author: KLINGEMAN, Justice.

text:
    TRINITY UNIVERSAL INSURANCE COMPANY, Appellant, v. BARLITE, INC., d/b/a Barrett Industries, Appellee.
    No. 14637.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 10, 1968.
    Rehearing Denied Feb. 14, 1968.
    Wiley, Thornton & Plumb, San Antonio, for appellant.

      Moursund, Ball & Young, San Antonio, for appellee.
   KLINGEMAN, Justice.

This case has heretofore been before us on an appeal from a take-nothing summary judgment rendered against Barlite, Inc., d/b/a Barrett Industries, herein called Bar-lite, in favor of Trinity Universal Insurance Company, herein called Trinity. On such former appeal, which is reported in 400 S.W.2d 405 (1966, writ ref’d n. r. e.), this Court held that there were certain fact issues which must be resolved, and reversed and remanded the case to the trial court.

Barlite initially instituted suit against Trinity and Alvin Frieden on an account to recover for concrete which went into the construction of the Tradewinds Apartment project. The claim against Frieden was severed.

Under date of August 15, 1962, Frieden, as contractor, entered into a written contract with F. B. & D., Inc., as owner, for the construction of the Tradewinds Apartment project for a consideration of One Million Dollars, in accordance with certain plans and specifications prepared by De Verne Kittles, an architect, which contract specifically provided that the contractor should furnish all material and perform all the work set forth in the plans and specifications which were made a part of such contract. Trinity on the same date executed a statutory payment bond on behalf of Fried-en in the penal sum of One Million Dollars, the amount of the total contract price, conditioned that if Frieden should promptly pay claimants, for all labor, subcontracts, materials, and specially fabricated materials, performed or furnished under or by virtue of said contract and duly authorized normal and usual extras thereto (not to exceed 15% of said contract price), such obligation should then be void.

The concrete involved in this suit was ordered from Barlite by a letter dated August 29, 1962, signed by Frieden as president of F. B. & D., Inc., and by Joe B. Martinez, Inc., a subcontractor, which stated in part: “Our firm has contracted with Joe P. Martinez, Inc., for certain foundation work on an apartment house commonly known as Tradewinds Apartments, * * *. Because of banking and bonding requirements it has become necessary that our firm buy and be billed for, directly, any concrete to be used in these foundations.”

Trial on the merits was by the court, without a jury. The court entered judgment for Barlite against Trinity in the sum of $13,441.19, and an attorney’s fee in the sum of $2,500.00, the parties having entered into a stipulation that if Barlite was entitled to recover, it was also entitled to recover a reasonable attorney’s fee to be determined by the court from the pleadings on file and the nature of the suit, without further evidence.

Trinity’s primary contention on this appeal is that since the concrete was sold directly to the owner and not to the contractor that Barlite could not recover on the payment bond given by Trinity with Frieden as principal. This same contention was asserted by Trinity on the previous appeal, and this Court in its opinion said: “The question presented is whether appellee (Trinity), as surety on this statutory bond, is liable for the concrete which was supplied direct to the owner and not to the original contractor.” After a comprehensive discussion of “The Hardeman Act.” Arts. 5452-5472d, Vernon’s Ann.Civ.St, and a review of the payment bond involved in this case, this Court stated: “We conclude that appellee is liable under its statutory payment bond, only to claimants who have given proper notice, for all labor, subcontracts, materials and specially fabricated materials performed or furnished in carrying out Frieden’s contract.” (Emphasis added.)

It is undisputed that the concrete involved herein was used in the construction of the Tradewinds Apartment project, and there is no issue concerning the notice of claim given by Barlite. The plans and specifications which were made a part of Frieden’s contract were introduced into evidence, and the architect, Kittles, testified that the Tradewinds Apartments were built according to such plans and specifications. The trial court in its findings of fact and conclusions of law found, among other things, that Barlite supplied concrete at agreed prices for the construction of the Trade-winds Apartments in the total sum of $11,-172.92; that all concrete supplied by Barlite was used in carrying out the work provided for in Frieden’s contract of August IS, 1962; that no part of the penal sum of said bond had been paid for extras; and that although concrete was sold on said Trade-winds job to F. B. & D., Inc., same was an obligation of Frieden under the construction contract and that he remains liable thereunder. Such findings are sufficiently supported by the record.

Art. 5452, subd. 2(f), defines a subcontractor as “any person or persons, firm or corporation who has furnished labor or materials * * * to fulfill an obligation to an original contractor or to a subcontractor to perform all or part of the work required by an original contract.” Under the statute the words “material,” “furnish material” or “material furnished” are defined as “any part or all of the following: (1) Material, machinery, fixtures or tools incorporated in the work, or consumed in the direct prosecution of the work, or ordered and delivered for such incorporation or such consumption.” The statute clearly ties the bond to the contract and requires both to be filed. Trinity’s bond, which is for the full amount of the contract, is conditioned that there is no obligation on the part of the surety if the principal shall pay the designated claimants for “materials * * * furnished under or by virtue of said contract.” There is no evidence in the record of any modifications, alteration, or change in the contract dated August 15, 1962, between Frieden and F. B. & D., Inc. The holding of the trial court correctly construes the applicable statutes under the record in .this cause, and it is in accord with the opinion of this Court on the former appeal. Trinity’s Points of Error Nos. 1, 2, 3 and 4 are overruled.

In view of our holding herein, we do not deem it necessary to pass upon Trinity’s other point of error, that the trial court erred in finding as a conclusion of law that Trinity is estopped to assert the direct contractual relationship between Barlite and F. B. & D., Inc., as a defense to Barlite’s claim.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    The ENGLANDER CO., Inc., et al., Appellants, v. Jack G. KENNEDY, Appellee.
    No. 17004.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 19, 1968.
    Rehearing Denied Feb. 23, 1968.

      M. S. Brame, of Brame & Brame, Sherman, Kenneth R. Gtjest, of Matthews & Matthews, Paul H. Stanford, of Cervin & Stanford, Dallas, for appellants.
    Carl McLynn, Jack G. Kennedy, Sherman, for appellee.
   DIXON, Chief Justice.

On September 1, 1966 appellee filed this suit against several defendants, including Dearborn Stove Company and The England-er Company, both corporations. Appellee sought a judgment declaring certain real property located in Grayson County, Texas, now owned by appellee, to be free and clear of judgment liens which might be claimed by the defendants, and for removal of clouds on title.

Only the two defendants above named have prosecuted this appeal from a judgment in appellee’s favor. Another defendant, Nash Hardware Company, has abandoned its appeal.

In his petition appellee alleges that his predecessors in title, Billy R. Bailey and wife Glenna Fay Bailey, bought the property on February 27, 1952; that in 1958 the Baileys moved onto the property making, using and claiming it as their homestead; that defendants at various times in 1962 obtained money judgments against the Baileys, which judgments were abstracted and filed for record; that the Baileys at the time said judgments were rendered against them and the abstracts recorded were using and claiming the property as their homestead; and that they continued to do so until June IS, 1965 when they conveyed the property to Recovery Company, a corporation, said property then being subject to a first lien in favor of Sherman Savings & Loan Association.

Appellee further alleged that he purchased the property on August 12, 1965 from Recovery Company, at which time the property was still subject to a balance past due and unpaid on the first lien above mentioned, which lien had been placed on the property prior to the rendition of any of the judgments in question. At the time appel-lee purchased the property Recovery Company acquired the first lien from Sherman Savings & Loan Association. As part of the consideration appellee then executed to Recovery Company his note secured by first lien, said note and mortgage being a renewal and extension of the balance due on the debt and lien originally owned by Sherman Savings & Loan Association.

After a trial before the court without a jury, the court made findings in substance as follows:

1. The Baileys claimed, occupied and used the property as their homestead from 1959 until the conveyance to Recovery Company on June 15, 1965.

2. On the above date the Baileys still owed a balance of $4,397.68 on the note secured by a valid deed of trust lien, duly recorded, dated February 28, 1957.

3. The Baileys also owed Recovery Company an additional indebtedness of $3,-868.06 on June 15, 1965.

4. The consideration for the conveyance by the Baileys to Recovery Company was $8,265.74 and the release of the Baileys from personal liability for said debts.

5. At the time the judgments in question in favor of defendants were taken against the Baileys and at the time they were filed for record, the property continued to be the homestead of the Baileys.

6. From 1959 to the sale of the property on June 15, 1965, Bailey owned no other real estate.

The court concluded that none of the judgments or abstracts thereof ever became valid liens against the property; that Recovery Company took title of the property free and clear from any liens arising from the judgments; so did appellee Kennedy; and said judgments should be removed as clouds upon title to the property.

