author: CLAYTON, Justice.

text:
    Artie BAKER, Appellant, v. R. E. MARABLE et al., Appellees.
    No. 5749.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 17, 1965.
    Rehearing Denied Dec. 1, 1965.

      See also Tex.Civ.App., 373 S.W.2d 377.
    W. F. Leigh, Pecos, for appellant.
    J. M. Preston, Pecos, for appellees.
   CLAYTON, Justice.

Appellant Baker brought suit against ap-pellees to foreclose what he terms a “Mechanic’s and Materialman’s Lien and a Chattel Mortgage on Realty Lien” on a parcel of real estate in Pecos County, Texas. The parcel of real estate was purchased by one M. G. Singh from Si Stafford on December 11, 1957. The consideration for the transaction included the assumption by Singh of certain indebtedness against the property and the execution of two purchase money notes secured by vendor’s lien. Subsequent to the filing of this deed, and on January 1, 1958, Singh purchased a pump and equipment from appellant Baker, to be installed on the land, and gave Baker the liens described above. On January 20, 1959 Singh reconveyed the property to Stafford and as a part of the consideration therefor Stafford canceled the two notes given him by Singh on the original sale of the property. The reconveyance from Singh recited: “ * * * this conveyance is made subj ect to an indebtedness owing to Artie Baker of Pecos, Texas, on a pump situated on the premises, plus certain sums for repair work on said pump”. Appellant Baker’s position, reduced to its essentials, is that by the ac-acceptance by Stafford of the reconveyance deed from Singh, and the filing thereof, Stafford “expressly subordinated any prior Vendor’s Lien or Deed of Trust Lien” Stafford may have had on said land to Baker’s asserted liens, thus making the latter superior to Stafford’s lien “by express written agreement” and therefore, as superior liens, subject to foreclosure by the suit. The suit, as originally brought, was filed by appellant Baker against appellees Marable and one Harral as transferees from Stafford by warranty deed dated April 15, 1960, the ap-pellees in turn making Stafford a third party defendant. At the conclusion of appellant’s testimony the trial court, on appellees’ motion, withdrew the cause from the jury and rendered judgment for appellees, finding that “the law and the evidence is conclusive that the Plaintiff, Artie Baker, has only the right of redemption in order to assert his junior lien against the land, and that he has abandoned such right.” The court further, however, upon agreement of the appellees, recognized that appellant’s chattel mortgage lien on the pump was a valid and subsisting lien and ordered its foreclosure, but without any personal liability on the part of the ap-pellees for the indebtedness it secured.

Appellant’s points of error complain of the action of the trial court in (1) failing to sustain appellant’s special exceptions to certain allegations in appellees’ pleadings; (2) in granting appellees’ motion to withdraw the case from the jury and in rendering judgment for appellees; (3) in holding that appellant had only the right of redemption in order to assert his junior lien against the land and that he had abandoned such right; and (4) in holding that appellant take nothing in his suit to foreclose his mechanic’s lien on the land and in removing the cloud cast upon the title to the land by reason of the lien asserted by appellant.

The special exceptions referred to in the first point of error were directed to appel-lees’ allegations that the transaction by which Stafford conveyed the land to Singh by deed retaining a vendor’s lien to secure the purchase money notes on which default was made by Singh constituted an executory sale to Singh which could be rescinded by Stafford and was so rescinded by the recon-veyance of the land by Singh to Stafford, and that the mechanic’s lien asserted by appellant Baker was granted and filed of record subsequent to the execution and recording of the conveyance of the land to Singh and at a time when Baker had actual and- constructive knowledge that Stafford had retained the superior legal title to said property to secure the payment of the unpaid portion of the purchase price thereof; and the further allegations that the assertion of the lien by Baker was at a time when Baker had actual and constructive knowledge that the sale to Singh had been rescinded and the land recovered by Stafford and subsequently conveyed to Marable and Harral, and that the assertion of the lien by Baker constituted a cloud on the title of the said appellees to the land, which should be removed; or alternatively, should the reconveyance not be considered as a rescission, that the vendor’s lien retained by Stafford had been duly transferred and assigned to Marable and Harral, to which lien the mechanic’s lien asserted by Baker was inferior, and no offer to redeem the land by payment of the indebtedness against it had been made by Baker during the more than five years since the reconveyance of the land to Stafford by Singh. Appellant’s special exceptions asserted that the foregoing allegations of appellees were insufficient to constitute a defense to appellant’s cause of action or to state a cause of action of the appellees, seeking to remove an alleged cloud upon title.

We affirm the action of the court in refusing to sustain appellant’s special exceptions, and overrule appellant’s points of error.

The original transaction between Stafford and Singh was an executory contract (58 Tex.Jur.2d 320-323, § 119) which could be rescinded by agreement of the parties. Whiteside v. Bell, 162 Tex. 411, 347 S.W.2d 568, 570 (S.Ct., 1961):

“The courts of our state have long been committed to the proposition that a deed conveying land and reserving a lien for the unpaid purchase money is treated as an executory contract that will ripen into a title in the purchaser when he has performed his obligation to pay the purchase money. It is accordingly held that when the vendee refuses to pay the vendor may claim an immediate rescission and recover the land * * *
“Where the vendee defaults in the payment of the purchase price there are several remedies available to the vendor. He may file a suit for debt and foreclosure. He may file a suit in trespass to try title to recover the land thereby effecting’ a rescission. Rescission may be accomplished by agreement between the parties * * * ”

The deeds between Stafford and Singh are a part of the record in this case and demonstrate that the executory contract between the parties was rescinded in the manner approved by the Supreme Court in the cited case.

As to the other special exceptions advanced by appellant, we consider that the holding of the trial court is supported by the various authorities cited to us by appellees in their brief. As for example, the ruling of the Commission of Appeals on certified questions in the case of North Texas Building & Loan Ass’n v. Overton, 126 Tex. 104, 86 S.W.2d 738 (1935) seems peculiarly applicable to the facts before us in the instant case. At pages 740, 741 of the cited case, the court stated:

“When a mortgagor conveys the mortgaged premises to the mortgagee in consideration of the cancellation or payment of the note for which the mortgage was given as security, the question of whether a merger of the two estates will result is determined by this test: Would it be more just to declare a merger or to keep the two estates separate? Whenever, by reason of the existence of a junior incum-brance, it is to the interest of the mortgagee to keep the estates separate, they will not be regarded as merged. It has been many times stated that the intention of the mortgagee is the determining factor. In this state that rule, in its literal meaning is inaccurate, for it is presumed, as a matter of law, that he intended to keep the estates separate, if that course is essential to maintain his priority over a junior incumbrancer. Silliman v. Gammage, 55 Tex. 365; Browne v. King, 111 Tex. 330, 235 S.W. 522; R. B. Spencer & Co. v. May (Tex.Civ. App.) 78 S.W.2d 665 (writ ref.). It is immaterial, as between the senior and junior lienholders, whether the mortgagee retains the note and mortgage in his possession or surrenders them to the mortgagor. It is likewise immaterial whether or not the deed of conveyance from the mortgagor to the mortgagee recites, as did the one in the instant case, that the cancellation of the note and mortgage was a part of the consideration for the conveyance.
“It is often true, as no doubt it was in the instant case, that it is decidedly to the advantage of the mortgagor and mortgagee to avoid the necessity of a foreclosure suit by a conveyance of the premises to the mortgagee. A rule penalizing them for so doing would be contrary to our policy that litigation is not to be encouraged. The junior lien-holder suffers no injury thereby, but is in the same position as if there had been a foreclosure without his having been made a party. His equity of redemption is not affected, neither is his lien thereby elevated to a first lien.”

In further support of appellees’ position herein they cite the holding in R. B. Spencer & Co. v. May, 78 S.W.2d 665 (Tex.Civ.App., 1935, ref.), which opinion states at pages 666, 667:

“Upon the trial' of the case it was insisted by the appellant, who was plaintiff below, that when Daniel E. and George W. May reconveyed the land to Terry in consideration of the cancellation and surrender of the vendor’s lien notes held by him, there was a merger of the vendor’s lien with the superior title to the property, so as to extinguish the vendor’s lien, and as a consequence appellant’s mechanic’s lien became a first lien on the 57i4 acres of land described in its contract, and it is here insisted that the trial court erred in failing to so recognize said lien and to foreclose the same on said land. On the other hand, the appellee, Terry, insists that he at all times held the superior title to the property, and that his interests could not have been defeated by Daniel E. and George W. May without a tender of the unpaid purchase money due him, and since appellant acquired its interest from Daniel E. May, it held no greater right than he did, and could not defeat ap-pellee’s title without a tender of the unpaid purchase money.
“We recognize the rule that in some instances when the title to land and the title to a mortgage lien thereon become vested in the same person the greater and the lesser estates may become merged and the lien extinguished, in the absence of an intention to the contrary. 17 Tex.Jur. 120; York v. Robbins (Tex.Com.App.) 255 S.W. 720; Silliman v. Gammage, 55 Tex. 365; Smith v. Cooley, Tex.Civ.App., 164 S.W. 1050. Such rule is based on a fiction to which resort may be had when necessary in order to do complete justice between the parties; but resort should not be had thereto when the application of such principles would result in the creation of rights or obligations not contemplated by the parties nor justified by any consideration. 17 Tex.Jur. 125. In our opinion, such rule does not apply in a case like the one here under consideration, as where the holder of the vendor’s lien and the superior title, in order to avoid the necessity of foreclosure proceedings against the debtor who is unable to pay, accepts from such debtor a recon-veyance of the title to the property in cancellation of the unpaid purchase money. In Texas, as is well known, a grantor who retains an express lien to secure unpaid purchase-money notes holds the superior title to the property. Upon the failure of the purchaser to pay the unpaid purchase money the vendor may resume title and possession of the property or maintain an action in trespass to try title therefor. In the event of an attempt to exercise such right by the vendor, the vendee’s only remedy is to tender the unpaid purchase money and perform such other obligations as have been assumed by him under his contract of purchase. Yett v. Houston Farms Development Co. (Tex.Civ.App.) 41 S.W. 2d 305, par. 2 (writ refused) and cases there cited; Thompson v. Robinson, 93 Tex. 165, 54 S.W. 243, 77 Am.St. Rep. 843; Scott & Carmody v. Canon (Tex.Com.App.) 240 S.W. 304. Therefore, when George W. May and Daniel E. May failed to pay the balance of the purchase price at its maturity, Terry, the vendor, as against such purchasers, had a right to rescind the contract and resume title and possession of the property. R. B. Spencer & Co. acquired its right through Daniel E. May with notice of Terry’s superior claim. Consequently, appellant’s rights were necessarily subject to the same limitations as were the rights of its grantor Daniel E. May. Bankers’ Mortgage Co. v. Higgins (Tex.Civ.App.) 4 S.W. 2d 102, par. 6; Teston v. Brannin (Tex.Civ.App.) 261 S.W. 788, par. 9. Hence appellant’s only remedy to defeat a rescission of the executory contract by Terry was to tender the balance of the unpaid purchase money.”

