, who had obtained it pursuant to a trustee’s sale under a certain deed of trust which will become important in our discussion to follow. This deed of trust will be termed the “second deed of trust”.

Appellees’ claim to the one-half mineral interest in controversy is derived from the reservation of said interest by Walter and Corrine Stokes in a deed given to G. W. Griffith under date of November 10, 1919. At the time of this deed, Stokes and wife owed the Bonner Loan and Investment Company certain monies, including the amount of $1,450.00, evidenced by a note secured by an original deed of trust. The security included not only the whole of the property granted to Griffith, but also covered the one-half mineral interest reserved by Stokes and wife in their deed to Griffith. By the deed’s provisions Griffith assumed the debt of $1,450.00. This was never paid.

On March 1, 1923, Griffith found himself in need of funds. He had debts in addition to that of $1,450.00 As of such time Percy McGeorge had succeeded the Bonner Loan and Investment Company as mortgagee beneficiary under the note and deed of trust. Percy McGeorge was willing to renew and extend the note for $1,450.00, and also willing to lend Griffith additional monies. The total amount of indebtedness was agreed to be and become the sum of $3,000.00. Pursuant to such loan transaction, a new note in the amount of $3,000.00 was made-to become due on February 1, 1933, with interest payable annually. The new and “second” deed of trust, dated March 1, 1923, was executed to secure said $3,000.00 indebtedness. The following language was set out in the body of the second deed of trust, viz:

“The holder of the indebtedness secured hereby is expressly subrogated to any and all liens paid with the proceeds of this mortgage.

“The note secured hereby is given in renewal and extension of a note for $1,450,-00 dated October 10,1916, and due December 1,1922, executed by Walter Stokes and wife to the Bonner Loan and Investment Company, and secured by a deed of trust, recorded in Book 32, page 133, of the Trust Deed Records of Wise County, Texas, and the holder hereof is subrogated to all the rights, powers, and equities of the original owners and holders of said note.”

The obligors on the new note failed to pay the same, whereby, under authority of the second deed of trust a substitute trustee conducted a sale, purporting to sell and grant the whole of the property described (the property description in both the original and the second deed of trust being identical) to Arthur McGeorge. Instrument of deed evidencing the sale was executed January 5, 1937. As heretofore noted, the appellant’s claim is under Arthur McGeorge, grantee in said deed.

Appellees had leased the disputed one-half mineral interest for a good many years, under different lease instruments. It was only a few weeks prior to the time suit was filed that they had notice that appellant was claiming the same minerals. As heretofore indicated the appellees’ claim is under and by virtue of the reservation of the aforesaid mineral interest in the deed Walter and Corrine Stokes made to G. W. Griffith on November 10, 1919.

The primary question to be resolved is whether the circumstances outlined relative to the loan transaction between Griffith and Percy McGeorge in 1923 amounted to a continuation in force and effect of the mortgage on the mineral interest in controversy in and under the second deed of trust. If the second deed of trust covered such, then appellant owns said interest by reason of its having been foreclosed and sold by the trustee to Arthur McGeorge, and her succession to said purchaser’s interest. If said interest was not covered by the second deed of trust, then appellant could not have succeeded to it for it was not sold by the trustee.

We have arrived at the conclusion that the original deed of trust lien was never merged with or incorporated into the second deed of trust. Such having never been done, the foreclosure of the lien under the second deed of trust did not transfer the minerals reserved by Stokes, but left title thereto undisturbed, although the lien thereon of the original deed of trust continued as security for any unsatisfied portion of the debt evidenced by the second note even after the foreclosure was actually accomplished. It could have been later foreclosed. Of course, it could have been foreclosed instead of the second deed of trust, for by the second deed the debt of $1,450.00, and note evidencing the same, was renewed and extended so as to make the due dates those prescribed in the second deed/ In other words the second deed of trust was adequate and effective in so far as it constituted a renewal and extension agreement. If, however, proceeds were derived from the foreclosure of the second deed of trust sufficient to pay the entire indebtedness (the portion of the old which was renewed and extended as well as the additional amount borrowed and necessitating the execution of the second deed of trust), there would have been no debt supporting any additional foreclosure.

