author: POPE, Justice.

text:
    C. B. STEPHENS, Appellant, v. CITY OF ARANSAS PASS, Texas, Appellee.
    No. 14080.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 30, 1963.

      Utter & Chase, Corpus Christi, for appellant.
    Richard D. Hatch, Aransas Pass, for appellee.
   POPE, Justice.

The City of Aransas Pass recovered a summary judgment for taxes and foreclosure upon the family automobile owned by C. B. Stephens, the head of a family. It is the only car he owns. There is no dispute about the facts.

Since 1955 Stephens has owned only one automobile at a time, but from time to time he has sold one car and bought another., Since that year, City of Aransas Pass has assessed a tax against each automobile. In a suit to recover the taxes, City obtained a judgment for $50.67 for back taxes and also for foreclosure upon the Stephens 1960 Oldsmobile for a tax lien in the sum of $7.50 for the 1961 tax.

Stephens claims that a family automobile is exempt from taxation. He relies upon Article 16, § 49, of the Constitution, Vernon’s Ann.St., and Article 3832, Vernon’s Tex.Civ.Stats. The Constitutional provision empowers the Legislature to exempt personal property from forced sale, and Article 3832 is the Legislative exercise of that power. City meets this argument by the contention that those laws relate to exemption from forced sales by creditors, but do not concern exemptions from taxation. The trial court correctly ruled that the car is not tax exempt. The solution to the problem may be found in the structure of the Législative Acts themselves.

Article 3832, relied upon by Stephens, does not relate to taxation. It provides by its opening statement: “The following property shall be reserved to every family, exempt from attachment or execution and every other species of forced sale for the payment of debts, except as hereinafter provided.” Among the items listed is a carriage, which means an automobile. Parker v. Sweet, 60 Tex.Civ.App. 10, 127 S.W. 881. Stephens strengthens his argument by comparing Article 3832 with Article 3839, Vernon’s Tex.Civ.Stats. Article 3839 states that a homestead will not be exempt “where the debt is due” for purchase money, for taxes, or for construction of improvements thereon. This, he argues, groups taxes among items which are called debts. He argues also that if it were intended that an automobile should be non-exempt from taxes, the Legislature would have made an exception as it did in the case of a homestead.

We are compelled to reject the argument, however. Articles 3832 and 3839 are not a part of the statutes pertaining to taxation. Taxation is fully treated by Title 122, Vernon’s Tex.Civ.Stats., which covers the subject in all its phases. One whole chapter is devoted to the specific matter at hand, that of property which is subject to taxation. Article 7145, the first statute under that subject, is broad and inclusive:

“All property, real, personal or mixed, except such as may he hereinafter expressly exempted, is subject to taxation, and the same shall he rendered and listed as herein prescribed.”

Article 7162 is a detailed statute which specifies those items of real and personal property which must he listed. This statute shows that the Legislature, when discussing taxation, deals differently with the very items detailed in the earlier Article 3832. Article 7162 requires, for taxation purposes, a listing of the items listed in Article 3832. Article 7162 makes no suggestion that any part of those items is exempt from taxation, until it reaches the twenty-third item. It relates to household and kitchen furniture, an item also included in Article 3832. It does not exempt those articles from taxation, hut does, for the first time, recognize a partial exemption to the extent of two hundred and fifty dollars worth of household and kitchen furniture. The nineteenth item in Article 7162 states that automobiles must he listed. It calls for a listing of all automobiles. Unlike item twenty-three, the Legislature requires that all automobiles he listed, and this shows there was no legislative intent to exempt even one vehicle from taxation.

Within the same Title 122, and Chapter Six of the general subject “Taxation,” we also find that the Legislature has with great detail stated all those classes of property which are exempt from taxation. It is here that the Legislature concerns itself with the specific matter of exemptions from taxation. Schools, churches, state and county buildings, public charities, public libraries, and many other classes of property are exempt by Article 7150 and subsequent Articles. These exemptions from taxation are an exercise of the power granted by Article 8, § 2 of the Constitution, which also relates to exemption from taxation. Article 7150> mentions many exemptions, but automobiles are not among them. Section 11, Article 7150, is helpful also in showing the legislative intent. It authorizes the exemption from taxes of two hundred fifty dollars worth of household and kitchen furniture. That class of personal property is one of the items included in Article 3832. But the argument that Article 3832 is a tax exemption statute is defeated by Section 1R Article 7150. It is the latter statute which gives the limited exemption instead of Article 3832, which, if Stephens’ argument were correct, would be a total exemption as to household and kitchen furniture. The Legislature, therefore, does not agree with the argument that Article 3832 is a tax exemption statute. Instead, it treats Article 7150 and subsequent Articles as the tax exemption statutes. Articles 7145, 7147 and 7162 persuade us that the family automobile is not exempt from municipal taxation. See Jesse French Piano & Organ Co. v. City of Dallas, Tex.Civ.App., 61 S.W. 942, 946; Op.Atty.Gen. V-862, 1949.

Stephens raises other points. He says that the charter for Aransas Pass prohibits a tax upon exempt property because it provides: “All real and personal property within the City not expressly exempted by law shall be subject to annual taxation.” The argument is the same as that which Stephens applies to Article 3832. The charter provision is not unlike Article 7145, and it refers to exemptions from taxation, not to exemptions from forced sales by creditors.

The City Charter provides that the tax levied by the City is a lien upon the property upon which the tax is due. This is an exercise of the legislative grant of power. Arts. 1060, 1175. Aransas Pass possessed the power to enforce collection of the taxes. Art. 7337; Stone v. City of Dallas, Tex.Civ.App., 244 S.W.2d 937.

The judgment is affirmed.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    Roberta Powell DWYER et al., Appellants, v. HOUSTON PIPE LINE COMPANY, Appellee.
    No. 14051.
    Court of Civil Appeals of Texas. Houston.
    Jan. 10, 1963.
    As Corrected on Denial of Rehearing Jan. 24, 1963.
    Second Motion for Rehearing Denied Feb. 14, 1963.
    Joyce Cox, Houston, for appellants Ben Taub et al.
    Vinson, Elkins, Weems & Searls, James W. McCartney, Houston, for appellants Roberta Powell Dwyer et al.
    Fulbright, Crooker, Freeman, Bates & Jaworski, B. J. Bradshaw, Houston, for ap-pellee.
   WERLEIN, Justice.

This suit was brought by Roberta Powell Dwyc et al. against appellee for judgment declaring a pipe line easement across appellants’ land to have lapsed and terminated as a result of appellee removing an 18 inch relatively low pressure pipe line and replacing it with a 30 inch high pressure pipe line, and for judgment removing the same as a cloud on appellants’ title, and also restraining its further operation, and for rental, and in the alternative for damages. The al-tentative claim was later withdrawn to permit entry of a final judgment.

Appellee answered contending that under the express terms of the right of way agreement in question, which was executed on March 9, 1926, it was authorized expressly and impliedly to replace the original 18 inch pipe used in the pipe line. It denied that it had voluntarily ceased to use the pipe line for any period of time, and asserted that it had continued to use the easement for the purpose granted and that its rights under the agreement had not terminated. In its alternative cross-bill, it sought to condemn a right of way and easement in the event it should he determined that the right of way easement granted in said agreement had lapsed or terminated or that for any reason appellee does not have a valid subsisting easement for laying, construction, maintenance, inspection, operation, repairing, substitution, replacing and removal of the pipe and pipe line presently on the land for the transportation of gas. Both parties filed motions for summary judgment. The trial court granted appellee’s motion and denied appellants’ motion.