With regard to appellant’s complaint in his third point of error that the trial court had erred in finding that appellant had only the right of redemption in order to assert his junior lien against the land and that he had abandoned such right, it must be borne in mind that the reconveyance of the land from Singh to Stafford occurred on January 20, 1959. The trial of the case began on September 17, 1964. During cross-examination of appellant in the trial the appellant was asked about a conversation between him and Stafford which occurred at about the time when Stafford accepted the reconveyance of the land from Singh. Appellant’s testimony follows:

“Q Now, when he first talk_to you and told you he had to take the land back, did you offer to pay to him the indebtedness owing to him by Singh that was secured by his liens ?
“A No, sir.
“Q Have you ever offered to pay that indebtedness?
“A The indebtedness to—
“Q Stafford that was secured by these liens?
“A No, sir.
“Q As a matter of fact, you never would be willing to, would you?
“A I don’t think I would, unless they found oil out there.”

When the case of North Texas Building & Loan Ass’n v. Overton was back before the Court of Civil Appeals, 91 S.W.2d 429, 431, after the Commission of Appeals ruling on certified questions (86 S.W.2d 738, supra), the Court of Civil Appeals held:

“While, as stated, Dr. Overton still had the equity of redemption, his failure to insist upon it and to make a tender of the prior indebtedness is suf-ficent to show an abandonment of the right. 29 Tex.Jur. 1007, § 162; 41 D.C. 942, § 1376 * * * ”

We apply the same ruling to the case at hand and approve the holding of the trial court in this respect.

We consider that all appellant’s points of error have been sufficiently dealt with, and as previously stated, they are overruled and the judment of the trial court is hereby in all things affirmed.


source: Caselaw Access Project

author: FANNING, Justice.

license: Public Domain

text:
    R. A. VANDEL, Appellant, v. Vernon E. SEITZ, Appellee.
    No. 7683.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 12, 1965.

      Leonard C. Kahn, Houston, for appellant.
    H. H. Prewett, Hellmut A. Erwing, Foreman, Dyess, Prewett, Henderson & Cantey, George W. Eddy, Houston, for ap-pellee.
   FANNING, Justice.

This suit arises from an intersectional collision in the city of Houston between appellant’s motorcycle and an automobile driven by appellee.

Appellee admitted and conceded that his act of making a left turn in the face of a “No Left Turn” sign constituted primary negligence and was a proximate cause of the accident.

However, appellee plead and contended that appellant was guilty of contributory negligence in failing to keep a proper lookout, in failing to make proper application of his brakes and in operating his motorcycle at an excessive rate of speed under the circumstances, and that such acts of negligence were each a proximate cause of the accident.

Trial was to the court with the aid of a jury. The jury in response to special issues submitted found against the appellant on the three above referred to contributory negligence issues and also found against appellant on the associated proximate cause issues relating to said three acts of contributory negligence of appellant. The trial court rendered judgment that appellant take nothing. Appellant filed two motions for new trial — the second motion was based upon allegedly newly discovered evidence. Both motions for new trial were overruled. Appellant has appealed.

Appellant by his first point contends that the trial court erred in failing to sustain plaintiff’s motion for a directed verdict as to the liability in this case.

In determining whether the trial court erred in failing to sustain plaintiff’s motion for directed verdict as to liability in this cause, we must determine whether the record in this cause contains any admissible evidence of probative force raising any of the three pleaded controverted contributory negligence issues with an appropriately associated proximate cause issue, and in doing so we are guided by certain well-established rules of law.

When material facts are controverted, or are such that different inferences may be reasonably drawn therefrom, the question of fact thus raised should be submitted to the jury; it is only when the evidence is harmonious and consistent, and the circumstances permit but one conclusion, that the question becomes one of law for the determination of the court. An issue of fact is raised “if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff.” Wininger v. Fort Worth & D. C. R. Co., 105 Tex. 56, 143 S.W. 1150 (1912); Maryland Casualty v. Morua, Tex.Civ.App., 180 S.W.2d 194, writ refused (1944).

If, however, the probative force of the evidence is so slight that it raises only a “mere surmise or suspicion of the existence of the fact sought to be established”, it is in legal contemplation no evidence at all, and it is the duty of the trial court to direct a verdict. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898).

Appellant also contends by points 2, 3 and 4 to the effect that the trial court erred in submitting to the jury special issues 1, 2, 3, 4, 5 and 6, relating to the three contributory negligence issues and associated proximate cause issues, because of “no evidence” to support submission, and that the jury’s affirmative answers thereto were supported by “no evidence”, that the evidence was “insufficient” and that the jury’s responses to said issues were so against the great weight and preponderance of the evidence as to be clearly wrong.

For a comprehensive discussion of the law applicable to the determination of “no evidence” and “insufficient evidence” points see Chief Justice Calvert’s article, “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error”, 38 Tex.Law Rev., No. 4, p. 361.

Appellant Vandel was a motorcycle policeman of the City of Houston. On the occasion of the collision in question he was going home from work on his motorcycle. At the trial on the merits Vandel testified and contended to the effect that he was knocked unconscious and that he did not recall having the accident but that he did recall the events prior to the accident up to about a mile from the collision point. (Later, after the adverse verdict and judgment, and in his second motion for new trial, appellant Vandel contended to the effect that he had recovered his memory of the accident and unsuccessfully sought a new trial on the grounds of allegedly newly discovered evidence by reason of regaining his memory as to the events of the accident.) At the trial Vandel testified to the effect that he was going home from the police station, about 1:30 A.M., in the night time, going out Washington Avenue to the Hempstead Highway, which was his usual route home, and was familiar with the Washington Avenue-Heights Boulevard intersection where the accident in question occurred, and knew that there were traffic lights there, and told of the “No Left Turn” sign located there, that he was proceeding at his usual speed, between 25 and 30 miles an hour, where he passed the “Pig Stand”, the last time he remembered before the collision, that the “Pig Stand” was about a mile from the place of the collision. According to Vandel’s testimony he did not recall anything from the “Pig Stand” about a mile from the scene of the collision until he waked up in a hospital bed. Thus on the trial appellant Van-del did not testify as to his speed within a mile of the collision, nor did he testify as to keeping a proper lookout or proper application of his brakes at the time of the collision.

Appellee Seitz was driving Mrs. Mcln-tire’s automobile at the time of the collision. Mrs. Mclntire was a defendant also, hut the trial court instructed a verdict in her favor which judgment has not been appealed from.

There is a conflict between the evidence of appellant’s witness Caffey and defendant Dorothy Sojak Mclntire with respect to Vandel’s speed. According to Caffey’s testimony (Caffey did not actually see the collision but heard it) he was driving his automobile about 25 or 30 miles per hour on the occasion in question and that he noticed the motorcycle’s lights behind him and testified to the effect that the motorcycle did not gain on him. Mrs. Mclntire’s testimony is to the effect that Vandel was traveling toward appellee Seitz at a speed of between 40 and 50 miles per hour, that she first noticed Vandel’s light approaching the intersection from an easterly direction, and at the time of appellee’s left turn maneuver, appellant’s light was a good half block away from the intersection.

Appellee testified to the effect that he did not notice appellant’s light until appel-lee had made the left turn and at that time appellant’s motorcycle was 100 or 150 feet back east on Washington.

There was testimony to the effect that a vehicle traveling at 30 mph, appellant’s alleged speed, would need 75 feet to come to a full stop, with proper braking. Appellee in his brief argues that if it be assumed that appellant saw appellee’s vehicle no earlier than appellee saw appellant’s vehicle, that appellant should have been able to bring his vehicle to a full stop before striking appel-lee, provided if in truth appellant was not traveling in excess of 30 mph.

The testimony of appellee and Mrs. Mc-lntire is to the effect that appellant’s motorcycle struck Mrs. Mclntire’s car broadside and that Vandel catapulted over Mrs. Mc-lntire’s car after striking said car with much force. Pictures in evidence of Mrs. Mclntire’s automobile substantiate the testimony that Vandel’s motorcycle struck the Mclntire car broadside with much force. Appellee argues in his brief that the damages shown to both vehicles and the fact that appellant Vandel catapulted over Mrs. Mc-lntire’s vehicle indicates a high rate of speed on the part of appellant Vandel at the time of impact.

With respect to appellant’s lookout, appel-lee in his brief'states and argues in part as follows: (we omit appellant’s various references to the Statement of Facts.)

“Prior to executing a left turn from Washington Avenue to Heights Boulevard, Appellee was completely stopped in obedience to a red traffic signal at the intersection of Heights and Washington. Before proceeding to turn left out of the lane closest to the esplanade on the west side of the intersection, Appellee put his left blinker light on. There were traffic lanes behind Appel-lee’s car which were open and unoccupied. There was no traffic or any other impediment between Appellee’s car and the center line of Washington Avenue that would have prevented Appellant from going around the back of Appellee’s car. Appellee had his headlights on. As Appellee executed his left turn, there were no ears approaching the intersection. ’Appellee first noticed Appellant’s motorcycle when Appellee was pretty well straightened out on Heights at which time Appellant’s vehicle was 100 or 150 feet back east on Washington. Mrs. Mclntire first noticed Appellant’s motorcycle light during the left turn at which time Appellant’s vehicle was a good half block from the intersection.
“There was nothing to obstruct Appellant’s view of the intersection or of Appellee’s vehicle. Plaintiff’s Exhibits Nos. 1 and 2 show that there was ample street lighting in the intersection. There is no evidence in the record that there were any weather conditions impeding visibility.”