Appellee objects to our considering the partial statement of facts filed herein because of alleged informalities in its authentication. Appellee did not file his objections within thirty days after the filing of the partial statement of facts. Therefore his objections will be considered as waived. Rule 404, Texas Rules of Civil Procedure; Pacific Fire Ins. Co. v. Smith, 145 Tex. 482, 199 S.W.2d 486 (1947); Strode v. Srygley, 342 S.W.2d 638 (Tex.Civ.App., Fort Worth 1961, writ ref’d n. r. e.); Sparks v. Chandler, 201 S.W.2d 252 (Tex.Civ.App. El Paso 1947, no writ); Looney v. Wing, 195 S.W.2d 557 (Tex.Civ.App., Fort Worth 1946, writ dism’d). The objection is overruled.

Each of the first ten points of error of The Englander Company takes up a designated finding and conclusion of the court and asserts that it is without support in the record.

We cannot sustain any of these points. Only a partial statement of facts was brought up on appeal. That this is so is made evident from appellant’s request to the official court reporter. Appellant requested certain evidence be included and expressly stated, “The other portions of the evidence may be omitted.” Appellee’s attorney subsequently requested that certain named documentary exhibits also be included. The certificate of the court reporter recites that the “foregoing 37 pages of typewritten and printed matter constitute a true and correct transcript of the documentary evidence admitted in evidence on the trial * *

In the absence of a complete statement of facts there is no way for us to examine the whole record to determine whether there is any evidence to support the court’s findings and conclusions. With only a partial statement of facts before us we must presume that there was evidence to support the court’s findings. Thrasher et ux. v. Hensarling et ux., 406 S.W.2d 515 (Tex.Civ.App., Waco 1966, no writ); Alexander v. Bank of Am. Nat. Trust & Savings Ass’n, 401 S.W.2d 688 (Tex.Civ.App., Waco 1966, writ ref’d); Armstrong et al. v. West Texas Rig Co., 339 S.W.2d 69 (Tex.Civ.App., El Paso 1960, writ ref’d n. r. e.); Locke v. J. H. Marks Trucking Co., 318 S.W.2d 1 (Tex.Civ.App., El Paso 1958, no writ) ; Baker et al. v. Rutherford, 293 S.W.2d 669, 672 (Tex.Civ.App., Waco 1956, no writ); Torrey et al. v. Cameron, 74 Tex. 187, 11 S.W. 1088 (1889).

Appellants rest their claim that the property was not the homestead of the Baileys on a statement made by the Baileys in a deed of trust signed by them on February 28, 1957 wherein the Baileys say that the subject property was not then their homestead; that they did not intend in the future to make it their homestead; and that on said date their homestead was located near Gainesville, Texas, in Cooke County-

The above statement is no evidence that the property had not become the homestead of the Baileys by the year 1962 when the judgments were rendered and recorded. The findings of the court, which findings we must presume to be supported by evidence, were that from 1959 to June 15, 1965, the date of the conveyance by the Baileys, the property was in fact their homestead; and that Bailey during that time did not own any other property. The statement by the Baileys made in 1957 that they did not intend in the future to make the property their homestead is not, as a matter of law, binding on them. Schulz v. L. E. Whitham & Co., 119 Tex. 211, 27 S.W.2d 1093 (1930); Citizens’ State Bank of Lindale v. Jeffries et ux., 2 S.W.2d 317 (Tex.Civ.App., Texarkana 1927, writ ref’d); Bayless v. Guthrie, 235 S.W. 843 (Tex.Com.App.1921) ; First National Bank v. Rice-Stix Dry Goods Co., 213 S.W. 344 (Tex.Civ.App., Austin 1919, rev’d on other grounds, Tex.Com.App., 231 S.W. 386); Texas Land & Loan Co. v. Blalock, 76 Tex. 85, 13 S.W. 12 (1890); 28 Tex.Jur.2d 460. They had a right to change their minds.

It is to be noted also that so far as the record shows the statement as to future intentions was not made to any of the subsequent judgment creditors. It was addressed in 1957 to and for the benefit of the Sherman Savings & Loan Association, prior to the time the Baileys moved into the property and used, occupied and claimed it as their homestead.

The first ten points of appellant The Englander Company are overruled.

In its eleventh point The Englander Company charges error on the part of the court in failing to find and conclude that the abstracts of judgment created valid and subsisting liens on the subject property. For the same reasons given for overruling appellant’s first ten points, we overrule the eleventh point.

Dearborn Stove Company in its two points of error asserts that the court erred (1) in finding that its judgment lien did not attach to the property since the homestead exemption is personal and cannot be claimed by a subsequent purchaser; and (2) in finding that the subject property was the Bailey’s homestead since they had declared in the 1957 deed of trust that they did not claim or use the property as their homestead and did not in the future intend to do so.

There is no merit in either of the above two points. The court found that the Baileys did claim, use and occupy the property as their homestead from 1959 until June 15, 1965 when they conveyed it to Recovery Company. Thus they did assert their personal right to the homestead exemption. It is beyond argument that in Texas general creditors who have reduced their debts to judgment do not thereby obtain a judgment lien against property claimed, occupied and used by their debtor as a homestead. Constitution of Texas, Art. 16, Sec. 50, Vernon’s Ann.St. See also 28 Tex. Jur.2d 574 and authorities there cited. And notwithstanding the existence of judgments against such debtor he may convey his homestead to whom he pleases free and clear of judgment liens. Soper v. Medford, 258 S.W.2d 118, 121 (Tex.Civ.App., Eastland 1953, no writ); Hughes v. Groshart, 150 S.W.2d 827 (Tex.Civ.App., Amarillo 1941, no writ); Anglin v. Cisco Mortgage Loan Co., 135 Tex. 188, 141 S.W.2d 935, 941 (1940); Gore v. Citizens State Bank, 88 S.W.2d 721 (Tex.Civ.App., Waco 1935, writ ref’d); Hiner v. Meyer, 44 S.W.2d 961 (Tex.Com.App., 1932); Howard v. Mayher, 39 Tex.Civ.App. 529, 88 S.W. 409 (1905, writ ref’d).

Under its second point appellant Dearborn Stove Company argues that having made the statement of future intention in the deed of trust to Sherman Savings & Loan Association in 1957, and having permitted it to be placed on the public records, the Baileys were required to take some affirmative action thereafter revoking the recorded statement. Appellant cites no authorities to support its contention. However it is not necessary for us to pass on the question whether appellant’s contention is a correct statement of law. For under the record before us the Baileys did take affirmative action: beginning in 1959 they claimed, occupied and used the property as their homestead. This put the lien claimants on notice of the homestead claim of the Baileys and of the status of the property. Farmers’ State Bank of Quanah v. Farmer, 157 S.W. 283 (Tex.Civ.App., Amarillo 1913, no writ); Hutchenrider v. Smith, 242 S.W. 204 (Tex.Com.App.1922, holding approved); Bernard et al. v. Jefferson County Inv. & Building Ass’n, 65 S.W.2d 503 (Tex.Civ.App., Beaumont 1933, affirmed 128 Tex. 97, 95 S.W.2d 1307, 1936); 28 Tex.Jur.2d 562-565.

The two points of error of Dearborn Stove Company are overruled.

The judgment of the trial court is affirmed.


author: RENFRO, Justice.

text:
    Roy GRAY et al., Appellants, v. A. E. GRAY et al., Appellees.
    No. 16885.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 19, 1968.
    Rehearing Denied Feb. 16, 1968.

      Ernest May, Fort Worth, for appellants.
    Gerald E. Stockard, Denton, for appel-lees.
   OPINION

RENFRO, Justice.

This suit was brought by Roy Gray and Mabel Briggs, brother and sister, and others who claim through a deceased sister, against A. E. Gray and Beatrice Wadkins, brother and sister of Roy Gray and Mabel Briggs, to cancel a deed, determine the interest of each party in the land and to order a partition of the property.

Other defendants, children of a deceased sister of the above named parties, were made parties to the suit. They defaulted and are not parties to this appeal.

G. B. M. Gray and Nannie Gray, parents of the parties to this appeal, owned 26.3 acres of land in Denton County as community property.

G. B. M. Gray died intestate in 1926. Nannie Gray qualified as community ad-ministratrix in 1928.

On August 4, 1960, Nannie Gray, “individually and as community administra-trix,” conveyed the whole tract to A. E. Gray and Beatrice Wadkins. The sum of $10.00 was the recited consideration.

Nannie Gray died August 4, 1964.

In a non-jury trial judgment was entered for the defendants.

Appellants’ sole point of error rests upon the proposition that the 1960 deed to appel-lees was void.

At the time of the 1960 deed there were no community debts or obligations unpaid.

As we construe the record, the evidence is undisputed that the only consideration paid by appellees was for Nannie Gray’s individual benefit.

Article 167, V.A.T.S., Probate Code, provides : “When the order mentioned in the preceding Section has been entered, the survivor, without any further action in the court, shall have the right to control, manage, and dispose of the community property, as provided in this Code, in the same manner that the husband controls, manages, and disposes of community property during the lifetime of the wife, and to sue and be sued with regard to the same; and a certified copy of the order of the court shall be evidence of the qualification and right of such survivor. After paying community debts outstanding at the death of the deceased spouse, the qualified community administrator may carry on as statutory trustee for the owners of the community estate, investing and reinvesting the funds of the estate and continuing the operation of community enterprises until the termination of the trust as provided in this Code. The qualified community administrator is not entitled to mortgage community property to secure debts incurred for his individual benefit, or otherwise to appropriate the community estate to his individual benefit; but he may transfer or encumber his individual interest in the community estate.”