Appellants do not question appellee’s power to condemn an easement across the land, and they seek injunctive relief only in the event appellee fails promptly to pursue condemnation proceedings under its cross-action.

It is appellants’ contention that the March 9, 1926 agreement authorized the construction, maintenance, operation and repair of one pipe line only, and did not authorize its replacement and did not authorize its removal except upon termination of the rights and easement granted by said instrument, and that in construing said agreement the trial court should have considered the fact that grantors struck out the words “and remove” from the granting clause thereof and also struck out language which would have given appellee the right to lay additional lines across appellants’ property. Appellants further contend that under the particular provisions of the agreement when appellee constructed its 18 inch pipe line, it thereby limited and defined the extent of the easement right granted so that it was not authorized to increase the size of its pipe line across appellants’ lands; and further that upon removal by appellee of its 18 inch line, its rights and easements terminated, but irrespective of such termination appellee had no right or easement to construct, maintain and operate the 30 inch line subsequently laid by appellee across appellants’ lands.

On the other hand, it is appellee’s contention that the agreement in question does not specifically limit the size or capacity of the line to be constructed, so that the removal of the 18 inch line initially laid and operated pursuant to such instrument for more than 30 years and its replacement by a 30 inch line did not violate the terms of the agreement; and also that the rights granted appellee include the right to replace the original pipe line with different pipe without any restriction as to size, when the condition of the pipe or increased demand for gas make such replacement and enlargement necessary.

There is no substantial dispute as to the issues involved. The determination of the case will depend upon a proper construction of the right of way instrument and the use made of the easement. The printed form of the conveyance of the easement shows that there was struck therefrom the words “and remove” following the word “repair,” thus conveying to the grantee only the right to lay, construct, maintain, operate, and repair a pipe line for the transportation of gas over appellants’ land. The paragraph in the habendum clause giving the right to construct additional pipe lines over said lands was also deleted. Appellee asserts that the deletion of the words “and remove” was intended merely to prevent appellee from removing its pipe line from the location where originally constructed to another location on appellants’ land; whereas appellants contend that it was the intention of the parties in striking out the words “and remove” to prevent appellee from removing the pipe line as originally established, and that in removing the 18 inch pipe line and replacing it with a 30 inch pipe line appellee became a trespasser upon the lands in question and should be enjoined from operating the 30 inch pipe line, since the agreement gives appellee no such right.

The evidence shows that the pipe line laid in 1926 was continuously in operation, serving the area of east Harris County until the latter part of 1959, when the old 18 inch pipe was removed and the 30 inch pipe line was laid in its place. The transportation of gas ceased for only a few weeks while the substitution was being made. The evidence further shows that the original 18 inch line had a maximum working pressure of 225 pounds per square inch and under optimum operating conditions it could transport approximately 150 million cubic feet of gas per day; whereas the larger 30 inch pipe line which was installed substantially along the same course from which appellee had removed the 18 inch pipe line, had been tested at pressures in excess of 875 pounds per square inch and had an optimum operating delivery capacity of approximately 650 million cubic feet a day and is the largest size pipe line appellee now has in operation anywhere in its entire system.

The agreement in question does not provide that any increase in the size or capacity of the line may be made, nor does it grant any right to make improvements or additions to the line. The grantors at the time of executing the lease struck out the authorization for the construction of additional pipe lines, thus eliminating the possibility of their lands being subsequently burdened with additional lines in the absence of further negotiations and payment. They also, as stated, struck out the words “and remove” from the granting clause, thus giving the grantee only the right of removal upon termination of the easement as provided in the habendum clause. It is axiomatic that the pipe line could not be replaced without first being removed. The basic question is whether the instrument as changed by deletions can be construed to give the appellee the right to remove the 18 inch line initially constructed and to increase the burden on appellants’ land by permitting construction of the 30 inch pipe line with vastly increased pressure and delivery capacity. We think the foregoing deletions as part of the surrounding circumstances may be considered by the Court in order to arrive at the true meaning and intention of the parties. Gibson v. Turner, 1956, 156 Tex. 289, 294 S.W.2d 781.

It seems clear that by deleting from the easement agreement the right to lay additional pipe lines and to remove the pipe line except as provided in the habendum clause, appellants were trying to protect themselves against additional burdens that might otherwise be imposed upon their land. They did not definitely prescribe in the agreement the initial size or location of the pipe line, but they sought to prevent any change therein after the pipe line was laid and its location and size were by mutual acquiescence of the parties established and fixed, which would increase the burden upon the servient estate.

It is obvious that the removal of the 18 inch pipe line and its replacement by the 30 inch pipe liné did increase the burden upon appellants’ land. In order to lay the new pipe line it was necessary to widen and deepen the trench in which the pipe was laid at least as much as one foot, and then, to physically occupy that much additional land belonging to appellants. The record does not disclose whether or not there were larger than 18 inch pipe lines in existence in 1926. If there were, appellee might have installed a larger pipe line initially, but it did not do so. It could have provided in the agreement for the right to replace and increase the size of the pipe at any time, provided appellants would have agreed to such stipulation, but it did not. Appellee admits it had no right to lay an additional pipe line. If, however, it had done so by laying another pipe line over or alongside the old 18 inch pipe line by deepening and widening the trench where the 18 inch pipe line was constructed and used, the burden imposed upon appellants’ land would not in all probability have been increased any more than it was by removing the 18 inch line and substituting therefor the 30 inch line. Appellee’s general superintendent, when asked: “You increased it so as to put more gas through the line on the Dwyer tract?” testified, “Yes, Sir. We thought it was better to do that than to go in with a parallel line.”

We find no merit in appellee’s contention that the construction placed upon the agreement in question by appellants would defeat the main object and purpose of the easement, namely the transportation of gas. The transportation of gas had continued for some 33 years through the 18 inch pipe line and unquestionably it could have continued indefinitely in the future had appellee exercised its right under the agreement to repair the old line. We think its right to repair was broad enough to have permitted it to replace joints of pipe that had developed leaks or to recover or recoat the pipe or sections of it from time to time. Such right, however, did not include the right to remove the entire pipe line and replace it with another of greatly increased size and capacity. 76 C.J.S., Repair p. 1169; White v. Perkins, Tex.Civ.App., 1933, 65 S.W.2d 423, and cases cited.

It is appellants’ contention that when appellee constructed its 18 inch pipe line it limited and defined the extent of its easement rights under the 1926 agreement. The general rule is expressed in 17-A Amer. Jur., p. 722, Easements, § 114, as follows:

“It is settled that where a grant of an easement is general as to the extent of the burden to be imposed upon the servient tenement, an exercise of the right, with the acquiescence and consent of both parties, in a particular course or manner,, fixes the right and limits it to the particular course or manner in which it has been enjoyed.”

This rule is restated and’applied in Bland Lake Fishing and Hunting Club v. Fisher, Tex.Civ.App., 1958, 311 S.W.2d 710. In that case the plaintiff had erected a boat house and piers at certain places along the lake. The court restricted plaintiff’s right to build to the places on the lake previously used by them. The court referred to the rule as enunciated in 17-A Amer.Jur., pp. 721, 722, and cited 15-B Tex.Jur., 302, and Winslow v. City of Vallejo, 148 Cal. 723, 84 P. 191, 5 L.R.A., N.S., 851.