With respect to appellant’s application of brakes, appellee in his brief states and argues in part as follows: (we omit ap-pellee’s various references to the Statement of Facts.)

“In order for Appellant’s motorcycle to come to a full and complete stop, both front and back wheels must be completely locked. Appellant’s back wheel brakes are foot operated and his front wheel brakes are hand operated. The brakes can be operated independently of each other. Officer Fain agreed on cross-examination that the skid marks laid down by Appellant’s motorcycle were made by a wheel that was not locked. The skid marks laid down by Appellant’s motorcycle were made by the rear wheel. There is no evidence that Appellant ever applied the brakes controlling his front wheel. Officer Fain described the skid marks as ‘in a straight line’, ‘light and dark intermittent skids.’ Officer Fain could not point out any definite skid marks on Plaintiff’s Exhibit No. 1 and Defendant’s Exhibit No. 4 which were pictures taken shortly after the accident. * * ”

The evidence of the physical facts was of some probative force. Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407 (1943).

Both negligence and proximate cause may be inferred from circumstances. Bock v. Fellman Dry Goods Co., Tex.Com.App., 212 S.W. 635 (1919).

The credibility of the witnesses and the weight to be given their testimony was a matter for the jury to determine.

In Seay v. Kana, Tex.Civ.App., 346 S.W. 2d 384, no writ (1961) it was stated in part as follows:

“* * * Failure to keep a proper lookout may be established by circumstantial evidence. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273. The jury had before it pictures of the intersection and its approaches. There is nothing in the record showing that appellant, before he reached the intersection, could not have seen appellee. The jury could have concluded that since appellee saw appellant when appellant was three car lengths back of the intersection, appellant could have seen appellee had he looked toward his left. * * * ” Emphasis added.

We hold that the trial court did not err in failing to sustain plaintiff’s motion for a directed verdict as to liability in this cause. Appellant’s first point is overruled.

We hold that there was evidence of probative force to support the jury’s findings to special issues 1, 2, 3, 4, 5 and 6, that the evidence was amply sufficient to support same, and that the trial court properly submitted said issues to the jury.

Also, after carefully considering and reviewing the entire record in this cause in the light of the rules announced in the case of In Re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1952), we further hold that the jury’s findings to special issues 1, 2, 3, 4, 5 and 6, are not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

Appellant’s 2nd, 3rd and 4th points are overruled.

Appellant’s remaining points are deemed as not presenting error under the record in this cause and are respectfully overruled.

The judgment of the trial court is affirmed.


author: CHADICK, Chief Justice.

text:
    Agnes Irene QUADA, Appellant, v. Charles B. QUADA, Individually and by Next Friend, Robert Quada, Appellee.
    No. 7672.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 19, 1965.

      Charles E. Thompson, Atlanta, for appellant.
    Paul M. Branch, Kilgore, for appellee.
   CHADICK, Chief Justice.

This is a divorce suit. The judgment of the trial court is reversed and the case remanded for new trial.

Charles B. Quada, the appellee, was adjudged to be of “unsound mind” in the County Court of Cass County, Texas, on January 7, 1963, and his wife, Agnes I. Quada, the appellant, was appointed guardian of his person and estate, qualifying as such on January 14, 1963. Within ten days of the Cass County decree, Quada was adjudged to be “mentally ill” in the County Court of McLennan County on January 17, 1963, in a proceeding under the terms of the Texas Mental Health Code, and was ordered to be, and was promptly committed to the Veterans Hospital at Waco.

Subsection 3(y) of the Texas Probate Code, V.A.T.S., defines persons of unsound mind in this way, to-wit:

“ ‘Persons of unsound mind’ are persons non compos mentis, idiots, lunatics, insane persons, and other persons who are mentally incompetent to care for themselves or to manage their property and financial affairs.” (Emphasis supplied.)

The judgment declaring Quada a person of unsound mind in the Guardianship proceedings in Cass County fixed his status as a mentally incompetent person at that time and created a legal presumption that such would be his condition at any given time thereafter in the absence of proof that his sanity had been restored. Necessarily, this legal presumption is rebuttable and yields to facts showing reason has been restored. Billups v. Gallant, Tex.Civ. App.1931, 37 S.W.2d 770, writ refused; Elston v. Jasper, 45 Tex. 409; “Insane and Incompetent Persons”, 31 Tex.Jur.2d Sec. 36; 1 Tex.Law of Evidence (Mc-Cormack and Ray) Sec. 98.

The judgment of the McLennan County Court rendered in the proceeding instituted under the provisions of the Texas Mental Health Code declared Quada to be mentally ill, but is silent on his mental competency. The Mental Health Code, Art. 5547 — 83(b); Vernon’s Ann.Civ.St., provides :

“(b) The judicial determination that a person is mentally ill or the admission or commitment of a person to a mental hospital, without a finding that he is mentally incompetent, does not constitute a determination or adjudication of the mental competency of the person and does not abridge his rights as a citizen or affect his property rights or legal capacity.”

Other language in the article confines the application of subdivision (b) to judgments in proceedings brought under the Mental Health Code. Subsection (a) of the article prescribes the effect of a judgment in a Mental Health Code proceeding finding a person mentally incompetent. In short, the McLennan County Court judgment, by the statutes’ terms, made no change in Quada’s status as a person of unsound mind as previously adjudicated in Cass County.

A judgment of the County Court of Gregg County dated November 2, 1964, purporting to find that Quada did not at the date of the judgment require hospitalization as a mentally disturbed person if valid, made no change in Quada’s status as a mental incompetent. This judgment should not have been admitted as evidence in the divorce trial. However, its admission in this trial, conducted before the judge without the intervention of the jury, is not error calculated to or that probably would cause the rendition of an improper judgment. The appellant’s point of error as to this is overruled.

Nor is merit found in appellant’s point that Quada may not by next friend maintain this divorce suit. The rule is that a ward may institute a suit by next friend when his guardian is adversely interested in the subject matter of the suit. Wesner v. Woodson, Tex.Civ.App., 111 S.W.2d 3S4, writ ref.; “Guardian and Ward”, 27 Tex. Jur.2d 592, Sec. 319.

The principal questions raised by appellant’s remaining points are concerned with no evidence, insufficient evidence, and the overwhelming weight and preponderance of the evidence. These points put in question the trial judge’s findings that Quada was mentally competent to bring a divorce action, and that the appellee was guilty of excesses, cruel treatment and outrages of such nature as to render living together insupportable. After an attentive examination of the record this court is of the opinion that there is some evidence to support the judgment rendered. However, such finding only discharges this court’s responsibility in part, for it is said in “Divorce and Separation”, 20 T J. 523, Sec. 188,

“The duty of the appellate court in the review of a divorce case goes further than to determine merely the legal sufficiency of the grounds alleged and proved. The primary question is whether or not the evidence supports the right to a divorce, and nothing done in the trial court can affect the duty of the appeals court to pass on that question, provided an appeal lies in other respects.
“In divorce actions the evidence is required on appeal to be full and satisfactory to the appellate court, as well as to the trial court, if the divorce decree is to stand. And the decree may be reversed unless the evidence is full and satisfactory to the appellate court. It is the duty of the court of civil appeals to re-examine the record, and the evidence, and to determine whether the evidence is full and satisfactory under the statute, and of a nature to justify and support a decree granting a divorce. * *

Quada’s testimony in his own behalf regarding physical and mental cruelty inflicted upon him is meagerly corroborated if at all. It was contradicted generally by his wife and two teen-age children. He gave little detail in describing an assault he claimed that his wife and an older son made on him. His testimony is characterized by a paucity of factual detail. He displayed an antagonistic attitude towards his wife’s counsel and absolutely refused to answer numerous pertinent questions. His dogmatic assertions suggest overstatement. The uncertainty induced by the entire record compel this Court in compliance with the exceptional responsibility placed on it by Article 4632 to conclude that the evidence is not full and satisfactory. The judgment of the court below is reversed and the case remanded for new trial.


author: PHILLIPS, Justice.

text:
    VALOR OIL COMPANY et al., Appellants, v. John J. EISNER et al., Appellees.
    No. 11337.
    Court of Civil Appeals of Texas. Austin.
    Nov. 10, 1965.
    Rehearing Denied Dec. 1, 1965.
    Golden, Croley, Howell, Johnson & Miz-ell, Robert S Mizell, Fred Lohmeyer, Dallas, for appellants.
    Rutledge & Rutledge, W. J. Rutledge, Jr., Abilene, for appellees.
   PHILLIPS, Justice.

This is a suit in which the appellees, plaintiffs below, seek to cancel a certain assignment of production payment in the amount of $65,000 to appellant, Valor Oil Company, and a certain deed of trust executed by said appellant granting to appellant Republic National Bank of Dallas a lien upon the production payment.

The trial court granted judgment in favor of appellees cancelling all of the hereinafter described conveyances and appellants Valor Oil Company and Republic National Bank of Dallas have perfected their appeal to this Court.

We reverse the judgment of the trial court and render judgment that the hereinafter described production payment and deed of trust lien are valid and outstanding.

Appellees, on and prior to December 19, 1961, were the owners of the full seven-eighths (%) working interest (subject to certain overriding royalties not pertinent here) under seven oil and gas leases designated as the “Knight A Lease” through “Knight G Lease,” and the appellees have alleged that on December 19, 1961, the defendant C. T. Robertson made a proposal in writing to them wherein he would institute a waterflooding project on the properties. That in return for an assignment of a portion of the oil and gas recovered, Robertson would install the waterflood project without cost to any of the appellees. This agreement is referred to as the letter of December 19, 1961. The proposal was thereafter accepted by all of such owners. In this regard, a witness and attorney, Jack Bryant, testified that he was representing the appellee, John J. Eisner, in the Fall of 1961 and prepared the December 19, 1961 proposal. Thereafter, he continued to represent Mr. Eisner as an attorney, but about the first of April, 1962, he and Mr. Eisner agreed that if he did anything further in connection with this particular transaction, it should be charged to Mr. Robertson.

