author: DIXON, Chief Justice.

text:
    James POTTS, Sr., et al., Appellants, v. Ammy Addie POTTS, Appellee.
    No. 15950.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 16, 1962.

      Helen M. Viglini, Dallas, for appellants.
    David H. Brown, Sherman, for appellee.
   DIXON, Chief Justice.

Appellants James Potts, Sr. and Pearlie Potts, children of Ed Potts and his first wife Virgie Potts, brought suit in trespass to try title against appellee Ammy Addie Potts, second wife and surviving widow of Ed Potts, and stepmother of appellants, for title to a house and lot in the City of Sherman, Texas.

Appellants’ claim of title is not based on a deed. They claim that their parents acquired title by ten years’ limitation as provided in Arts. 5510 and 5513 Vernon’s Ann. C.S. and that they as heirs succeeded to the title. They do not ask for possession. They concede that appellee Addie Potts, as surviving widow of Ed Potts, has a right to live on the property during her lifetime.

Appellee Ammy Addie Potts, hereinafter called Addie Potts, filed a plea of not guilty, and in addition defensively pled the three, five and ten year statutes of limitations. She did not ask for affirmative relief.

After a trial before the court without a jury, judgment was rendered in favor of Addie Potts that appellants take nothing by their suit.

FACTS

Some of the facts are undisputed. In 1918 Ed Potts and Virgie Potts, husband and wife, entered into possession of the property. There is no conveyance of record and no showing of any unrecorded conveyance in their favor. They entered into possession by virtue of a purchase contract entered into with Mrs. M. E. Brannon, owner of the record title.

Ed Potts and Virgie Potts lived on the property until Virgie Potts died intestate on June 1, 1941. Ed Potts continued to live there until he married Addie Potts on December 5, 1942. They continued to live on the property until Ed Potts died intestate on March 22, 1949. Appellee Addie Potts thereafter continued to live on the premises until the date of trial.

The records of the tax assessor show that the property was assessed in the name of Ed Potts for the years 1918 through 1949, though there is no showing that the property was actually rendered by Ed Potts, or that Ed Potts ever paid any taxes thereon. The records do show that on November 30, 1953 Addie Potts, appellee, paid delinquent taxes, penalty and interest for the years 1936 and 1937; that on March 25, 1956 she made a similar payment for the year 1923; that on July 21, 1956 she made another payment for the years 1924, 1925 and 1927; and that on November 30, 1956 she made still another payment covering the years 1939 to 1946 inclusive.

On February 11, 1927 Ed Potts and Virgie Potts signed a paving contract as own-, ers of the property.

For several years prior to her death in August 1929, Mrs. M. E. Brannon, accompanied by her son J. C. Brannon and his wife, made frequent trips to the Potts home to collect installment payments on the purchase price. After the death of Mrs. M. E. Brannon, her son J. C. Brannon, acting for himself and other heirs, continued for several years to collect installment payments from the Potts.

At some undetermined time Ed Potts refused to make further payments because the City of Sherman claimed a portion of the land for street purposes. More than a year before the death of Ed Potts, J. C. Brannon declared the purchase contract forfeited and demanded possession of the premises.

A new contract was then entered into, in connection with which Addie Potts made a down payment of $50 out of her separate funds. She continued to make payments on such contract out of her separate funds until the death of Ed Potts on March 22, 1949.

On March 30, 1949, Addie Potts made a final payment of $797.77 out of her separate funds, and received a warranty deed from J. C. Brannon. This deed by its express terms conveys the “undivided right, title and interest of every kind and character” of J. C. Brannon in the property in controversy. The grantee named in the deed is “Ammie Addie Potts, a feme sole”. This deed was filed for record April 3, 1949.

Since March 30, 1949 Addie Potts has occupied the premises as her home, paying taxes and making valuable improvements on the premises.

The trial court made findings of fact which have support in the evidence. After J. C. Brannon demanded possession of the property following the forfeiture of the purchase contract because of Ed Potts’ refusal to make further payments, Addie Potts redeemed the property and in her own behalf entered into a new and separate purchase contract with J. C. Brannon, acting on behalf of himself and other heirs. The first payment under the new contract and all subsequent payments until the death of Ed Potts were made by Addie Potts out of her separate funds. All of this was done with the consent, knowledge and acquiescence of Ed Potts.

On or about April 2, 1949 appellant Pearlie Potts had actual notice that Addie Potts was asserting a claim of exclusive ownership of the property as opposed to her homestead rights as surviving widow of Ed Potts. On or prior to February 23, 1950, both James Potts, Sr. and Pearlie Potts had notice of such claim in behalf of Addie Potts.

Addie Potts’ claim of ownership has been open, peaceable, exclusive and adverse from about April 2, 1949 until this suit was filed.

OPINION

It is to be remembered that in trespass to try title suits the burden is on the plaintiff to show prima facie title, and if he fails to do. so judgment must be rendered for defendant. It is not necessary to determine the question whether defendant has title to the property. Jackson v. Griffin, Tex.Civ.App., 302 S.W.2d 266; Beken v. Hoffman, Tex.Civ.App., 196 S.W.2d 548; Reese v. Cobb, 105 Tex. 399, 150 S.W. 887 ; 41-A Tex.Jur. 685. The question then in this case is this: did appellants as plaintiffs in the trial court prove title in themselves under the ten year Statute of Limitations ? We have concluded that this question should be answered adversely to appellants.

The trial court filed written conclusions of law including the following: (1) there is no showing that the possession of Ed Potts and Virgie Potts resulted from a claim of ownership hostile to that of Mrs. M. E. Brannon and her heirs; (2) contrariwise it is indicated that the possession of Ed Potts and Virgie Potts was held under an executory contract of sale; (3) Ed Potts and Virgie Potts never perfected title by limitation; (4) had they done so, such title would have been extinguished through the subsequent claim and possession of Addie Potts; (5) the fact that taxes were assessed to Ed Potts and the further fact that Ed and Virgie Potts executed a paving contract does not establish a hostile claim in view of their subsequent payments to Mrs. M. E. Brannon and J. C. Brannon; (6) lack of hostility in Ed and Virgie Potts’ claim is confirmed in Ed Potts’ subsequent acquiescence in Addie Potts’ redemption of the property and (7) Addie Potts’ claim of ownership has been adverse to appellants.

In their first seven points on appeal appellants contend that the above conclusions were error on the part of the court. We are unable to subscribe to appellants’ contentions.

As we have indicated many of the facts are undisputed. Other facts, though not undisputed, have support in the evidence and the court’s findings thereon are binding on us. Addie Potts testified in substance that J. C. Brannon and his wife came to the property with a sheet showing “a whole lot of back taxes * * * and the place wasn’t paid out. * * * I asked him what did you all want to do, you want me to jar loose from my money to redeem the place, they come to put us outdoors, or else go home.” Ed Potts was present on this occasion. Addie Potts in her own behalf entered into a new contract with the Bran-nons, making the initial payment of $50 and monthly payments of $25 thereafter out of her separate funds. The testimony of Mrs. J. C. Brannon (J. C. Brannon had died about two years before the trial) though not entirely free of inconsistencies, in substance corroborates the testimony of Addie Potts.

Addie Potts further testified that shortly after the death of Ed Potts, she finished paying for the property, the final payment being in the amount of $797.77 from her separate funds. The deed dated March 30, 1949 was then executed and delivered, naming “Addie Potts, a feme sole” as grantee. She further testified that two or three days after receiving the deed she told Pearlie Potts that she was claiming exclusive ownership of the property. There is testimony from other parties, including Pearlie Potts herself, that Pearlie Potts soon thereafter communicated with a lawyer. Her brother James Potts, Sr. was also informed of Addie Potts’ claim. Early in the year 1950 Pearlie Potts executed and filed in the Deed Records of Grayson County an affidavit which had been prepared by her attorney. In this affidavit Pearlie Potts asserted appellants’ claim to the title to the property, the purpose being to give notice that appellants opposed Addie Potts’ claim of title.

We shall not attempt to reproduce even in condensed form all the testimony bearing on the issues in this controversy. However, there is evidence to support the court’s findings of fact to the effect that about a year prior to the death of Ed Potts, in March 1949, Addie Potts entered into a contract of purchase with J. C. Brannon, and thereafter claimed exclusive ownership of the property; that Ed Potts knew of her claim; that soon after Ed Potts’ death Addie Potts paid the balance due on the purchase contract, still claiming exclusive ownership; and that appellants knew of her claim soon after March 30, 1949, more than ten years before this suit was filed. These facts support the court’s conclusions of law. Appellants’ first seven points on appeal are overruled.

In their eighth point appellants complain that appellee Addie Potts was permitted to testify over appellants’ obj ection as to improvements made by her on the property amounting to more than $1,400. Appellants say there was no pleading to support said testimony. However, the statement of facts reveals that the court permitted appellee’s attorney to dictate a trial amendment pertaining to improvements. Anyway, in view of appellants’ failure to prove their title the matter becomes immaterial. Appellants’ eighth point is overruled.

In their ninth point appellants say that since appellee entered the property as the wife of Ed Potts in subordination to his claim of title and remained there until his death and after his death, she is estopped from attacking Ed Potts’ title. We cannot agree. Ed Potts’ purchase contract was forfeited. To prevent eviction Addie Potts in her own behalf then entered into a new contract with the record owners. Her claim from that time on was not subordinate to Ed Potts’ claim, but superseded his claim. There is evidence that Ed Potts had knowledge of Addie’s claim and consented to it. Appellants’ ninth point is overruled.

