text:
    Raymond MUSSATTO, Appellant, v. Karen Kay CHEATHAM, Appellee.
    No. 3943.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 19, 1965.
    Schulz & Hanna, Bob Hanna, Abilene, for appellant.
    King, Willoughby, Dickenson & Batjer, Robert Batjer, Jr., Abilene, for appellee.
   COLLINGS, Justice.

Plaintiff Raymond Mussatto brought suit against Karen Kay Cheatham for damages to his automobile alleged to have been sustained in an intersection collision and to have been proximately caused by several acts of negligence on the part of the defendant. The defendant alleged that Mus-satto was guilty of negligent acts constituting contributory negligence. The jury found that Karen Kay Cheatham did not fail to yield the right of way, did not fail to keep a proper lookout; that she was not traveling at an excessive rate of speed, but that she did fail to apply her brakes in. time to avoid the collision, that such failure was negligence and a proximate cause of the accident. The jury further found that plaintiff Mussatto did not fail to keep a proper lookout; that he did fail to apply his brakes in time to avoid the collision but that such failure was not negligence; that he failed to yield the right of way, that such failure was negligence and a proximate cause of the accident. The jury also found that the collision was the result of an unavoidable accident. Based upon the verdict, judgment was entered decreeing that plaintiff Mussatto take nothing, and he has appealed.

Appellant presents points in which it is contended that the court erred in granting judgment for appellee Karen Kay Cheatham urging that there was no competent evidence to support the jury findings that appellant failed to yield the right of way, and that such failure was negligence. Appellant also urged that such findings were so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust. Appellant further contends that the court erred in granting judgment for appellee because there was no competent evidence to support the jury finding that the collision was the result of an unavoidable accident and in the alternative that the finding of an unavoidable accident was so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust.

The record shows that the accident occurred at the intersection of South 5th Street and Portland Avenue, an uncontrolled intersection of two residential streets in Abilene, Texas. Appellant, Mussatto, was traveling east on South 5th Street and appellee, Miss Cheatham, was proceeding south on Portland Avenue. Both vehicles were traveling at a speed of about thirty miles per hour as they approached the intersection before the application of any brakes. It is undisputed that appellee’s automobile penetrated 26 feet into the intersection to the point of collision and then proceeded south on Portland Avenue for 45 feet where it came to rest after colliding with another car parked on her right side of that street. Appellant’s automobile had penetrated the intersection only 13 feet to the point of impact after leaving 49 feet of skid marks caused by the application of brakes and struck the vehicle operated by appellee on the right front door.

In connection with special issues 17, 18 and 19, inquiring whether appellant failed to yield the right of way, whether such failure was negligence and a proximate cause of the accident, the court instructed the jury that the term right of way as used in the charge “is the privilege of the immediate use of the highway”. The court further instructed the jury:

“(a) The driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway.
“(b) When two vehicles have entered an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the driver of the vehicle on the right.”

It is appellant’s contention that in view of the court’s instruction the question to be determined in connection with issues 17, 18 and 19 is whether there is any evidence to the effect that appellee entered the intersection first; that since appellant was approaching the intersection from a street to appellee’s right it was incumbent upon appellee to show that she entered the intersection first and further that appellant did not enter the intersection at approximately the same time as appellee. Assuming that appellant’s contention concerning the question presented in respect to the determination of which party was entitled to the right of way is correct still the jury has answered that question favorable to appellee. To uphold appellant’s contention that there is no evidence that he failed to yield the right of way he must show that as a matter of law the evidence conclusively established that appellant entered the intersection first or that he and appellee entered the intersection at approximately the same time. In our opinion appellant has failed to meet this burden.

The evidence as briefly narrated above is to a great extent circumstantial. No witness testified that either of the vehicles entered the intersection first. The question of which vehicle did enter the intersection first and the lapse of time between their entries into the intersection can be determined only by a consideration of the speed at which the vehicles were traveling as they approached the intersection and after the entry therein, the distance that each vehicle traveled after entering the intersection until the point of collision, the fact that appellant’s car left skid marks from 49 feet to the point of collision, and the inferences which may be drawn from the testimony of the parties in narrating these circumstances. It is also to be noted that during the testimony a diagram of the intersection was used in questioning the witnesses. Much of the testimony was demonstrated to the court and jury by moving model vehicles about on the diagram. That diagram is not a part of the record and we do not have the benefit of what a consideration and understanding of such demonstration might reveal. The evidence favorable to the verdict in our opinion raised issues of fact for jury determination on the question of whether appellant failed to yield the right of way. We are unable to sustain appellant’s contention that there was no evidence to support the findings of the jury in regard thereto. After a consideration of all the evidence we are also of the opinion that appellant’s points urging that such issues are so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust are not well taken. Appellant’s points are overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    Wallace W. FRANKS et al., Appellants, v. Louie WELCH et al., Appellees.
    No. 14569.
    Court of Civil Appeals of Texas. Houston.
    March 25, 1965.
    Rehearing Denied April 15, 1965.
    Lloyd M. Lunsford, South Houston, and J. Charles Whitfield, Jr., Houston, for appellants.
    Clark, Thomas, Harris, Denius & Winters, Martin Harris, Austin, and McCall, Parkhurst & Horton, Millard Parkhurst, Dallas, for appellee The Trinity River Authority of Texas.
    John Wildenthal, Jr., City Atty., Vinson, Elkins, Weems & Searls, Victor Bouldin, Fulbright, Crooker, Freeman, Bates & Ja-worski,' Leon Jaworski, L. Keith Simmer and Wiley Caldwell, Houston, for appellees Louie Welch and City of Houston.
   WERLEIN, Justice.

This suit was brought by appellants to have declared void and unenforceable a contract between appellee, City of Houston, and appellee, the Trinity River Authority of Texas, dated on or about September 8, 1964, and to enjoin the appellees from performing the contract and from endorsing or otherwise guaranteeing bonds to be issued pursuant thereto. This suit was filed shortly before the bonds contemplated by the contract were to have been issued and sold and shortly before the project was to have been commenced.

The contract provides for the construction of Livingston Reservoir and Salt Water Barrier, sometimes referred to as the Livingston Dam and Reservoir Project, or Lake Livingston, on the Trinity River, from which the City of Houston would receive water. “The contract contains detailed provisions covering many areas of agreement. * * * the Authority agrees to supply to the City and the City agrees to take 70% of the water yield of the Livingston Reservoir and the Salt Water Barrier Projects, when constructed, for its own use and the use of the customers of its distribution system; and the City agrees to pay to the Authority from the revenues of its water system an amount equal to the amount of the Authority’s bonds and interest thereon as the same becomes due. The contract was authorized on behalf of the City by the qualified electors thereof by an affirmative vote of 49,114 to a negative vote of 11,256, and on behalf of the Authority by a resolution of its Board of Directors.” Trinity River Authority of Texas v. Carr, Attorney General, Tex.1965, 386 S.W.2d 790.

This suit was brought by appellants in their capacities as citizens and taxpayers of the City of Houston, and property owners within the City, and also as purchasers and users of domestic water sold by the City of Houston. They alleged that they also filed the suit as a class action, suing on behalf of themselves and all taxpayers, property owners and citizens of the City including non-residents owning property or subject to taxation in the City, and all other persons interested in or affected by the issuance of any securities by the City of Houston for the purpose of financing directly or indirectly the Trinity River Project.

Appellants in their verified petition have alleged various reasons why the contract in question should be held invalid and unenforceable. In view of our holding herein, it will not be necessary to discuss appellants’ contentions with respect to the invalidity of the contract since the sole question before us is whether the trial court erred in granting appellees a summary judgment on the ground that appellants did not have as a matter of law a justiciable or litigable interest in the subject matter of the suit. We have reached the conclusion that the trial court did not err in granting such judgment. In City of San Antonio v. Stumburg, 70 Tex. 366, 7 S.W. 754, the Court said:

“ * * * no action lies to restrain an interference with a mere public right, at the suit of an individual who has not suffered or is not threatened with some damage peculiar to himself. * * * It has been intimated that the reason this rule was established was in order to prevent a multiplicity of suits which might result if each individual were permitted to sue for damage resulting from a public nuisance which was common to all others, but we apprehend that the underlying principle is that individuals have a right to sue for a redress of their own private injuries, but for such as affect all the public alike an individual is not the representative of the public interest.”