In Winslow v. City of Vallejo, supra, the City had constructed a 10 inch pipe line under an instrument which granted a right of way and easement “for any water pipes or mains * * * and also the use of so much land as is necessary in the laying down and maintaining of said water pipes and mains, * * As a result of the growth of the City the 10 inch line had become inadequate. Suit was brought to enjoin the City from laying a 14 inch line adjacent to its existing 10 inch line. The court stated:

“It might with equal force be urged that inasmuch as there was no limitation on the size of the pipe to be laid, the defendant might at any time replace the 10-inch pipe with one of twice or three times the diameter. * * * It by no means follows, however, that the grantors, in conveying a right of way for water pipes over their land, intended to burden that land with an easement the extent of which could never be definitely ascertainable, and which might be enlarged again and again, as often as the growth of the city of Vallejo might make it necessary to extend the operations of the water plant.”

If appellee in the instant case could with impunity replace the old pipe line with a 30 inch pipe line which required the digging of a trench 36 to 40 inches in width and 1½ to, 2 feet deeper than the old ditch, it could at; any time replace the 30 inch pipe line with a 36 inch pipe line in use elsewhere or a 42 inch pipe line that they are considering “going to”. Thus, the extent of the easement in this case, as in the case of Winslow v. City of Vallejo, supra, recognized as a leading authority on the question under consideration, could never be definitely ascertainable.

Appellants also rely on the case of Onthank v. Lake Shore & M. S. R. Co., 71 N.Y. 194, 27 Am.Rep. 35, which is cited and distinguished by the court in Knox v. Pioneer Natural Gas Company, Tex.Civ.App.,1959, 321 S.W.2d 596, writ ref., n. r. e. We think the Knox case, which is relied upon by ap-pellee, is also distinguishable from the instant case. The distinguishing facts will readily be noted by reference to the court’s opinion, a part of which we here quote:

“ * * * the agreement in the case at bar allows the grantee a right of way of sufficient width to permit the grantee to lay, maintain, operate and remove a pipe line for the transportation of gas, for the express purpose of ‘constructing and placing on, in and under the surface of the ground a pipe line over and through said lands’ further granting to the said grantee the right to enter upon said land at all times for the purpose of making additions to, improvements on, and repairs to said pipe line and to keep and maintain the same and to remove or replace the same, and further granting the right of free ingress and egress to the grantee, as by it, he or them shall be necessary or convenient * * * (Emphasis ours).”

While there appears to be no uniformity in the decisions, it is our view that the weight of authority and better reasoning support the rule that where a grant of an easement is general, as to the place of laying a pipe line and its size, it becomes fixed and certain after being laid and used with the acquiescence of both grantor and grantee. Thompson on Real Property, Perm.Ed., § 681, states the rule as follows:

“A grant in general terms of a right to lay a pipe for the purpose of conducting water across the land of the grantor without specifying the place for laying it or the size of the pipe is defined and made certain by the act of the grantee in laying down the pipe; and after he has once laid the pipe with the acquiescence of the grantor, the grant which was before general and indefinite becomes fixed and certain and the grantee can not change the easement either by relaying the pipe in another place or by increasing its size.”

See also Babler v. Shell Pipe Line Corporation (D.C.E.D.) Mo.1940, 34 F.Supp. 10; City of Lynchburg v. Smith, 1936, 166 Va. 364, 186 S.E. 51; Dickson v. Arkansas Louisiana Gas Co., La.Ct.App.1939, 193 So. 246, 249; Texas Power & Light Co. v. Casey, Tex.Civ.App.1940, 138 S.W.2d 594, dism. judgment correct; 28 C.J.S. Easements § 82, p. 761.

The cases relied upon by appellee are in the main part cases in which the grantee did not initially use its easement to the extent of the right granted, or cases in which merely improved implements or devices were used which did not increase the burden of the servient estate, or cases in which the grant provided for improvements, additions, removal or replacements. The instant case does not fall within any of the foregoing categories. See Tong v. Feldman, 152 Md. 398, 136 A. 822, 51 A.L.R. 1291; Williams v. Northern Natural Gas Co., D.C., 136 F.Supp. 514, in which broad rights were granted; Lone Star Gas Co. v. Childress, Tex.Civ.App., 187 S.W.2d 936.

It is our view, therefore, that the judgment of the trial court granting the summary judgment in favor of appellee should be reversed and the cause remanded for new trial not inconsistent with this opinion.

Reversed and remanded.


author: LANGDON, Justice.

text:
    BROADWAY PLAN et al. Appellants, v. W. L. RAVENSTEIN et al. Appellees.
    No. 16398.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 25, 1963.
    Rehearing Denied Feb. 22, 1963.

      Bracewell, Reynolds & Patterson, and J. S. Bracewell, Houston, for appellant.
    Hudson, Keltner, Jordan, Smith & Cunningham, and Joe Bruce Cunningham, Fort Worth, for appellee W. L. Ravenstein.
    Alfred J. Jackson, Jr., Brown & Murray, and M. Hendricks Brown, Fort Worth, for appellee First National Bank of Hand-ley.
   LANGDON, Justice.

The First Congregational Methodist Church of Fort Worth, hereinafter referred to as the Church, filed suit to cancel an $18,000.00 bond issue and to remove a cloud upon title to church property allegedly created by a forged resolution made by its former pastor to procure the bond issue. The Church further alleged that the bonds were sold without its authority and that its former pastor and not the Church received the proceeds of the sale. The suit alleged that Defendants W. L. Ravenstein, First National Bank of Fort Worth, J. S. Brace-well and Henry S. Deichert, were holders of said bonds. Alternatively the Church sought judgment over against the First National Bank of Handley in the event the defendant W. L. Ravenstein, appellee herein, obtained a judgment against the Church on his cross-action. The defendant Raven-stein in his answer and cross-action alleged he purchased $9,000.00 of said bonds. He prayed judgment against the Church and in the alternative against the First National Bank of Handley alleging that the checks he gave in payment for the bonds were paid by the bank on an unauthorized endorsement. Ravenstein also sought judgment against the Broadway Plan Church Finance, a partnership composed of J. S. Bracewell, Fentress Bracewell and Searcy Bracewell based upon (1) alleged misrepresentation inducing him to purchase the bonds and (2) certain negligent acts in issuing the bonds on request of the pastor of the Church.

The First National Bank of Handley, in its answer to the action of the Church and Ravenstein, sought judgment over against the Church alleging that its pastor acting as agent for the Church committed various acts of negligence in obtaining the bond issue.

The case was tried by jury on 65 Special Issues. Judgment on the verdict was entered by the trial court on March 8, 1962, on behalf of the Church cancelling the bond issue and removing the cloud on title to church property. W. L. Ravenstein Was given judgment for $9,000.00, of which amount the sum of $8,794.00 was joint against the First National Bank of Handley and the appellants herein, J. S. Bracewell, Searcy Bracewell and Fentress Bracewell and Broadway Plan Church Finance. The sum of $206.00 representing the amount of the judgment in excess of $8,794.00 was against the appellants. Costs were taxed one-half each to First National Bank of Handley and appellants.

The case is before this Court without a statement of facts.

In their points 1 and 1A the appellants contend that the trial court erred in (1) overruling their motion to declare the judgment of W. L. Ravenstein against appellants to be moot, (2) to grant a new trial and in the same order to dismiss as against appellants and (3) because of the refusal of the trial court to require production of a contract of accord and satisfaction between W. L. Ravenstein and the First National Bank of Handley which they alleged would support the appellants’ contention that the judgment was moot as to them.