Appellants’ tenth to fifteenth points inclusive are to the effect that the court erred in finding that (10) there was no showing that the property was ever actually rendered by Ed Potts or that he ever paid any taxes; (11) Ed Potts and Virgie Potts entered into possession of the premises by virtue of a purchase agreement with Mrs. M. E. Brannon; (12) after the death of Mrs. M. E. Brannon, J. C. Brannon continued to collect installment payments for several years; (13) at some undetermined time Ed Potts refused to make further payments; (14) on or about April 1949 Addie Potts was asserting a claim of title to the property as opposed to her right of possession for life as Ed Potts’ surviving widow; and (15) on or prior to February 2, 1950 both James Potts, Sr. and Pearlie Potts had notice of such claim by Addie Potts. We have carefully read the entire record of the evidence in this case and are of the opinion that the court’s findings are supported by the record. Appellants’ points ten to fifteen inclusive are overruled.

In their sixteenth point appellants allege that it was error for the court to find that J. C. Brannon had authority from the other heirs of Mrs. M. E. Brannon to convey the entire estate of Mrs. Brannon and that he represented to Addie Potts that he was so acting.

Mrs. J. C. Brannon testified that her husband told Addie Potts that he had authority to convey not only his own interest in the property, but was authorized to convey the interest of the other heirs. This was contrary to the express terms of the deed itself, which undertook to convey only the interest of J. C. Brannon. Moreover, no written power of attorney is shown whereby the other heirs authorized J. C. Brannon to execute a deed in their behalf. However, appellants failed to establish their title by ten years limitation while Addie Potts did show ten years adverse possession and title under the ten year statute of limitations. Therefore the particular findings of the court here complained about by appellants, though in error, are immaterial and harmless. The sixteenth point is overruled.

In their seventeenth point appellants complain of error on part of the court in refusing appellants’ request for findings of fact. The trial court did make extensive findings of fact and conclusions of law which appear in the record. However, appellants prepared certain proposed findings of fact favorable to themselves, which proposed findings they asked the court to adopt. The court refused. Since the findings adverse to appellants found by the court (with the exception of the findings discussed under point sixteen) are supported by evidence, it was not error for the court to refuse to adopt the findings requested by appellants. The seventeenth point is overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    A. L. CAMPBELL, Jr., Appellant, v. Max HARPER et al., Appellees.
    No. 13877.
    Court of Civil Appeals of Texas. Houston.
    Feb. 22, 1962.
    Rehearing Denied March 15, 1962.
    Ellis F. Morris, William H. Scott, Jr., Houston, for appellant.
    Butler, Binion, Rice & Cook, R. H. Singleton, Houston, for appellees.
   COLEMAN, Justice.

This is a suit for damages for breach of a partnership contract. The trial court rendered judgment for the defendants.

On March 18, 1958, the parties to this suit entered into a written partnership agreement for a term of ten years whereby they became associated in the operation of the Melrose Pharmacy. On September 2, 1959, appellee Harper told appellant that he wanted to terminate his contract and handed appellant three checks. Appellant accepted and cashed the checks.

Appellant contends that a number of the findings of fact of the trial court are supported by no evidence, or insufficient evidence, or are so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust. We have, accordingly, reviewed all of the evidence and have concluded that the findings are properly supported by probative evidence and we cannot say that the findings are so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King’s Estate, 1951, 150 Tex. 662, 244 S.W.2d 660.

Appellant Campbell testified:

“Q So you understood at that time his purpose in talking with you was to terminate and settle out your relationship with Melrose Pharmacy?
“A Yes, sir, that is what I concluded.
“Q Your understanding of his purpose was to terminate your relationship with Melrose Pharmacy, and he did give you some checks, did he not ?
“A He gave me the checks about the same time.
“Q While the two of you were talking?
“A There wasn’t anything said except he said, T want to terminate your contract’.
“Q You understood at that time that what he wanted to do was to settle out your contract with Melrose Pharmacy?
“A Yes, sir.
“Q And as a result of that, he gave you some checks ?
“A Yes, sir.”
Appellee Harper testified:
“Q What was your purpose in giving the three checks to Mr. Campbell?
“A To conclude our relationship, our business relationship completely.”

This testimony, together with the undisputed facts concerning tender and acceptance of the checks, supports the defense of compromise and settlement pled by appel-lee.

“An enforceable agreement of compromise requires an offer to compromise, a meeting of the minds of the parties, and an unconditional acceptance within the time and on the terms offered. There must also have been a dispute as to the amount of the claim.
“Consideration is essential to the existence of a valid and binding contract of compromise and settlement, and the courts will not inquire into the adequacy of the consideration. * * *” (12 Tex.Jur.2d, Compromise and Settlement, §§ 5, 6, p. 290.)

Appellant contends that there was no meeting of the minds of the parties and no consideration. These contentions cannot be sustained. The court properly implied an offer on the part of Harper to compromise all matters in dispute concerning the partnership, and an acceptance of such offer by Campbell. The testimony shows that both parties were well acquainted with the financial condition of the business. Campbell received a check for his share of undivided profit, and another for salary, from the partnership funds, and the sum of $2982.42 of Harper’s personal funds in payment for his interest in the partnership. The transaction was supported by valuable consideration.

Other points were raised by appellant, but, in view of the disposition made of the points discussed, they fail to disclose reversible error.

Affirmed.


author: CHAPMAN, Justice.

text:
    Vernon BARTLETT, Appellant, v. Paul D. TULLIS, Appellee.
    No. 7092.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 5, 1962.
    Rehearing Denied March 5, 1962.

      Syrian E. Marbut, Lubbock, Aldridge & Aldridge, Farwell, for appellant.
    Bill Sheehan, Friona, Cowsert & Bybee, Hereford, for appellee.
   CHAPMAN, Justice.

This is an appeal by the defendant below, Vernon Bartlett, from a judgment of the trial court based upon a jury verdict against him and the Friona State Bank for earnest money placed in said bank as part of a real estate- transaction in which appellee, Paul D. Tullís, agreed to sell and Vernon Bartlett agreed to buy an irrigation farm near Friona. The bank was made a party to the suit only by virtue of being escrow holder of the earnest money.

The contract of sale provided in part that $5200.00 was to be placed in escrow in the Friona State Bank to be paid by said bank to seller as his liquidated damages in the event the sale failed of consummation through default of the buyer; $12,-000.00 cash was to be paid by buyer to seller upon consummation of the contract; buyer was to obtain a first lien purchase money mortgage of approximately $20,000.00 on the property, with that amount to be paid to seller when the sale was closed; seller agreed to deliver to buyer or his agent within 20 days an abstract of title showing good and merchantable title, with buyer to have 40 days thereafter to cause same to be examined and point out to seller any valid objections thereto in writing; if there were any valid objections the seller was to have a reasonable time in which to correct the abstract and make the title merchantable; and seller excepted from the conveyance an undivided one-half of all oil, gas, casing-head gas and other minerals, the mineral interest having been theretofore reserved by a previous owner of the land.

Upon issues submitted the jury found (1) appellant agreed that appellee should obtain the loan for $20,000.00; (2) the abstract should be delivered to the loan company for examination rather than to himself; (3) he would rely solely upon the opinion of the loan company’s lawyers rather than an attorney of his own choice; (4) the Douglas-Bingham Agency did not agree to furnish appellant a copy of the title opinion rendered by the lending agency’s attorneys; and (5) that prior to the time appellee substantially altered his position appellant did not inform the Douglas-Bingham Agency that he would not accept the loan in appellant’s name. The last two issues were requests made by appellant and given as “Defendants Requested Issue No. 1” and “Defendants Requested Issue No. 2.” Frankly, we do not know what is meant in appellant’s Requested Issue No. 2 wherein it says, “prior to the time ap-pellee substantially altered his position” but we do not believe an understanding of the clause is necessary to a proper disposition of the case.

From the judgment rendered for the seller, Tullis, for the amount of escrow money appellant, Bartlett, has perfected his appeal based upon the court’s failure to give an instructed verdict in his favor; the failure to give certain other special re-' quested issues in addition to the requests given; and for permitting Mr. Tullis “to testify that the title in question had been approved as merchantable by attorneys.”

Appellant was unable to negotiate a $20,-000.00 loan with only himself on the note and mortgage so the loan company agreed, under the plan shown by the testimony of Robert D. Armstrong, the Northwestern Mutual Life Insurance Company’s agent, quoted in this and the next paragraph, to make the loan originating with Mr. Tullis “who now owns the farm and has agreed to sell it to Mr. Vernon Bartlett, but that Mr. Bartlett does not qualify as to his financial statement, but he is to join in the note and deed of trust with Mr. Tullis as contract purchaser, or as receiving a deed if Mr. Tullis decides to give him a deed at that time. All of the details regarding this transaction would be outlined in our loan report which is approved by our Regional Manager in our Dallas Office, by the Farm Loan Department in our Milwaukee Home Office, by the Vice President of the Company, and, in turn, by our Finance Committee. The farm loan commitment would have been voted to Mr. Tullis with the special condition that Mr. Bartlett, as Contract purchaser is to join in the note and deed of trust.