Since this rule of decision was announced by Justice Gaines, it has been followed and approved not only by a number of our courts of civil appeals but also by our Supreme Court in refusing outright writs of error in several cases. Among the controlling authorities, in addition to the case of City of San Antonio v. Stumburg, supra, are: Clark v. City of San Angelo, 269 S.W.2d 594, Tex.Civ.App.1954, no writ hist.; Fisher v. City of Bartlett, Tex.Civ.App.1934, 76 S.W.2d 535, error dism.; Hazelwood v. City of Cooper, Tex.Civ.App.1935, 87 S.W.2d 776, error ref.; West Texas Utilities Co. v. Smith, Tex.Civ.App.1943, 168 S.W.2d 665, error ref.; Powell v. City of Baird, Tex. Civ.App.1939, 132 S.W.2d 464, no writ hist.; Houston Natural Gas Corp. v. Wyatt, Tex.Civ.App.1962, 359 S.W.2d 257, no writ hist.; Estes v. City of Granbury, Tex.Civ.App. 1958, 314 S.W.2d 154, error ref.; Hoff v. Westhoff, Tex.Civ.App.1936, 102 S.W.2d 293, error ref.; and Schenker v. City of San Antonio, Tex.Civ.App.1963, 369 S.W.2d 626, ref., n. r. e.

In Hazelwood v. City of Cooper, Tex.Civ.App., 87 S.W.2d 776, error ref., the court stated:

“It is apparent from a study of the petition of the appellant, as well as from his brief filed in this cause, that he bases his right to bring this cause of action on the fact ‘that he is a long-resident, property-owning taxpayer of the city of Cooper, Delta County, Texas; that he is likewise a user of electric current for himself and family and in his business * * *.'”
“ * * *
“As stated in the beginning, it appears from the petition of the appellant that the notice of election and the bonds voted by the people of the city of Cooper contained the statutory provision that they could never be a debt against the city, payable out of funds raised, or to be raised by taxation; but the payment of said bonds would be made out of the proceeds derived from the operation of the plant. Therefore, the injuries, if any, of which appellant complains are common to all the citizens of Cooper and not peculiar to him. By this action of the city of Cooper in contracting with the Central Engineering & Supply Company for the construction of a municipal light plant and executing a mortgage thereon, the appellant, Hazelwood, has not been singled out and had special damages inflicted upon him.
“ * * *
“Therefore, in our opinion, the appellant has shown no litigable interest in this suit, and the trial court properly sustained the general demurrer to his petition because same stated no cause of action which was peculiar to him and not to all other citizens in the city of Cooper. We think this case is governed in its entirety by the case of Fisher et al. v. City of Bartlett et al., supra, to which attention is directed.”

In Powell v. City of Baird, Tex.Civ.App., 132 S.W.2d 464, the plaintiffs sued as citizens, taxpayers and users of electric current, to cancel a contract for the construction of a municipal electric power plant and to enjoin the issuance of bonds therefor. The court said:

“Since by virtue of the law the injunction issued by the trial court, and the contract the bonds are not a debt of the city, are not payable from taxes and, if paid, can be paid only from the income from the municipal plant, and since this is likewise true of the expense of operation and maintenance (which constitutes a first lien on such income), the facts alleged do not show that either as resident citizens, taxpayers, or users of electricity, plaintiffs and interveners have suffered or will suffer any injury or damage, much less a pecuniary loss or damage peculiar to them, and different from that which may be suffered by other citizens of Baird. * * * ”

In Hoff v. Westhoff, Tex.Civ.App., 102 S.W.2d 293, writ ref., suit was brought by the plaintiff as a voter and taxpaying citizen of the city of Yorktown to contest an election under which revenue bonds were to be issued for constructing and installing an electric light and power system for the city. This Court held that the plaintiff had no justiciable interest, citing City of San Antonio v. Stumburg, supra.

In Estes v. City of Granbury, 314 S.W.2d 154, writ ref., suit was brought to enjoin the city from selling and disposing of certain utility bonds for the payment of which the city proposed to pledge the combined receipts from its electric, sewer and water systems. The plaintiff sued as a resident citizen of the city and as a. taxpayer. In holding that the plaintiff had no justiciable interest, the court said:

“The bonds were voted under the provisions of Article 1111 et seq., Vernon’s Ann. Texas St., wherein it is provided that ‘No such obligation of any such systems shall ever be a debt of such city or town, but solely a charge upon the properties of the system so encumbered, and shall never be reckoned in determining the power of any such city or town to issue any bonds for any purpose authorized by law’; and (Article 1114) ‘Every contract, bond, note or other evidence of indebtedness issued or included under this law shall contain this clause: “The holder hereof shall never have the right to demand payment of this obligation out of any funds raised or to be raised by taxation.’ ”
“We think it is established by the decisions that a taxpaying citizen cannot maintain such a suit as this without alleging an injury peculiar to himself. West Texas Utilities Co. v. Smith, Tex.Civ.App., 168 S.W.2d 665, writ refused; Fisher v. City of Bartlett, Tex.Civ.App., 76 S.W.2d 535; City of San Antonio v. Stumburg, 70 Tex. 366, 7 S.W. 754; Yett v. Cook, 115 Tex. 205, 281 S.W. 837; Womack v. City of West University Place, Tex.Civ.App., 32 S.W.2d 930; Tyrrell & Garth Inv. Co. v. City of Highlands, Tex.Civ.App., 44 S.W.2d 1059; Johnson v. Town of Refugio, Tex.Civ.App., 56 S.W.2d 674; Powell v. City of Baird, Tex.Civ.App., 132 S.W.2d 464; Sullivan v. Universal Electric Const. Co. of Alabama, Tex.Civ.App., 227 S.W.2d 387; Hazelwood v. City of Cooper, Tex.Civ.App., 87 S.W.2d 776, writ refused.”

In the instant case appellants allege no damage peculiar to themselves and not. shared by all others similarly situated. Their petition shows that they sue as resident citizens, taxpayers, purchasers and users of domestic water, and that they are suing not only for themselves but for all others similarly situated. It is our view that they have not shown that they have any justiciable interest in any of such capacities that would permit them to enjoin the performance of the contract in question or have it declared void and unenforceable.

Appellants do not contend in their petition or in their brief that any of the funds necessary for the performance of the contract by the City of Houston in connection with the Lake Livingston Project will be raised by taxation. The contract itself recites that the necessary funds for the project “shall constitute an operating expense of the City of Houston Water System, and shall be payable from the revenues of such system.”

The contract further provides that the bonds to be issued are to be endorsed as follows:

“The City of Houston, Texas is unconditionally obligated to provide at the bank of payment as a water operating expense of its water system, out of revenues received from the operation of such system, an amount of money equal to the interest on this bond as it accrues and the principal hereof when it matures, which shall be used solely for such purpose.”

In their pleadings, appellants allege:

“The second Trinity River contract (being the one in question) and the expenditures by the City thereunder and the illegal rates hereinafter alleged are a part and parcel of an over-all scheme, plan and design on the part of the City and its Mayor to finance such illegal contract at the expense of the domestic water consumers of the City of Houston.”

Parenthetically, it may he observed that there are probably hundreds of thousands of domestic water users in the City of Houston, and that the term “citizens” for whom the suit was brought is broad enough to include both domestic and industrial water users.

Thus, appellants’ allegations in their petition as well as the provisions of the contract attached thereto as an exhibit show that tax funds are not to be used in connection with the project in question. Appellants have not alleged any injury peculiar to themselves.