On or about the 1st day of May, 1962, Mr. Robertson requested Bryant to assist him in the preparation of the Unit Agreement in connection with these properties as he (Robertson) desired financing from the Republic National Bank of Dallas. At Mr. Robertson’s request, Bryant called Robert S. Mizell, an attorney for Republic National Bank of Dallas, and as a result of that conversation drafted the language which was subsequently incorporated as Article III of the Unit Agreement. He then prepared the Unit Agreement dated June 10, 1962, had it mimeographed on June 12th, 1962, and delivered the mimeographed copies to the interested parties.

Article III of the Unit Agreement reads as follows:

“OPERATOR’S RIGHTS
1. Each of the undersigned NON-OPERATING INTEREST OWNERS, by the execution hereof, grants, transfers and assigns to OPERATOR, subject to the reservation of interest and the provisions regarding the terminating of OPERATOR’S Interest and reversion thereof hereinafter set out, the interest of such NON-OPERATING INTEREST OWNERS in the oil and gas lease and leasehold estate described in Exhibit ‘A’, same being subject to such interests’ proportionate part of all overriding royalties now appearing of record, provided, however:
(a) There is reserved to the undersigned NON-OPERATING INTEREST OWNERS, as an overriding interest, an undivided 47.5% of all the unitized substances produced, saved and sold from the interests in such lease owned by the undersigned NON-OPERATING INTEREST OWNERS, which portion of said unitized substances shall be obtained, used and marketed by the OPERATOR without cost or expense to the NON-OPERATING INTEREST OWNERS save and except gross production and ad valorem taxes, which portion of such unitized substances the NON-OPERATING INTEREST OWNERS shall have the right to receive in kind if desired.
(b) In the event OPERATOR should cease to operate such lease for any reason the interests herein transferred to OPERATOR shall ipso facto terminate and shall immediately revert to and revest in the undersigned NON-OPERATING INTEREST OWNERS and their heirs, successors and assigns.”

Appellees contend, in support of the trial court’s judgment, that the letter agreement of December 19, 1961 and the Unit Agreement were executory contracts that must he construed together. That the two instruments construed together comprise a simple contract under which no conveyance of title was intended and that upon a showing that the contract had not been performed by Robertson, appellees were entitled to its termination in accordance with the judgment of the trial court. That no lien attached in favor of the appellants herein. Appellees cite the following provisions of the Unit Agreement in support of this position:

“Article III, Section 4:
Operator shall, at his own cost and expense, and without any expense to any of the other parties hereto, install and operate such equipment, machinery and other items necessary to water-flood the unitized zone under the unit area in keeping with certain contracts dated December 19, 1961, between OPERATOR and NON-OPERATING INTEREST OWNERS.
OPERATOR agrees to carry out his operations on the unit area in a good and workmanlike manner and in conformity with accepted oil field practices.
In addition to the initiation of the wa-terflooding project at his sole cost and expense, OPERATOR will also operate the unit area at his sole cost and expense, and without expense to the other parties hereto.”
“Article III, Section 1(b):
In the event OPERATOR should cease to operate such lease for any reason the interests herein transferred to OPERATOR shall ipso facto terminate and shall immediately revert to and re-vest in the undersigned NON-OPERATING INTEREST OWNERS and their heirs, successors and assigns.”
“Article VIII, Section 1:
All of the terms and provisions of this agreement shall extend to and shall be binding upon and inure to the benefit of the respective heirs, devisees, legal representatives, successors and assigns, of the parties hereto, and shall constitute a covenant running with the land, lease and interests covered hereby.”
“Article VIII, Section 2:
Any transfer, assignment or conveyance of all or any part of any interest owned by any party hereto with respect to any tract shall be made expressly subject to the terms of this agreement.”

Appellants are before us on three points of error however as we sustain their first point we shall not discuss the remaining two.

Appellants’ first point of error is that of the trial court in granting judgment in favor of the appellees cancelling the production payment assigned to the appellant Valor Oil Company and the deed of trust and assignment and runs in favor of the appellant Republic National Bank of Dallas for the reason that under the unambiguous terms of the Unit Agreement, the leasehold interest of appellees in the properties, subject to the reservation of overriding royalty, was conveyed to the defendant C. T. Robertson; such unit agreement contained no condition of defeasance which would be applicable in the case at hand; and accordingly, neither the conveyance to Robertson, the assignment of the production payment to the appellant Valor Oil Company, nor the deed of trust and assignment of runs in favor of the Republic National Bank of Dallas can be cancelled.

It should be pointed out that in his findings of fact and conclusions of law the trial court found that C. T. Robertson took. possession of the lands described in the leasehold in pursuance of “such written proposaland continued his possession thereof until the Receiver in this cause was appointed, purportedly pursuant to the terms and provisions of the Unit Agreement and such proposal; and that all of the acts of the said Robertson pertinent to said properties were done by him in the purported performance of the contracts evidenced thereby. Consequently, there is no question in this case of any reversion because of any nonperformance on the part of Robertson. There is a question as to the quality of Robertson’s performance with respect to the waterflooding project and if Robertson failed to perform as agreed, ap-pellees’ remedy lies in damages.

There is no language in the Unit Agreement indicating an intention that it was solely to implement the December 19, 1961 letter and the references to this letter are only for certain limited purposes. These references appear as follows:

The first sentence in Article III, paragraph 4, reads as follows:

“OPERATOR shall, at his own cost and expense, and without expense to any of the other parties hereto install and operate such equipment, machinery and other items necessary to water-flood the unitized zone under the unit area in keeping with certain contracts dated December 19, 1961, between OPERATOR and NON-OPERATING INTEREST OWNERS.”

Article V, paragraph 2, reads as follows:

“OPERATOR shall obtain and pay for all other personal property and equipment necessary to carry out the operation, including waterflooding, of the unit area and all such property and equipment obtained by OPERATOR shall at all times remain the property of the OPERATOR, subject only to certain rights of NON-OPERATING INTEREST OWNERS to acquire title to such property under the terms of certain agreements between the NON-OPERATING INTEREST OWNERS and OPERATOR dated December 19, 1961.”

Thereafter, by an instrument dated July 13, 1962, designated “Assignment of Production Payment,” the defendant C. T. Rob-bertson conveyed to Valor Oil Company eighty per cent (80%) of his net interest (being the interest conveyed to him by the Unit Agreement less the overriding royalty interest reserved by the appellees) until Valor Oil Company received the full net sum of $65,000.00, plus an additional amount equal to seven per cent (7%) per annum on the declining balances of such amount computed monthly.

Contemporaneously with the execution and delivery of that assignment, appellant Valor Oil Company executed its deed of trust and assignment of runs to a trustee, to secure appellant Republic National Bank of Dallas in the payment of a $65,000.00 promissory note. For the execution and delivery of such assignment, the defendant C. T. Robertson was paid the sum of $65,-000.00 by the deposit of such amount in his account and none of such funds were used to apply on indebtedness, if any, owing by C. T. Robertson to such Bank.

Even under the appellees’ pleadings, evidence, briefs and motions, C. T. Robertson had until some time in November, 1962, to complete the proposed waterflood and there is no evidence that he was in default or that any of the appellees claimed that he was in default at the time of these transactions with appellant Valor Oil Company. As a matter of fact, it is undisputed that defendant C. T. Robertson did drill a water well, convert three injection wells, install pressure pumps, lay lines and do other things in pursuance of the waterflood project.

Under the foregoing facts and circumstances, the rights of these appellants became fixed upon the execution and delivery of the assignment of production payment and of the deed of trust and assignment of runs and such rights were and are not subject to defeasance irrespective of what may have subsequently transpired.

The appellees have taken the position that the December 19, 1961 letter is the basic instrument between C. T. Robertson and themselves, and that the Unit Agreement merely implements the letter. The converse is true, because, in addition to the words of conveyance contained in the Unit Agreement (and not appearing in the letter) we have the following additional factors:

The Unit Agreement executed by the same parties subsequent to the letter agreement refers to the letter agreement solely for certain limited purposes as quoted above in Article III, 4 and Article V, 2.

Contrary to the allegations of the appel-lees that C. T. Robertson had the option to operate the project for a period of two years under both the letter and the Unit Agreement, the letter in the fifth paragraph refers to a two-year period and the Unit Agreement in Article XIII refers to a three-year period.

The letter makes absolutely no reference by implication or otherwise to the subsequent execution of a Unit Agreement or other instrument.

The Unit Agreement was executed subsequent to the letter, is a formal document, and was acknowledged by all of the parties before Notaries Public.

It is, therefore, necessary to examine the operative portions of the Unit Agreement to determine its effect.

Article III, 1 (a) constitutes a conveyance from appellees to C. T. Robertson and a reservation by the appellees of an overriding royalty of 47.5%. The effect of this language as a conveyance is recognized in the introductory portion of Article IV, 2, reading:

“Except as provided in Article III, Section 1, with reference to the assignment of a portion of the oil and gas lease and leasehold estate to Operator * * * if

Further language in the Unit Agreement referring to the conveyance is as follows:

In the event Robertson ceased to operate the properties the interests herein transferred ipso facto terminate and revert to the appellees.

Article III, 1(b). When production and operations cease for more than thirty (30) consecutive days or if Robertson at the end of three years from the date of commencement of water injection determines that unitized substances can no longer be produced in paying quantities.

Article III, 4, sets forth the obligations of Robertson, as follows :

“4. OPERATOR shall, at his own cost and expense, and without expense to any of the other parties hereto install and operate such equipment, machinery and other items necessary to waterflood the unitized zone under the unit area in keeping with certain contracts dated December 19, 1961, between OPERATOR and NON-OPERATING INTEREST OWNERS. The plan and method of such waterflooding operations shall be at the discretion of OPERATOR, and OPERATOR shall be under no liability to the other parties hereto as to any action in good faith taken or omitted to be taken by him in connection therewith, however, OPERATOR agrees to carry out his operations on the unit area in a good and workmanlike manner and in conformity with accepted oil field practices. In addition to the initiation of the water-flooding project at his sole cost and expense, OPERATOR will also operate the unit area at his sole cost and expense, and without expense to the other parties hereto.” (Italics added.)