“We have used the above method in making a few farm loans when the farm purchaser appeared to be a satisfactory credit risk and a good farmer, but was short financially. Actually, what this boils down to is that the present land owner or seller is co-signing the purchaser’s note. After I outlined the method on which we would handle this loan and it appeared to Mr. Bartlett that he could complete the purchase of this farm, he seemed quite pleased and agreed to secure the necessary credit letters from the Citizens National Bank in Lubbock, which he did.” (Emphasis supplied.)

From an abundance of proof the jury found that appellant agreed that Mr. Tul-lis should obtain the $20,000.00 loan on the land in question. He did so and contracted to pay 6% interest, whereas a smaller loan which the $20,000.00 had to retire carried only 4½%.

It is settled law in Texas that in order to test the sufficiency of the probative evidence to determine if it will support the jury’s findings we must give credence only to the evidence and circumstances favorable to the findings and disregard all evidence to the contrary, indulging every legitimate conclusion which tends to uphold such findings. Truelove v. Truelove, Tex.Civ.App., 266 S.W.2d 491, 494 (writ refused); Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97. Under this well established rule there is an abundance of evidence to sustain the jury’s findings that appellant agreed Mr. Tullís should obtain the $20,-000.00 loan; that the abstract should be delivered to the loan company for examination rather than to himself; that he would rely solely upon the opinion of the loan company’s lawyers rather than an attorney of his own choice; and that the Douglas-Bingham Agency did not agree to furnish appellant a copy of the title opinion rendered by the lending agency’s attorney.

Under the contract of sale appellee agreed to deliver the abstract to buyer or his agent within 20 days from date. Having made the loan company’s attorneys his agent for the purpose of examination of the abstract, even though without their knowledge, that part of the contract was performed by appellee. The buyer was then to have 40 days to cause the abstract to be examined and point out any valid objections thereto in writing to the seller.

The lien to Amicable Life Insurance Company and the oil and gas mining lease dated June 6, 1950 were both pointed out to the loan company and a requirement made that the loan be released at the time of closing. The testimony of John Ald-ridge, the examining attorney, shows he did not make a requirement of release of the oil and gas lease because he knew from previous experiences that the loan company for whom he was examining the title preferred that the land be leased on which they made loans.

The pointing out of defects in a title within the time provided is as much the duty of a purchaser under a contract of sale so providing as is the furnishing of an abstract the duty of the seller when the contract so provides. Upon such performance depends the obligation of the seller to correct the defects and comply with the legitimate requirements made, and the seller is obligated to correct only the defects pointed out. Lieber v. Nicholson, 206 S.W. 512, 514 (Commission Appeals); Mathews v. Caldwell et al., 258 S.W. 810 (Commission Appeals). The lease was pointed out to the loan company. Of course no requirement was made concerning it for the obvious reason that the examining attorney knew the loan company preferred that it be leased. There is no probative evidence that he knew appellant was depending upon his opinion.

When the $20,000.00 loan to Northwestern Mutual Life Insurance Company was closed the requirements that the smaller Amicable Life Insurance Company loan be released was complied with in accordance with the title opinion. Such loan, it must be remembered, is the one the jury found from sufficient evidence that appellant agreed to participate in under the plan explained by the company’s representative, Mr. Robert D. Armstrong.

The next question presented then is whether appellant could defeat recovery by appellee because the loan company’s lawyers did not make a requirement in their title opinion to the company that the oil and gas mining lease be released and the company correct the abstract with a showing of the release within a reasonable time, thus showing merchantable title. Under this record we do not believe appellant can justify his default in such manner.

The testimony of A. R. Knight, one of the real estate agents involved, shows as follows:

“Well, we all talked it over there in the office, in their office. And I believe Mr. Douglas, or maybe Bingham, one of them. Anyway, he said: ‘You can take it to any lawyer you want to, but getting a loan, it will be examined by the loan company.’ And Vernon [Bartlett] says: ‘Well, their opinion should be good with that kind of a loan, and it might save me some expense there.’ ”

Other witnesses corroborated the fact that appellant, in order to save some expense, agreed to accept the title opinion of the loan company’s lawyers. Yet, the record shows he never talked to Mr. Aldridge about the title, never asked him if he found any faults with it, or what requirements he made for correction of the abstract. He then hired his own lawyer and his own counsel never did “point out any valid objection thereto in writing to seller,” as the contract provided. Had he complied with the contract in this respect it is without controversy in the record that the release of the oil and gas mining lease of record would have been easily accomplished and shown in the abstract. The record shows Magnolia Petroleum Company had owned the lease and had canceled it in 1955, though apparently the cancellation had never been filed of record in Parmer County. Therefore, if the title was less than merchantable because of the failure of the abstract to show the release of the oil and gas mining lease, already released, then we believe the testimony is sufficient as a matter of law to show it was waived. Therefore, the points of error based on the court’s refusal to give the numerous requested special’ issues inquiring if he waived a merchantable title are without merit, as are those based on the inquiries as to whether appellee tendered a release of the oil and gas mining lease. There is no evidence whatever upon which to base the last mentioned issues, which, under the record before us are immaterial.

The title opinion made a requirement of the release of the deed of trust mentioned therein, which was duly released upon the consummation of the loan acquired by ap-pellee, to which loan the jury found appellant agreed. Accordingly, the points urging error for failure to submit such issues show no merit.

Appellant’s 10th point is overruled because the objections for failure to give the No. 3 requested issue quoted in said point does not conform to the requested No. 3 issue actually tendered. They are two separate and distinct issues.

Appellant’s 11th point asserts reversible error because the court permitted appellee to testify over appellant’s objections that the title had been approved by Aldridge & Aldridge as merchantable at the time he bought the land. In the first place such testimony was not proof of the title being merchantable at the time of the instant transaction. Secondly, the title opinion of 1954 made when Mr. Tullis purchased the land was introduced into evidence without objection. Thirdly, even if it could be said that the court was in error in permitting the testimony it was not such as would show reversible error under Rule 434 Vernon’s Ann.Tex.Rules of Civil Procedure.

We believe the record when studied as a whole indicates appellant decided after he had entered into the contract that he wanted out of it somehow, perhaps because a more mature consideration dictated the fact that he was assuming a very heavy obligation for his financial ability. PIow-ever, after appellee had secured the larger loan that required a cent and one-half higher interest rate than he was paying [which he did not need except to perform under the contract] and had ejected his tenant to appellee’s loss of more than $1,-600.00 grain rent it would be most inequitable to deny appellant the escrow money under the record made in this case. Ap-pellee continued to offer to perform even at the time of trial. We believe appellant’s defense is completely without merit. Accordingly, the judgment of the trial court is affirmed.


author: LANGDON, Chief Justice.

text:
    Walter WENZEL et al., Appellants, v. Susie MENCHACA, a minor, et al., Appellees.
    No. 5508.
    Court of Civil Appeals of Texas. Eighth District.
    Feb. 7, 1962.
    Rehearing Denied Feb. 28, 1962.

      Burkett & Petsch, L. W. Pollard, Kerr-ville, for appellants.
    Gordon L. Hollon, M. A. Shumard, M. J. Lehmann, Boerne, George H. Spencer, San Antonio, for appellees.
   LANGDON, Chief Justice.

This is an appeal from a summary judgment in a will case. Appellants were plaintiffs below and brought suit for title and possession of certain lands in Kendall County, Texas. Appellants claim title to the land by virtue of being the heirs at law of Adolphine Menchaca, deceased. Appel-lees, defendants in the trial court, have possession of the land and claim title to the land by virtue of being the grantees of one Christ Menchaca (also deceased), who was the surviving husband of Adolphine Menchaca.

On June 16, 1937, Christ and Adolphine Menchaca, as husband and wife, executed a joint will. The wife (Adolphine) was the first to die, and thereafter the joint will was duly admitted to probate in the County Court of Kendall County, on April 28, 1943, as the last will of the said Adolphine Menchaca.

Appellants alleged that the joint will of Adolphine and Christ Menchaca devised and bequeathed to the survivor of them a life estate only, in the lands in controversy, with the power of the survivor to dispose of such properties so inherited by sale, and that they each died intestate as to the remainder. Appellants also contend that ap-pellees acquired no title to the land by virtue of the deeds from Christ Menchaca to them because such conveyances were, at best, deeds of gift, and did not constitute a “sale” of such property within the meaning of the will. The latter contention, however, is not before this court, since it was not urged or raised as a point of error on this appeal.

Christ Menchaca, the surviving husband of Adolphine, died during the year 1957, after having first conveyed the lands here involved to appellees.

No children were born of the marriage between Christ and Adolphine. Further, the parties are in agreement that all the lands in controversy were owned by Adol-phine Menchaca at the time of her death, in fee simple, and as her separate property. It is also agreed that the interest of Christ Menchaca in such lands (and thus, the interest of the appellees in these lands as grantees of Christ Menchaca) arose solely under and by virtue of the joint will.

Appellees filed a motion for summary judgment, attaching thereto (among other papers) a certified copy of the joint will. Appellees contended in such motion that an estate in fee simple, to all the property, real and personal, of the decedent Adolphine Menchaca, was devised to her surviving husband, Christ Menchaca, as a matter of law. Appellants answered appellees’ motion and denied that the will passed a fee simple estate to Christ, the surviving husband of Adolphine. They contended that the terms and conditions of the will clearly granted only a life estate to Christ Menchaca, and that the testatrix, Adol-phine, died intestate as to the remainder. In their concluding prayer, appellants asked that the court so construe the will; that appellees’ motion for summary judgment be denied, and that plaintiffs (appellants) be granted a summary judgment construing the will of the said Adolphine Menchaca, deceased, to the effect that Christ Menchaca took only a life estate under the terms of the will, and that the said Adolphine Menchaca died intestate as to the remainder.