We have read the authorities cited by appellants and find for the most part that they are factually inapplicable to the present case. In the case of McCann v. Akard, Tex.Com.App.1934, 68 S.W.2d 1033, cited by appellants, the question of justiciable interest was not raised, and hence such decision will not be regarded as an authority on the question of justiciable interest. In Hoffman v. Davis, Tex.Com.App.1937, 128 Tex. 503, 100 S.W.2d 94, the court said:

“The right of a taxpaying citizen to go into a court of equity and enjoin public officials from the expenditure of public funds under an illegal contract is given general recognition. It has received the sanction of this court. Looscan v. County of Harris, 58 Tex. 511; City of Austin v. McCall, 95 Tex. 565, 68 S.W. 791; Terrell v. Middleton (Tex.Civ.App.) 187 S.W. 367 (error refused 108 Tex. 14, 191 S.W. 1138, 193 S.W. 139).”

It will be noted that in the Hoffman case the expenditure was of public funds under an illegal contract. We are of the opinion that the court had reference to the expenditure of public funds raised by taxation since a taxpayer would have a justiciable interest in the expenditure of such public funds. See Walling v. Kimbrough, Tex.Civ.App. 1963, 365 S.W.2d 941, aff’d 371 S.W.2d 691, in which it clearly appears that the taxpayer was undertaking to enjoin the use of city funds by the city in connection with a water project. To similar effect see Osborne v. Keith, 142 Tex. 262, 177 S.W.2d 198.

A summary judgment is to be granted when there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law. Rule 166-A, Texas Rules of Civil Procedure. In Clark v. City of San Angelo, Tex.Civ.App., 269 S.W.2d 594, the defendants raised plaintiff’s lack of justiciable interest in their motion for summary judgment, which motion the trial court sustained. The Court of Civil Appeals held that “Appellant, as a taxpaying citizen of the city, who is a user of water, does not have such justiciable or litigable interest to attack the validity of a bond issue that is payable solely out of revenues of a water supply system of a municipality that can never be paid out of tax funds. Sullivan v. Universal Electric Construction Co. of Alabama, Tex.Civ.App., 227 S.W.2d 387, error ref., n. r. e.”

Since as a matter of law appellants have no justiciable interest in the subject matter of their suit, the court properly granted the summary judgment. Wright v. Wright, Tex.Sup.1955, 154 Tex. 138, 274 S.W.2d 670; Sledge v. Humble Oil & Refining Co., Tex.Civ.App., 340 S.W.2d 517.

Judgment affirmed.


author: MASSEY, Chief Justice.

text:
    O. P. LEONARD, Appellant, v. W. H. CARTER, Appellee.
    No. 16620.
    Court of Civil Appeals of Texas. Port Worth.
    March 26, 1965.
    Rehearing Denied April 23, 1965.
    Garrett, Hodges & Stahala, T. J. Haire, Jr., and Robert Stahala, Fort Worth, for appellant.
    Worsham, Forsythe & Woodburn and Jos. Irion Worsham, Dallas, Rawlings, Sayers, Scurlock & Eidson and Nelson Scur-lock, Fort Worth, for appellee.
   MASSEY, Chief Justice.

In this case our holding is that where one has parted with land, or an interest therein, which he seeks to recover by attacking and seeking to avoid the contract under which he lost title, his suit is one for the recovery of land; — and if the contract is filed of record and for that reason would cloud his title (in the event he should show he was entitled thereto), his suit would furthermore be one to remove an incumbrance upon the title to land.

The case reaches us as an appeal from an order overruling the defendant’s plea of privilege. W. H. Carter brought suit against O. P. Leonard in Young County and the latter filed his plea to have the case transferred to the county where he resided.

The controverting affidavit embraced and included the Plaintiff’s Original Petition, attached and made a part thereof. Thereby plaintiff asserted the right to have venue retained in the county of suit, under subdivision 14 of Art. 1995. Vernon’s Ann. Tex.Civ.St., Art. 1995, “Venue, general rule”, provides in general that an inhabitant of Texas shall be sued only in the county where he has his domicile. Subdivision 14, “Lands”, constitutes an exception to said general rule. Thereunder it is made mandatory that: “Suits for the recovery of lands or damages thereto, or to remove incum-brances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”

Excellent textual authorities bearing upon the subdivision are to be found in Clark, Venue in Civil Actions, Ch. 14, “Lands”, paragraphs 1 to 6, inclusive; McDonald, Texas Civil Practice, p. 373, et seq., “Venue”, § 4.22, “Art. 1995(14). Suits for Land, etc.”; 59 Tex.Jur.2d 403, et seq., “Venue”, §§ 28 to 38, inclusive.

The parties have stipulated that the land in question was located in Young County. In this case allegations in plaintiff’s controverting plea constitute all that may be examined in ascertaining the other venue fact determinable, i. e., is the suit one “for the recovery of lands * * * ” ? Analysis of the allegations leads us to the conclusion that plaintiff’s cause of action (under specific and controlling allegations) is for the recovery of title to realty, — in that he avers (1) that on January 28, 1953 he conveyed real property belonging to him (a mineral leasehold estate in lands in Young County) over unto the defendant — who continued in possession thereof up until time of the suit; (2) that in consideration of such conveyance the defendant promised and bound himself to deliver up funds and payments in the future, to be measured according to profits, if any, realized from certain activity on the part of the defendant, and to be paid only in the event such profits were realized from such activity; and (3) that the defendant breached his obligations under the contract, in that profits were realized by him as result of the activity upon which the parties contracted, but. he refused to deliver up and pay the consideration thereupon dependent and conditioned' — and that by reason of total failure of consideration relief in the form of rescission is sought.

Under such allegations the plaintiff was entitled to claim the remedy of rescission of the contract. 13 Tex.Jur.2d 636, “Contracts”, § 361, “Remedies for breach”. Plaintiff’s remedy in that respect is not adversely affected, nor is his right impaired, because he seeks compensation in addition thereto. 59 Tex.Jur.2d 403 (407), “Venue”, § 28, “(Actions Relating to Real Property) — In general”. In the instant case such is sought as damages because recovery of the land, if effected, would be with the valuation thereof diminished as result of oil and/or gas having been taken therefrom.

We perceive no error in the presumed finding and conclusion by the trial court that the basic objective of plaintiff’s suit was to cancel a deed (lease assignment) and to be reinvested with the title to realty purportedly conveyed thereby. See Restatement of the Law, Contracts, § 13, “Voidable Contracts”, and § 354, “Specific Restitution of Land, Goods and Certain Choses in Action”. Furthermore, the deed had been placed of record in Young County. A suit to eliminate efficacy of such “recording” is in substance one to remove an incumbrance upon the title to land. Dixon v. Alford, Tex.Civ.App., 333 S.W.2d 470, 472 (Amarillo, 1960, no writ history),—citing State v. Wynn, 157 Tex. 200, 301 S.W.2d 76, 80 (1957), quoting with approval language in Jones v. Ford, Tex.Civ.App., 118 S.W.2d 333, 337 (Fort Worth, 1938, no writ history).

In the tests to be applied in the determination of venue we do not consider whether the plaintiff can sustain the cause of action he has alleged. Rather we do determine what cause of action is alleged. Therefrom we have determined that it is a suit “for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands”, within the contemplation of V.A.T.S., Art. 1995, Venue”, subdivision 14, Lands”. We hold that the suit comes within the subdivision because plaintiff has alleged facts which, if established upon a trial, would entitle him to have a property interest in lands (formerly belonging to him) retransferred to him.

The defendant, appellant herein, has briefed his complaints under ten points of error. To write upon them would unduly lengthen this opinion. Our discussion, here-inabove, justifies the essential determination, i. e., that the trial court rendered a correct judgment when it overruled the plea of privilege. Defendant’s points of error have been severally considered. They are severally overruled.