The concluding sentence of Article 167, “The qualified community administrator is not entitled to mortgage community property to secure debts incurred for his individual benefit, or otherwise to appropriate the community estate to his individual benefit) (emphasis added) but he may transfer or encumber his individual interest in the community estate,” was added by the Legislature, Acts 1955, 54th Legislature.

Under the statute, Nannie Gray had a right to convey her individual interest in the community estate to appellees.

The only question before us is whether she had a right to convey her deceased husband’s half of the community for her individual benefit.

Succinctly, does the quoted provision of Article 167 barring an administrator from appropriating the community estate to his individual benefit mean what it says?

We think the language is plain and unambiguous and that under said provision Nannie Gray had no authority to convey, other than her own interest, the community property to appellees, and we so hold.

Appellees’ counterpoints that a dismissal, prior to reinstatement, and trial of the case, was final, and that appellants had judicially admitted full ownership of the property to be in appellees were waived by appellees in oral argument.

Appellees’ last counterpoint claims appellants’ claim was barred by the four year statute of limitation. The deed was filed for record August 5, 1960. The suit was filed September 14, 1964, or forty-one days after the death of Nannie Gray. If the four year limitation statute is applicable to an action of this nature, her death, she being a necessary party, tolled the running of limitation. 10 Tex.Jur.2d 417; Article 5538, Vernon’s Ann.T.S.

Moreover, Nannie Gray’s deed to appellees, in the face of the statute forbidding such sale, was void. Appellees were not innocent purchasers. Nannie Gray held the property as statutory trustee for her children. Appellants are entitled to recover the trust property and the four year limitation statute does not apply. See Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671 (1942); Smith v. Green, 243 S.W. 1006 (Tex.Civ.App., 1922, ref.); and Christopher v. Davis, 284 S.W. 253 (Tex.Civ.App., 1926, ref.).

The point of error is overruled.

Judgment is here rendered declaring the 1960 deed as to the community interest of G. B. M. Gray to be invalid and of no effect, and the case is remanded to the trial court for the purpose of making proper partition of the property and awarding to appellants their interest in the community estate of their deceased father.

Reversed and rendered in part; reversed and remanded in part.


author: PRESLAR, Justice.

text:
    David KER et al., Appellants, v. The STATE of Texas, Appellee.
    No. 5918.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 17, 1968.
    Rehearing Denied Feb. 14, 1968.

      Andress, Woodgate & Condos, Dallas, for appellants.
    Crawford Martin, Atty. Gen., Samuel D. McDaniel, Asst. Atty. Gen., Austin, for appellee.
   OPINION

PRESLAR, Justice.

This is an appeal from a summary judgment granted the State of Texas decreeing that the appellants, Ker, et al., have no easement to cross U. S. Highway 80 at a point near Pyote, Texas, and that the practices of appellants are subject to the valid exercise of the police power of the State of Texas to regulate traffic and promote the safety and welfare of the traveling public. Both parties filed motions for summary judgment. That of the Kers was denied, the State’s was granted, and both parties now concede that there is no issue of fact and that a pure question of law -is presented as to whether or not the Ker interests have an easement.

The easement question arose out of condemnation proceedings for right of way for Interstate 20 when the Kers contended that the easement was a property right for which they were due payment. The State denied the existence of the easement, so that a question of title to an interest in realty was presented and, same being beyond the jurisdiction of the county court, the State brought this suit in District Court for determination of the title question, and was granted the summary judgment from which this appeal is taken.

The Kers are lessees from the University of Texas of lands, with warehouses, adjacent to Highway 80 and for a number of years have used such lands for the warehousing and storage of cotton. During such years they have trucked cotton from their storage facilities across Highway 80 to loading docks of the T. & P. railway. Highway 80 is being changed to a controlled access facility, Interstate 20, and the Kers will no longer be able to move their cotton directly across the highway from their leased facilities to the railway loading docks, but will be required to cross at a grade separation located approximately a mile and a quarter from their warehouses. It is the Kers’ position that under their lease from the University, they acquired an easement to cross the highway at a point opposite their storage facilities, and that the State, through its University, having collected rents for the easement, cannot now deny its existence, and that the Kers, for four years prior to suit, made an open, notorious and visible and undisturbed use of the premises. The lease from the University of Texas to the Kers sets forth that the University, as lessor, leases, lets and demises to the Kers a portion of the premises known as Pyote Air Base, and describes the area, the warehouses and other facilities in detail and the uses to be made of such improvements. Included in the detailed description of the items leased is the following:

“Rail Spur Track on leased premises and easements for the Spur to the T. & P. Railway not in conflict with any highway easement for full use thereof; * * * ”

In addition to this lease there was a supplemental lease from the University to the Kers, and several assignments among the Ker interests which were approved by the University, and all contained language similar to the above quoted. The language is not the granting clause in the lease, but is descriptive of a portion of the leasehold estate. Appellants say it refers to Easement No. 247, which was an easement for highway purposes executed in 1945 by the University to the State Highway Commission for U. S. 80. Prior to that (in 1942) these lands had been leased to the United States government for a military air base, ultimately became surplus, and were surrendered to the University about one month before it was leased to the Kers. The Texas & Pacific Railway had a track-age right of way across a portion of these lands during the time it was an air base, which was connected to its main tracks by a spur across Highway 80, and one Jim Thornton at one time had a grazing lease on a portion of the lands. Easement No. 247 recited that it was subject to: “Easement held by U. S. Government and lease held by Jim Thornton”. From all this, appellants urge that one of the properties leased by them was an “easement for the spur to the Texas & Pacific Railway not in conflict with any highway easement”, and that the highway easement was subject to “Easement held by U. S. Government and Jim Thornton”.

We are of the opinion that this argument is without merit, for appellants did not succeed to the rights of the U. S. government or Jim Thornton. There was no assignment of their leases to appellants; but, on the contrary, appellants took a lease of the property directly from the University of Texas, and any rights acquired must come from such lease instrument. Any easement acquired by appellants was subject to any highway easement, and the affidavits and instruments attached to the State’s motion for summary judgment show that Highway 80 was in its present location as early as 1923, and that University Easement No. 119, executed in 1939, is a grant of additional right of way for improvements at that time, as was Easement No. 247 in 1945. Appellants, the Kers, acquired their first lease in 1958, and prior to that the railroad tracks had been removed at the point where they crossed Highway 80, and the Texas and Pacific Railway, on June 5, 1957, spiked its switch from its main tracks to the spur on the lands in question. The railway company constructed loading docks adjacent to its main tracks, and for some four years appellants used warehouse-type tugs and dollies for transporting cotton across U. S. Highway 80 from its leased facilities to such docks. While this was an open and obvious use, it adds little to appellants’ claim, for the public' generally had the right to use and cross Highway 80, and so could appellants without an easement.

Appellants quote the applicable law from 21 Tex.Jur.2d 131, Easements, Section 12:

“There are various methods by which an easement may be created, such as by express grant, by implication (as a way of necessity), by estoppel, or by prescription, but regardless of the manner in which an easement may arise, it must be derived from the owner of the servient estate. Since easements are interests in land, they may be created only by deed or grant, and the party claiming the right must exhibit documents showing this fact or give evidence from which the grant may be implied.”

The record before us does not reflect that appellants met this burden, and the trial court correctly granted summary judgment for the State.

The judgment of the trial court is affirmed.


text:
    Tomas T. GONZALES, Appellant, v. Cecilla Irene DIAZ, Appellee.
    No. 5921.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 17, 1968.
    Rehearing Denied Feb. 7, 1968.
    Ronald R. Calhoun, El Paso, for appellant.
    Kemp, Smit, White, Duncan & Hammond and William Duncan, El Paso, for appellee.
   OPINION

PRESLAR, Justice.

This is an appeal from the failure of the trial court to grant the plaintiff’s motion for new trial based on newly discovered evidence. Failure to grant a new trial for such reason is the sole point of error. We affirm.

Appellant, as plaintiff, brought this suit alleging that defendant struck his car from the rear as it was just beginning to move forward after double-parking to allow a companion to disembark. The incident was alleged to have happened at 2:30 A.M. on a street slick from rain, and the disputed issue of whether there was any colliding of the two cars was answered by the jury adversely to appellant, as were the other material issues. The newly discovered evidence alleged is an opinion by the photographer employed by the defendant-appellee to make photographs of both vehicles, that it appeared to him that the damage to the bumper of appellee’s Chevrolet automobile was recent damage.

The issue submitted to the jury, and pertinent here, was:

“From a preponderance of the evidence, do you find that the Chevrolet driven by the Defendant, CECILIA IRENE DIAZ, collided with the Volks-wagon driven by the Plaintiff, TOMAS F. GONZALES, on the occasion in question?”