The trial court granted appellees’ motion for summary judgment, and entered a “take nothing” judgment against appellants.

Appellants have brought six points of error, all of which are grounded upon the single contention that the trial court erred in concluding that the testamentary intent of Adolphine and Christ Menchaca, as expressed in their will, was to bequeath to the survivor of them a fee simple estate.

The will is short; and omitting only the signatures and declaration of the attesting witnesses thereto, is as follows:

“WILL AND TESTAMENT
'
“THE STATE OF TEXAS 1
COUNTY OF KENDALL J
Know all men by these presents:
“That we Christ. Menchaca and Adolphine Menchaca husband and wife of Kendall County, State of Texas, being of sound and disposing mind and memory, and being desirous of settling our worldly affairs, while we have strength to do so, and not acting by reason of duress, menace, or any other undue influence of any character whatsoever, and it being our intention and purpose to dispose of all the property, real, personal and mixed which we and each of us, own at the time of our death, we having heretofore mutually agreed between ourselves, for a good and valuable and sufficient consideration moving from one to the other, to make a joint will, and in pursuance of such agreement, do hereby make, publish and declare this to be our joint last will and testament, hereby revoking all former wills at any time heretofore made by us, or either one of us.
“We give, devise and bequeath all our property, both real and personal of every kind which we may own at our death as follows:
“1st. That subject to the payment of all just debts and funeral expenses of each of us, we each will, bequeath and devise to the other surviving spouse all the property, real, personal or mixed of which we or either of us shall die seized, with further full power of disposition by sale by the surviving spouse, for and during the life of said surviving spouse.
“We appoint and direct that Peter Ingen-huei of Comfort, Kendall County, Texas, be and shall be the sole executor of this our last will and testament, and also direct that no bond or security be required of or from our executor, and that no action be had in the County Court under this will other than the filing of an inventory and appraisement and list of claims as required by law.
“In testimony we have hereunto set our hands, at Sisterdale, Texas, this the 16th day of June A.D. 1937.
“Christ Menchaca
Adolphine Menchaca”

Appellants are the collateral heirs of Adolphine Menchaca, but are not mentioned by either name or class in her will. They contend that the will is unambiguous; that the testatrix clearly intended to leave her husband, Christ Menchaca, only a life estate in her property, with power of sale; that the disposition of the remainder was omitted from the will, rendering such will incomplete, but not ambiguous; that a partial intestacy resulted, and that appellants are therefore entitled to the remainder of such estate as the heirs at' law óf the said Adolphine Menchaca, deceased.

In construing a will, the intent of the testator controls over all other considerations. While it is true that effect must be given to every part of a will where possible, this does not mean that a piecemeal construction of detached and isolated portions of the will is either required or proper. In other words, the intention of the testator is to be discovered from reading and considering the entire will, and should be construed, if possible, so as to render the instrument and all of its provisions consistent and harmonious. A particular clause or paragraph should be given a construction which makes it consistent with the will as a whole, and harmonizes it with the other terms of the instrument. 44 Texjur. 684-686, 711-712.

There is a positive presumption against intestacy. Where á will is ambiguous or is open to two reasonable constructions, it will be given that construction which will prevent intestacy. The mere fact that the testatrix made a will at all Is evidence of an intent not to die intestate. Urban v. Fossati, 266 S.W.2d 397 (Civ.App.); Ferguson v. Ferguson, 121 Tex. 119, 45 S.W.2d 1096, 79 A.L.R. 1163.

We do not believe it necessary to indulge any presumptions to discover the intent of the parties to the joint will now before us.In plain and unequivocal language, the intent and purpose of the testators is declared, as follows:

“ * * * it being our intention and purpose to dispose of all the property, real, personal and mixed which we and each of us own at the time of our death * *

They declared that they had mutually agreed to make a joint will “for a good and valuable consideration moving from one to the other * * * The “surviving spouse” is the only named beneficiary, and the will itself contains no hint or suggestion that the parties expected, or intended, that anyone should be benefited by the terms of their joint will except the survivor of them. The numerous appellants, representing the collateral kin of the testatrix, are not mentioned in the will by either name or class, and would be entitled to share in the lands involved here only if the will be construed to have passed less than a fee. simple estate in such lands to the survivor.

The law favors the vesting of estates, and it is the duty of a court to so con-' strue a will where the language of the will is susceptible to such construction. Under the statute (Article 1291, Vernon’s Annotated Texas Civil Statutes), every estate in lands granted, conveyed or devised to one “* * *■ shall be deemed a fee simple, if a less estate be not limited by express words or do not appear to have been granted, conveyed or devised by construction or operation of law.”

The parties to the joint will, having first declared that it was their intention and purpose to dispose of all of their property, then proceeded to do so in the following language:

“We give, devise and bequeath all our property, both real and personal of every kind which we may own at our death as follows:
“1st. That subject to the payment of all just debts and funeral expenses of each of us, we each will, bequeath and devise to the other surviving spouse all the property, real, personal or mixed of which we or either of us shall die seized * *

The foregoing language, in clear and express terms, is an absolute devise, and passes the fee title to such property to the surviving spouse, unless the estate is limited to a lesser estate by the following language:

“ * * * with further full power of disposition by sale by the surviving spouse, for and during the life of said surviving spouse.”

or, by construction or operation of law it be made to appear that an estate less than the fee simple was granted, conveyed or devised.

Before it can be held that the language quoted last above limited or reduced the absolute fee estate first devised, the intention of the testatrix that it should have such effect must clearly appear. Darragh v. Barmore, 242 S.W. 714 (Com.App., 1922); Young v. Griffin, 292 S.W.2d 376 (Civ.App.).

There is no indication that the parties intended to limit or reduce the estate first granted. On the contrary, it appears that there was an intent to enlarge, if possible, the fee estate already devised by conferring “further full power of disposition by sale” upon the surviving spouse. We consider that such language neither added to nor detracted from the fee estate first granted. It is, at best, an ambiguous appendage of uncertain meaning, and in such case it has long been the rule in Texas that whenever an estate in land is devised (although words necessary at common law to transfer an estate in fee simple be not added), it shall be deemed a fee simple estate, unless expressly limited to a lesser estate. Language which does not clearly limit or reduce the fee estate deemed to have been devised, and which at best is uncertain and ambiguous in its meaning, cannot serve to disturb, cut down or diminish a fee simple estate otherwise clearly devised.

The court noted, in Young v. Griffin, supra, “it is a well-settled rule of law that life estates in personal property are not favored, 31 C.J.S., Estates, § 133, p. 151.” In the instant case, the Menchacas’ will disposes of both real and personal property in the same clause, but appellants have made no claim to, nor have they sued for, the personal property, although it is obvious that if a life estate was intended for the real property, it was also intended for the personal property.

The fact that real estate is included in the same clause with an absolute estate in personal property indicates an intention to devise a fee in the real estate.

The fact that real and personal property are given together by the same clause, and in the same language and connection, has been held of great moment, if not conclusive, as passing a fee.

We believe the rules and cases cited and discussed above have application to the problems presented by this case and must govern its disposition.

Appellants’ points, and each of them, are accordingly overruled, and the judgment of the trial court is affirmed.


author: RENFRO, Justice. RENFRO, Justice.

text:
    DENTON COUNTY ELECTRIC COOPERATIVE, INC., Appellant, v. Mrs. U. A. BURKHOLDER et al., Appellees.
    No. 16296.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 16, 1962.
    Rehearing Denied March 9, 1962.

      Jackson, Walker, Winstead, Cantwell & Miller, L. P. Bickel and Jack Pew, Jr., Dallas, for appellant.
    Coleman & Whitten, and Royce Whitten, Denton, for appellee Mrs. U. A. Burkholder.
    Leachman, Gardere, Akin & Porter, J. Carlisle DeHay, Jr., and Edward E. Crow-ell, Jr., Dallas, for appellee Joslyn Manufacturing & Supply Co.
   RENFRO, Justice.

On the 12th day of June, 1960, five cows belonging to plaintiff were electrocuted. The instrument of death was a power line belonging to defendant, Denton County Electric Co-operative, Inc., which came in contact with the cows by reason of a broken power line pole.

Plaintiff filed suit against the defendant, alleging several acts of negligence. The defendant made Joslyn Manufacturing and Supply Company, successor to the supplier of the poles, a party defendant, and alleged that said Company failed to properly inspect the pole in question before it was delivered to the defendant.

The jury found: (1) the five cows belonged to the plaintiff; (2 and 3) the cows were killed on the occasion in question by electrocution from a transmission line of the defendant; (4) the defendant failed to properly inspect the pole in question prior to the incident in question; (5 and 6) such failure was negligence and a proximate cause of the death of the cattle; (7) the pole was rotten prior to the time it fell; (8 and 9) the use by defendant of such rotten power pole was negligence and a proximate cause of the death of said cattle; (10) that the value of the cattle immediately prior to their death was $3,350. In other issues the jury exonerated Joslyn Manufacturing and Supply Company of any negligence; found the incident was not the result of an unavoidable accident; and it was not the result of an act of God.

Appellant’s first twenty points of error attack the answers of the jury to issues 4, 5, 6, 8 and 9 as being without any evidence to support them and the answers were so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

It was established that the power pole was rotten, that it broke and fell because of its defective condition; that the breaking of the pole caused the power line to come into contact with the cows and caused their deaths.