The appellants’ motion, which was overruled by the trial court, recites that after judgment was entered by the trial court an agreement was made by which the First National Bank of Handley waived its right of appeal, paid one-half of the costs assessed against it and paid to W. L. Raven-stein tlie sum of $4,397.06, representing one-half of the joint judgment of $8,794.00, plus interest. That W. L. Ravenstein had agreed to delay any attempt to collect the balance of the judgment against the bank until he had exhausted all efforts to collect against appellants. That if the case was reversed on appeal or he was' unable to collect against the appellants he would then be entitled to collect the balance of the judgment and costs from the Bank. The motion also-recited that appellants had tendered to W. L. Ravenstein the sum of $206.00 representing the amount above the joint judgment. That the agreement above recited was evidenced by a letter from an attorney for the Bank, to an attorney who originally represented the appellants. The letter referred to was attached to an affidavit filed with this Court pursuant to Rule 406, T.R.C.P. The agreement described in the letter is substantially the same as described in the appellants’ motion and therefore all pertinent information concerning the agreement was considered by the trial court. The letter contains no additional information which would involve the jurisdiction of this court.

Appellants contended that because of the agreement between the Bank and Raven-stein, the tender of the $206.00 and the solvency of the Bank, which will be able to satisfy the judgment, that Ravenstein has no justiciable interest in further prosecution of his suit against appellants. That Raven-stein will receive the same amount of money regardless of whether the case is reversed, affirmed or dismissed.

As a general rule, questions involved in an appeal become moot when the judgment is voluntarily satisfied or complied with by the complaining party and an appellate court will not retain jurisdiction to decide a case after the parties settle it, ordinarily the settlement must involve all of the parties litigant. 3 Tex.Jur.2d pp. 315, 317, secs. 51, 52.

It is undisputed that the complaining party, appellants herein, have not satisfied nor complied with the joint judgment'against it and the bank; that one-half thereof plus interest remains unpaid and that the partial settlement did not involve the appellants.

The only amount paid by appellants is the sum of $206.00, representing the amount of the judgment against them which was over and above the joint judgment.

The judgment becomes extinguished where one of two or more defendants against whom there is a joint judgment pays the entire amount due thereon; however, the payment of a sum less than the amount due on the judgment does not release other judgment debtors or extinguish the judgment. 34 Tex.Jur.2d, p. 743, sec. 634; Kirby v. Fitzgerald, 126 Tex. 411, 89 S.W.2d 408. Undoubtedly, this rule would be applicable in a case on appeal where one of the parties against whom a joint judgment was rendered paid one-half of the judgment against him as well as the costs and waived his right of appeal.

Under the judgment of the trial court W. L. Ravenstein has the right to proceed against either the Bank or the appellants herein, or both, to collect the $9,000.00 plus interest awarded to him. It is undisputed that each is solvent.

The Bank voluntarily paid one-half of the judgment and thereby obviated the necessity of either it or Ravenstein undergoing the expense of appeal as between them or the additional expenses incident to efforts to collect under the judgment. Neither should be penalized for this action nor lose valuable rights because of a willingness to concede that a judgment is correct and to abide by it. Certainly it would be against public policy to condemn such action on the part of litigants. It would tend to encourage appeals on every occasion where it appeared that one of the solvent parties against whom judgment was rendered either had or very likely would pay a portion of the judgment rather than appeal. Public policy is better served by encouraging settlements in proper cases rather than to encourage continuing litigation in the courts. Following the reasoning of the appellants’ argument, if the First National Bank of Handley was also an appellant, it could present a much stronger case based on its payment of one-half of the joint judgment and the fact that the appellants herein are solvent. However, the same result would obtain and the judgment would not become moot as to either until the entire amount due thereon was paid in full.

The appellants’ motion to declare moot and to dismiss as to them had no basis in fact or law and therefore points 1 and 1A are overruled.

Points 2 and 3 urged by appellants contend that the bonds purchased by Ravenstein were usurious and to accord the holder of such' usurious bonds the status of an innocent holder for value is error.

A pleading setting up that a contract sued upon is usurious, unless the truth of such matter appears of record, shall be verified by affidavit. Unless such plea is filed, no evidence of usurious interest as a defense shall be received. Rule 93, Texas Rules of Civil Procedure. The truth of the matter does not appear in the record. The transcript contains no such verified plea and the brief of appellants concedes this. Points 2 and 3 are overruled.

Points 4 and 5 relate to assignments of error based on matters that should appear in a statement of facts and which cannot be considered in the absence of such statement. 3 Tex.Jur.2d, p. 696, sec. 448.

In the absence of a statement of facts appellate review is limited to errors apparent on the face of the pleadings, the verdict, the findings, if any, the judgment, and the bills of exceptions.

In cases where there are no bills of exceptions and no exceptions to the judgment or where neither a statement of facts nor findings of fact are in the record, it has been held that the only questions open to consideration are whether the pleadings support the judgment or whether the judgment is contrary to the verdict. 3 Tex.Jur. 2d, pp. 697, 698, sec. 449.

Examination of the pleadings, the verdict, the judgment and other papers contained in the transcript reflects that the judgment is supported by the pleadings and is not contrary to the verdict. In the absence of a statement of facts it must be presumed by this court that sufficient evidence was introduced to support the jury findings. Points 4 and S are overruled.

By its point 6 the appellants contend that the judgment is not final because it did not dispose of all the parties, namely the First National Bank of Fort Worth and Henry S. Deichert. The record reflects that the Church sought no specific relief against either of these parties. It sought only a declaration that the bonds held by them were invalid. This the trial court did and thus effectively disposed of these parties. Point 6 is overruled.

The appellants in point 7 complain of the trial court’s action in assessing costs against impleaded cross-defendants.

The successful party to a suit shall recover of his adversary all costs incurred therein except where otherwise provided. Rule 131, T.R.C.P. Without question the First Congregational Methodist Church and W. L. Ravenstein, appellee, were the successful parties in this suit and the appellants and the First National Bank of Handley were the losing adversaries.

Rule 141, T.R.C.P. provides that the Court may, for good cause, to be stated on the record, adjudge the costs otherwise than as provided by law or these rules. The trial court entered an order on May 9, 1962, which contained recitation of good cause for assessing costs as it did.

The matter of taxing costs is within the sound discretion of the trial court. The record in this cause reflects no abuse of discretion on the part of the trial court under either Rule 131 or 141 of the Texas Rules of Civil Procedure and accordingly point 7 is overruled. Copeland v. Bennett, Tex.Civ.App., 243 S.W.2d 264; Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807.

Appellants in their final point argue that the trial court committed error in refusing to approve their Bills of Exceptions Nos. 1 and 2. They were refused by the court for the stated reasons that it would require the court to attach to it a recitation of evidence, facts and events which occurred during the course of the trial including a summary of the testimony of various witnesses for the Church and exhibits introduced in evidence. The court pointed out that in the absence of a statement of facts it would be unable to properly state such facts and events. It was not intended by Rule 372 of the Texas Rules of Civil Procedure to place upon the trial court the burden which appellants sought by their Bills of Exceptions. Rule 372 for the most part contemplates Bills of Exceptions which may be passed upon by reference to a statement of facts and it was not intended thereby to permit Bills of Exceptions to serve as a substitute for a statement of facts.

Appellants in their brief state that the essential recitation contained in their Bills of Exceptions is that all bondholders were not parties and that the Church is a corporation.

The record reflects that the First National Bank of Fort Worth filed a plea in abatement. It was the only such' plea filed. It was satisfied that all necessary parties were in the case. No objection was made to the order overruling their plea in abatement. There is no motion or plea apparent in the record before this Court reflecting that the appellants raised any question on the issue of necessary parties.