The jury answered “No”, after viewing some five or six photographs of each car, hearing testimony of the plaintiff and defendant and a companion of the plaintiff, the only eye witnesses to the incident; and after hearing testimony of defendant, her sister, and her father that there was no change in the condition of the automobile (owned by defendant’s father) following the occurrence, and the testimony of the investigating officer, who viewed both vehicles at night shortly after the incident, that the damage to the Volkswagon appeared to him to be “fresh” and that he was unable to make any decision about whether there was any damage to the Chevrolet. This is a summary of the evidence given in considerable detail on the subject by each of the witnesses, except that of the photographer which, in its entirety, by affidavit, is that it appeared to him that the damage to the bumper of the Chevrolet was recent damage, and that he formed an opinion that the vehicles had collided. He viewed the vehicles about a week after the incident.

The applicable rule of law for a new trial based on the grounds of newly discovered evidence is correctly stated in 41 Tex.Jur.2d 253, New Trial, Section 105:

“Evidence discovered subsequent to trial is a proper ground of a motion for new trial in both civil and criminal cases. To justify the grant of a new trial it generally must be shown that the evidence was unknown to the movant before the trail, that his failure to discover it was not due to his want of diligence, that its materiality was such as would probably bring about a different result on another trial, and, generally, that it was competent, and not merely cumulative, corroborative, collateral, or impeaching.”

The granting or refusal of a new trial for newly discovered evidence is a matter within the trial court’s discretion. Vance v. Obadal, Tex.Civ.App., 256 S.W.2d 139 (E.R. El Paso, 1953). And unless such discretion is abused, the appellate court will not revise such act. McCardell v. Hartford Accident & Indemnity Co., Tex.Civ.App., 360 S.W.2d 831, 832, affirmed 369 S.W.2d 331. We are of the opinion that the trial court did not abuse his discretion in the case before us, for the reasons that it is questionable whether the new evidence is merely cumulative, and whether, if believed, it would bring about a different verdict. Failure of the movant to firmly establish those two principles of the announced rule of law leaves the trial court’s action as not amounting to an abuse of discretion.

The ultimate fact to be determined was whether or not the vehicles collided. Bearing on that issue is the testimony of the eye witnesses. Also bearing on the issue is physical damage to the vehicles which could be determined by visual observation. A subordinate fact to any physical damage visualized would be whether it resulted from this collision. There was evidence that the Chevrolet car of appellee had damage, but that it was there prior to the time of this incident. There was also evidence that the investigating officer was unable to determine on the night of the incident if there was any such damage. There was evidence that the appellant himself had viewed the Chevrolet, but no evidence of what he saw in the way of damage. The new evidence offered is an opinion by one who could be presumed to be an expert, that a week after the incident the Chevrolet damage appeared to be recent. We think the new evidence is “of the evidence” presented, and not new evidence of a conclusive tendency, or that it brought to light a new and independent truth, or that it is of a nature to be material and decisive of the matter in controversy. Although the new evidence is presumed to be from an expert, it falls, nevertheless, into the category of some more of the same so far as it bears on the matter in controversy, and is questionably cumulative and impeaching to the extent that abuse of discretion is not presented.

As to the new evidence being so material that if believed it would probably bring about a different result on another trial, we adopt as our view of it the language of Justice Steakley in New Amsterdam Casualty Company v. Jordan, 359 S.W.2d 864 (Tex.1962), (a case very much in point), at page 867:

“ * * * Moreover, the evidence does not, in our opinion, partake of a con-elusiveness and decisiveness upon the merits of the case to the extent of showing that justice has not been attained and that, as a matter of law, the trial court abused its discretion in denying the motion.”

The appellant’s point of error is overruled and the judgment of the trial court is affirmed.


author: SAM D. JOHNSON, Justice.

text:
    Paul LOSTON, Appellant, v. Odessa LOSTON, Appellee.
    No. 58.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Jan. 24, 1968.
    Rehearing Denied Feb. 14, 1968.
    J. Leonard Gotsdiner, Ranseler O. Wyatt, Houston, for appellant.
    Fred Parks and Ruby Sondock, Houston, for appellee.
   SAM D. JOHNSON, Justice.

Odessa Loston, the appellee, brought suit against her former husband, Paul Loston, the appellant, for specific performance of a parol property settlement agreement which, she alleges, they made during the pendency of their divorce. The alleged oral agreement provided for a property division settlement under the terms of which appellant promised to pay to appellee one-half of the appraised value of the homestead of the parties.

In response to a single special issue, the jury found that the appellant, Paul Loston, agreed to pay the appellee, Odessa Loston, a sum of money equal to one-half of the appraised value of the homestead. A money judgment for the appellee was entered on the jury verdict in the sum of $4,375.00, which was one-half of the total value of the property, $8,750.00, established by the testimony of the appraisal which was not contradicted by the appellant.

Appellant presents some fourteen points of error, the primary emphasis of which is that this was an action within the purview of the Statute of Frauds, Article 3995, of the Vernon’s Ann.Revised Civil Statutes of Texas, because the transaction involved a contract for the purchase of real estate and was not supported by an instrument in writing. Appellee contends that the Statute of Frauds does not apply to the fact situation here presented.

Appellant and appellee were married in 1940 and lived together as husband and wife until 1960, when they separated. At the time of this separation, the appellee moved from the homestead, where the appellant continued to live. In March, 1964, they were divorced. Appellee testified that during the period of separation there were numerous discussions concerning settlement of their respective property interests. Ap-pellee testified, and the jury found, that during the pendency of their divorce, appellant agreed to pay her one-half of the appraised value of their homestead in settlement of her property rights.

The lot on which the homestead was later erected, was purchased or contracted to be purchased, by the appellant immediately prior to marriage. There is a conflict in the evidence as to whether or not community funds were used to pay for the balance owing on the lot, but in any event, community funds were used to build the house and it was constructed and paid for after the marriage. The house, rather than the lot, accounted for the primary, part of its value. The nature and extent of the community interest in the improvements is not deemed to be material here, however. The inception of title rule is not determinative of the issue here involved.

The agreement of the appellant that was relied upon, and that was found by the jury, was that the appellant agreed to pay the appellee a sum of money equal to one-half of the appraised value of the homestead. It is appellee’s position that this was a voluntary agreement to settle property differences between parties by the payment of money, based on the appraised jointly owned and specifically identified property.

It is well established that spouses, incidental to a separation, may contract between themselves looking to a division of their property, including their homestead. Riley v. Wilson, 86 Tex. 240, 24 S.W. 394; Edmonson v. Blessing, 42 Tex. 596; Selby v. Selby (Civ.App.) 148 S.W.2d 854, no writ history; Corrigan v. Goss (Civ.App.) 160 S.W. 652, err. ref.; Speers, Marital Rights in Texas, Vol. 1, p. 276.

Such a property settlement agreement between husband and wife pending a divorce suit is a division or partition by the parties of their respective interests in property in which they both owned an interest. This action is predicated on a voluntary agreement between two parties to settle property differences based on the appraised value of one piece of real estate. “* * * (I)f the parties have actually separated with the intention of remaining permanently apart, or if they have determined on such a separation and are in the process of carrying it into effect, they may validly make an agreement for the division of their community property. * * * ” 30 Tex.Jur.2d 152, Husband and Wife, Sec. 85. McConnell v. Corgey, 153 Tex. 49, 262 S.W.2d 944; Bruce v. Permian Royalty Co. No. 2, Tex.Civ.App., 186 S.W.2d 686, ref., w. m.; Rains v. Wheeler, 76 Tex. 390, 13 S.W. 324.

“ ‘The parties to a marriage, contemplating a permanent separation or a divorce, may, verbally', settle all their community interests, by effecting a partition of these interests; thereafter, they are no longer common owners in the sense of community property owners, but as cotenants’ * * *. (T)he joint owners of such property are entitled to a partition thereof in the same manner as if they had never been married.” Nelson v. Geib, Tex.Civ.App., 314 S.W.2d 124, 125, err. dism.

It has long been established law in Texas that a parol partition of land can be made by the joint owners thereof. This rule is not prohibited by the statute of frauds, and married women are not excepted from its application. “We think it is equally as well settled that a husband and wife, upon permanent separation, can, by parol, partition property between themselves, and that such a contract is a valid and enforceable one.” Cantrell v. Woods, Tex.Civ.App., 150 S.W.2d 838, 840, no writ history.

The provision of the Statute of Frauds requiring an agreement for the conveyance of real estate to be in writing is not applicable to the case at bar. The money judgment for the appellee entered by the court was for$4,375.00, a sum equal to one-half of the appraised value of the homestead. Appellee made no pleading for a specific performance of a contract to sell or purchase real estate, and appellee did not proceed at trial upon such theory. There is no support for the contention of appellant that the present action is one involving a contract for the sale or purchase of real estate.

We have examined the remaining points of error presented by the appellant and they are overruled.

The judgment of the trial court is affirmed.


author: DENTON, Chief Justice.

text:
    James H. CROSSLAND, Appellant, v. NELSON AUCTION SERVICE, INC., Appellee.
    No. 7748.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 26, 1967.
    Rehearing Denied Jan. 29, 1968.