The evidence was sharply contradictory as to whether defendant was guilty of negligence.

According to defendant’s witnesses the pole was given a hammer test about 2 weeks before the pole broke and the inspector discovered no rottenness or defects ; that a hammer test is the most practicable test for discovering rotten poles.

Plaintiff submitted testimony that the pole broke at ground level. There were split places and rough places in the pole that could be seen from the outside. Plaintiff had the pole, both below and above the break, placed under shelter. She saw and heard a hammer test. There was a different sound further up the pole. The wind accompanying the rain on Sunday was just an ordinary wind and no other poles and no trees were blown down. The pole was in substantially the same condition when exhibited to the jury as when it broke.

Defendant’s manager testified that the line superintendent represented to him , prior to the accident that he had inspected some of the poles in the area and they were good. Defendant’s witnesses admitted there were other tests that could he made to determine the condition of a pole. One was an auger test. Although defendant did not use an auger test on the poles, other companies used such tests. That if an auger hit the right spot it would reveal a fungus condition.

Both the bottom and top parts of the pole were exhibited to the jury. Before the jury a hammer was used to tap various places on the pole and there is evidence that the hammer taps caused different sounds at different places, indicating deterioration inside the pole. The pole is not before us. It was before the jury. The jury saw the outside appearance and had the benefit of the sound effects of hammer tapping and the interpretation of the sounds by witnesses. There was evidence that the outside of the pole sloughed off easily.

During the hammer test, and when questions were asked about visible appearances, ' the attorneys merely indicated to the witnesses what portion or part of the pole was under discussion. They failed to have the reporter so indicate in the record. The jury, however saw and heard.

We must, of course, view the evidence in the light most favorable to the findings of the jury. In view of the testimony that there were cracks on the outside of the pole and that witnesses testified during the trial that tapping on the pole on rotten parts of the pole sounded different from taps on other parts of the pole, the jury might well have believed defendant’s line inspector did inspect the pole but, if he did, he did not properly test it. The jury was entitled to believe the testimony to the effect that both parts of the pole were in substantially the same condition on the date of the trial as on the date of the accident. The evidence is such that the jury could have believed that the outside appearance of the pole from ground level up was sufficient to put defendant on notice that the pole was defective, as well as being sufficient for a jury to have believed that proper tapping of the pole would have revealed upon a prompt inspection that the pole was rotten inside.

In Texas-Louisiana Power Co. v. Webster, 127 Tex. 126, 91 S.W.2d 302, it was held the Power Company “under its easement or right of way deed, and under the law, had the right to maintain its power line over and on this land, but it had no authority under such deed, or under the law, to maintain its line at the point above the ground where this wire was at the time these men were killed by it.”

In the instant case the right of the defendant to have its power line across plaintiff’s land is not questioned but such right gave it no authority to maintain its line on a defective pole. That an electric company has actual notice of the dangerous condition may be inferred fom slight circumstances. 21 Tex.Jur.2d, p. 502, § 22. On page 508, § 27 of the same volume it is stated that “The duty of an electric company to maintain its plant in a reasonably safe condition carries with it the obligation of making such inspection of the condition of its appliances, equipment, lines, and facilities as may be practicable and reasonably essential to the accomplishment of that end,” and that the inspection is continuous.

In view of all the evidence and the reasonable inferences which the jury was entitled to draw therefrom, and in view of the fact the jury was the judge of the credibility of the witnesses and the weight to be given their testimony, we hold that there was evidence of probative force to uphold the answers of the jury to the issues of which complaint is made and that such evidence is not so against the great weight and preponderance of the evidence as to be manifestly wrong.

Appellant contends the submission of issues 7, 8 and 9 was reversible error because it constituted a double submission of a single theory of recovery. Duplication of special issues is not sufficient of itself as grounds for reversal unless the complaining party can show that duplication influenced the jury to render a verdict different from what it would have rendered except for the duplication. Munden v. Chambless, Tex.Civ.App., 315 S.W.2d 355. This court held in Tripp v. Watson, 235 S.W.2d 677, that undue repetition of issues should not be tolerated, but that repetition is not necessarily reversible error where there is no reason to believe that confusion resulted from the manner of submission. See also Wilkinson v. Chambers, 205 S.W.2d 639. Defendant has failed to show reversible error by reason of the submission of the issues complained of. Rule 434, Texas Rules of Civil Procedure.

In points 22 and 23 the defendant contends the court erred in failing to inquire of the jury the market value of the cattle after their death. The cattle were killed about 4:00 or 5:00 o’clock on Sunday afternoon. Plaintiff did not know of their death until about 9:00 o’clock on Monday morning. The defendant voluntarily had the carcasses removed from plaintiff’s premises. The general rule is that if an animal has been killed the owner is entitled to recover its market value at the time and place of injury. 17 Tex.Jur.2d, p. 162, § 90. There is nothing in the record to indicate that an exception to the general rule should be invoked in this case.

Defendant complains of the following jury argument by plaintiff’s counsel: “They first want to lay it off on the Joslyn Manufacturing Company, and then they want to lay it off on the Southwestern Laboratories. And I don’t mean any disrespect when I say this — and I say it sincerely — they want to lay it off on God. They want you to say that it was an act of God that caused it.” The defendant objected to the argument as being prejudicial and inflammatory. The court promptly sustained the objection.

By pleadings, evidence, jury issue and jury argument defendant endeavored to prove that the “incident” was the result of an act of God. While counsel’s use of the words “lay it off on God” might have been somewhat offensive to the listeners, it was not such a remark as was calculated to prejudice the jury against the defendant. In any event, the court sustained defendant’s objection to the remark and we think that if any harm was done it was obviated by the court’s ruling.

Defendant also contends that it was error for plaintiff’s counsel to argue to the jury: “You answer these first ten in the affirmative, or nine in the affirmative and then give this good woman the value of her cattle * * We have the benefit of the entire argument made by both counsel. In his opening argument plaintiff’s attorney discussed issues 1 through 9 and argued for an affirmative answer and argued the evidence which would support affirmative answers. At the time the complained of statement was made it was clear to the jury that counsel was arguing for them to answer the first nine issues in the affirmative and when he said, “give this good woman the value of her cattle”, the jury, as persons of ordinary intelligence, surely knew that he meant for them to answer 10, the damage issue, as to the value of the cattle.

Plaintiff’s counsel, in discussing the definition of a prudent person as defined in the court’s charge, remarked, “realizing that there are cattle, and people, as far as that is concerned, although, fortunately, nobody is involved here, no person— * * * « Defendant objected to the argument and asked that the jury be instructed not to regard it for any purpose. Plaintiff’s counsel then stated: “I said no people were involved.” The court thereupon sustained defendant’s objection and instructed the jury not to regard the argument for any purposes.

In view of the record, none of the arguments separately constituted reversible error, nor did the cumulative effect of the arguments do so.

Finally, defendant requests the court to require a remittitur.

In plaintiff’s petition she alleged the reasonable cash market value of the cows to be $2,950. The maximum she placed on any one cow was $750. In addition she asked for recovery of a $200 feed bill for calves occasioned by the death of the cows, and for $150 which she alleged it would cost her to search for and replace the cattle destroyed. Her prayer was for $3,350.

The only issue submitted to the jury on damages was for the reasonable cash market value of the five cows. No evidence was introduced or issues submitted on the other two items plead.

The generous jury, however, found the value of the cows to be the amount set out in plaintiff’s prayer, which amount was $50 more than the total asked for by plaintiff, including the items of $200 and $150 which were not proved or submitted to the jury.

In addition, the maximum reasonable market value placed on the five cows by plaintiff’s own witnesses, by coincidence, amounted to $2,950, the amount she had alleged in her petition. Plaintiff herself, although in her petition had not placed a value of more than $750 on any one cow, testified that one cow and her two months’ old calf were worth $900. She did not state the value of the cow without the calf. The calf was not killed and no recovery was sought for its value.

The court’s judgment must be supported by the pleadings and the evidence. Government Employees Credit Union v. Jaquez, Tex.Civ.App., 318 S.W.2d 134; Clonts v. Johnson, 116 Tex. 489, 294 S.W. 844.

If there is no reversible error in the record, the objection to a verdict and judgment in excess of the amount plead and proved may be removed by remittitur. York’s Adm’r v. Gregg’s Adm’r, 9 Tex. 85; Lewter v. Lindley, Tex.Civ.App., 121 S.W. 178.

Under Rule 440, T.R.C.P., the court of civil appeals has authority to suggest a remittitur.

The plaintiff contends that when issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleadings, citing Rule 67.

■ Said rule is not applicable here, because at the time issue 10 was submitted the defendant had no way of knowing that the jury was going to return a verdict $400 in excess of the amount which plaintiff had plead and proved.

Since the amount of the jury verdict and judgment was clearly excessive in the amount of $400, a remittitur should be filed by the plaintiff.

The judgment in favor of Joslyn Manufacturing and Supply Company is affirmed.

The judgment in favor of plaintiff will be affirmed conditionally upon the plaintiff’s filing within fifteen days a remittitur in the amount of $400 on the judgment. If the remittitur is not filed, the judgment is ordered reversed and the cause remanded.

Affirmed as to Joslyn Manufacturing and Supply Company; affirmed conditionally as to judgment in favor of plaintiff against the defendant.

BOYD, J., not participating.