A pleading setting up that there is defect of parties, plaintiff or defendant, or that any party alleged to be a corporation is not incorporated or that the plaintiff is not entitled to recover in the capacity in which he sues, unless the truth of such matters appear' of record, shall be verified by affidavit. Rule 93, T.R.C.P.

The case of Houston Fire & Casualty Ins. Co. v. Walker, 152 Tex. 503, 260 S.W.2d 600, 603, contained the following language which is applicable to the instant case: “It is an exceptional case in which an appellant is entitled to a reversal of the trial court’s judgment in the absence of a statement of facts, and this is not such a case.” See also Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683, and Fenton v. Wade, Tex.Civ.App., 303 S.W.2d 816. Appellants’ 8th and final point is overruled.

The judgment of the trial court is af•firmed.


author: FANNING, Justice.

text:
    Mrs. Susie COLE et al., Appellants, v. CITIZENS FIRST NATIONAL BANK et al., Appellees.
    No. 7468.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 22, 1963.
    Rehearing Denied Feb. 19, 1963.

    Wm. Emerson Stone, Jr., Stone & Stone, John B. Spiers, Norman, Rounsaville & Hassell, Jacksonville, for appellants.
    Donald Carroll, Ramey, Brelsford, Hull & Flock, Tyler, for appellees.
   FANNING, Justice.

This was a suit in trespass to try title brought by plaintiffs to recover a ⅛⅛ mineral interest in a tract of land in Cherokee County, Texas. In a trial before the court without a jury a take nothing judgment was rendered against plaintiffs and intervenor. Plaintiffs and intervenor have appealed.

Plaintiffs in the trial court were the exec-utrixes of the Estate of Carrie L. Tarrant, deceased. Carrie L. Tarrant was the surviving wife of G. T. Tarrant, deceased. In-tervenor J. S. Lewis was a grantee of a royalty interest from Carrie L. Tarrant during her lifetime.

On April 29, 1926, J. E. Criston and wife Martha Criston conveyed to G. T. Tarrant and E. S. Parks, by metes and bounds description, a stated mineral interest in and to the tract of land in controversy, in the Henry Chapel Survey, in Cherokee County, Texas, called to contain 100 acres of land, more or less, which instrument was recorded in Cherokee County, Texas, on May 4, 1926.

On Jan. 24, 1931, G. T. (George) Tar-rant executed a conveyance to his wife Carrie L. Tarrant, which was recorded in Cherokee County, Texas, on February 3, 1931, and was recorded in Anderson County, Texas, on March 21, 1931. This instrument will hereinafter be more fully described.

On July 23, 1934, J. E. Christian and wife, Martha Christian, executed a correction deed to E. S. Park and G. T. Tarrant, which deed was recorded in Cherokee County, Texas, on August 2, 1934, and specified that it was “given in lieu of and to take the place of a certain mineral deed from J. E. Christian and wife to E. S. Park and G. T. Tarrant, dated April 29, 1926,” and made • specific reference to the recording data to identify the conveyance first above referred to, describing the tract in controversy.

On July 25, 1934, G. T. Tarrant conveyed by metes and bounds description a stated mineral estate to defendants’ predecessor in title, M. L. Norman, describing the tract in controversy. This instrument was recorded in Cherokee County, Texas, on August 7, 1934.

On Feb. 2, 1954, Carrie Lee Tarrant conveyed a certain stated mineral interest to intervenor J. S. Lewis in the tract in controversy, which instrument was filed for record in Cherokee County, Texas, on March 26, 1954, and was recorded.

It was stipulated that it would not be necessary for any party to prove title beyond J. E. Christian and wife Martha Christian, but neither party admitted that the other party had a chain of title from the common source.

The primary question involved upon this appeal is whether the deed from Tarrant to his wife was sufficient to convey any title to the tract in controversy.

The deed from Tarrant to his wife stated that for a consideration of $1.00 and love and affection he had—

“given, granted and conveyed, and by these presents to give, grant and convey unto the said Mrs. Carrie L. Tar-rant, of the County of Cherokee, in the State of Texas, all those certain tracts, lots or parcels of land situated, lying and being in the Counties of Cherokee and Anderson, in the State of Texas, and more particularly described and designated as follows, to-wit:
“FIRST TRACT: All that certain tract or parcel of land situated in Anderson County, Texas, and described as follows, to-wit: (Here follows a metes and bounds description.)
“SECOND TRACT: All that certain tract or parcel of land situated and lying in the County of Anderson in about a mile and a half of the town of Frankston, and being one hundred acres (100) of the Jose Chrino Survey described as follows, to-wit: (here follows a metes and bound description.)
“Also all my right, title and interest in and to royalty contract executed to me by E. C. Stockton and wife, I. A. Stockton, on May 31st, 1922, recorded in Vol. 98, Page 206, Deed Records of Cherokee County, Texas.
“Also all my undivided interest in royalty on 160 acres of land conveyed by Tony Green to Guy Nunnally et al, and in which I was one of the grantees.
“Also all my right, title and interest' in and to the royalty on 100 acres of land conveyed by Christie to E. S. Park et al, and in which I was one of the grantees.
“Also all mineral rights owned by me in 40 acres of the A. Gibson League and conveyed to me by J. S. Lewis, “together with all and singular the rights, members and appurtenances to the same in any manner belonging.
“TO HAVE AND TO HOLD said property to her, the said Mrs. Carrie L. Tarrant, her heirs and assigns forever.”' (emphasis added)

The portion of the deed from Tarrant to his wife relied upon by appellants to establish title in them to their claimed interest in the tract in controversy reads as follows: “Also all my right, title and interest in and to the royalty on 100 acres of land conveyed by Christie to E. S. Park et al., and in which I was one of the grantees.”

In Rowson v. Rowson, 154 Tex. 216, 275 S.W.2d 468, it was stated:

“ * * * But the rule of law is equally clear that resort may not he had to extrinsic evidence to supply the description or location of land required by the Statute of Frauds to be contained in the writing. O’Herin v. Neal, Tex.Civ.App., 56 S.W.2d 1105, writ refused. ‘ * * * resort to extrinsic evidence, where proper at all, is not for the purpose of supplying the location or description of the land, hut only for the purpose of identifying it with reasonable certainty from the data in the memorandum.’ Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, 152.
“What the contract itself must contain to he enforceable is thus stated in Wilson v. Fisher: ‘ * * * the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty.’ This test has become the standard by which this Court measures the sufficiency of a writing. Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222, 224; Broaddus v. Grout, 152 Tex. 398, 258 S.W.2d 308, 309.”

In Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703, the conveyance was of a stated interest in a certain tract of land in Upshur County, Texas, described as follows:

“ TOO acres out of Blocks 8 and 9 of the subdivision of the Jose Maria Pineda Survey, which was patented to Adolphus Stern, Pat. 608, Vol. 2, three miles north of Gladewater, Texas.’ * * * ‘And said above described lands being under an oil and gas lease originally executed in favor of W. M. Worley and now being held by W. M. Worley. * *

I-n the Smith v. Sorelle case the trial court had rejected a lease in favor of H. F. Wor-ley, which in turn adopted by reference a deed containing a metes and bounds description which would have, if considered, provided a sufficient description. There was no reference in the deed there in question to a “H. F. Worley lease”, and under the facts in that case there was no “existing writing” as to a “W. M. Worley lease”. The Supreme Court of Texas in affirming the judgment of the trial court (and reversing the judgment of the Court of Civil Appeals) stated:

“The rule is well settled that parol evidence cannot be introduced to vary or contradict the descriptive data of a deed. 14 Texas Jurisprudence § 251, pp. 1045, 1046. The descriptive words in an instrument should be given a liberal construction, in order that the writing may be upheld, and parol evidence is admitted to explain the descriptive words and to identify the land; but the instrument itself must contain a nucleus of description. The parol testimony must directly be connected with the descriptive data, and when more than this is required, the description is insufficient. 14 Texas Jurisprudence § 204, pp. 992, 993, and authorities cited.
* * * ⅜ * *
“In this instance there is nothing in the descriptive data that extrinsic evidence may aid to definitely describe the 100 acres of land. The description contained in the mineral deed from Smith and wife to Busby fails to meet the test as announced by the many decisions of this state, and the deed, therefore, cannot be sustained.”

We hold that the deed from Tarrant to his wife was not sufficient to convey any title to the tract in controversy. In addition to the authorities above cited also see the recent case of Jones v. Mid-State Homes, Inc., Tex., 356 S.W.2d 923.

The judgment of the trial court is affirmed.


author: ARCHER, Chief Justice.

text:
    TEXAS ASSOCIATION OF STEEL IMPORTERS, INC., et al., Appellants, v. TEXAS HIGHWAY COMMISSION et al., Appellees.
    No. 11039.
    Court of Civil Appeals of Texas. Austin.
    Jan. 30, 1963.
    Rehearing Denied Feb. 20, 1963.
    William B. Dazey, Houston, for appel-' lant.
    Will Wilson, Atty, Gen., H. Grady Chandler, Asst. Atty. Geh., Austin,, for ap-pellee.
   ARCHER, Chief Justice.

The Texas Highway Commission passed an order restricting the use of materials by contractors engaged in building highways and other facilitiés .to those manufactured in the United States,, its territories-, or pos-, sessions. Appellants sued in the 53rd District Court at Austin for a declaratory judgment invalidating the order and for injunc-tive relief. The State demanded a jury trial and the. trial court submitted three issues to the jury. The jury failed to agree on two of the three issues submitted to them. The trial court, however, on the grounds that Appellants had failed to show “that Minute Order 48644 was not reasonably related to the assurance of reliable sources of supply” of steel materials, and citing the jury finding that the evidence did not show the order resulted in increased cost of such materials to the State of Texas, rendered judgment for the Appellees.

The appeal is founded on 16 points assigned ás error and are that the court erred in failing to conclude that the defendants abused their discretion as a matter of law in refusing to rule that the order was not related to the improvement of Texas Highway System; in refusing to rule that plaintiffs had established by the overwhelming weight of the evidence that the order was not related to the improvement of the Highway System; in refusing to declare that the order was invalid per se because it violated Article 6674h, Vernon’s Ann.Civ.St., requiring competitive bidding; in refusing to declare the order invalid because it restricts the use for materials solely on the basis of the geographical location of such; because the order is unconstitutional because it denies plaintiffs equal protection with domestic materialmen; is an interference with the power of the Federal Government to regulate foreign commerce; the order violates Article III, paragraph 4 of the General Agreement on Tariffs and Trade compact; and is invalid as contravening treaty commitments, and results in a diversion of public funds prohibited by the Constitution, and is invalid as violating Article 664-2, Section 1; that the court erred in taking the case from the jury and granting judgment for the defendants on the grounds that' the evidence did not show that the order was not reasonably related to the assur-. anee of a reliable source of supply; in putting the burden upon plaintiffs of proving the invalidity of the order; in submitting Issue No. 2 inquiring of the jury if the order was not reasonably related to the assurance of reliable sources of steel products; in submitting Issue No. 3, inquiring if the order has resulted in steel products costing more than they would have cost without the order, and finally in refusing to admit into evidence a transcript of a public hearing offered for a limited purpose.

We have stated the assignments but believe that assignment No. 4 presents the prime question in this appeal and reads:

“The trial court erred in refusing to declare Minute Order 48644 invalid per se because it violates Article 6674h, Vernon’s Ann.Tex.Stat, which requires competitive bidding in the letting of highway construction contracts.”

Chapter I, Title 116 of our Statutes places the administrative control of the State Highway Department in the State Highway Commission, as set out in Art. 6663, Articles 6665 and 6666 provide for the organization of the Commission and for the establishment and public proclamation of all rules and regulations for the conduct of the work of the Department as may be deemed necessary “not inconsistent with the provisions of the law.”

Article 6674h, V.A.C.S., in part is:

“All contracts proposed to be made by the State Highway Department for the improvement of any highway constituting a part of the State Highway System or for materials to be used in the construction or maintenance thereof shall be submitted to competitive bids.”

Having concluded that a determination of Assignment No. 4 disposes of the-appeal, we do not discuss the other phases, of this cause as urged by appellants. We-believe that the order disbarring all imported materials from the market available-to highway construction contractors acts to restrict competitive bidding and the awarding of bids to the lowest bidder as required by the statute, and that the order is not authorized. Competitive bidding is to

“stimulate competition, prevent favoritism and secure the best work and materials at the lowest practicable price, for the best interest of the taxpayers. (10 McQuillin, Municipal Corporations, 3rd Ed., Sec. 29.30, p. 268.)” Article 6674h, V.A.C.S.; Vilbig Bros. v. City of Dallas, 127 Tex. 563, 96 S.W.2d 229; Niles v. Harris County Fresh Water Supply Dist. No. 1A, Tex.Civ.App., Waco, 336 S.W.2d 637, no writ history, 1960.

There is no question as to an exception to the rule requiring competitive bidding existing in this case, such as where the subject ■matter is a monopoly. 10 McQuillin, Municipal Corporations, 3rd Ed., Sec. 29.49, pp. 304, 305.

The Attorney General, in an Opinion No. ■0-1831, dated February 27, 1940, addressed to the State Highway Engineer in reply to .a request of the engineer, construing a provision sought to be included in construction ■contracts restricting the use of Portland Cement, or cement, to such from domestic sources, advised the Highway Engineer that the Department did not have the authority to insert such clause, citing Gulf Bitu-lithic Company v. Nueces County, Tex. •Com.App., 11 S.W.2d 305, Commission of Appeals of Texas, Section B, opinion adopted by the Supreme Court, Article •6674h, and other texts.

We recognize that although the Attorney General’s opinion is not binding on ■courts, it is of highest persuasive value.

An order such as the one involved herein, must be bottomed upon a specific grant of power either contained in the Con•stitution or delegated by the Legislature.

Railroad Commission of Texas v: Rowan Oil Co., 152 Tex. 439, 259 S.W.2d 173.

The appellee Commission, had made counterpoints to those of appellant and since we are reversing the judgment of the Trial Court we will consider the points as made by appellee.

The first point is that the Court erred in not sustaining Special Exception No. 1 because :

“(1) Said petition shows upon its face that it constitutes a suit against the State of Texas and does not allege that plaintiffs have secured consent or permission from the Legislature of the State of Texas to file said suit, and this court, therefore, does not have jurisdiction of said cause.”

Other points were that the plaintiffs’ petition shows on its face that there is a “non-joinder of a necessary party, the State of Texas,” and shows on its face that the suit is to enjoin contracts by the Commission for the construction of highways without a statement of any fact to show that any contract is illegal.