      Ben E. Jarvis, Tyler, for appellant.
    Culton, Morgan, Britain & White and Donald E. Jackson, Amarillo, for appellee.
   DENTON, Chief Justice.

This suit was brought by James H. Cross-land, appellant, against Nelson Auction Service, Inc., for damages resulting from an alleged unlawful withholding of escrow funds. Nelson Auction brought a cross-action against Crossland seeking damages alleged to have resulted from certain unlawful acts on the part of Crossland, The trial court, sitting without a jury, entered judgment that both the plaintiff and cross-plaintiff take nothing. Crossland has perfected this appeal.

On February 19, 1963, at appellant’s request, appellee sold certain items of machinery belonging to appellant at an auction in Houston, Texas. The various items of machinery were sold for a total of $44,650.00. For conducting the sale, the appellee received its commission of $2233.-50, or 5% of the sale. The contract between the parties provided for the successful purchasers to pay at least ½ of the purchase price on the day of the purchase and the balance to be financed by either Nelson or a financial firm present at the sale. Appellant admits that prior to the sale he determined the price for which the items were to be sold and then made arrangements with several individuals to bid this predetermined amount in order for the purchasers to obtain 100% financing. He further admits he furnished cash to these buyers with which to make the ½ down payment. Appellee’s agents became suspicious of the bidding and after the close of the auction, refused to deliver immediately the proceeds of the sale to appellant. On March 2 following the sale in February, appellee delivered $20,000.00 to appellant and on March 15, they delivered $11,914.71 to appellant and withheld $9811.12 as an escrow fund to insure the payment of promissory notes given by the various purchasers at the auction. By agreement of the parties, the payment of such notes was guaranteed by appellee. By letter of March 18, 1963 to appellant, appellee outlined the schedule of payments to be made to appellant from the escrow fund in the event the note payments were not in default. It is uncontradicted the payments on the promissory notes became delinquent within two or three months after they were executed and that this fact was known to all parties.

By brief, appellant concedes appellee was authorized by appellant to withhold the escrow fund. He makes no contention this withholding of funds was wrongful. Ark Distributing Company, a financing firm, financed the balance of the purchase price of the machinery sold at the auction. Ark had a guarantee from appellee against any loss from its purchase of the equipment contracts. It is uncontradicted that after the sale and without appellee’s knowledge and consent, appellant reacquired some of the machinery sold at the auction to Wallace, Crawford and Black and resold it. Sometime after the notes became delinquent, Ark Distributing Company called upon appellee to honor its guarantee of the notes and appellee paid over to Ark approximately $19,000.00 which included the $9811.12 held in the escrow fund. Ark then assigned the contracts to appellee.

Appellant contends appellee’s letter of March 18, 1963, advising appellant of its intention to withhold the escrow funds and submitting a schedule of payments, constituted a new contract between the parties; that such contract superseded the original agreement; and that appellee breached its contract by failing to pay over to appellant the scheduled payments. Appellant takes the position that appellee knew appellant fraudulently induced the auction contract by attempting to obtain 100% financing of the machinery, but continued with that knowledge to proceed under that contract; that, therefore, appellee is obligated to pay the escrow fund over to appellant. Appellant then argues the March 18 letter supersedes the original contract and seeks the escrow fund under the “new contract”.

The Rule is well settled that if one is induced by fraud to enter into a contract and continues to receive benefits under the contract after becoming aware of the fraud, he affirms the contract and waives his right of recision. Rosenbaum v. Texas Building & Mortgage Company, 140 Tex. 325, 167 S.W.2d 506. This Rule is not applicable to the facts under this record. Rejciaion was not pleaded by either party and it therefore does not enter into this suit.

All parties agree upon the applicable Rule of law dealing with the prerequisites of novation of a contract. They, included: a previous valid obligation; the agreement of all parties to a new contract; the extinguishment of the old contract; the validity of the new contract; and the allegation and proof of consideration for the new contract. McKinney v. Flato Bros. Inc. (Tex.Civ.App.) 397 S.W.2d 525. Crazy Water Company, Inc. v. Baptist Foundation of Texas (Tex.Civ.App.) 268 S.W.2d 776 (Ref. N.R.E.). We are of the opinion the uncontroverted facts do not establish novation. Although there is no question the original contract was valid, the evidence does not support the fact all parties agreed to a new contract. Appellee’s letter did not in itself constitute a new contract, but set out a method whereby the payments to appellant would be made. It set up an escrow fund thereby altering the method of payment due to the admitted fraudulent acts of appellant. There was no meeting of the minds of the parties as to the establishment of the escrow fund, as appellant testified he did not agree to it. We conclude appellant’s contention is without merit.

Appellant next challenged the right of appellee to retain the escrow fund to the exclusion of appellant for the reason it failed to properly protect the fund and offered no valid excuse for its actions. Within two or three months after the sale the various purchasers began to default on their notes. Ark Distributing Co., the financing agent, did in fact make some efforts to collect the notes, but it was during this period appellant himself reacquired some of the machinery from the purchasers and resold it. The record is confusing as to what was accounted for by appellant to Ark. It is uncontradicted that none of the resale proceeds were accounted for to appellee. It is apparent these post sale transactions were rather loosely handled on the part of appellant, and appellee did not turn over any of the notes to its attorney for collection until the notes were long past due.

The trial court filed no findings of fact or conclusions of law and none were requested. In the absence of such findings it must be presumed on appeal that the trial court resolved all fact issues in such a manner as to support the judgment, and if there is proper evidence to sustain the judgment on any theory raised by the pleadings, it should not be disturbed by the appellate court. American Guardian Insurance Co. v. Rutledge (Tex.Civ.App.) 404 S.W.2d 847. Madden v. Madden (Tex.Civ.App.) 365 S.W.2d 427. We conclude the evidence supports the trial court’s implied findings that appellee did not breach its contract and that appellant sustained no damages.

The judgment of the trial court is affirmed.


author: COLEMAN, Justice.

text:
    Frank A. LANCON, Appellant, v. EMPLOYERS NATIONAL LIFE INSURANCE COMPANY, Appellee.
    No. 15223.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Feb. 1, 1968.
    Rehearing Denied Feb. 22, 1968.
    R. E. McDaniel, Winnie, for appellant.
    Keith, Mehaffy & Weber, Beaumont, Robert Q. Keith Beaumont, of counsel, for appellee.
   COLEMAN, Justice.

This is a suit to recover the benefits payable for accidental dismemberment by the terms of an insurance policy. The case was tried to a jury, but the trial court rendered judgment for the defendant non obstante veredicto. This action was taken on appellee’s motion alleging that there was no evidence of “loss” within ninety days of the accident and that there was no evidence of loss effected solely and independently of all other causes.

The plaintiff is a deputy sheriff of Chambers County. On October 5, 1965, he was beaten and kicked by two prisoners who escaped from County Jail. One of the prisoners kicked him on the shin of his left leg. On December 21, 1965, for the first time he noticed that pus was being emitted from a pinpoint size hole in the area of his left shin where he was kicked. After the beating he was bruised from head to toe including the place at which he later discovered pus. The leg was sore right after the jail break causing him to limp for three or four days. He had no other injury between October 5, 1965, and December 21, 1965. On January 17, 1966, the left leg was amputated below the knee.

In 1953 the plaintiff was in an automobile accident as a result of which he received an eight inch compound crush of the lower part of his left leg. As a result he had to wear a leg brace and cuff. In 1960 he underwent an operation on that leg in an attempt to graft calf bone to his shin bone for the purpose of strengthening the leg. This operation did not result in a complete union and in a few days infection resulted. Apparently this infection cleared up after treatment and no more pus exuded from the leg until December 21, 1965. He continued to wear the brace and cuff and was wearing it at the time of the jail break.

There was no medical testimony introduced at the trial of this case. There was no direct testimony, opinion or otherwise, that the infection resulted from the bruise caused by the kick. There was no direct testimony that the operation was necessitated by an infection, or that the pus exuding from plaintiff’s leg on December 21, 1965, resulted from an infection. There was no testimony that plaintiff received a laceration as a result of the kick on his shin received in the jail break.

Section 10 of the policy provides:

“If an employee * * * suffers any one of the losses specified in the following Schedule of Losses and Benefits as a direct result of bodily injuries effected solely and independently of all other causes through external, violent and accidental means and within 90 days after the accident which caused such loss, The Insurance Company will pay the benefits set forth in such Schedule.”

Under the heading “Limitations” the section provides:

“No payment will be made under this Section for loss resulting directly or indirectly, wholly or partly, from
* * *
“(3) ptomaines or bacterial infection other than pyogenic infection occurring as a result of bodily injury effected solely through external, violent and accidental means, * * *

The parties stipulated the amount of money the plaintiff was entitled to receive in the event he was able to establish liability on the part of the company under the policy.