Other provisions in the agreement relate to the respective rights of the parties as to personal property, unitization of the production from the various leases, allocation of the unitized production, taxes, transfers and assignments, limitations of liability, laws and regulations, force majeure and formal provisions.

Under the plain and unequivocal language of the Unit Agreement there was a conveyance to the defendant C. T. Robertson, together with certain collateral covenants on his part regarding waterflood operations. Undertakings such as those of Robertson’s have been repeatedly held to be covenants, for the breach of which the remedy is damages, even as between the parties to the conveyance. The Supreme Court passed on the question in Chicago, T. & M. C. Ry. Co. v. Titterington et ux., 84 Tex. 218, 19 S.W. 472 (1892). In that case the plaintiffs, Titterington et ux., sought to cancel a right-of-way deed which they had previously executed to the railroad. That right-of-way deed expressly stated the consideration in the following language:

“ ‘That, for and in consideration of-the enhanced value to be given and is contemplated to arise to our lands and other property by the location and construction of the Chicago, Texas & Mexican Central Railway Company, and for the consideration of full and complete value accruing to us by this transaction, in locating and maintaining a station on the lands hereby granted/ * *

The station referred to was not constructed. The trial court granted the Titteringtons the relief requested, but the Supreme Court reversed and remanded the case, stating:

“We are of the opinion that the deed is in no sense executory, but that it passed the title to the land entirely out of the grantors, and to the railway company. The appellees neglected to reserve any title in themselves, or to provide for the reversion of the estate in the event that the contract should be broken by the grantee.”

And further that:

“ * * * in case of doubtful language or intention, the promise or obligation of the grantee will be construed to be a covenant limiting the grantor to an action thereon, and not a condition subsequent, with the right to defeat the conveyance. Under the authorities, we think that it must be held, and we do hold, that the promises or obligations of the railway company referred to in the deed are in the nature of covenants, not conditions, and therefore the plaintiffs, aside from the other questions in the case, could not reclaim the land itself on account of the nonperformance of the covenants or promises by the grantee, but would be required to sue for the damages arising from the breach of the contract.”

To the same effect are a long line of cases concerning deeds and grants in consideration of the grantee’s agreement to maintain and support the grantor, and to perform other agreements in connection with the premises conveyed. A recent example of these cases is Hearne v. Bradshaw, 158 Tex. 453, 312 S.W.2d 948 (1958). In that case Mrs. Hearne conveyed a house and lot to the Bradshaws. The deed contained the following recitation, to wit:

“ ‘Ten ($10.00) Dollars * * * Dollars to me, and in hand paid by Jasper Bradshaw and his wife Mattie Bradshaw, and the further consideration to take the said property and maintain the same, pay all taxes and insurance and furnish me with food and clothing the rest of my natural life, and I do by this instrument reserve the right to live in said property as long as I live. It being the intention of this instrument to deed said property to the said grantees but reserve a life interest in the property in me the said grantor.’ ”

Mrs. Hearne alleged that the consideration for the deed had failed in that the Brad-shaws had refused to perform the obligations imposed upon them by the terms of the deed. The Supreme Court held that Mrs. Hearne was not entitled to rescission even though the covenants constituting the consideration for the deed had not been performed. The Court said:

“Conditions subsequent are not favored by the courts, and the promise or obligation of the grantee will be construed as a covenant unless an intention to create a conditional estate is clearly and unequivocally revealed by the language of the instrument. In cases where the intention is doubtful, the stipulation is treated as a covenant rather than a condition subsequent with the right to defeat the conveyance. * * * Here the parties did not see fit to provide that the grantees’ failure to perform would cause the property to revert to the grantor, and. there is nothing in the deed to indicate that they intended to create a conditional estate. Although petitioners argue to the contrary, the grantor’s reservation of a life estate does not suggest that the estate granted would be forfeited if the other stipulations of the instrument were breached. We agree with the Court of Civil Appeals, therefore, that the provisions obligating respondents to maintain the property, pay the taxes and insurance, and furnish food and clothing to the grantor were covenants and not conditions. The remedy for their breach is an action for damages, and petitioners were not entitled to recover the estate conveyed to respondents by the deed.”

Similar cases are Meyer v. Swift, 73 Tex. 367, 11 S.W. 378 (Sup.Ct.1889); Kozelski et al. v. Bronder, Tex.Civ.App., 1947, 297 S.W. 664, error dismissed; Neyland v. Black et ux, Tex.Civ.App., 1922, 238 S.W. 304, n. w. h.; and Rosek v. Kotzur, Tex.Civ.App., 1925, 267 S.W. 759, n. w. h.

The same result was reached in Foster v. L. M. S. Development Co., Tex.Civ.App., 1961, 346 S.W.2d 387. That case involved a long-term grant lease which obligated the lessee to either spend a certain amount on improvements or to raze the existing structure and erect a new building in lieu thereof. The lessors sought cancellation of the lease because of the breach by the lessee of those covenants. The Court of Civil Appeals held that the lessors were not entitled to cancellation, stating:

“Implied conditions are not favored in law or in equity. The promise of an obligee will be construed as a covenant unless an intention to create a conditional estate is clearly and unequivocally revealed by the language of the instrument. * * * It has long been the rule that the remedy for breach of covenant is damages, not cancellation.”

For these reasons we reverse and render the judgment of the trial court cancelling the assignment of production payment to Valor Oil Company and the deed of trust lien in favor of Republic National Bank of Dallas and hold that such production payment was a conveyance to Robertson and the deed of trust lien held by Republic National Bank is a valid and outstanding obligation.

Reversed and rendered.


author: DUNAGAN, Chief Justice.

text:
    Ramon W. CALLAWAY, Appellant, v. Loreta ELLIOTT et vir, Appellees.
    No. 158.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 21, 1965.
    Rehearing Denied Dec. 2, 1965.
    Gus E. Meriwether, J. B. Sallas, Crockett, for appellant.
    F. P. Granberry, Adams & Granberry, Crockett, for appellees.
   DUNAGAN, Chief Justice.

This is a summary judgment case. Ap-pellee, Loreta Elliott, joined by her husband, Kenneth C. Elliott, filed this suit to enforce the provisions of a judgment of the trial court in its prior cause No. 13,606, in which prior cause appellant Callaway was granted a divorce from appellee, Lor-eta Elliott, and in which judgment the property of the parties was partitioned. Appellant duly filed his answer and first amended original answer in which he contends that the portion of the property involved in this suit was not the home of the parties, nor any part of the community property of the parties and that the property agreement embodied in the judgment was not the agreement he entered into in that he never agreed to give or to convey to appellee, Loreta Elliott, the property here in controversy.

On May 28, 1962, the trial court entered a judgment in its cause No. 13,606 styled Ramon W. Callaway v. Loreta Callaway and this judgment, in addition to granting a divorce to the plaintiff, Ramon W. Cal-laway, appellant here, recited that the parties had agreed upon a partition of their community estate, and such judgment then partitioned such community estate. No appeal was taken from this judgment and same became a final judgment.

The judgment in the prior cause No. 13,606 contains the following provisions in regard to the disposition of the property of the parties:

“ * * * Plaintiff and Defendant and their attorneys announced in open court that an agreement for settlement of the respective property rights of Plaintiff and Defendant had been agreed upon and the said agreement as follows was submitted to the Court for Approval: These parties agreed that Defendant (Appellee, Loreta Elliott, here) have as her part and share of all of the community property belonging to Plaintiff and Defendant: * * * the home of the Plaintiff and Defendant situated in the City of Crockett in Houston County, Texas, on North 7th Street, described in a Deed of Trust given by Ramon Callaway and Loreta Callaway to J. G. Beasley, Trustee, * * * which is dated the 20th day of December, 1948, and recorded in Book 51 at page 219 of the Deed of Trust Records of Houston County, Texas. * * * ”
The judgment in cause No. 13,606 further provided:
“The court being of the opinion that, having due regard to the rights of each party, a division of their community property in the manner above described and agreed upon by the parties will be just, right and equitable; it is, therefore, ORDERED, ADJUDGED and DECREED that the said agreement as above set forth is now here approved by the Court.
“It is further ORDERED, ADJUDGED and DECREED by the Court that * * * the parties hereto, both Plaintiff and Defendant, execute and deliver to the other party any and all deeds, transfers, conveyances and other instruments which may be necessary or proper to vest title of the respective properties awarded to each of said parties by the aforesaid agreement and this judgment, in order that said agreement be complied with in every respect, and that same be done without undue delay; and it is further ORDERED, ADJUDGED and DECREED that any and all appropriate or necessary writs of execution or other legal writs issue for the enforcement of this judgment.”

On July 5, 1962, appellee, Loreta Elliott, in compliance with the prior judgment duly conveyed to Callaway certain parcels of land therein awarded to appellant Calla-way.

Appellant conveyed to Loreta Elliott by deed dated October 9, 1962, the land the prior judgment awarded to appellee, Loreta Elliott, save and except the North portion of the tract of land in question, which resulted in appellee instituting this suit to compel appellant to convey to appellee, Loreta Elliott, the entire tract as provided for in the judgment or in the alternative that she recover from Ramon Callaway such tract of land and that title be divested out of Ramon Callaway and be vested in Loreta Elliott.

The appellees then filed their motion for summary judgment based on the pleadings in this cause and the former judgment in cause No. 13,606. Appellant duly filed his affidavit in answer to appellees' motion for summary judgment and incorporated his first amended original answer therein by copying same into such affidavit. The court below, after a hearing on such motion, entered a judgment enforcing the prior judgment in cause No. 13,606, ordering that all the right, title and interest of the appellant Callaway in and to such tract (the tract here involved) be divested out of him, and that all such right, title and interest in the same be vested in said Loreta Elliott and further provided for all necessary writs to enforce the judgment. From this judgment Callaway has appealed.