The fourth point is that the plaintiffs’ petition does not allege any facts to show that either of the plaintiffs has a justiciable interest in the subject matter of the suit, and finally that the petition does no more than allege matters pertaining to a political affair, as to whether any law or order should be enacted requiring that all contracts to provide that all materials shall be of domestic manufacture.

We believe, as stated herein-above, that the Minute Order is not authorized and is therefore not a suit against the State, and that the plaintiffs, as alleged, have a justiciable interest in the subject matter so as to maintain this cause of action, in that the order unlawfully prohibits plaintiffs from offering to the State Highway Department steel materials, the quality and cost of which is equal to or better than materials offered by others who are not residents of the State. We believe that ap-pellees acted beyond their statutory authority and that the suit is not against the State as sovereign to impose liability or the performance of a contract. Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 172 A.L.R. 837.

In Griffin v. Hawn, 161 Tex. 422, 341 S.W.2d 151, it was held that “[t]he question is not whether the respondents were acting on behalf of the State to accomplish a proper governmental purpose but whether the action they were about to take is authorized by law.”

We believe that plaintiffs as citizen taxpayers have a right to challenge the action of the defendants in passing and enforcing the order, because they were devoid of authority to enter the order.

City of Austin v. McCall, 95 Tex. 565, 68 S.W. 791; Terrell v. Middleton, Tex.Civ.App., 187 S.W. 367, error ref.; Johnson v. Ferguson, Tex.Civ.App., 55 S.W.2d 153, error dism.

We have given consideration to the cases cited by appellee, such as Atkin v. Kansas, 191 U.S. 207, 24 S.Ct. 124, 48 L.Ed. 148, Perkins v. Lukens Steel Company, 310 U. S. 113, 60 S.Ct. 869, 84 L.Ed. 1108, but believe them distinguishable from the instant case because all of the acts are of the sovereign, acting by and through its duly authorized agent, and as distinguished from Copper Plumbing & Heating Company v. Campbell, 110 U.S.App.D.C. 177, 290 F.2d 368.

The Legislature can amend the statutes as such Body may deem proper, but the courts must accept the statutes as written and we do so when there is no question of constitutionality.

The'judgment of the trial court is reversed and rendered.

Reversed and.rendered.


author: WALTER, Justice.

text:
    Elgie HAM et ux., Appellants, v. McDonald WELL SERVICING COMPANY et al., Appellees.
    No. 3770.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 25, 1963.
    Rehearing Denied Feb. 22, 1963.

      Dan Abbott and James Weeks, Abilene, for appellants.
    Scarborough, Black & Tarpley, Abilene, for appellees.
   WALTER, Justice.

Elgie Ham and wife filed suit against McDonald Well Servicing Company and its truck driver, Oscar White, for damages alleged to have been sustained by Mrs. Ham as a result of a collision between an automobile driven by Mrs. Ham and a truck driven by Mr. White. Based upon a verdict that Mrs. Ham failed to keep a proper lookout and failed to give a proper signal before making a left turn which were proximate causes of the collision, and that White was not driving at an excessive rate of speed and that he did not fail to keep a proper lookout, judgment was rendered for the defendants.

The plaintiffs have appealed, contending the court erred in failing to submit their requested issues on discovered peril. The only question presented is whether the evidence raised such issues.

The collision occurred at the intersection of U. S. Highways 83 and 84 at a “Y” intersection approximately 12 miles South of Abilene between 7:30 and 8:00 o’clock p. m. on or about October 8, 1960. Mrs. Ham approached the “Y” intersection traveling in a northerly direction. She intended to make a U-turn at the crossover. As she started making a left turn at the crossover she was struck by defendant’s truck from the rear.

Mr. White first saw Mrs. Ham’s car when . it was about 100 yards from the point where the accident occurred, at which time he was approximately one-fourth of a mile behind her traveling in the same direction. He was traveling about 55 miles per hour. At such time she was on the right hand side of the highway and partly on the shoulder. The tail lights of her car first attracted his attention. He was asked, “Well, from one hundred yards from where the accident happened to one hundred feet then she stayed off on the shoulder ?” He answered, “More or less, yes.” When Mrs. Ham was within one hundred feet of the point of impact she turned across the road to her left. When asked, “Now, when she was one hundred feet from that cross-over, how far were you from her car ?”, he answered, “I was pretty close. I wouldn’t say in feet, because I wouldn’t know, but it was close enough to start applying the brakes. I could see that she was coming on across the road.” At the time Mrs. Ham started a gradual angle to her left at about one hundred feet from the point of the collision, he estimated that he was approximately one hundred eighty feet back of her and about two hundred eighty feet from the point of the collision. Mrs. Ham’s car was turning to the left at a slight angle when his truck collided with it. She was traveling in the right hand lane before she came to the intersection where she turned. He saw her brake lights come on when she was in the right hand lane moving to her left hand lane when she was about thirty to fifty feet from the spot where the collision occurred and he was approximately one hundred twenty feet from her car. He applied his brakes at this point. In his deposition he testified that he realized that he was going to hit Mrs. Ham’s car when she pulled in front of him. This was when he was approximately twenty feet behind her.

Mrs. Ham testified that she did not know that a car was approaching her from the rear as she was moving over into her left lane. At the time of the collision she had just applied her brakes to make a turn. She was traveling about 10 miles per hour at the time of the collision.

A highway patrolman testified that the .point of impact was in the left lane. He further testified that a vehicle traveling 55 miles per hour would be traveling approximately 80 feet per second.

Donald Ham was waiting for his mother at the intersection at the time of the collision. He estimated his mother’s car was traveling five or ten miles per hour before the collision. She was beginning to turn at the time she was hit. He further testified that White laid down 127 feet of skid marks. White was driving in the left lane.

Appellants contend that White, traveling at approximately 55 miles per hour, saw Mrs. Haín “coming across the road” when she was 100 feet from the point of the collision and when he was approximately 180 feet to the rear of her car. They contend that under these circumstances White was aware of the dangerous situation “for nearly four seconds before the impact occurred.” They contend that when these distances and speed are analyzed, White’s brakes should have been applied 214 feet from the point where the accident actually occurred. Appellants further contend “White’s brakes did not come on until his vehicle was 127 feet from the point of the accident which leaves 87 feet or a full second during which said Appellee did nothing. Certainly if the brakes on Appellee’s truck had been applied for that full second or if Oscar White had used that full second to turn his pickup truck to his right,, the accident would not have occurred.”

The Supreme Court in R. T. Herrin Petroleum Transport Co. v. Proctor, 161 Tex. 222, 338 S.W.2d 422 said, “In most cases of this kind some way or means whereby collision could have been prevented may be figured out, — after the catastrophe has occurred”, and held “in order to charge one with liability under the doctrine of discovered peril, there must exist a clear chance to avoid injury which could have been reasonably perceived by the party sought to be held.”

When did Mrs. Ham reach a point where she became exposed to imminent collision with White’s truck ? When he was approximately one quarter of a mile from her, he saw her as she was traveling in the right hand lane partly on the shoulder. She proceeded partially on the shoulder of the highway for some distance. She was not in a perlious position at this point. She then started a gradual angle to her left. She was in the right hand lane before she came to the intersection where she turned. She was not in a perilous position at this point. When she started moving from the right to the left lane, she placed herself in a perilous position. White was charged with a duty at this point to prevent the collision, if he discovered her position in time to have prevented it by the use of all the means at his command commensurate with his own safety. Safeway Stores, Inc., v. White, Sup.Ct., 348 S.W.2d 162. He applied his brakes at this point and laid down 127 feet of skid marks. We must view the evidence in its most favorable light to the plaintiffs and disregard all evidence favorable to the defendants in determining whether the evidence raised such issues. White did not discover the danger in time to avoid the accident by using all the means at his command. “The doctrine of discovered peril or last clear chance means certainly that the last clear chance must bo a clear one. Gaudette v. McLaughlin, 88 N.H. 368, 189 A. 872. It implies thought, appreciation, mental direction, and lapse of sufficient time to act effectually upon the impulse to save another from injury.” Schuhmacher Co. v. Posey, 147 Tex. 392, 215 S.W.2d 880.