SUPPLEMENTAL OPINION

RENFRO, Justice.

Plaintiff having filed in writing the re-mittitur as suggested in our original opinion, it is ordered that the judgment, as reduced by the remittitur, be affirmed.


author: DAVIS, Justice.

text:
    MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellant, v. Jewell D. CHESHER, Appellee.
    No. 7352.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 20, 1962.
    Rehearing Denied March 13, 1962.
    Howell, Freels, Elliott & Nall, Denison, G. C. Butler, Bonham, for appellant.
    White & Fair, Dallas, Cunningham, Cole & Southerland, Bonham, for appellee.
   DAVIS, Justice.

This is a suit for damages as the result of a car being hit by a train in which the driver of the car and his four children, three girls and one boy, were killed. Appel-lee-plaintiff, Jewell D. Chesher, a widow, and plaintiffs Thomas H. Chesher and Tessie Chesher, husband and wife, and father and mother of James Thomas Chesher, deceased, sued the appellant-defendant, Missouri-Kansas-Texas Railroad Company. Plaintiffs, Thomas H. Chesher and Tessie Chesher, filed a disclaimer and were not awarded any damages. The collision occurred at a railroad crossing on Hamilton (Holmes) Street in the town of Trenton, Fannin County, Texas. The appellee, as surviving spouse and-mother, alleged damages for the death of her husband, James Thomas Chesher, and the death of the four •children.

The collision occurred at approximately 8:00 o’clock P.M., in the evening of December 6, 1958. The automobile in which the deceased were riding was a 1951 two-door •Chevrolet. The automobile was being driven by James Thomas Chesher from Grand Prairie, Texas, to the home of his parents in Trenton, Texas. His four children were riding on the back seat of the car. A television set was riding on the right side in the front seat. The automobile approached the railroad crossing from the Southwest. The train of the appellant, the Texas Special passenger train, approached the crossing from the Southeast. The front of the automobile was across the railroad track at the time it was hit by the train. The collision killed Mr. Chesher and the four children, instantly.

According .to the allegations and the proof, the crossing at which the collision occurred is a paved street and a main artery of traffic to and from the town of Trenton. It is a heavily traveled roadway to and from the town square for traffic moving northeasterly and southwesterly. The street is narrow, and connects with a Farm-to-Market road on the southwest side of the town. There are numerous obstacles to a clear view of the railroad track, such as houses, buildings, trees, utility poles, shrubberies, and a depot located adjacent to or very near the east side of Hamilton Street and near the appellant’s main line track on which the train involved in the collision was traveling in a northwesterly direction. The obstructions are so situated that a person riding in an automobile at night, and using said Hamilton Street, as were the deceased, can hardly see anything on the main line of the railroad track until they are within a few feet of the appellant’s main line track. The street, when very close to appellant’s main line track, approaching from the southwest, after it enters the appellant’s main line track, turns sharply to the right and on an upgrade of approximately four to six feet. ■ Such a condition within the appellant’s main line track requires a person using the same to use more than ordinary care to maneuver an automobile on the street. The evidence shows that some 400-500 feet before the street gets to the railroad tracks is a rough and curving thoroughfare. There are three railroad tracks on Hamilton Street; one, the main line track, and two spur, or switch, or house tracks. The main line track is in the center, with a spur, or switch, or house track on either side. The deceased had to pass one track (called a house track) before reaching the main railroad track. The rails on the main line of the road surface protruded above the surface. Considering all the facts together, on the night of the collision, it was a rough and dangerous crossing.

The collision occurred on Saturday night when the town lights and other lights in the business district would reasonably be calculated to reflect in the face of a traveler in an automobile, such as the deceased, as the car approached the town. A “Norther” was in progress at the time of the collision, and the weather was extremely cold and below the freezing point. The wind was blowing from the North. The appellant had permitted an old shed or barn to exist for quite some time on the right-of-way, and on this particular night, loose tin was flapping and noisily knocking in the wind. The train was traveling at a high rate of speed, was considerably behind schedule, and apparently trying to make up lost time at the time of the collision. The train was running with the throttle wide open.

The jury answered all of the special issues in favor of the appellee. The pleadings supported the issues, and the evidence is sufficient to support the answers.

According to the record, it took about thirteen days to try the case. The case was fully and carefully tried.

The jury specifically found that the railroad crossing at the time and place and on the occasion in question was extra-hazardous. That the appellant was negligent in not having a warning system capable of warning the traveling public. The jury convicted the appellant of operating its train at a high and excessive rate of speed; of failure to sound a signal as required by law, and failure to ring a hell as required by law. The jury also found the appellant guilty of failure to slow the speed of the train prior to entering the crossing; failure to keep a proper lookout, and of failing to continuously sound the signal until the train was past the crossing. The jury likewise found the deceased not guilty of any act of contributory negligence including any violation of Art. 6701D, Sec. 86, Vernon’s Ann.Civ.St, as plead by the appellant.

Damages were found by the jury in favor of the appellee as follows: For the loss of the car $350.00; for burial expenses for the entire family $2,085.00'; damages because of the loss of her husband, James Thomas Chesher, $42,500.00; damages for the loss of the three girls at $4,917.00 each (a total of $14,751.00); damages for the loss of the boy at $7,750.00, a total of $67,436.00. Judgment was entered accordingly.

On January 12, 1961, appellant filed an amended motion for new trial, and the court set the same for hearing on February 9, 1961. On February 9, 1961, a hearing was had and the court took it under advisement. Forty-five days after January 12, 1961 (February 26, 1961) came on a Sunday. Under Rule 4, Texas Rules of Civil Procedure, the motion was not overruled by operation of law until February 27, 1961. On February 27, 1961, the court, in open court after due notice to all parties announced that he was going to overrule the amended motion for new trial. The court signed an order overruling the same on February 28, 1961, in which it is stated that the amended motion for new trial was overruled on February 27, 1961. According to Rule 329b, T.R.C.P., an amended motion for new trial can not be undetermined after the 45 day period as provided by the rule unless it falls on Saturday, Sunday, or a legal holiday. In case the 45th day falls on Saturday, Sunday, or a legal holiday, the amended motion for new trial is not overruled by operation of law until the first day after Sunday or the legal holiday. Fulton et al. v. Finch (Tex.S.Ct.), 346 S.W.2d 823. Therefore, the order signed on February 28, 1961, is void and has no force or effect whatever. The super-sedeas and appeal bond being filed on March 24, 1961, less than 30 days after the amended motion was overruled by operation of law, it is necessary to consider the points of error as raised by the appellant. All eight points of error brought forward complain of the action of the trial court in overruling the amended motion for new trial.

It can be assumed that the first six points of error, as stated in the points and from the brief, complain that: (1) The appellee wholly failed to sustain her burden of proof and show actionable negligence on the part of the appellant; (2), the evidence shows concurring negligence of ap-pellee and her husband; (3) that the testimony in the case, together with the physical facts, conclusively show negligence and proximate cause as a matter of law on the part of the appellee and her husband, and the trial court should have entered judgment in favor of appellant that appellee take nothing by her suit; (4), that according to the evidence in the case, the deceased, the driver of the automobile, was guilty of violating Article 6701D, Sec. 86, Subdivisions a, c, and d thereof, constituting negligence as a matter of law and proximate cause, and the court erred in entering judgment in favor of appellee; (5), the insufficiency of the evidence to support the jury verdict to issues 1 through 22; and, (6), that the jury was guilty of passion, prejudice and sympathy in answering issues 27 through 75, and the court should have entered a judgment for the appellant. From what has already been said in this opinion, these points are without merit because the pleadings and the evidence are fully sufficient to support the jury verdict in its entirety. The points are overruled.

By point 7, the appellant raises an issue of jury misconduct to the effect that the verdict was a quotient verdict. Hearing was had before the court on February 9, 1961. There was attached to the amended motion for new trial an affidavit by J. W. Tanner, one of the jurors. The affidavit, omitting the caption and the signature, reads as follows:

“We answered all of the issues submitted to us after entering the jury room down to the issue concerning the amount of damages. On one issue relative to the train whistle, we were some little time deciding. Upon the amount of damages to be awarded for the death of Mr. Chesher we agreed to write down on a slip of paper what each of us thought he would have brought home to his family had he not been killed. Then to total this amount, •divide by 12, and that would be our verdict. We did this and Mrs. Kelly totaled the amount, divided by 12, and the figure arrived at was $42,500.00. After the total was arrived at it was checked by me and some of the other jurors, to see that the figures were correct. We followed this same procedure in arriving at the amount of damages that should be allowed for the first girl and after dividing the total amount by 12 the figure was $4,917.00. We used this same amount as to the ■other two girls. We followed the same procedure in arriving at the amount to be allowed for Thomas Chesher, the boy, and the amount came out at $7,-750.00. This was the method used in arriving at the amount of damages shown in our verdict.
“I have read this statement and it is true and correct.”

At the hearing before the trial court, seven of the jurors testified. According to their testimony, there was no pre-agreement that they would divide the figures by twelve and be bound to use that as their verdict, though one of the jurors testified that they had the previous agreement, and agreed to be bound by the result of the quotient process.

Under Rule 327, T.R.C.P., a complaint or grounds of a motion for new trial alleging jury misconduct, one must not only prove the misconduct, but must show that the misconduct resulted in an injury. The appellant cites many cases in support of its points, but most cases cited are prior to 1941. It was in 1941 that Rule 327, T.R. C.P., was enacted and became the law in Texas.