The appellant’s contentions are: (1) the North portion of the tract of land in controversy was not any part of the community property of the parties; (2) nor was it any part of the home of the parties; (3) that appellant never agreed to convey the North portion of the tract in question to the appellee and that each constitutes a fact issue that must be determined.

From a reading of the prior judgment in cause No. 13,606 entered on May 28, 1962, it is obvious that it awarded this entire tract of land to the appellee as her part of the community property pursuant to the property settlement agreement entered into between the parties and announced to the court, identifying the same as the home of the parties located on North 7th Street in the City of Crockett in Houston County, Texas, further identifying the tract of land as being the tract described in the Deed of Trust given by Ramon Cal-laway and Loreta Callaway to J. G. Beasley, Trustee, giving the date thereof and the volume and page of the Deed Records and County where it was recorded, which instrument describes the entire tract by metes and bounds. At any rate, the judgment definitely awarded the tract of land in controversy to appellee, Loreta Elliott.

If this entire tract were not in fact a part of the community property or home of the parties, or if the appellant did not agree to convey the entire tract to appellee, all as recited in the judgment, then it follows that the judgment would be erroneous.

As above pointed out, this suit is one to compel appellant to comply with the judgment in cause No. 13,606. This is not a suit seeking to set aside, modify or correct the prior judgment and the appellant has not sought any such relief by way of cross action.

Appellant in his supplemental brief says: “Appellant’s position is not that the judgment is void or in error, but that such judgment is a valid and binding judgment the scope and effect of which does not entitle the Appellees to the relief for which they are seeking in this action.”

However, we think the substance of appellant’s contentions is to the effect that the judgment is erroneous in that it recites that the property in controversy was a part of the community estate of the parties, that all of the tract constituted the home, that the agreement of the parties provided for the appellant to convey to the appellee, Loreta Elliott, all of the entire tract rather than merely the South portion of the tract here in controversy.

If the judgment of the trial court is void, it is subject to attack in a collateral proceeding; but if the judgment be merely erroneous, that is not sufficient ground to vitiate it. Heard v. State, 146 Tex. 139, 204 S.W.2d 344, 1947; Martin v. Sheppard, 145 Tex. 639, 201 S.W.2d 810, 1947; Klier v. Richter, 119 S.W.2d 100, (Tex.Civ.App.), 1938, writ refused; Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216.

If the trial court did not have jurisdiction, both of the parties and of the subject matter of the litigation, the judgment is void and subject to attack in this collateral proceeding. If, on the other hand, the court had jurisdiction of the parties and the subject matter, the judgment is not void, however erroneous it may be. Heard v. State, supra; Klier v. Richter, supra; Ex. parte Tyler, 152 Tex. 602, 261 S.W.2d 833, 1953; Perry v. Copeland, 323 S.W.2d 339, (Tex.Civ.App.) 1959, writ dismissed; Bearden v. Texas Co., 60 S.W.2d 1031, (Tex.Com.App.), 1933.

The court in Wright v. Shipman, 279 S.W. 296, (Tex.Civ.App.), writ refused, said:

“A judgment is not void because it may be shown that there was an erroneous application of the law by the trial judge to the merits of the case. Such judgment is voidable, but, until this is legally determined and the judgment is set aside, it must be given full force and effect, and is immuned to a collateral attack, and its processes and writs must be respected. * * * ”

Whether a judgment of a court of record is void or voidable must be determined from an inspection of the record. Gehret v. Hetkes, 36 S.W.2d 700, (Tex.Com.App.) 1931; Ringgold v. Graham, 13 S.W.2d 355, (Tex.Com.App.) 1929.

Even assuming that the judgment as entered did not follow the agreement of the parties made prior thereto, that fact would not make the judgment any less binding and valid. Christen v. Tarrant, 288 S.W.2d 845, (Tex.Civ.App.) 1956, writ dismissed; Gulf Production Co. v. Palmer, 230 S.W. 1017, (Tex.Civ.App.) 1921, writ refused.

The record discloses that the trial court in the divorce case, cause No. 13,606, had jurisdiction of both the parties and subject matter.

In order for the judgment in the divorce case to be subject to collateral attack, it must be absolutely void and not merely voidable. Ex parte Tyler, supra; Perry v. Copeland, supra.

Appellant concedes, and we concur, that the prior judgment is not void. Therefore, applying the law as above pronounced to this case, appellant’s alleged defenses to appellees’ cause of action constitutes a collateral attack upon the said final judgment.

There is no genuine issue as to any material fact and appellees are entitled to a judgment as a matter of law. The court properly granted the motion for summary judgment.

Judgment affirmed.


author: SELLERS, Justice. DUNAGAN, Chief Justice MOORE, Justice

text:
    Homer PUCKETT et ux., Appellants, v. W. A. FRIZZELL, Appellee.
    No. 153.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 21, 1965.
    Rehearing Denied Dec. 2, 1965.
    See, also, Tex.Civ.App., 377 S.W.2d 715.

      John E. Heitler, Pope & Heitler, Tyler, for appellants.
    Ben Goodwin, Tyler, for appellee.
   SELLERS, Justice.

This is an appeal from a judgment of the 114th District Court of Smith County. The case was tried to a jury and resulted in a verdict in favor of appellee. Appellee filed a motion for judgment on the verdict of the jury, and the court entered judgment on November 13, 1964, for appellee, to which judgment appellants excepted and gave notice of appeal to this court. Appellants filed motion for new trial on November 20, 1964, which was overruled by order of the court on December 17, 1964, from which order no notice of appeal was given. Cost deposit in cash in lieu of appeal bond was made on January 14, 1965.

The transcript and statement of facts on appeal were presented to the Clerk of this court on March 8, 1965.

The appellee in its brief challenges this court’s jurisdiction to pass on the merits of this appeal for the reason that the cost deposit in lieu of appeal bond was not filed within the time required by Rule 356, and the transcript and statement of facts were not filed in this court in the time required by the rules to confer jurisdiction on this court. Rule 386.

We think this contention must be sustained. Rule 363 provides that the appeal is perfected when the notice of appeal is given and bond filed. The only notice of appeal is that contained in the judgment, but the deposit of cash in lieu of appeal bond was not made in time to perfect the appeal. Rule 356. Had notice of appeal been given from the order overruling motion for new trial, the case would have been controlled by the case of City of Corpus Christi v. Gregg, Tex.Civ.App., 267 S.W. 2d 478. Here the court held that the appellant’s second notice of appeal controlled and the time to perfect the appeal would run from the second notice of appeal, citing case of Jones v. Elliott, Tex.Civ.App., 259 S.W.2d 288.

Chief Justice Bell of the Houston Court of Civil Appeals, in the case of Victoria Chekanski v. Texas & New Orleans Railroad Company, 306 S.W.2d 935, makes clear the necessity for notice of appeal from an order overruling a motion for new trial by order of the court when he said:

“Appellee has moved to dismiss the appeal because of the want of a timely notice of appeal. We conclude that no timely notice was given, but that under the facts above stated none was necessary. Appellee concedes, and we concur in such concession, that in one well defined instance only will jurisdiction be conferred on this Court by filing of a bond without notice of appeal. This instance is where a motion for new trial is overruled, not by specific ruling of the court, but by operation of law. Houston Life Ins. Co. v. Dabbs, Tex.Com.App., 125 Tex. 100, 81 S.W.2d 42; Combined American Ins. Co. v. Morgan, Tex.Civ.App., 207 S.W.2d 701; McDonald ‘Texas Civil Practice’, § 18.-31, Vol. 4.”

We are cited by appellant to Rule 306c as controlling in this case. This rule has no application to cases where there is no premature filing of notice of appeal. We repeat that the only notice of appeal contained in the record is that in the judgment which must control the proceedings thereafter to confer jurisdiction on this court.

This cause is dismissed for want of jurisdiction.

DUNAGAN, Chief Justice

(concurring).

I concur with Justice Sellers in that this case should he dismissed for the lack of jurisdiction of this court because the deposit of cash in lieu of appeal bond, the Transcript and Statement of Facts were not timely filed to perfect the appeal.

Rule 306c is not applicable to this case because the notice of appeal from the judgment was incorporated therein and the appeal bond was filed after both the judgment and order overruling the motion for new trial were entered. The notice of appeal from the judgment cannot be considered as a prematurely filed notice of appeal from the order overruling the motion for new trial because it is not directed to said order. The notice of appeal contained in the judgment in the instant case cannot serve a dual purpose of such notice from both the judgment and order overruling the motion for new trial.

MOORE, Justice

(dissenting).

I respectfully dissent. Appellant gave notice of appeal in the judgment dated November 13, 1964. Thereafter, he seasonably and timely filed his motion for new trial which was timely overruled by the court on December 17, 1964. After the court overruled the motion for new trial, appellant did not again give notice of appeal, but apparently relied upon the notice of appeal theretofore given in the judgment. A cash deposit in lieu of an appeal bond was made within 30 days after the order overruling the motion for new trial and the Transcript and Statement of Facts were filed in this court within 50 days thereafter.

If we compute the time from the judgment dated November 13, 1964, the period for filing the bond and record on appeal has expired and this court would not have jurisdiction. On the other hand, if we compute the time based on the date of the order overruling the motion for new trial on December 17, 1964, the period for the filing of the bond and record has not expired and the court would have jurisdiction.

The effect of the holding of the majority is to say that the appellant is compelled to give notice of appeal from or after the order overruling the motion for new trial, and that a failure to a second notice amounts to an abandonment of the motion for new trial. As a consequence, they hold that the time for the filing of the deposit in lieu of bond must be computed from the date of the judgment rather than the date of the order overruling the motion for new trial, and since the deposit was not made within 30 days after the judgment, the court is therefore without jurisdiction. I am not in accord with this conclusion.

It is generally stated that all doubts should be resolved in favor of an appellant’s right to appeal. City of Abilene v. American Surety Co. (Tex.Civ.App.), 73 S.W.2d 616.