Judgment is affirmed.


author: GRISSOM, Chief Justice.

text:
    Lewis R. FRANTZ et al., Appellants, v. Kenneth FRANTZ, Guardian, Appellee.
    No. 3963.
    Court of Civil Appeals of Texas. Eastland.
    March 19, 1965.
    Rehearing Denied April 16, 1965.
    Gene E. Steed, Perryton, for appellants.
    Allen, Allen & Reavis, Perryton, Gordon, Gordon & Buzzard, Pampa, for appellee.
   GRISSOM, Chief Justice.

Kenneth Frantz, guardian of the estates of his mother and father, Mr. and Mrs. C. J. Frantz, Sr., filed in the County Court an application for permission to compromise a law suit and certain partnership claims and debts in controversy between his wards and his brother, C. J. Frantz, Jr., in accord with Section 234 of the Probate Code, V.A.T.S. The guardian caused another brother, Lewis R. Frantz, to be cited to appear and answer said application. Lewis R. Frantz and his sister, Marcena Elledge, contested said application.

They alleged (1) that they were children of said wards “and parties at interest in this matter in accordance with the probate code of the state of Texas”;

(2) that they objected to the proposed compromise because:

(a) said agreement was not based upon a complete investigation of the accounts between the father and mother and C. J. Frantz, Jr., and there was no showing the guardian had investigated and determined a basis for settlement of accounts between them;

(b) the guardian had failed to obtain a renegotiation of a land note executed by C. J. Frantz, Jr. to his father, which was unfair because it provided for no interest for ten years and for less interest thereafter than the “going rate” and provided that Junior must be as much as three years in arrears before there could be a foreclosure and that the debt was not secured by a deed of trust lien and

(c) the guardian had the duty to appeal from a judgment rendered in a case between the father and C. J. Frantz, Jr. in which the title to land had been awarded to Junior.

(3) Contestants petitioned the .court to direct the guardian to make a complete investigation of the accounts between C. J. Frantz, Jr. and his father covering the years they were partners and to direct the guardian to file a suit for an accounting “based upon conclusive evidence established” in the land suit “showing that C. J. Frantz, Jr. was indebted to the wards.” They asked the court to direct the guardian to appeal the judgment in the land suit, so that the matters might be determined by law and not by interested parties, who might not serve the best interest of the wards in making the settlement.

On April 14th, 1964, the County Court denied the guardian’s request and directed him to appeal from said judgment. On May 1st, the County Court entered an order that the guardian’s said application be denied “for the time being”. It recited that it appeared the guardian had appealed the land title judgment. It ordered the guardian to continue preparation of the statement of facts and transcript so that the court could intelligently decide whether the appeal should be continued and it recited that the application would then be subject to further orders of the court. On June 29th, the guardian filed a pleading to the effect that the transcript and statement of facts in the land suit had been obtained; that they had been examined by a certain attorney and in his opinion “an appeal and remand will probably not produce a different result”, therefore, the guardian renewed his application for permission to compromise. Contestants filed a supplemental pleading to the effect that the attorney mentioned was of the opinion that reversible error had been committed and that the appeal should be pursued; renewed their former objections and again alleged the suit should be decided by a court rather than by interested parties, who might not serve the best interest of the wards.

On July 15th, 1964, the County Court granted the guardian’s request for permission to execute the proposed compromise agreement. Contestants appealed to the District Court.

In the District Court the guardian filed a motion for a summary judgment. The motion merely stated that “no genuine fact issue is made by this appeal and that as a matter of law the order appealed from should be affirmed.” The Court granted the motion and authorized the guardian to execute the compromise agreement. The summary judgment recited that the court heard argument and examined the transcript and was of the opinion that the motion for summary judgment should be granted. Contestants have appealed.

Lewis R. Frantz and Marcena Elledge filed a motion for a new trial and moved the court to set aside the summary judgment and grant them a new trial because:

(1) the Court erred in granting the motion for summary judgment because there were material fact issues as to (a) the amount of money owed by C. J. Frantz, Jr. to his parents; (b) whether the guardian had made a complete investigation of the accounts between said parties over the years they were partners and (c) whether the proposed settlement was fair and for the best interest of the wards.

They further alleged that (2) the Court erred in failing to hear testimony as to whether Lewis R. Frantz and Marcena Elledge were “aggrieved parties” and “interested parties”, alleged they were both and that they each had a claim against said estates which would be adversely affected by the proposed compromise and

(3) that under Section 3(r) of the Probate Code interested persons includes persons who have a claim against an estate and creditors of an estate. Verified claims for substantial amounts were attached to said motion. The motion for a new trial was overruled and Lewis R. Frantz and Marcena Elledge have appealed.

Appellants contend the summary judgment should be reversed because there are material fact issues; because the Court erred in failing to determine that appellants were aggrieved and interested parties within the meaning of Sections 28 and 3(r) of the Probate Code. Appellee’s counter points are simply that the summary judgment was proper because appellants did not show, and did not have, a sufficient interest in the controversy to authorize them to appeal. Appellee says appellants alleged they were interested parties only because they were children of the wards and that their right as creditors was not asserted until after rendition of the summary judgment.

Lewis Frantz was impleaded by the guardian and cited to appear and answer the guardian’s application for permission to execute the agreement settling accounts, controversies and lawsuits between his wards and C. J. Frantz, Jr. As shown, Lewis R. Frantz, joined by his sister, Mar-cena Elledge, did appear and contest the guardian’s application. They did allege they were children of said guardian’s wards. But they also alleged that they were parties at interest within the meaning of the Probate Code of Texas. Of course, the fact that appellee cited Lewis Frantz to appear and contest said application did not establish that he had the right to do so but it does indicate that appellee thought he did and he does not occupy a favorable position in now contending that he had no right to contest. Despite the fact that Lewis Frantz was cited by the guardian to appear and contest the application, he and his sister did allege they were the children of the guardian’s wards and, further, that they were parties at interest within the meaning of the probate code. If the guardian had then properly pointed out to the Court his present contention that they had no such interest as authorized them to contest his application contestants could have then established, as they did in their motion for a new trial, that they were creditors of the estate and, as such, might be injured by the guardian’s proposed compromise.

The guardian’s application included the proposed agreement. It showed that appellant Lewis R. Frantz was formerly the guardian of his mother and father and, as such, had filed a suit to cancel their deed to C. J. Frantz, Jr.; that judgment was rendered in said suit for C. J. Frantz, Jr.; that Lewis R. Frantz was removed as guardian and appellee Kenneth Frantz was appointed and that Kenneth Frantz, as guardian, had filed an appeal bond in said land suit for an appeal to the Court of Civil Appeals. It recited that a bona fide controversy existed between all parties concerning said land transaction and the appeal from such judgment. It recited that upon the trial of said land suit information was revealed which could give rise to additional causes of action or rights against C. J. Frantz, Jr. on behalf of the wards. The proposed agreement recited that in consideration of Eight Thousand Dollars to be paid by C. J. Frantz, Jr. to the guardian, said judgment should become final and that the guardian would dismiss his appeal and confirm the deed to Frantz, Jr. and release him from all liabilities, causes of action, known or unknown, on behalf of the guardian or his wards, except certain notes.

The basis for the court’s action in sustaining the guardian’s motion for a summary judgment was its erroneous legal conclusion that appellants’ allegation of interest in the matter showed they had no right to contest the application. See 30 Tex.Law Review 297. That is the only ground asserted by appellees to sustain said judgment. If the sufficiency of contestant’s allegation had been challenged so appellants had an opportunity to anticipate rendition of the summary judgment for lack of allegation of sufficient interest therein, they could have amended their pleading and then established, as they did in their motion for a new trial, that they were creditors whose rights might be affected by the guardian’s proposed settlement. As creditors they had the right to contest the guardian’s application. 3(r) Probate Code; Craycroft v. Craycroft, Tex.Civ.App., 250 S.W.2d 458, 459 (Ref. N.R.E.).