Frankly, the verdict is a quotient verdict, but the jury did not have an agreement to be bound by the verdict, and after the figures were arrived at, the jury took a vote upon the figures and decided that the figures reached was a fair and just verdict. If the jury had been guilty of passion and prejudice, and had wanted to do an injury to the appellant, they could have put down figures and rendered a total judgment for the appellee for about $327,560.00. This, they did not do. The amount of the verdict ($67,436.00) seems to be extremely reasonable. A little less than one-fifth (1/5) of the amount sued for. According to the evidence, Mr. Chesher had a life expectancy of 37.3 years. .He was making about $5,000.00 per year. Bearing in mind these figures, the jury could have, under the pleadings and the evidence, returned a verdict for the death of Mr. Chesher alone for $175,000.00. There is no set figure as to how much a minor child is worth. The appellee sued the appellant because of the loss of her children as follows: Judy Chesher, a girl, ten years of age, for $31,000.00; Thomas Darrel Chesher, a boy eight years of age, for $43,000.00; Connie Chesher, a girl four years of age, $37,000.00, and Patricia Chesher, a girl two years of age, $39,000.00 When we examine the law relative to jury misconduct on the quotient verdict, we cannot see where any injury was done the appellant, and we do not feel that the trial court committed any error in failing to grant the motion for new trial. It was clearly shown at the hearing on the amended motion for new trial that none of the jurors were bound by the quotient verdict. The verdict was very reasonable. 53 Am.Juris. 710, Sec. 1030; 53 Am.Juris. 712, Sec. 1031; Schreiber et al. v. Pacific Coast Fire Insurance Company et al., 195 Md. 639, 75 A.2d 108, 20 A.L.R.2d 951, Anno. 958; Virginia Electric Power Co. v. Marks, 195 Va. 468, 78 S.E.2d 677, 39 A.L.R.2d 1201, Anno. 1208; 41-B Tex.Juris. 392, Sec. 316; 41-B Tex.Jur. 393, Sec. 317, 41-B Tex.Jur. 417, Sec. 334, 41-B Tex.Jur 777, Sec. 568; Morgan et al. v. State of Texas (Ct.Civ.App.), 343 S.W.2d 738, wr. ref., N.R.E.; 66 C.J.S. New Trial § 59, p. 188; Higginbotham v. O’Keefe (Ct.Civ.App.), 340 S.W.2d 350, wr. ref. N.R.E.; XII Baylor Law Review No. 4, 355-385. The point is overruled.

By its point 8, appellant complains of the action of the trial court in refusing to permit the appellant to make proof as to the misconduct of the jury in determining an issue by majority rather than unanimous vote. In its amended motion for new trial it alleged that special issue No. 6 was answered as the result of a majority vote. The appellant then alleged that special issue No. 6 being so answered, that the jury then answered special issues No. 20, 30, 37 and 40 in favor of the appellee. In the affidavit by Mr. Tanner, attached to the amended motion for new trial he said: “On one issue relative to the train whistle, we were some little time deciding.” The appel-lee filed special exceptions to the amended motion for new trial in which she pointed out that the issues on jury misconduct as to answering the issue by majority vote were too vague to apprize the appellee as to the issue of jury misconduct, was not supported by affidavit, or affidavits of any of the jurors. Appellee also alleged that appellant failed to set forth any excuse for failure to attach affidavits; that the allegations constituted nothing but a fish-ing expedition; showed no excuse for failure to attach affidavits; that the allegations of determining the answer by majority vote was nothing more than a conclusion of the-pleader; and, that the appellee denied any' jury misconduct occurred during the deliberations in the case. The trial court heard the exceptions and sustained the same. The appellant did not request leave to insert the names of the jurors in the motion, nor to' tender affidavits in support thereof. The-trial court did permit the appellant to make ■ proof in perfecting its bill of exceptions.. We hold that the proof was insufficient: to support the record on the allegations of* jury misconduct. Hobbs et al. v. Slayton (Ct.Civ.App.), 265 S.W.2d 838, and authorities therein cited. The point is overruled!.

No error appearing in the record, the judgment of the trial court is affirmed.


author: CHADICK, Chief Justice.

text:
    Ida Lou FAWBUSH, Appellant, v. Calvin CARTER, d/b/a Southland Concrete Company et al., Appellees.
    No. 7383.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 20, 1962.
    Rehearing Denied March 13, 1962.

      Harkness & Friedman, Texarkana, for appellant.
    Norman C. Russell: Atchley, Russell & Hutchinson, John D. Raffaelli: Raffaelli & Keeney, Texarkana, for appellees.
   CHADICK, Chief Justice.

This is a common law tort action. The trial judge instructed a verdict for the defendants and entered a take nothing judgment. The judgment is affirmed in part and reversed and remanded in part.

After da'rk on June 7, 1961 Mrs. Ida Lou Fawbush, the appellant, fell into an open water line ditch on Fielden Street in Tex-arkana, • as she started across the street to her parked automobile. The day before a ditch approximately 4 feet wide and 5 feet deep had been opened the whole length of the street^ n'ear to and parallel with the street’s east curb line. In crossing, when Mrs. Fawbush reached the open ditch she stepped near its edge and the ditch wall caved in, causing her to fall into it, strike a metal pipe, and receive severe injuries. The Calvin Carter Construction Company, Inc., was engaged in the performance of a contract with the City of Texarkana, Texas, to pave Fielden Street at the time of Mrs. Fawbush’s accident.

Should the evidence show as a matter of law that Mrs. Fawbush voluntarily encountered the danger of crossing the ditch the trial court’s instruction to the jury and judgment are correct. On the other hand, the judgment is improper if reasonable minds might have drawn a different conclusion from the proof. When the evidence raises an issue of fact the issue should be submitted for jury determination. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

A plat in evidence shows that Fielden is a north-south street, its north end joining at a right angle with the east end of Carver, an east-west street. The Fawbush residence and lot is located on and adjacent to the east side of Fielden Street about 125 feet from the street’s north end. The only entrance or outlet to or from the Fawbush property is on Fielden Street; the Fawbush lot is bounded on its other three sides by property of others. On the east side of Fielden Street between the Fawbush property and the end of Fielden at Carver Street are two lots. The one next to Mrs. Fawbush is occupied by a residence, the other is vacant. At the time of her mishap there was a hedge separating the Fawbush lot from this lot immediately next to hers on the north. The hedge ran east from the street curb line along the Fawbush north boundary to the Fawbush east boundary. On the night of the mishap a ditching machine and other vehicles were stored on the vacant lot next to Carver Street.

' The first day of June the construction company ran a grading machine along the east curb line of Fielden Street and threw up dirt in such way that Mrs. Fawbush’s driveway entrance was blocked. She arranged with friends occupying a house on the west side of the street at the corner of Fielden and Carver to permit her to park her automobile in their driveway while the street was torn up. This arrangement existed at the time pertinent here. Late in the afternoon of the day of her injury she and some young friends planned a night fishing trip. Several times she went to and from her house carrying fishing gear and other provisions to the car, crossing the water line ditch each trip. When preparation at the car was complete she discovered her car keys had been left behind and returned to her house for them. The unfortunate accident occurred as she was on her way back to the car.

Mrs. Fawbush testified that she might have walked on the east side of Fielden Street to Carver, then back up Fielden to her car by climbing through the boundary hedge and by threading her way around and between the machinery and vehicles parked on the lot next to Carver Street. The testimony indicated no sidewalk or walkway existed along this route or elsewhere, that passage through the hedge would be difficult, and finding her way in darkness through or around the parked vehicles on unfamiliar ground would be troublesome, and too that such route was somewhat further than the more direct way she chose.

This record does not suggest that Mrs. Fawbush had any alternative to crossing the ditch or walking down the east side of Fielden, in reaching her car. The evidence raises an issue of fact as to whether or not Mrs. Fawbush voluntarily encountered the danger of crossing the open water line ditch at the time of her injury. Gulf, C. & S. F. Ry. Co. v. Gascamp, 69 Tex. 545, 7 S.W. 227; Robert E. McKee, General Contractor v. Patterson, 153 Tex. 517, 263 S.W.2d 326; 271 S.W.2d 391; and Sinclair Refining Company v. Winder, Tex.Civ.App., 340 S.W.2d 503, wr. ref., recognizes that the voluntary character of the injured party’s conduct is a pertinent inquiry and supports the conclusion here expressed.

Grounds entirely independent of those just discussed require judgment of the trial court in favor of all appellees except Calvin Carter Construction Company, Inc., be affirmed. The appellant proved no cause of action against such parties. The judgment of the trial court is reversed and the case remanded for re-trial as to the appellee, Calvin Carter Construction Company, Inc., alone.


author: YOUNG, Justice.

text:
    Gaylord I. WELLS, Appellant, v. L. A. (Jack) POWERS et al., Appellees.
    No. 16010.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 9, 1962.
    Rehearing Denied March 9, 1962.

      Rosenfield, Berwald & Mittenthal, Dallas, for appellant.
    iBruce Graham and William C: Parker, Greenville, for appellees.
   YOUNG, Justice.

Appellant had sought a temporary injunction against both appellees from violating the terms of an alleged restrictive covenant, whereby Powers had bound himself not to engage in the automobile repair business within a three mile radius of White Rock Automotive (8916 Garland Road) for five years following sale of said business by Powers to Jack Wilkie of date September 25, 1959. On hearing, the application for temporary injunction was refused, followed by this appeal.