Rule 353 of the Texas Rules of Civil Procedure provides as follows:

“(a) An appeal, when allowed by law, may be taken by notice of appeal (1) in open court, noted on the docket or embodied in the judgment, order overruling motion for new trial, or other minute of the court, or (2) filed with the clerk; such notice to be given or filed within ten days after the judgment or order overruling motion for new trial is rendered.”

Rule 363, T.R.C.P. provides that the appeal is perfected when the notice of appeal is given and the bond or affidavit in lieu thereof has been filed.

The jurisdictional question presented poses this question: Under Rule 353, above quoted, if a party gives notice of appeal within ten days after final judgment and thereafter files a motion for new trial, which is overruled, is it necessary to give any further notice of appeal? Judge Funderburk in Fitzgerald v. Lane, (Tex.Civ.App.) 126 S.W.2d 64, reversed on other grounds, 137 Tex. 514, 155 S.W.2d 602, answered the question as follows: “ * * * Although there may be some dicta to the contrary, it is our considered opinion that no additional notice of appeal under such circumstances is required. * * * ”

It seems to me that a fair interpretation of Rule 353 is that it means literally what it says, namely: That notice of appeal is to be given “within ten days after the judgment or (not and) order overruling motion for new trial is rendered.” (Emphasis, supplied.)

Regardless of the time when the notice of appeal is given, appellant is required to appeal from the judgment. There can be no appeal from the order overruling the motion for new trial. Neely v. Tarrant County, 132 Tex. 357, 124 S.W.2d 101; City of Corpus Christi v. Gregg (Tex.Civ.App.) 267 S.W.2d 478. If, therefore, the appeal is not from the order overruling the motion for new trial there would seem to be no necessity in again giving such notice after the order overruling the motion.

I therefore conclude that the failure to give notice of appeal after the order overruling the motion for new trial does not, as a matter of law, amount to an abandonment of the motion for new trial. Such failure, however, may in some cases be sufficient to show that the appellant has abandoned the assignments of error presented in the motion. City of Abilene v. American Surety Co., supra. But the question of whether or not the appellant has abandoned the assignments of error is not a jurisdictional question, but rather a question of the procedure to be followed after the court has assumed jurisdiction of the cause. Fitzgerald v. Lane, supra.

McDonald in his work on Texas Civil Practice, makes this observation: “The notice may be given both after the judgment and after the order on the motion, but if it is given promptly after judgment, it seems unnecessary to repeat it when the motion for new trial is overruled.” McDonald, Texas Civil Practice, paragraph 18.31, page 1508, citing Fitzgerald v. Lane, supra; City of Abilene v. American Surety Co., supra.

If a second notice of appeal is unnecessary, failure to give such notice cannot be construed as an abandonment of the motion. I would therefore hold that the time for the filing of the bond and record on appeal must be computed from the date of the order overruling the motion for new trial and not from the date of the judgment, and would thus hold that the appeal has been properly perfected.

If, however, by some stretch of the imagination, the Rules of Civil Procedure can be construed as requiring another notice of appeal after the order overruling the motion for new trial, the notice of appeal theretofore given in the judgment would then become a premature notice of appeal as provided in Rule 306c, T.R.C.P. The rule specifically provides that no notice of appeal shall be held to be ineffective because prematurely filed. It declares that every such notice of appeal shall be deemed to have been filed on the date of, but subsequent to, the rendition of the judgment appealed from or from the date of the order overruling the motion for new trial, “if such a motion is filed.” Thus, even though the rules be construed as requiring a notice of appeal after the order overruling the motion for new trial, appellants’ notice of appeal theretofore given in the judgment must be deemed to have been filed subsequent to the order overruling the motion. For this additional reason, I would therefore hold that the time for the filing of the bond and record on appeal must be computed from the date of the order overruling motion for new trial rather than the date of the judgment and that the court has jurisdiction of this cause.


author: SELLERS, Justice.

text:
    BITUMINOUS CASUALTY CORPORATION, Appellant, v. R. D. MOORE, Appellee.
    No. 157.
    Court of Civil Appeals of Texas. Tyler.
    Nov. 4, 1965.
    Rehearing Denied Dec. 2, 1965.
    Tracy Crawford, Ramey, Brelsford, Flock & Devereux, Tyler, for appellant.
    Dean Jorgenson, Gallagher, Wilson, Berry & Jorgenson, Dallas, Crawford Parker, Jr., Carthage, for appellee.
   SELLERS, Justice.

This is a workmen’s compensation case, tried to a jury. Upon the jury verdict the court entered judgment for the plaintiff and defendant has appealed.

The first three points of error complained of by the appellant is to the effect that the court erred in overruling defendant’s objections to the court’s charge.

The record on appeal does not contain any exceptions and objections to the court’s charge; and for this reason, this court cannot consider said assignments.

“Where no objections to alleged erroneous charge appeared in record, such objections could not be first urged in Court of Civil Appeals and were considered waived. Rules of Civil Procedure, rules 272, 274.”

Williams v. Sperlich, Tex.Civ.App., 362 S.W.2d 204.

“Error, if any, in trial court’s charge casting burden of proof on plaintiffs, cannot be considered on defendant’s appeal from judgment on jury’s finding for plaintiffs, in absence of objections and exceptions to such charge. Rules of Civil Procedure, rules 272, 274.

Southwestern Hotel Co. v. Rogers, Tex. Civ.App., 183 S.W.2d 751.

The appellant complains of the following proceedings:

“In Plaintiff’s cross-examination of the Defendant’s witness, Dr. Downs, Plaintiff’s attorney was having the doctor read from the hospital records introduced as Defendant’s Exhibits 4 and 5, and the following dialogue took place:
“Q. Now at seven o’clock, and I don’t know whether this is A.M. or P.M. — I guess day report, must be in evening, I suppose, certain medication was given. What was that?
“A. Darvon compound, 65.
“Q. What was it for?
“A. Pain in leg and something else I can’t read.
“Q. That has been marked over, hasn’t it, Doctor? I looked at it quite a while and I’ll give you a chance, but I’m sure that says ‘back’ underneath there.
“MR. CARROLL: Do you want to get on the stand and testify to that, Mr. Jorgenson? We object to that statement of counsel, Your Honor, and ask that it be stricken from the record.
“THE COURT: I’ll sustain it and order it stricken. The jury will disregard it at this point, gentlemen.”

If this was error we think it was surely cured by the court’s immediate instructions to the jury not to consider the same.

Another complaint of appellant is to the action of the court in sustaining appellee’s objection to appellant’s cross examination of Doctor Pope on the ground that the appellant’s cross examination was repetitious.

Out of the presence of the jury the appellant secured the following evidence from Doctor Pope:

“Q. Dr. Pope, you were asked the question substantially as follows: ‘Will you state for the record if you do not state that this man has a ruptured disc, what his injury — what you say his injury is? Not what it might be, not what it could be, but what in your opinion his injury is ?
“A. I think that he has a ruptured disc.
“Q. It is your opinion, based on your examination of this man * * *
“A. That’s my opinion.
“Q. * * * that he has a ruptured or herniated intervertebral disc?
“A. I think so.”

We are of the opinion that the same evidence is in the record and the court did not err in his ruling. The manner and extent of cross examination must rest largely in the discretion of the trial court. Texas Employers’ Insurance Association v. Spivey, Tex.Civ.App., 286 S.W.2d 197.

The transcript in this case wai filed in this court on the 14th day of April, 1965. Appellant’s brief was filed on May 14, 1965, and appellee’s brief was filed in this court on June 7, 1965. On July 15, 1965, this court set this case for submission and oral argument on September 23, 1965, at which time the case was heard on oral argument, and this court has had the cause under consideration since that time.

On November 2, 1965, the appellant filed in this court application to be permitted to bring up an amended transcript of the record which includes a number of instruments not contained in the original transcript; such as, the appellant’s objections and exceptions to the court’s charge, bills of exception, and jury arguments by counsel. In this motion it is stated that the omission of these instruments from the transcript is due to no fault or inattention of appellant. No other excuse for the delay is offered. This court considered the application to file the amended transcript and the same is denied. To grant the same would, in our opinion, be a flagrant violation of Rule 413. This rule provides:

“A cause will be properly prepared for submission only when a transcript of the record exhibits a cause prepared for appeal in accordance with these rules, and filed in the court under the rules, with briefs of one or of both the parties. All parties will be expected, before submission, to see that the transcript of the record is properly prepared.”

This rule has been interpreted in the case of DeLeon v. Texas Employers Ins. Ass’n, Tex.Civ.App., 159 S.W.2d 574, where it was held:

“Under Rules of Civil Procedure, it is duty of an appellant, as a party, to see that transcript of the record is properly prepared, and the authority to allow corrections of the record after submission should not be exercised so as to permit alterations relating to alleged inaccuracies, defects or omissions of which party seeking the alteration or correction had notice prior to submission of the appeal. Rules of Civil Procedure, rule 413.”

Finding no error in the record, the judgment of the trial court is affirmed.


text:
    C. L. CAIN and Hershel Wood, Appellants, v. Henry COLEMAN, Appellee.
    No. 7666.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 19, 1965.
    Rehearing Denied Nov. 30, 1965.

      Harry B. Friedman and Harkness & Friedman, Texarkana, for appellants.
    Edward Miller, Raffaelli & Keeney, Texarkana, for appellee.
   CHADICK, Chief Justice.

A minor through his father as next friend brought this suit against a used car dealer to recover $875.00 paid for a used automobile. Summary judgment against the partners composing the dealership was entered. The judgment is reversed and the case remanded for trial.

The affidavits on file show that the used car dealer, acting through one of its partners, sold Willie Coleman a 1957 Chevrolet Convertible on April 29, 1964, for $875.-00 cash. Willie Coleman was then twenty years of age, and had no need for the automobile. He took possession and drove the vehicle home, although he did not then or thereafter receive a title certificate vesting ownership in him. The affidavits present an immaterial conflict as to whether Willie returned the car to the used car lot the first or second day after the purchase transaction.