Under Rule 166-A (c) appellee was not entitled to a summary judgment unless the pleadings showed there was no genuine issue as to any material fact and that he was entitled to a judgment as a matter of law. The pleadings did not show this. The pleadings did not show that appellants were not proper parties to contest the application. The pleadings showed issues of fact to be determined. As said by our Supreme Court in Womble v. Atkins, 160 Tex. 363, 331 S.W.2d 294, 297, it is not the policy of this state to permit those who have no interest in a decedent’s estate to intermeddle therein and it is established practice, “when proper demand is made”, to require one asserting a right to probate a will to first establish an interest in the estate which will be affected thereby. Here, if appellee had “made a proper demand” that appellants more definitely allege their interest they could have done so. They allege such interest in general terms. Appellees had no right to a summary judgment based on an assumption that appellants did not have the interest they alleged. Fischer v. Williams, 160 Tex. 342, 331 S.W.2d 210, 213; Chalmers v. Gumm, 137 Tex. 467, 154 S.W.2d 640, 642.

In Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274, 276, our Supreme Court said that a summary judgment was possible only by virtue of the provision of Rule 166-A and that to entitle a party to a summary judgment its provisions must be strictly complied with and the burden of demonstrating the lack of a genuine issue of material fact was upon the movant and that all doubts were to be resolved against him. See also Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 and Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 562. Applying our fact situation to the law as so declared, it is evident that appellee did not discharge the burden of showing either the absence of a legally sufficient interest in appellants or of a material fact issue.

The judgment is reversed and the cause is remanded.


author: HUGHES, Justice.

text:
    Robert S. CALVERT, Comptroller of Public Accounts, Appellant, v. MARATHON OIL COMPANY, Appellee.
    No. 11305.
    Court of Civil Appeals of Texas. Austin.
    March 10, 1965.
    Rehearing Denied March 31, 1965.

      Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., Stanton Stone, Executive Asst. Atty. Gen., H. Grady Chandler and W. E. Allen, Asst. Attys. Gen., Austin, for appellant; Don Bishop, Charles Prock, Austin, Office of the Comptroller of Public Accounts of the State of Texas, of counsel.
    Clayton L. Orn, P. D. Ritter, Findlay, Ohio, J. O. Terrell Couch, Houston, Graves, Dougherty, Gee & Hearon, Austin, for ap-pellee.
   HUGHES, Justice.

This is a summary judgment case in which all facts were.stipulated.

Marathon Oil Company, appellee, filed suit against Robert S. Calvert, Comptroller of Public Accounts of the State of Texas, asking for a declaratory judgment regarding its liability, vel non, or extent of liability, for taxes under the provisions of the 1961 Texas Limited Sales, Excise and Use Tax Act by reason of the following described transaction and other relevant facts.

On December 28, 1961, appellee entered into a contract with Plymouth Oil Company, a foreign corporation, under which appel-lee agreed to buy substantially all of its assets, except an oil payment which Plymouth simultaneously agreed to sell to a third party. This contract and both sales were consummated on April 3, 1962.

The property purchased by appellee from Plymouth consisted principally of oil and gas leases and other real property. The only personal property included in the sale was that which was held by Plymouth for use or disposition incidental to the conduct of the business of finding, producing, processing and refining oil and gas and wholesale marketing of oil, gas and petroleum products.

Some of the property purchased by Marathon was to be resold, but not at retail.

Immediately following consummation of these sales, Plymouth wound up its affairs and withdrew from the State of Texas.

Plymouth applied for and received a Sales Tax Permit under the provisions of the Tax Act, and it held such permit until the consummation of these sales on April 3, 1962. Texas sales of tangible personal property by Plymouth in the amount of $3,507.71 were included in Plymouth’s reports to the Comptroller for the period September 1, 1961 through April 3, 1962, and the sales taxes due thereon were paid.

It was stipulated that Mr. Frank W. MacLean, Controller of Plymouth for six years prior to June 1962, would testify in conformity with his affidavit which is in the record. The affidavit of Mr. MacLean is not controverted and we accept it as accurate.

We quote the following from such affidavit :

“During the entire time that I was Controller of Plymouth Oil Company, as stated above, up to and including the date of consummation of sale of substantially all of the assets of Plymouth to Marathon Oil Company (then the Ohio Oil Company) on April 3, 1962, the only business Plymouth engaged in was the business of finding, producing, processing and refining of oil and gas, and wholesale marketing of oil, gas and petroleum products. Plymouth owned no personal property, except such personal property as was owned or held for use or disposition incidental to the conduct of that business. At no time during that period did Plymouth engage in any retail operation or in any way hold itself out as a seller of personal property to the general consumer trade.
“3. I have examined the accounting records of Plymouth and those records disclose that during the period from September 1, 1961, through March 31, 1962, Plymouth had gross sales income of $43,765,101.21 which was derived almost entirely from sales of oil, gas and petroleum products to wholesalers, jobbers or other oil companies for resale or for further processing and resale. Of the total gross sales income of $43,765,101.21 only $3,507.71 of the sales in the State of Texas was from sales other than sales for resale or sales otherwise exempt from the Texas Limited Sales and Use Tax.
“4. Except for the very rare sales to outsiders listed below, these Texas sales in the amount of $3,507.71 represented sales by Plymouth to its employees at its Texas City Refinery and consisted of sales of grease, motor oil, transmission fluid and miscellaneous items of scrap. The sales of grease, motor oil and transmission fluid to employees were made at wholesale prices and the sales of miscellaneous scrap were made at junk value. All sales to employees were made as an accomodation to them and to foster employee good will. The employee sales were not made for profit as a part of Plymouth’s business because the expenses incident to such small sales at wholesale prices ordinarily offset any profit on the sale. Except for the following five sales, all of the foregoing sales were made to Plymouth’s refinery employees (or in one instance to the son of a refinery employee)
(Here are listed five sales to named purchasers totalling $39.95)
Between April 1, 1962, and the sale by Plymouth on April 3, 1962, of its business assets, Plymouth made no further accomodation sales to its employees or other such incidental sales to outsiders.
“5. On the basis of Plymouth’s records, which I have examined, and on the basis of my experience as an accountant and auditor and as Controller of Plymouth, I know that Plymouth was not engaged in the business of making sales directly to consumers.
“6. In accordance with its previously adopted plan of liquidation, Plymouth on April 3, 1962, sold en masse to Marathon Oil Company substantially all of its assets, except for a production payment which Plymouth sold to a third party. While the assets sold included some personal property, there was no separate sale of any personal property or real property by Plymouth to Marathon Oil Company. All of the assets sold to Marathon Oil Company were sold to it in one single transaction.”

It is stipulated that in the event final judgment herein is adverse to appellee that there are other possible exemptions and issues with respect to the amount of taxes due and that such matters are “outside the scope of this action and are not now presented for determination.”

Appellee has contracted that it will pay all sales taxes imposed on Plymouth by the sale to appellee on April 3, 1962.

Appellee moved for a summary declaratory judgment declaring:

“(a) The liquidation sale by Plymouth to Plaintiff insofar as it included incidentally any tangible personal property located within the State of Texas was not a ‘retail sale' or a ‘sale at retail’ within the meaning of House Bill 20, Acts 1961, 57th Legislature, First Called Session, Chapter 24 and is, therefore, not subject to any sales tax;
“(b) In the alternative if said liquidation sale was a retail sale or a sale at retail within the meaning of said Act, said sale is nevertheless exempt from taxation as an ‘occasional’ sale within the meaning of the same Act, * * *”

Appellant also moved for a summary declaratory judgment to the effect that the sale by Plymouth of all its tangible personal properties located in Texas was a taxable “retail sale” or “sale at retail” within the Act and that such sale was subject to the 2% limited sales tax imposed by the Act.