In reply to appellant’s claim for benefits under the policy for the loss of his leg, the company wrote him a letter denying liability for the reason that the leg was not amputated within 90 days after the accident which caused the loss. Appellant contends that this constituted a waiver of all other policy defenses.

In 45 C.J.S. Insurance § 707, p. 677, the general rule appellant relies upon is stated in these words:

“Where the company denies liability or refuses to pay a loss on a specified ground, it is estopped to assert other grounds relieving it from liability of which it had full knowledge where insured has acted on its position as announced and suffered resultant detriment, or, as the rule is sometimes more broadly stated, when one specific ground of forfeiture is urged against a policy of insurance, and the validity thereof denied on that ground alone, all other grounds are waived.”

This statement is supported by a number of Texas cases, in some of which it is quoted. American Emp. Ins. Co. v. El Paso Valley Cotton Ass’n, 392 S.W.2d 569 (Tex.Civ.App., El Paso 1965, ref., n.r.e.); American Employers’ Ins. Co. v. Brock, 215 S.W.2d 370 (Tex.Civ.App., Dallas 1948, ref., n.r.e.); Great American Accident Ins. Co. v. Roggen, 144 S.W.2d 1115 (Tex.Civ.App., Galveston 1940, n.w.h.); Great American Indemnity Co. v. McMenamin, 134 S.W.2d 734 (Tex.Civ.App., San Antonio 1939, dism., judg.cor.); National Aid Life Ass’n v. Murphy, 78 S.W.2d 223 (Tex.Civ.App., Dallas 1934, writ dism.).

Before the insurance company will be held to have waived a ground of forfeiture, or to be estopped from asserting such a ground, by reason of the fact that it has denied liability on another ground, the insured must show that the company knew the facts which would entitle it to insist on forfeiture at the time the company denied liability. German Alliance Ins. Co. v. Ft. Worth Grain & Elevator Co., 269 S.W. 430 (Tex.Com.App.1925).

The evidence does not show that the insurance company was in possession of facts at the time it denied liability from which it could reasonably conclude that the loss suffered by appellant was not a direct result of bodily injuries effected solely and independently of all other causes through external, violent and accidental means. It could not, under this state of facts, be held to have waived, nor to be estopped from asserting, a defense of which it was ignorant.

In view of this conclusion we do not reach a more fundamental question, that is, whether the insurance company, by denying liability on one specific ground, is estopped to insist that the insured prove facts bringing himself within the coverage of the policy. 45 C.J.S. Insurance § 707, n. 87.

The burden rested upon appellant to allege and prove facts showing that the loss sustained was covered by the policy of insurance. Tix v. Employers Casualty Co., 368 S.W.2d 105 (Tex.Civ.App., Houston 1963, n.w.h.); Reserve Life Insurance Company v. Crager, 421 S.W.2d 697 (Tex.Civ.App., Beaumont 1967, n.w.h.).

There is no testimony that the condition of appellant’s leg discovered on December 21, 1965, was caused by, or resulted from, the kick received in October, nor is there, testimony that the amputation in January, 1966, was caused by, or resulted from, the infection discovered in December.

The jury found that appellant lost his leg as a direct result of the bodily injuries sustained as a result of the blow to his leg. This finding is supported by no competent evidence in the absence of expert medical testimony establishing a causal relationship between the amputation of the leg and the infection, or between the blow received on the leg and the infection subsequently occurring. Texas Emp. Ins. Ass’n v. Espinosa, Tex.Civ.App., 363 S.W.2d 871, rev’d. 367 S.W.2d 667 (Tex.Sup.1963) ; Tyler Mirror and Glass Co. v. Simpkins, 407 S.W.2d 807 (Tex.Civ.App., Tyler 1966, ref. n.r.e.); National Life and Acc. Ins. Co. v. Shern, 389 S.W.2d 726 (Tex.Civ.App., Austin 1965, n.w.h.); Reserve Life Ins. Co. v. Miller, 300 S.W.2d 343 (Tex.Civ.App., Austin 1957, ref., n.r.e.); Scott v. Liberty Mutual Ins. Co., 204 S.W.2d 16 (Tex.Civ.App., Austin 1947, ref., n.r.e.).

Appellant failed to sustain the burden of proving that his loss was covered by the insurance policy in question. The trial Court properly could have sustained appellant’s motion for a directed verdict. The motion for judgment non obstante vere-dicto was properly sustained. Rule 301, Texas Rules Civil Procedure; McDonald, Texas Civil Practice, §§ 11.2S/11.30 and 17.32; Calvert, 38 Texas Law Review 361.

The judgment of the Trial Court is affirmed.


author: PEDEN, Justice.

text:
    SPACE CITY TRANSPORT, INC., Appellant, v. LOCKWOOD NATIONAL BANK OF HOUSTON et al., Appellees.
    No. 15225.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Feb. 8, 1968.
    Fly, Cory, Moeller & Stevenson, Victoria, W. S. Fly, Victoria, of counsel, Henry S. Coltzer, James C. Brady, Galveston, for appellant.
    J. Eugene Clements, Robert A. Hall, Houston, Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellees.
   PEDEN, Justice.

Appellees have moved to dismiss for want of jurisdiction on the grounds that the orders appealed from are interlocutory.

Appellant, Space City Transport, Inc., filed suit against the bank, its president, Arthur Hoehn, and two others, Bill Berry and Eugene Davis, alleging breach of contract and conversion. The bank and Mr. Hoehn filed a third-party complaint against R. L. Biaza and J. W. Copeland whom it described as officers of Space City, and a counter-claim against Space City. Defendants Berry and Davis filed answers but did not participate in the filing by the bank and defendant Hoehn of written interrogatories addressed to Space City; nor did defendants Berry and Davis join in the motion by the bank and defendant Hoehn to dismiss the petition of Space City based on Space City’s failure to answer certain of such interrogatories. The motion was granted and the following order signed:

“BE IT REMEMBERED that on May 17, 1967, at a regular term of this Court, came on to be heard Defendants’ Motion to Dismiss Plaintiff’s Petition in the above entitled and numbered cause, and thereupon came the defendants, Lockwood National Bank of Houston and Arthur Hoehn, by and through their attorneys of record, and the plaintiff, Space City Transport, Inc., by and through its attorneys of record, and all parties having due notice of said hearing, said Motion was presented and argued to the Court by counsel for the defendants and by counsel for the plaintiff, and the Court having duly considered said Motion and being of the opinion said Motion should be granted and sustained; it is, accordingly, ORDERED, ADJUDGED, and DECREED as follows:
I.
“Defendants’ Motion to Dismiss Plaintiff’s Petition is granted and Plaintiff’s Original Petition on file herein is, therefore, dismissed with prejudice.
II.
“The dismissal of Plaintiff’s petition herein is without prejudice to the continued maintenance and prosecution of defendant’s counterclaim against the plaintiff as cross-defendant and is without prejudice to third-party actions of the defendant Lockwood National Bank against the third-party defendants R. L. Biaza and J. W. Copeland.
III.
“Defendants Lockwood National Bank and Arthur Hoehn shall have and recover of and from Space City Transport, Inc. the sum of One Hundred ($100.00) Dollars as reasonable attorneys’ fees for the procurement of this Order, pursuant to Rule 215a(a) of the Texas Rules of Civil Procedure.
IV.
“Costs of Court are adjudged against the plaintiff for which let execution issue if not seasonably paid.
“To all of which the plaintiff in open court excepted and objected and gave notice of appeal to the Court of Civil Appeals for the 1st Supreme Judicial District of Texas.
“SIGNED this 25th day of May. 1967.”

Soon thereafter Space City responded to the interrogatories and promptly filed a motion to reinstate its cause of action. Hearing on the motion was held more than thirty days after May 25, 1967; the order denying the motion is set out as follows:

“BE IT REMEMBERED that on June 26, 1967, at a regular term of this Court, came on to be heard Plaintiff’s Motion to Reinstate in the above entitled and numbered cause, and thereupon came the plaintiff, Space City Transport, Inc., by and through its attorneys of record, and thereupon came the defendants, Lockwood National Bank of Houston and Arthur Hoehn, by and through their attorneys of record, and all parties having due notice of said hearing, said motion was presented and argued to the Court by counsel for the plaintiff and by counsel for the defendants, and the Court having duly considered said motion and being of the opinion said motion should be dismissed for want of jurisdiction; it is, accordingly ORDERED, ADJUDGED, AND DECREED as follows:
I.
“Plaintiff’s Motion to Reinstate is hereby denied and dismissed for want of jurisdiction, to which order Plaintiff excepted and gave notice of appeal.
“SIGNED this_10th day of July, 1967.”

This appeal is from the order of denial and of dismissal for want of jurisdiction.

Appellees’ motion to dismiss the appeal asserts that the quoted orders are interlocutory and not subject to appeal because neither is dispositive of all the issues or parties in the cause.

The motion to dismiss, which was granted by the order signed on May 25,1967, was filed on behalf of defendants, Lockwood National Bank and Arthur Hoehn, only, so it does not dispose of plaintiff’s cause against defendants, Berry and Davis. The order expressly states that the dismissal of plaintiff’s petition is without prejudice to the continued maintenance and prosecution of defendant’s counterclaim against Space City as cross-defendant and of the third-party actions of the bank against Biaza and Copeland.