Willie Coleman says by affidavit that the purchase was made without the knowledge or consent of his father, Henry Coleman. Besides the evidence already recited the remaining facts, according to Willie’s affidavit, are that he returned the car to the partnership on April 30, 1964, disaffirm-ed the sale and demanded return of his purchase money. The • car, he says, was returned in the same condition as when bought, and was accepted by the car dealer, though reimbursement was refused. Also, he deposes in his affidavit and pleads in his petition that on May 1, 1964, he and his father by certified mail notified the dealer of the disaffirmance of the sale and offered to execute a transfer of title, if title to the car had previously vested in him.

The car dealer countered the Coleman affidavit by filing the affidavit of one of its partners, C. L. Cain. Such affidavit says in part:

“On or about April 29, 1964, Willie Henry Coleman came to my place of business and wanted to buy a car. I questioned him very closely as to his age and he told me that he was over twenty-one years of age. Furthermore, he told me that he was a married man. He signed a certificate to the effect that he was over the age of twenty one. If I had had any reason to believe that he was not telling me the truth and that he was not over twenty one or that he was not married, I would not have traded with him. This man, Coleman, had a man with him who was held out to be his father and the other man with him stated that his boy was over twenty one.
“About two days after I sold him the car, he brought the car back to the lot for an oil change. I had told him when I sold him the car that he had an oil change coming. I delivered the car to the Mickey Haltom Service Station for the oil change and the car has been at Mickey Haltom’s Service Station ever since. The car has never been tendered back to me.
“During the time that Coleman had the car, he had abused the car to the extent that the inserts in the motor were not loose, considerably depreciating the car.”

The appellee’s brief invites affirmance on either of two grounds. First. Willie Coleman by reason of his minority was privileged to repudiate the sale and recover the consideration paid for the automobile. Second. The dealer failed to transfer title by appropriate certificate in violation of Article 1436-1, Secs. 33, 51 and 53, Vernon’s Annotated Penal Code. Such violation rendered void the sale and on dis-affirmance Willie Coleman was entitled to recover the purchase money in an action for money had and received. However, there emerge facts and fact issues on comparison of the Coleman and Wood affidavits, inconsistent with the summary judgment rendered, whether one or the other theory is considered.

The Supreme Court of Texas has not by its own expression or by writ action authoritatively dealt with estoppel to dis-affirm contracts arising out of a minor’s fraudulent representation. However, Chief Justice Murray of the San Antonio Court in Evans v. Henry, Tex.Civ.App.1950, 230 S.W.2d 620, no writ, says:

“ * * * The rule is well settled in this State that if an infant induces a seller to enter into a contract of sale by fraudulently representing himself to be a person sui juris, then he is estop-ped to disaffirm his contract. 23 Tex. Jur., Title, Infants, Sections 9, 37 and 38; First State Bank of Oakwood v. Edwards, Tex.Civ.App., 245 S.W. 478; Harseim v. Cohen, Tex.Civ.App., 25 S.W. 977.”

Textually and by cases cited in the footnotes in “Infants”, 30 T.J.2d, secs. 32 and 33, the rule is found in much the same language. 7 Cyclopedia of Automobile Law and Practice (Blashfield), p. 340, Sec. 4437, recognizes estoppel to disaffirm as a rule prevailing in many states. The aver-ments in the affidavit of the interested party Cain that Willie Coleman represented his age to be over twenty-one years, etc., raised fact issues pertinent to the elements of the appellants’ defense of estoppel. See Evans v. Henry, supra. Determination of these fact issues by the trial judge is not authorized in a summary judgment proceeding. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., Tex.Sup.Ct., 1965, 391 S.W.2d 41; 4 (McDonalds) Texas Civil Practice, Sec. 17.26.5.

Equitable principles governing suits for money had and received bars a summary judgment awarding Coleman recovery of the entire purchase price in view of the conflict of facts developed by the affidavits on file. The affidavits make no reference to a demand by Willie Coleman on the used car dealer for a certificate of title to the automobile he purchased. It will be assumed that he complied with Penal Code Article 1436-1, Sec. 52, and made demand, as it will not be presumed that he violated a penal statute. It appears settled as a general rule that in suits for money had and received the parties must be placed in the same relative position they occupied at the time the void sale occurred. As a prerequisite to recovery, Willie Coleman was under a duty to restore the automobile to the dealer in as good condition as when received, or account for any damage to it. Hunt v. Turner, 9 Tex. 385; 17 American Jur.2d, Contracts, Secs. 233 and 512; 58 C. J.S. Money Received, § 26c, p. 931. On recourse to the affidavits it is found that Willie Coleman says the automobile was returned in good condition, while Wood says it was returned with damage to certain parts and in a depreciated condition. A fact issue exists as to the vehicle’s condition when returned. Resolution of the issue was not appropriate in a summary judgment proceeding.

Although distinguishable, such cases as Myers v. Hurley Motor Co., 273 U.S. 18, 47 S.Ct. 277, 71 L.Ed. 515, 50 A.L.R. 1181; Reeb v. Danley, Tex.Civ.App.1949, 221 S.W.2d 579, no writ, and Foster v. Beall, Tex.Civ.App.1922, 242 S.W. 1117, no writ, illuminate principles of law applicable in this case. The judgment of the trial court is reversed and the case remanded for trial on the merits.


author: MURRAY, Chief Justice.

text:
    H. E. BUTT GROCERY COMPANY, Appellant, v. W. K. BRADFIELD et ux., Appellees.
    No. 14418.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 10, 1965.
    Groce, Hebdon, Fahey & Smith, Ray A. Weed, San Antonio, for appellant.
    Matthews, Nowlin, Macfarlane & Barrett, San Antonio, for appellees.
   MURRAY, Chief Justice.

Mr. and Mrs. W. K. Bradfield, plaintiffs below, brought this suit against H. E. Butt Grocery Company, a corporation, in Bexar County, Texas, to recover damages in the sum of $10,000.00 for injuries sustained by Mrs. Bradfield when she fell on defendant’s parking lot.while a patron of the defendant’s business located at 311 West Avenue, San Antonio, Texas, known as the Texas Gold Center. Appellant timely filed its plea of privilege alleging that its residence and principal place of business was in Nueces County, Texas, and asking that the case be transferred to that county. Plaintiffs filed their controverting affidavit, alleging that by reason of subdivisions 9a and 23 of Article 1995, Vernon’s Ann.Civ.Stats., venue was properly maintainable in Bexar County. On a hearing at which evidence was introduced, the trial court overruled appellant’s plea of privilege, and H. E. Butt Grocery Company has prosecuted this appeal.

Appellant contends that there was no evidence, or in any event insufficient evidence, of negligence on the part of appellant to justify retention of venue in Bexar County. This is a slip and fall case. Mrs. W. K. Bradfield went to the Texas Gold Center, accompanied by her daughter, Mrs. Charles R. Goodman, intending to exchange some Texas Gold stamps for a present for her granddaughter. Mrs. Bradfield and her daughter parked their car in the parking lot furnished by Texas Gold Center for its customers, and entered the store through the door at the north side of the building, which was the only entrance and exit for the store. After leaving the car they walked across the parking lot, stepped up on the sidewalk and at once entered the door. Neither Mrs. Bradfield nor her daughter noticed the ridge of asphalt some eighteen inches wide, about three feet long and two and one-half inches high where it joined the curb. This ridge of asphalt was at the corner where the sidewalk on the north side of the building joined the sidewalk on the west side. They went into the store, remained about thirty minutes, then came out of the door and proceeded across the sidewalk, and when Mrs. Bradfield walked off the curb she stepped on the ridge of asphalt, and fell and injured herself. She stated she could not see the ridge of asphalt because it was the same color as the rest of the pavement in the parking lot.

This ridge of asphalt had been the same place and in the same condition for several years, and was undoubtedly well known to appellant. In fact, there is no contention to the contrary. There was no oil or other foreign substance on the ridge, but there were small pellets of asphalt which could cause a person to slip, especially if she stepped on the edge of the ridge. The question here raised is whether or not appellant was negligent in maintaining its premises with this ridge of asphalt placed next to the curb and extending about three feet out into the parking lot area, where it was likely to be stepped on by invitees coming to and leaving the store. The trial court overruled appellant’s plea of privilege, thereby impliedly finding that the asphalt ridge was dangerous and that appellant owed Mrs. Bradfield the duty to either warn her of the danger of stepping on the ridge, or to remove the ridge so as to make its premises reasonably safe for its invitees. The evidence shows that Mrs. Bradfield did not know of the existence of this ridge of asphalt, nor was she charged by law with the knowledge of its existence, having passed that way only one time previously. This was the first time she had visited the Texas Gold Center, and while she might have seen the asphalt ridge as she entered the store, there is no evidence that she did see it, and the fact that she had passed near it one time in going into the store does not establish the fact, as a matter of law, that she knew the ridge was there, and that it was not safe to step on it. The question is not whether a reasonably prudent person, situated as was Mrs. Bradfield, should have seen and realized the existence of the danger of the asphalt ridge when stepped on, but the question is, did she have knowledge of the ridge and its dangers. The trial judge impliedly found that she did not have such knowledge, and we are unable to here say, as a matter of law, that she did.

Appellant contends that it was not guilty of negligence, in that it owed appellee “no duty” to warn her of the existence of the asphalt ridge or of the danger in stepping upon it, because it was open and obvious. In passing on the doctrine of “open and obvious” or “no duty,” the question is not whether Mrs. Bradfield should have known and should have appreciated, but did she know and did she appreciate the danger, or was she charged as a matter of law with such knowledge and appreciation. The trial court found in favor of Mrs. Bradfield, and we are not able from the record before us to say that Mrs. Bradfield did know the danger caused by the asphalt ridge and did appreciate the danger of stepping off the sidewalk onto the asphalt ridge, nor can we charge her with such knowledge and appreciation as a matter of law. Therefore, we cannot say that appellant owed “no duty” to Mrs. Bradfield with reference to the asphalt ridge. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963).

We are not here passing on whether or not Mrs. Bradfield was contributorily negligent, that question can only arise when the case is tried on its merits. The judgment is affirmed.