After the foreclosure of the second deed of trust, the original deed of trust would continue to have standing as security for any unsatisfied portion of the debt evidenced thereby (whether or not it be also evidenced by the second deed of trust' instrument) until February 1, 1937, the date such lien would have ceased to have force in view of the provision that the note, given in part in renewal and extension of the antecedent debt balance, should be due on February 1, 1933. Vernon’s Ann.Tex.St., Art. 5522, ‘‘Lien continued in force”.

The language we have quoted from the second deed of trust, which we agree had the effect of renewing and extending the indebtedness evidenced by note in the amount of $1,450.00, was not sufficient to make the lien of the original deed of trust a part of the lien of the second so that the foreclosure under authority of said second deed of trust amounted to a foreclosure of the lien of the original. Undoubtedly, the parties to the second deed of trust had authority and capacity to have done such to the extent of an indebtedness of $1,450.00. But if they so intended they did not so provide by the terms of the second deed of trust. Its language did not make the original deed of trust a part thereof. Neither did its language make the lien for the subsisting indebtedness of $1,450.00 a part of the lien given for a greater amount in the second deed of trust. There was no “merger” or “incorporation” of the two instruments, or material parts thereof, so as to effectively foreclose the two separate liens of each in a single foreclosure proceeding.

We do not mean to say that Percy Mc-George was not entitled to foreclose under either deed of trust. He was entitled to foreclose under either or both. As to the original deed of trust he was entitled to foreclose thereunder because of the renewal and extension agreement effected in the second deed of trust. V.A.T.S. Art. 5522, “Lien continued in force”, and its predecessor, Art. 5695, “Contracts of extension, how made and construed”. What we do say is that when he elected to foreclose only under the second deed of trust McGeorge had not foreclosed upon the mineral interest reserved by Stokes in his deed to Griffith on November 10, 1919. It could only have been by a foreclosure under the original deed of trust,' by February 1, 1937, that Stokes’ mineral, interest could have been divested. There was no such foreclosure and therefore this mineral interest became vested in Stokes and his successors in title after February 1, 1937; free and clear of the lien under consideration.

There is no doubt that the parties to the second deed of trust could have made it a renewal of the original, or could have incorporated the original in and as a part of the second deed. The same thing could be said as to the lien .of the original deed of trust, whereby it might have been merged or incorporated. But the parties did not do so. Not having received the benefit of what might have been given him by the second deed of trust, Percy McGeorge was restricted to that actually received. Upon foreclosure of such second deed of trust the purchaser thereat would be bound by the deed’s provisions and would take title subject to the reserved mineral interest of Stokes’ deed to Griffith in 1919. There having never been a foreclosure of the original deed of trust until the aforesaid mineral interest had become vested in its owner, free of incumbrance, there would be nothing in appellant’s chain of title which would give her a valid claim thereto.

In arriving at our conclusions we relied principally upon the cases of Winters v. Slover, 1952, 151 Tex. 485, 251 S.W.2d 726; Fogle v. Coxsey, 1956 (Tex.Civ.App.Eastland), 295 S.W.2d 471, writ ref. n.r.e.; and Platte v. Securities Inv. Co., 1932 (Tex.Com.App.), 55 S.W.2d 551. Appellant relies strongly upon language from the opinion in Countiss v. Baldwin, 1941 (Tex.Civ.App. San Antonio), 151 S.W.2d 235, writ dism., judgment correct. A careful examination of the opinion reveals no language of the second deed of trust. If we are correct in our conclusions upon the controlling effect to be given the language of the second deed of trust, consideration given to the points raised for determination, we find nothing contradictory thereof in the Coun-tiss v. Baldwin opinion. Other cases cited by appellant either support our conclusions or bear upon legal principles which have no control over the disposition.

Concerning the admission into evidence of a deed in her own chain of title-to the surface of the property and the one-half of the minerals as to which there is no controversy, we must agree with appellant that the trial court erred in admitting the same. See Woldert v. Skelly Oil Co., 1947 (Tex.Civ.App. Texarkana), 202 S.W.2d 706, writ ref. n. r. e. However, the decision in the case being resolved by the law rather than by a determination upon facts, the error has no effect upon the disposition of the case and therefore would be harmless error.

Judgment is affirmed.