The orders do not recite or imply that there was any severance of the parts of the cause which were dismissed. Such orders do not dispose of all the parties and the issues, so they are interlocutory and are not appealable. Pan American Petroleum Corp. v. Texas Pacific Coal and Oil Co., 324 S.W.2d 200, Tex.Sup.1959.

We sustain the motion of appellees, Lockwood National Bank of Houston and Arthur F. Hoehn, to dismiss this appeal for the reasons stated. In view of this ruling, we overrule appellees’ supplemental motion to dismiss, which asserts that appellant has failed to comply with the time requirements of the Texas Rules of Civil Procedure in taking its appellate steps.

The appeal is dismissed.


author: NORTHCUTT, Justice.

text:
    Mary Avis SMITH et vir. Appellants, v. Wade H. CLEMENTS, Appellee.
    No. 7763.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 2, 1968.
    Rehearing Denied Jan. 29, 1968.

      H. M. Hood, Borger, Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellants.
    Dunlap & Zimmerman, Amarillo, for ap-pellee.
   NORTHCUTT, Justice.

This is a child custody suit filed by the mother and stepfather of the children here involved against the father for custody of the children awarded to the father in his divorce suit. The case was tried before a jury and after the evidence was introduced, the defendant filed a motion for an instructed verdict which motion was granted by the trial court. Judgment was entered that the plaintiffs take nothing by their suit against defendant and that defendant have and retain custody of the two minor children, Walter Wade Clements and Warren Eugene Clements. From that judgment, the plaintiffs perfected this appeal. The parties hereinafter will be referred to as they were in the trial court.

We do not disagree with the principles as contended by the plaintiffs in their contention here as to why they should be granted custody of these children where they state:

“The record must be considered in the light of certain recognized principles:
First: The April, 1966, divorce decree granting custody to the father with visitation rights only to the mother is res judicata with respect to conditions then existing and with respect to the proper custody of the children under the conditions which then existed;
Second: A change of custody will be authorized only if a material change of circumstances is shown to exist, and the change of circumstances which will justify a change of custody must be of sufficient magnitude that the welfare of the children demands a change; and
Third: The burden of proof rests upon the plaintiff to demonstrate by a preponderance of the evidence that a change of this magnitude has taken place.”

It seemed to be the contention of the mother of these children that the custody should be changed for the reason that she had remarried and had a home for the children. That alone is not sufficient. In the case of Fontaine v. Fontaine, Tex.Civ.App., 32S S.W.2d 428, (no writ history), it is stated:

“[2,3] It is familiar law that “where the custody of a minor has by divorce decree been awarded to one party, one seeking a modification of the decree changing the award has the burden of establishing changed conditions arising subsequent to the date of the decree which would materially affect the welfare of the child.” Neal v. Medcalf, Tex.Civ.App., 244 S.W.2d 666, 670 [10]. “The party seeking a change of custody has the burden of proving that since the judgment of divorce conditions have so changed as to render the other parent an improper custodian, or that the welfare of the child demands a change.” 1S-B, Tex.Jur. p. 104. Appellee admits to unchanged conditions with respect to the mother as custodian; simply asserting^ his remarriage which, in itself, is uniformly held not to be a sufficient ground or reason for modification. Tavares v. Tavares, Tex.Civ.App., 207 S.W.2d 916; Lovelace v. White, Tex.Civ.App., 209 S.W.2d 422 ; 43 A.L.R.2d 364.”

The undisputed record here is that the mother came to the home of the defendant and used such vile and vulgar language against the defendant and his present wife that it was necessary to call the police. This happened on two separate occasions. Both boys testified that they were afraid of their mother. They further testified their stepmother was better to them than their mother. One of the boys testified when they visited their mother she would go into the closet and start crying and call them to come hold her hand. The plaintiffs reside in a trailer house. The defendant lives in a four bedroom house and the boys have a room all their own. There is no evidence in this record that the boys are in any way being mistreated. There is no evidence against the character or reputation of the defendant nor of his present wife.

Child custody judgment in divorce actions is res judicata as to the question of the child’s best interest and of custody. Where change of custody disrupts the child’s living arrangements and changes the child’s affections, such change should be ordered only when the trial court is convinced that change is to be positive improvement for the child. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787 and cases cited.

In custody cases the underlying principle paramount to all others is the welfare and best interest of the child. In no way in conflict with this rule is another, equally well established, that once the court has decreed custody there may be no change in the child’s custody except where adequate cause therefor arises out of changed conditions. The principle is based on the idea not only the stability of the home life of the child is an important and vital factor but also that the turmoil of litigation must somewhere end. Short of modification based upon adequate grounds, the decree awarding custody is conclusive and settled beyond recall other than by appeal. Moreover, the actions and conduct of one of the parties to the divorce which gives offense to the other or even to the public at large are not a matter that calls for or permits a change of custody unless such actions and conduct are shown to affect directly the welfare and best interest of the child.

Where a court has decreed custody to one parent, such parent may not be deprived of the custody for any supposed unfitness unless it be shown that he or she is so unfit as to endanger the child’s welfare. A custody proceeding is not one to discipline one parent for such parent’s shortcomings as an individual, nor to reward the other for any wrong suffered therefrom. Before a decree awarding custody may be vacated and the child’s life unsettled, the evidence must be clear and convincing that the child’s welfare and best interest will be directly promoted by a change.

We are unable to find in this record any evidence that would justify a jury or the judge of the trial court in finding there was such a change of conditions as to require the change of custody. The children are healthy and happy and there is nothing even to indicate that anything is wrong with the children’s present surroundings. We think the trial court was correct in holding there was no evidence in this case that would justify a jury to hold the defendant was an improper custodian of the children to demand a change.

Judgment of the trial court is affirmed.


author: SPERRY, Commissioner.

text:
    Eugene C. JETER et ux., Plalntlffs-Appellants, v. TITLE INSURANCE COMPANY OF MINNESOTA, Defendant and Third-Party Plaintiffs (App.), v. William H. DUNCAN et ux., Third-Party Defendants (Resp.).
    No. 24718.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1967.
    Rehearing Denied Feb. 5, 1988.
    Martin B. Dickinson, Kansas City, for pellants.
    Henry H. Fox, Jr., Kansas City, for respondents.
   SPERRY, Commissioner.

This suit originated by the filing of a petition against Title Insurance Company of Minnesota, defendant, wherein Mr. and Mrs. Jeter, plaintiffs, sought certain relief under a policy of title insurance issued by defendant. Title Insurance Company filed a third party petition against third party defendants, William H. and Patricia Duncan, who had sold the Jeters the property involved. This latter petition was based on the claimed liability of the Duncans to the Title Company on an indemnity agreement executed by the Duncans. The Title Insurance Company sought judgment against the Duncans in the amount of $4,-110.53, that being the amount it had expended in successfully defending the title in a suit against Lake Lotawana Development Company and the Jeters. The Dun-cans denied liability on the theory that execution of the indemnity agreement by them was not supported by consideration and was procured by fraud. There was a separate trial on the third party plaintiff’s petition. From an adverse judgment in that case the Title Company appeals. Mr. and Mrs. Jeter are not parties to or interested in this appeal.

The Duncans were the owners of lots 25, 26, 27, Block Z in Lake Lotawana. There existed valuable improvements thereon, consisting of a dwelling house and other structures. These structures extended beyond the boundaries of the lots and into a parkway lying between said boundaries and the water line of Lake Lotawana. This parkway area had been reserved by Lake Lotawana Development Company, a corporation, for the common use and benefit of the corporation and of all lot owners in the area. No part thereof had been conveyed by it to the original grantee of the lots mentioned above. These structures had existed since they were built, in the 1930’s.

There was introduced into evidence, as exhibits, a number of documents, and several witnesses gave oral testimony. The court made and announced detailed findings of fact and conclusions of law. We will endeavor to condense and state the ultimate facts as disclosed by the record.

In the autumn of 1954 the Duncans contracted to sell this property to Mr. and Mrs. Jeter, for a consideration of $25,000.00. Mr. Jeter and Dr. Duncan met on the property and discussed the fact that the structures on the lots intruded on the parkway, as shown by a document produced by Dr. Duncan and shown to Mr. Jeter, it being a “survey” of the property. Dr. Duncan told Mr. Jeter that he had discussed this matter with his attorney, Mr. Fox, who had advised him that he believed Dr. Duncan had good title by reason of adverse possession. Thereafter, Mr. Jeter and Mr. Fox conferred with four officers of McDaniel Title Company, (which was agent for Minnesota Title Company) including attorneys Howard and Thomas, regarding the issuance by it of a title insurance policy on this property. The conferees agreed to the effect that a quiet title suit could quickly be brought and successfully maintained, and that all title defects could be corrected. Thereafter, at the solicitation of McDaniel, Mr. Jeter requested issuance of the policy which is involved in this case.