Defendant Powers had for many years been owner of the automobile repair shop known as White Rock Automotive, selling same on above named date to Jack Wilkie, together with all equipment and good will for $15,000, a clause of the contract of sale providing: “As part of the consideration of this sale, it is agreed and understood that I, the said L. A. Powers, will not engage in a similar business as I now have and am selling to the said Jack Wilkie, for a period of five years from the date of this instrument, within a three mile radius of the WHITE ROCK AUTOMOTIVE.” On July 15, 1960 Jack Wilkie sold to plaintiff Wells the same business known as White Rock Automotive for a cash consideration of $15,000, and Wells is presently operating same. The instrument evidencing this sale was drawn by a real estate man. For most part it detailed the equipment sold and did not refer to good will of the business or to above quoted restrictive covenant between Powers and Wilkie, prior owners. However, the parties to the bill of sale (Wilkie and Wells) by later instrument of April 11th, 1961 recited that the sale was intended to include “all rights, benefits and powers accruing or to accrue to Jack Wilkie but by virtue of that certain contract dated September 25, 1959 executed by L. A. Powers to Jack Wilkie * * and expressly referring to the restrictive covenant in question, which instrument was consistent with the testimony of appellant that the trade with Wilkie of July 1960 was not only inclusive of all equipment but also the benefits of the L. A. Powers’ restrictive covenant.

Defendant Powers, already owning the Lot designated as 8912 Garland Road, and adjoining the numbered 8916 property so purchased by appellant, caused the erection of a building thereon, leasing same to co-defendant Anderson on January 1, 1961 at $250 per month who has commenced to operate it as an automobile repair shop and known as Diceman Hill Garage. Powers also sold to Anderson much of the equipment for this new venture secured by chattel mortgage of $2597. It is not disputed that Powers became a part-time employee of Anderson as a mechanic at this adjacent location, the quarterly Federal Tax Return of Diceman Hill Garage for the quarter ending March 1961 showing the payment of salary to L. A. Powers of $540. Anderson had been employed by appellant as a mechanic prior to his lease of the new Powers building and testified to being familiar with the restrictive covenant.

Plaintiff Wells testified that his first certain knowledge of the connection of Powers with the business of Diceman Hill Garage was when a sign was put up on the building reading: “DICEMAN HILL GARAGE Jack Powers Mechanic 8912 DA 1-2287”. About the same time (March 22, 1961) an article had appeared in “The Big-D News Shopper” a community publication, reading in part: “DICEMAN HILL GARAGE NOTES PROGRESS. Jack Powers and Andy Anderson are co-owners of the Dice-man Garage where they have all the latest equipment to take care of your car in the best possible manner. Jack Powers built the first auto repair shop in the neighborhood in 1948 and has been there ever since. He installed the first air conditioning unit in a car in Dallas in 1941 and has been servicing and installing since that time. He has had 24 years experience as an auto mechanic and was shop foreman for Greyhound Lines in Dallas for 7 years. * * * ”. Plaintiff then through his attorneys had written both defendants calling their attention to the restrictive covenant, and insisting that they desist from its violation, else legal steps would be taken for enforcement of his rights. He testified that shortly thereafter an article had appeared in said ■“Big-D News Shopper” retracting the previous item and headed “Andy Anderson Sole Owner”-; the latter on April 14, 1961 causing an instrument to be filed at the courthouse registering the trade name of Diceman Hill Garage and designating himself as sole owner. Plaintiff further stated •that he had seen some of his former customers at the Diceman Hill location and that since January 1, 1961 his business had fallen off at this the “peak season”.

It is not disputed that L. A. Powers became a part-time employee of his co-defendant Anderson subsequent to January 1, 1961, nor do appellees question legality ■of this restrictive covenant. Appellant asserts that the undisputed evidence fully supports these further propositions or points, entitling him to a temporary injunction as a matter of law: (1) that this chose in action, to-wit, the restrictive covenant was assignable and in fact its benefits had passed to appellant Wells; (2) that the term “engage in a competitive business” used in the covenant was inclusive of the activities of defendant Powers, working as an employee of Anderson who was operating a similar business as that sold by Powers to Wilkie; (3) that a third party to-wit, co-defendant Anderson may also be enjoined from employing defendant Powers; (4) and in sum, the proof introduced by appellant showed a probable right and a danger to that right; the trial court thereby abusing its discretion in refusing to grant the temporary injunction sought. We conclude that these points of law are controlling of the facts of this record; and that plaintiff was entitled to an injunction as will hereinafter be shown. It must be noted however that appellant’s prayer for injunction has been too broadly stated; he seeking to restrain Powers from renting of his building to Anderson or its use by the latter in a competitive business. Under a free enterprise system, defendant Powers had the undoubted right to erect, and lease his new structure but not so as to affect the restrictive covenant already made by him.

Defensively, it is pled that the 1959 Powers-Wilkie contract of sale of White Rock Automotive did not run to the vendee “or his assigns”; (1) in other words that at time of sale to Wilkie he did not intend that it should be for benefit of anyone other than Jack Wilkie; (2) that at least there was contained therein an implied prohibition against any assignment; and (3) that he, Powers, is only a part-time employee of Anderson and that such employment does not violate the terms of the restrictive covenant “That I, L. A. Powers, will not engage in a similar business * *

Art. 569, Vernon’s Ann.Civ.St.: “The obligee or assignee of any written instrument not negotiable by the law merchant, may by assignment transfer all his interest therein to another.” This provision is obviously all-inclusive on its face, excluding only from its operation contracts in matters of personal trust and skill. Ditt-man v. Model Baking Co., Tex.Com.App., 271 S.W. 75. The 1959 contract of Powers to Wilkie does not even impliedly prohibit its assignment, the proviso therein relied upon by appellees referring merely to the deferred purchase price when it prohibited the vendee from selling or removing the •equipment “without consent in writing of the said L. A. Powers.” ' The reference therefore was to the goods and chattels belonging to the business sold and not the restrictive covenant. The later sale to appellant being in cash, it may be presumed .that such earlier Powers-Wilkie indebtedness had been fully paid. There being nothing in the contract indicating any intention of the parties that it should not be assigned, we are bound by the ruling of Central Power & Light Co. v. Purvis, Tex.Civ.App., 67 S.W.2d 1086, writ ref., where in a similar situation the restrictive covenant was held assignable; the court holding in part: “The appeal presents the major question of whether the agreement of appellant to furnish electric power to Purvis, the then owner of the premises to be served and assignee of the right to such service, is of such nature as to render it assignable by Cromáck to his successors in title. We have concluded that the contract is assignable and the appellee, as his assignee, succeeded to all Cromack’s rights thereunder.” See also Reo Motor Company v. Goad Motor Company, Tex.Civ.App., 24 S.W.2d 67, writ ref. In general, alike restrictive covenants have been held to be so connected with the good will of the business sold, that the courts of other jurisdictions have uniformly held that “An express assignment of the covenant to the subsequent purchaser, however, is unnecessary; upon a subsequent sale of the business, such covenant will pass as an incident of the business even though not expressly assigned.” 4 Am.Jur. p. 242.

Likewise, we conclude that appellant is entitled to similar relief against ap-pellee Anderson, Diceman Hill Garage shop owner; our courts consistently holding that a. third party cannot" in any manner interfere with contractual obligations or covenants. Cooper v. Steen, (by this Court) 318 S.W.2d 750; Davis v. Freeman, Tex.Civ.App., 347 S.W.2d 650. In 26 A.L.R.2d, p. 1240 is an extensive discussion of this principle inclusive of the following statement: “The interest in a contract being a property right, a party thereto has a right of action against persons who are by their conduct substantially interfering with the performance thereof.” Also it is stated in 25 Tex.Jur. p. 33 as follows: “As announced originally in England in the case of Lumley v. Gye, the principle which regards as a distinct tort the intermeddling with a contractual relation was thought to be applicable only in a case where a servant was induced to break his contract of employment. The Texas Courts recognize no such restriction. Our cases contain instances where liability has been predicated on a wrongful interference with the relation of builder and owner, principal and broker and vendor and purchaser.”

In Daniel v. Goesl, Tex., 341 S.W.2d 892, a case clearly analogous in fact, our Supreme Court quotes from 43 C.J.S. Injunctions, § 84, p. 566, viz.: “Where an established business has been sold with its good will and there is a valid covenant not to compete, a breach is regarded as the controlling factor and injunctive relief follows almost as a matter of course. In such cases the damage is presumed to be irreparable, and the remedy at law is considered inadequate. It is not necessary that the buyer first prove special pecuniary damages or show an actual loss of customers who might in any event have discontinued their patronage. Injunctive relief may be given, even though only nominal damages are shown or although no actual damage is shown.”

It was concluded in Daniel v. Goesl, supra, “that under the undisputed facts in this case the petitioners were entitled to temporary injunction as a matter of right and the trial court’s failure to grant the temporary injunction was an abuse in law of the.discretionary.power vested in him” Likewise under the undisputed facts of this case a similar ruling must be made.

The order of the court denying restraint is accordingly reversed and the cause remanded to the trial court with instructions that a temporary injunction issue against appellee Powers requiring him to desist from working for co-defendant Anderson; likewise enjoining Anderson from employing Powers in the adjoining automobile repair business; both of the named parties being further enjoined from advertising or holding the said Powers out as working for Anderson in operation of the Diceman Hill Garage.

Reversed and remanded with instructions.