The motion of appellee was granted, and the motion of appellant denied. The trial court did not indicate in its judgment whether it declared the law to be as stated in (a) or (b) in appellee’s motion, supra. It is our opinion that the law is as stated in (a) in such motion, and we do not determine the validity of the declaration of law in (b) in such motion.

The sale which appellant seeks to tax is a sale not made in the regular course of business of Plymouth. It was a sale by which, together with a contemporaneous sale, Plymouth was liquidated and ceased to do business. Plymouth was not in the business of making sales of this character.

We do not understand appellant to contend that the sale to appellee was in the regular course of business in which Plymouth was engaged. Rather, it is the position of appellant that the sale by Plymouth to Marathon was not for the purpose of resale by Marathon in the regular course of its business, and that, therefore, under the provisions of the Act it was a retail sale and subject to the tax imposed by it.

Sec. (I) of Art. 20.09 in paragraph (1) provides:

“(I) Payment on Termination of Business and Successor’s Liability.
“(1) Withholding by Purchaser. If any vendor liable for any amount under this Chapter sells out his business or stock of goods or quits the business, his successor or assigns shall withhold sufficient of the purchase price to cover such amount until the former owner produces a receipt from the Comptroller showing that it has been paid or a certificate stating that no amount is due.”

This section, to our minds, evidences unmistakably the intention of the Legislature not to tax a sale whereby a retailer “sells out his business or stock of goods or quits the business” because if it had intended otherwise it would not have required the purchaser to withhold only the amount of taxes under the Act for which the vendor was then liable but it would have required the purchaser to withhold from the purchase price the amount of taxes due as a result of the sale itself.

Unless this clearly indicated legislative intention is refuted by other terms of the Act, we hold that it is controlling.

Art. 20.02 provides:

“There is hereby imposed upon each separate sale at retail of tangible personal property made within this State a limited sales tax at the rate of two per cent (2%) of the sale price of each item or article of tangible personal property when sold at retail in this State.”

Art. 20.01, Sec. (1) paragraph (I) provides :

“Retail Sale or Sale at Retail. ‘Retail Sale’ or ‘Sale at Retail’ means:
“(1) A sale for any purpose other than for resale in the regular course of business of tangible personal property.”

This latter provision is the subject of profound discussion by the parties. Appellant contends that the grammatical construction of it “leads only to the interpretation that the phrase ‘in the regular course of business’ refers to the business of the purchaser and not to the business of the seller.”

Appellee, just as vigorously and at some length, defends what it conceives to be the proper grammatical construction of this provision which is that the phrase “in the regular course of business” modifies the word “sale,” not the word “resale.”

We will not delve into these profundities because we will, with or without grammatical blessing, seek to ascertain the legislative intent.

This provision is illucid. We lean to the interpretation that it means that a sale at retail is a sale in the regular course of business of the seller which is not made for the purpose of resale.

The word “Retailer” is defined in Art. 20.01(J)(1)(a) and (b) as follows:

“(J) Retailer.
“(1) ‘Retailer’ includes:
“(a) Every seller engaged in the business of making sales of tangible personal property for storage, use or other consumption or in the business of making sales at auction of tangible personal property owned by the person or others for storage, use or other consumption.
“(b) Every person making more than two retail sales of tangible personal property during any twelve-month period, including sales made in the capacity of as-signee for the benefit of creditors, or receiver or trustee in bankruptcy.”

Art. 20.01 Sec. (M) defines “Seller” as follows:

“ ‘Seller’ includes every person engaged in the business of selling, leasing or renting tangible personal property of a kind, the receipts from the retail sale, lease or rental of which are required to be included in the measure of the limited sales tax.”

These provisions clearly indicate the general requirement that a “Retailer” or Seller” under the Act must be “engaged in the business” of making sales of or leasing etc. tangible personal property. Where there are exceptions to this general requirement, they are plainly stated.

These provisions do not employ the words “in the regular course of business” but we are unable to distinguish this phrase from the language used in the two provisions under discussion. If a person is engaged in the business of selling or making sales of tangible personal property, groceries for example, such sales would be in the regular course of his business. Ap-pellee here was not engaged in the business of selling substantially all of its assets in a single transaction, and such sale was not in the regular course of its business.

These terms are used interchangeably in Sec. (G), Art. 20.02. Preceding Sec. (F) provides, in part, that the burden of proving that a sale of tangible personal property is not a sale at retail shall be upon the seller unless he takes a Resale Certificate from the purchaser. Sec. (G) reads:

“(G) Effect of Resale Certificate. The resale certificate relieves the seller from the burden of proof only if taken in good faith from a person who is engaged in the business of selling, leasing or renting tangible personal property. A resale certificate may be given by a purchaser, who at the time of purchasing the tangible personal property, intends to sell, lease or rent it in the regular course of business or is unable to ascertain at the time of purchase whether the tangible personal property will be resold, leased or rented or will be used for some other purposes.”

It is obvious that if a seller is relieved of liability for the tax when he in good faith takes a Resale Certificate from a person “engaged in the business” of selling etc. tangible personal property and that only a person who intends to sell etc. the tangible personal property so purchased “in the regular course of business” then the terms are synonymous, otherwise a seller would be authorized to take a Resale Certificate from one who was not authorized to give it.

We also observe that in following Sec. (H) prescribing the form and contents of a Resale Certificate it is provided (l)(c) “Indicate the general character of the tangible personal property sold, leased or rented by the purchaser in the regular course of business.”

Following Sec. (I) also provides that if a purchaser giving a Resale Certificate makes any use of the property other than holding it for sale etc. “in the regular course of business,” then the tax shall be paid by him as provided.

These sections clearly indicate that the character of the sales made or other business done by a seller is of paramount importance in determining the taxableness of the transaction and that a sale to be taxable must, with clearly defined exceptions, be made in the regular course of business of the seller in order to be taxable.

Sec. (I) demonstrates that a purchaser becomes and is treated as a seller when the property purchased by him is held for sale etc. in the “regular course of business,” and as long as the property is so held or so sold the purchaser who gives a Resale Certificate is never liable for payment (as distinguished from collection) of the tax.

Sec. (J) Art. 20.03 augments this conclusion by its provisions that a person who gives a Resale Certificate knowing that the property is purchased for use rather than for resale in the “regular course of business” is guilty of a misdemeanor. Sales in the regular course of business are, of course, made by a “seller,” although the seller may have acquired, and usually does acquire, the property sold by purchase in which transaction he was a purchaser.

Receipts are defined in Sec. (D) (1) of Art. 20.01. In Sec. (D)(2) of such Article there are listed several items which are not receipts. In 1963 the Legislature amended this latter section of such Article so as to exclude as receipts the following as occasional sales:

“The sale of the entire operating assets of a business or of a separate division, branch or identifiable segment of a business. For the purpose of this subsection a 'separate division, branch or identifiable segment’ shall be deemed to exist if prior to its sale the income and expenses attributable to such ‘sep-parate division, branch or identifiable segment’ could be separately ascertained from the books of account or record. The purpose of this subsection is to clarify existing law and merely expresses the original intention of the Legislature.” Art. 20.01, Sec. (F)(2).

While this provision was ' not in effect when the transaction involved in this suit occurred and is not controlling, we have, nevertheless, considered it as highly persuasive in ascertaining the legislative intent contained in the statutes before the Court. The intent ascribed by us to these statutes coincide with the intent which the Legislature has stated was its original intention.

In reaching our decision herein we have also followed the rule expressed in

Calvert v. Fort Worth National Bank, 163 Tex. 405, 356 S.W.2d 918, that, “We begin with the premise that the statute imposes a special tax and must be strictly construed against the government. Where the meaning of such a law is doubtful, the doubt should be resolved in favor of the taxpayer.” See also Calvert v. Audio Center Inc., 346 S.W.2d 420, Austin C.C.A., writ ref., n.r.e. and authorities therein cited.