In October, 1958, Jeter notified McDaniel that certain lot owners in the Lake Lota-wana subdivision of Jackson County, had trespassed on his property. Later, several lot owners sued the Jeters and Lotawana. Mr. Jeter demanded that the Title Company defend the action. McDaniel notified the Duncans and demanded that they protect or reimburse the Title Company (under an indemnity agreement executed by them), for all sums for which it might become liable by reason of this claim and action.

Mr. Jeter stated in evidence that at no time when he discussed the title matter with the Title Company was there any mention made of a requirement that the Duncans execute an indemnity contract; that McDaniel was fully aware of the problem presented regarding the title; that he, Jeter, understood that the Title Company would charge Dr. Duncan an extra fee ($250.00) to cover the possible expenses of a quiet title suit; that he did not hear of any indemnity contract whereby the Duncans would agree to indemnify the Title Company to the extent of the face amount of the policy, $25,000.00, if the Title Company should be required to pay out money because of claims made against it; that witness and Mr. Fox discussed the matter with officers of McDaniel on at least two occasions but that he, Jeter, did not learn about the idemnity contract until after suit was instituted by Erb and others, area lot owners, against him and the Lotawana Development Company.

Dr. Duncan testified to the effect that he contracted to sell this property to Mr. and Mrs. Jeter; that Mr. Fox represented him in connection with clearing up questions concerning title to the property in this transaction, but that Mr. Fox was not present at any time in connection with the execution of the indemnification contract; that, on December 24th, 1954, he, Duncan, paid McDaniel $404.00, and he identified Exhibit 1, which is a receipt signed by McDaniel, wherein the following charges appear: $125.00; “Extra Risk” $250.00; other charges $29.00. Dr. Duncan further stated that he had, prior thereto, received a letter from McDaniel stating that “everything was in order and for me to come in and sign some papers”.

Exhibit 2 was introduced in evidence. It was a letter dated October 21st, 1954, from McDaniel, signed by Mr. Howard, McDaniel’s attorney, addressed to Mr. Fox, attorney for the Duncans. The existence of the Duncan structures on the “parkway” in violation of restrictions in the deed, is mentioned and Mr. Howard gave it as his unqualified opinion that the Duncan title to the encroached area could be established by a quiet title suit.

Dr. Duncan stated that Mr. Fox advised him, by telephone, to go ahead and sign the Title Company papers, but that Fox had not discussed the indemnity agreement with him. The indemnity agreement was signed by the Duncans on December 7th, 1954. Dr. Duncan stated that, at that time, he was in the McDaniel office from thirty to forty-five minutes; that he saw and talked with one man but doesn’t remember his identity; that he was told that McDaniel had issued “one title that I had signed which was ‘ordinarily good enough to protect me under any circumstances but they would recommend, I mean as a title company, to get added insurance on account of there being difficulty around the lake at times for a full title * * * that they would recommend I take out a second policy * * * to doubly assure me that I would be protected’ ”; that he agreed to take it; that it was his opinion, after the conversation with McDaniel, that he was cleared; that he was handed another paper to sign “which was the assurance that I would be protected”; that only Dr. and Mrs. Duncan, and a representative of McDaniel, were then present; that he had never before seen the paper he signed; that he did not know that it was typed on plain (not McDaniel) stationery; that no mention was made of Duncan’s possible liability on this instrument (which was, in fact, the indemnity agreement) ; that he did not read it but relied solely on what he was told; that he did not know why it was necessary that he sign the papers but “they assured me it was double insurance and double protection for me”; that he had had no previous experience in selling real estate.

On cross examination Dr. Duncan stated that, after the contract was made in September, 1954, he learned that the buildings on the property extended into the parkway; that the water line of the lake rose after they were constructed; that, when he was notified of a threatened suit involving the title, he referred the entire matter to Mr. Fox; that he paid for the title insurance “because they agreed to protect me in case anything happened, I mean, verbally in their office, that’s why I * * * ”; that Mr. Fox knew about the original title policy (which cost $125.00); ‘the second one he didn’t know anything about’; ‘ * * * well, I thought I was paying $250.00 primarily to protect myself’ ”, because the Title Company insured an unusual risk.

Mr. Thomas, attorney for McDaniel, stated that Mr. Jeter applied for title insurance. He identified a letter (Exhibit 7), bearing his signature addressed to Mr. Jeter in which conditions for issuance of insurance were discussed. He stated that he prepared Exhibit 3, the indemnity agreement; that he prepared and mailed to Mr. Fox, Exhibit 6, inclosing documents required to be executed by the Duncans for issuance of the policy but, he stated, he could not say that a copy of the indemnity agreement was included; that, so far as he knew, it was not included; that there is no record that it (indemnity agreement) was sent to Mr. Fox; that he never discussed this matter with the Duncans or with Mr. Fox, their attorney; that the file was given to Mr. Howard who, presumably, was present when Exhibit 3 was signed by the Duncans; that it was not customary for McDaniel to deal directly with an applicant for insurance except in the presence and with the knowledge of his attorney; that the indemnity agreement was drawn subsequent to a conversation on the subject between witness and Mr. Jeter, of which the Duncans had no knowledge. Exhibit 6, which was in evidence, was a memorandum letter written to Mr. Fox by Mr. Thomas December 2nd, five days prior to the date appearing on the indemnification agreement. Certain documents were mentioned in the latter, and Mr. Fox’s attention was directed to them. It contained no reference to the indemnification agreement and McDaniel had nothing in its files indicating that any such notice thereof was given to Mr. Fox, although it was the custom to furnish attorneys for clients seeking title insurance with copies of such agreements before execution; that such attorneys “should pass on it”.

The interlocutory judgment was “that the indemnity writing under date of December 7th, 1954, described in the defendant-third party plaintiff’s petition be * * * can-celled, set aside, annulled, and declared to be of no force and effect”. The judgment was, later, made final.

Mr. Howard testified. He identified Exhibit 2 as being a letter to Mr. Fox, signed by witness, stating that title to the lots herein could be perfected by suit. He did not remember having closed the title insurance matter; did not recall having seen the indemnification agreement; did not remember the Duncans; and did not remember having ever talked to Mr. Fox about the matter.

From the evidence the court could have found, and did find, that the Title Company had, throughout the negotiations, predicated its charge for issuance of the policy upon the assumption that the sum of $250.00, charged as an extra risk fee, was sufficient to reimburse it for the cost of a quiet title action, should one become necessary in order to clear the title; that, on December 7th, 1954, the Duncans, in the offices of the Title Company, signed various documents, including Exhibit 3, the indemnification agreement; that neither the Duncans nor Mr. Fox had previously considered or examined the instrument; that the Duncans paid a total of $404.00 to McDaniel; that said sum constituted the entire agreed consideration for issuance of the policy; that Exhibit 3 is “nudum pactum constituting mere voluntary promises devoid of and lacking any consideration”; that Dr. and Mrs. Duncan are entitled, in equity and good conscience, to be relieved of the indemnity writing; and that “the participation by the Duncans in the defense of Erb v. Lake Lotawana Development Company, et al, was a gratuitous and voluntary gesture and cannot constitute estoppel (which defense was neither pleaded nor proved)”.

The Title Company well' knew, at all times, that the title was defective but believed that it could be made good by a quiet title suit. Mr. Jeter attended one, or probably two conferences between McDaniel, who was there represented by four senior officers, and Mr. Fox, attorney for the Duncans. He stated that these matters were discussed and that he understood that the Title Company would issue a policy in consideration of receipt by it of $250.00 (in addition to the regular fee of $125.00) as an extra hazard fee, which, Jeter said, he believed was McDaniel’s estimated cost of a quiet title suit, should one be necessary. Mr. Jeter stated that he did not learn about the indemnity contract until after the filing of this suit. Written documents from the McDaniel files indicate that McDaniel believed that a title suit would not actually be required. However, on December 7th, McDaniel requested the Duncans to come in and close the matter. McDaniel did not furnish either the Duncans or their attorney with a copy of Exhibit 3, nor did it ever mention the indemnity agreement to Mr. Fox, their attorney. That is the evidence. Dr. Duncan stated that he signed without understanding the true nature of the agreement but he believed he was paying for the extra risk.

Title Company cites and relies on Section 431.020 V.A.M.S. In Gershon v. Ashkanazie, 239 Mo.App. 1012, 199 S.W.2d, 38, 48, this court held that all written and signed instruments providing for the payment of money by one party to another import consideration in the absence of proof to the contrary. However, in this case, the court found from substantial evidence that the Duncans did not knowingly agree to pay any money other than the $250.00 extra risk fee, and that they paid the full price demanded for the “extra risk”. The court’s ruling that the indemnity contract is “nudum pactum” is correct and rests on the established facts in this case.

We cannot say that the judgment is clearly erroneous and it is affirmed.

MAUGHMER, C., concurs.

PER CURIAM:

The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court.

HOWARD, P. J., and CROSS, J., concur.

MORGAN, J., not participating because not a member of the Court when the cause was submitted.