We have found the meaning of the involved statutes on the question presented doubtful. We have resolved that doubt in favor of the taxpayer, and declare the law to be as herein stated. We, therefore, affirm the judgment of the trial court.

Affirmed.

ON MOTION FOR REHEARING

Appellant is critical of our opinion because we utilized the 1963 addition to Art. 20.01, being Sec. (F)(2), as persuasive authority but did not similarly use the 1963 amendment of Art. 20.01 (I)(l), which now reads, “Retail Sale or Sale at Retail. ‘Retail Sale’ or ‘Sale at Retail’ means: (1) Any sale of tangible personal property.”

Sec. (F) (2) of the 1963 Act if it had been in effect when this case arose would have by explicit language exempted ap-pellee from the tax here sought. It stated that this was the original legislative intention. This is why we relied on such Article as persuasive. Sec. (I) (1) as amended in 1963 does not contain similar language as to Legislative intent. While its language standing alone is explicit, it will undoubtedly be construed with other provisions of the Act when the occasion arises. Its language is broad enough to include all sales, both retail and wholesale as those terms are commonly understood and thus completely change the scheme of the tax as previously considered. These are the reasons we did not use this amendment as persuasive of a contrary decision.

The motion is overruled.

Motion Overruled.

      . Acts 1961, 57th Leg. 1st C.S., p. 71, Oh. 24, Art. 1, See. 1, codified as Ch. 20, Title 122A, Taxation-General, V.A.C.S.

      . Then known as the Ohio Oil Company.

      . See. (A), Art. 20.02 provides that taxes imposed by the Act shall be collected by the retailer from the consumer.


author: GREEN, Chief Justice.

text:
    Glenn H. McCARTHY et ux., Appellants, v. CITY OF HOUSTON et al., Appellees.
    No. 68.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 18, 1965.
    Rehearing Denied April 8, 1965.

      Franklin R. Navarro, Michael T. Brimble, Houston, for appellants.
    John J. Wildenthal, City Atty., Joe Res-weber, Harris County Atty., Houston, for appellees.
   GREEN, Chief Justice.

This appeal is from a take nothing judgment based on an instructed verdict in favor of appellees City of Houston, hereafter called City, and Harris County Flood Control District, hereafter called District, defendants below. The suit, in trespass to try title, arose by reason of City erecting a bridge across Brays Bayou within the city limits partly on property previously conveyed by deed from appellants to District March 14, 1956, for a cash paid consideration of $38,958.50. This deed contained a proviso that District, its assigns or successors in office, would not, for a period of 999 years, burden the surface fee conveyed with any above-ground fences, buildings or structures, such covenants and conditions to be binding upon and observed by District as well as its heirs, executors, administrators and assigns. It was further provided that in the event of any violation or non-observance of said covenant and condition, the conveyance would be null and void, and the premises would wholly and absolutely revert to the grantors, their heirs or assigns.

It is appellants’ contention on this appeal that the evidence showed, or at least raised an issue of fact, that City, at a time when it owned no manner of right or title to the land in question, did, with District’s acquiescence, burden the surface fee with above-ground structures, thus rendering the conveyance null and void, and causing title to revert to appellants. The bridge having been completed long before trial and being in use as a public bridge connecting streets on each side of the bayou, appellants also prayed in their trial pleadings that City be required to remove the bridge erected by it on this property.

Since the nature of the title conveyed to District by this deed is a matter of consequence, we should here dispose of appellants contention that extrinsic evidence was admissible to show that the parties to the deed did not intend that it should convey fee title to District but that it was meant to convey only an easement to be used by District exclusively for flood control purposes. Since the instrument did “grant, sell and convey” the 1.651 acres of land therein described to District, contained the customary habendum and tenendum clauses, with a general warranty of title, and did not in any way appear to be ambiguous in any of its terms, and required no explanation for an understanding of its provisions, we hold that the trial court correctly sustained appellees’ objections to the offered extrinsic evidence. Texas Electric Ry. Co. v. Neale, 151 Tex. 526, 252 S.W.2d 451; Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154; Davis v. Bond, 138 Tex. 206, 158 S.W.2d 297; Anderson & Kerr Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 136 S.W.2d 800, 127 A.L.R. 1217; Finley v. Carr, Tex.Civ.App., 273 S.W.2d 439 writ. ref. We further hold that the portion of the deed providing for the possible reversion created a condition subsequent at most, and that title would not automatically pass to grantors in event of breach by grantee, but that the right in grantor to re-enter and retake the fee to the property must be established by suit timely filed for that purpose. Gulf, C. & S. F. Ry. Co. v. Dunman, 74 Tex. 265, 11 S.W. 1094; Lawyers Trust Company v. City of Houston, Tex., 359 S.W.2d 887; Houston & T. C. R. Co. v. Ennis-Calvert Compress Co., 23 Tex.Civ.App., 441, 56 S.W. 367, writ ref; Holmes v. McKnight, Tex.Civ.App., 373 S.W.2d 541.

The testimony discloses that shortly prior to January, 1961, City determined that it was necessary, in the proper development of its street program, that this bridge be built. Practically all of 1961 was spent by City in securing the proper engineering plans, and doing the preliminary work preparatory to the actual erection of the bridge. District did not participate in these matters, and the testimony concerning them was restricted by the trial court to the suit as against City. However, as the preliminary work developed, District engineers became aware of City’s plans, as it was essential that they determine, and they did do so, that such bridge as was contemplated by City would not interfere with the proper flow of water in the bayou.

This being an appeal from a judgment based on an instructed jury verdict, we must and do view the evidence in the light most favorable to appellants. Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422; Weatherford v. Lee, Tex.Civ.App., 364 S.W.2d 730, writ ref. n. r. e. Hence on this appeal we shall consider that the testimony reflects that City started actual erection of above-surface structures on this property early in December, 1961, and that prior to December 21, 1961, the date this suit was filed, Mr. McCarthy observed on a portion of the land in issue “numerous base cement structures which were above the ground all the way across where you could then see definitely where the bridge was going to go.”

In this connection, witness L. E. Whitney, called to testify by appellants, stated that construction did not commence before February 2, 1962, and that no above-ground structures were erected prior to that date. Whitney was the official of the City in charge of actual construction of this bridge, and appellants insisted on their right to call him as an adverse witness. Attorney for City objected, and the trial court sustained such objection, declining to permit appellants’ counsel to ask leading questions, and ruling that appellants were bound by his testimony and could not subsequently offer evidence in rebuttal thereof. In this we feel that the court erred. On the record, appellants should have been permitted to treat Whitney as an adverse witness. Rule 182, Texas Rules of Civil Procedure; City of Waco v. Criswell, Tex.Civ.App., 141 S.W.2d 1046; City of Houston v. Glover, Tex.Civ.App., 355 S.W.2d 757, writ ref, n. r. e.

However, for the purposes of this appeal such error is harmless and cannot be considered basis for reversal. The entire purport of appellants’ efforts with Whitney, after he had testified to the February 2nd date, was to impeach and contradict him, both by his own testimony and that of others, as to the time of the erection of the above-ground structures. Since this did not become a jury issue due to the instructed verdict, and since for the purposes of this appeal we are assuming that such structures appeared on the land in December, 1961, prior to the filing of this suit, as testified by Mr. McCarthy, appellants can suffer no injury by reason of the error. Appellants’ third point, raising this contention, in so far as it asserts reversible error, is overruled.

At the time Mr. McCarthy saw the construction work by City on this property in December, 1961, as he testified, proceedings were pending before commissioners by which City sought to condemn appellants’ reversionary interests in the particular portion of this property needed for the bridge. Hearing was not had on these proceedings until December 26, 1961, and since appellants filed objections to the commissioners award with the county judge, City’s deposit with the county clerk of the amount of the award was not filed until January 4, 1962. Ordinarily, the condemner’s right of entry is determined by the time of making such deposit. Art. 3268, Vernon’s Ann.Tex.Civ.St.; 22 Tex.Jur.2d Eminent Domain, p. 375.

On December 7, 1961, District was authorized by its governing board to execute, and it did execute, an instrument purporting to convey to City easement rights in the property necessary for the construction of this bridge. As evidence of District’s desire and intent not to violate the conditions contained in the deed of March 14, 1956, District had inserted in this instrument the statement that it “does not have the right and cannot convey the right to construct or erect or have constructed or erected any above-ground fences, buildings or structures.” There is no evidence that City accepted delivery of this instrument, and on January 5, 1962, the day after the deposit was made in City’s condemnation suit against appellants, District rescinded its action as to such instrument.

At the time of the alleged burdening of the land by City with the base cement structures as testified to by Mr. McCarthy, City owned no interest or title to this property which could revert to appellants. The fee title, subject to the mineral interests and the conditions, belonged to District at and prior to the time such acts occurred. It is therefore District’s fee title which, according to appellants, has reverted to them by reason of City’s actions. The testimony clearly shows that District was not guilty of doing any act which burdened said land with above-ground structures. Appellants’ witness Jensen on direct examination stated that District did not erect any improvements on the property for any purpose other than flood control, and appellants offered no evidence to the contrary. None of the improvements testified about by Jensen were above-ground structures, and all were erected years before the filing of this suit.

If any acts occurred which might have constituted a violation of the condition subsequent contained in the deed in question, they would have been the placing on the ground by City of the structures observed by Mr. McCarthy in December, 1961. The only charge made by appellants against District to secure a reversion to them of District’s fee title is that District acquiesced in City’s actions.

“Because a forfeiture is a harsh remedy, punitive in its operation, it has become a settled principle that forfeitures are favored neither in law nor in equity.” 25 Tex.Jur.2d, Forfeitures, § 3, p. 502. In support of this rule, see also Davis v. Skipper, 125 Tex. 364, 83 S.W.2d 318; Knight v. Chicago Corporation, Tex.Civ.App., 183 S.W.2d 666, aff’d 144 Tex. 98, 188 S.W.2d 564; Manton v. City of San Antonio, Tex.Civ.App., 207 S.W. 951, wr. ref.

“Forfeitures are not favored by our laws. Henshaw v. Texas Natural Resources Foundation, 147 Tex. 436, 216 S.W.2d 566, 570, states: ‘If the terms of a contract are fairly susceptible of an interpretation which will prevent a forfeiture, they will be so construed.’ Automobile Ins. Co. v. Teague, Tex.Com.App., 37 S.W.2d 151, 153, states: ‘The courts will not declare a forfeiture, unless they are compelled to do so, by language which will admit of but one construction, and that construction is such as compels a forfeiture.’ Though courts- have frequently enforced conditions subsequent, the rule stated above has consistently been followed, unless the instrument clearly and expressly requires a forfeiture.” Judge Pope, in Link v. Texas Pharmacal Company, Tex.Civ.App., 276 S.W.2d 903.

We add that before a court should declare a reverter of a fee title under a condition subsequent, the facts should be such as to show a definite violation or breach of the condition subsequent, performed or participated in by the fee owner of the property claimed to have reverted. In order for an issue to have been raised as' to whether District’s fee title to the land in question had reverted to appellants, evidence would have had to show that District participated in. the commission of the breach of the condition subsequent. A careful study of the testimony introduced in evidence in the case against District fails to show evidence sufficient to raise a jury-issue on this proposition. City having no title to the property could not in itself breach the condition subsequent so as to cause the reverter claimed by appellants, since it was not a party to the deed, and there was no privity of contract between appellants and City. The evidence is clear that City was not acting on behalf of District in the construction of the bridge, but that City was acting on its own behalf.

Appellants did not sue for money damages, and since the bridge was completed in the Fall of 1962, and has been in public use since that date, the prayer for injunction has long since become moot. Shortly after this suit was filed, City’s rights in the property were crystalized through condemnation proceedings. We find no error committed by the trial court in the instructed verdict and the entry of judgment for City and District.

While we believe that this would be sufficient basis for an affirmance of the judgment, we will advance further reason for the correctness of the trial court’s action.

City, under the provisions of Art. 1175 (15), has the right of eminent domain, and may acquire property in fee simple, including public property. In this connection, said Article provides in part:

“ * * * the power of eminent domain hereby conferred shall include the right of the governing authority, when so expressed, to take the fee in the lands so condemned and such power and authority shall include the right to condemn public property for such purposes.”

District did not have to wait for the property to be condemned, but could by voluntary conveyance grant its surface fee interests in the property to City. Kingsville Independent School Dist. v. Crenshaw, Tex.Civ.App., 164 S.W.2d 49, writ ref. w. o. m.; same styled cause, Tex.Civ.App., 252 S.W.2d 1022, writ ref.; El Paso County v. City of El Paso, Tex.Civ.App., 357 S.W.2d 783; City of San Antonio v. Congregation of the Sisters of Charity of the Incarnate Word, Tex.Civ.App., 360 S.W.2d 580, writ ref., n. r. e.; Hamman v. City of Houston, Tex.Civ.App., 362 S.W.2d 402, writ ref., n. r. e. Although through abundance of caution, and probably to save itself from a charge of breach of the condition subsequent, District inserted in its easement deed to City of December 7, 1961, later rescinded, that it could not convey the right to erect above-ground structures on the land, nevertheless if City by virtue of its right of eminent domain secured from the fee owner easement rights to such property, the right to erect this necessary bridge would belong to City as a matter of law, and not by virtue of any contract with District or with appellants. To the extent that City might violate any legal rights of McCarthy, the latter’s relief would be by way of damages against City.

There is a clear distinction, as pointed out in the opinions in El Paso County v. City of El Paso, supra, and San Antonio v. Sisters of Charity, supra, in the rights of parties in cases where the grantee of an interest in property dedicated to definite public use has the power of eminent domain, and in cases, such as Zachry v. City of San Antonio, 157 Tex. 551, 305 S.W.2d 558, cited to us by appellants, where the grantee does not have such power. In this latter case, a lease of a public dedicated park granted by the City to an individual who could not have secured such lease by condemnation was held to be void. In the cases cited above (Kingsville Independent School District v. Crenshaw, etc.) it was held that where the party needing the dedicated property is a public entity that can secure the easement or fee by condemnation proceedings, it need not go through such proceedings if it can secure the property by voluntary conveyance.

In January, 1962, after the attempted conveyance of December 7, 1961, was rescinded, City did secure from District by condemnation an easement for its right of way over the land used for the bridge construction. If, pending the filing of these proceedings, District granted to City some form of license to use this property, District would have been acting within its legal rights, since, as above stated, District as fee owner had the right to convey to City easement rights in the property, rather than wait for condemnation. If, on the other hand, City was a trespasser upon the land, such trespass by City would not con-titute a breach by District of the condition subsequent, and appellants’ remedy would be by nature of a suit against City for damages.

In neither instance would District have breached the condition subsequent to such extent as to cause a reversion of District’s fee title to appellants.

Although we have not expressly referred to them by number, we have so far passed upon all of appellants’ Points of Error except their last, and have found no cause to reverse the judgment of the trial court.

Appellants’ Point No. 5 is that the trial court erred in admitting in evidence for all purposes the record in the condemnation suit filed by City against appellants. Included in District’s pleadings in the present cause was a cross-action in condemnation against appellants. When the trial court sustained District’s motion for instructed verdict, this cross-action was dismissed on District’s request. The only harm which appellants could have suffered by reason of the admission in evidence before the jury of the amount of the award in the previous condemnation suit, which is what the appellants complain of in their brief, would have been for the jury to consider such amount as evidence of market value, in the event that issue reached the jury. Since it did not, any error of the trial court in this regard was harmless.

We find that there was no error in the action of the trial court in instructing the jury to return a verdict for City and District, and against appellants, and in rendering the judgment appealed from.

Affirmed.