We have concluded that there was no evidence that White had a last clear chance to avoid the collision. The court did not err in refusing to submit appellants’ issues on discovered peril.

The judgment is affirmed.


author: BATEMAN, Justice.

text:
    BEALL MEDICAL SURGICAL CLINIC AND HOSPITAL, INC., Appellant, v. TEXAS STATE BOARD OF HEALTH.
    No. 16187.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 18, 1963.
    Rehearing Denied Feb. 8, 1963.

      Odeneal & Odeneal, Dallas, for appellant.
    Henry Wade, Dist. Atty., and John J. Orvis, Asst. Dist. Atty., Dallas, for appellee.
   BATEMAN, Justice.

This appeal is from a summary judgment cancelling the temporary license to operate a hospital granted to appellant shortly after the effective date of Art. 4437f, Vernon’s Ann.Tex.St., known as the Texas Hospital Licensing Law. Proceedings for the revocation of such license having been instituted in accordance with the provisions of Sec. 9 of said law, a hearing was held by appellee pursuant thereto-. Within due time after entry by appellee of its order cancel-ling appellant’s license appellant filed this suit in one of the district courts of Dallas County for the avowed purpose of appealing from such order and “obtaining a trial de novo” provided for in Sec. 9 of the said Statute.

Appellant’s first point assails the constitutionality of the Texas Hospital Licensing Law (Art. 4437f, V.A.T.S.) as .being vague, arbitrary and repugnant to the •“due process” clauses of the-Federal and State Constitutions, making the action of appellee in cancelling the license and the judgment of the district court affirming such action void and of no effect. Appellant cites Bielecki v. City of Port Arthur (Tex.Com.App.), 12 S.W.2d 976, City of Houston v. Adams, Tex.Civ.App., 326 S.W.2d 627, err. ref. n. r. e., and Kingsbery v. Phillips Petroleum Company, Tex.Civ.App., 315 S.W.2d 561, err. ref. n. r. e., in support of this point, and argues that the Act is invalid because it authorizes appellee to grant or withhold licenses as it arbitrarily chooses, without setting forth any guide or standard to distinguish between the parties entitled to such licenses and those not so entitled.

The first two cases cited by appellant merely hold that a city cannot by establishing an arbitrary standard declare that to be a nuisance which is not in fact a nuisance ; and the Kingsbery case merely holds in this connection that a citizen’s right to conduct a business as he pleases is a valuable right and one which the law will protect if to do so does no violence to law, public policies or the rights of others. These cases do not in our opinion support the proposition that the Texas Hospital Licensing Law sets up such an arbitrary standard as to be repugnant to the due process clauses of the State or Federal Constitutions, or that it is too vague to be valid.

The purpose of Art. 4437f is expressed in Sec. 3 thereof as being “to protect and promote the public health and welfare by providing for the development, establishment, and enforcement of certain standards in the construction, maintenance, and operation of hospitals.” We have carefully studied the entire act and find nothing therein that can properly be said to deprive appellant of its property, or the use of its property, or the right to transact its business, without due process. The' Act requires a license to operate a hospital after January 1, 1960. It constitutes the State Board of Health as the “Licensing Agency”. It establishes a Hospital Licensing Advisory Council consisting of nine members appointed by the Governor who shall advise with the Licens■ing Agency in adopting, amending, promulgating and enforcing “such rules, regulations, and minimum standards as may be ■ designed to further the purposes of this Act.” It then provides that such rules, regulations or minimum standards shall be 'limited to safety, fire prevention, and sanitary provisions of hospitals as defined in the Act, and, further, that all such rules, regulations or standards shall first be approved by the State Board of Health and then by the Attorney General as to their legality, and then filed with the Secretary of State.

The Legislature may properly delegate to an administrative agency the author-tty to establish rules, regulations or minimum standards which may be said reasonably to carry out the expressed purpose of the .Act. Housing Authority v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79, 87, 130 A.L.R. 1053; Southwestern Savings & Loan Ass’n. of Houston v. Falkner, 160 Tex. 417, 331 S.W.2d 917, 921. Accompanying and referred to in the appellee’s motion for sum■mary judgment is a certified copy of the ■rules, regulations and minimum standards approved by appellee and filed in the office of the Secretary of State which we have carefully examined and which we find to be reasonable and within the guidelines of the Act itself as set forth in Sec. 3 thereof. Appellant’s first point is therefore over- ■ ruled.

In its second point appellant urges alter- - natively, if the Act is held to be constitu-tional, that the court below erred in applying the “substantial evidence rule”, the .application of which, appellant says, would ■in effect declare the “de novo” provisions • of Sec. 9 of the Act unconstitutional. Tak■ing the position that the appellee acted in .a judicial or quasi-judicial capacity in conducting its hearing resulting in the can- ■ cellation of appellant’s license, appellant asserts that it was entitled to a trial under •the “preponderance of the evidence rule” ■in the district court.

Sec. 9 of the Act gives the Licensing .Agency the authority to deny, cancel, revoke or suspend a license in any case where it finds there has been a substantial failure to comply with the provisions of the Act or the rules, regulations or standards promulgated thereunder, or for the aiding, abetting, or permitting the commission of any illegal act, or for conduct detrimental to the public health, morals, welfare and safety of the people. The procedure for the cancellation, revocation or suspension of a license is then set forth in detail, after which it is provided that any hospital whose license has been cancelled, revoked or suspended may within twenty days appeal to any of the District Courts in the County in which the hospital is located. It is then provided: “The proceedings on appeal shall be a trial de novo as such term is commonly used and intended in an appeal from the Justice Court to a County Court * *

Appellee contends, however, that the order in question was an administrative order, not judicial or quasi-judicial, and that the “substantial evidence rule” was not excluded but properly applied.

There have been numerous recent decisions by the appellate courts of Texas on the question of the applicability of the substantial evidence rule in appeals to the courts from rulings by various administrative bodies. See the interesting analysis of many of these decisions in the article entitled “Trial De Novo—Panacea?” by Wallace P. Finfrock in the Baylor Law Review, Volume 14, No. 2, page 135. We hold that the substantial evidence rule was applicable in this case and that, despite the statutory provision for a trial de novo on appeal, appellant was not entitled to a full trial of all the issues involved under the preponderance of the evidence rule, nor to have the district court substitute its fact findings or the verdict of a jury for the determination of the matter by the appellee Texas State Board of Health.

If the language contained in Sec. 9 of the Act, “The proceedings on appeal shall be a trial -de novo as such term is commonly used and intended in an appeal from the Justice Court to a County Court,” be considered as requiring a full trial under the preponderance of the evidence rule, then we are compelled to hold that such part of Sec. 9 is unconstitutional for the reasons hereinafter set forth. Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699.

We consider that these holdings are required by the decision of the Supreme Court in Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619. That case involved an appeal under Sections 12 and 13 of Art. 7477, V.A.T.S., from an adverse administrative ruling by the State Board of Water Engineers. Section 12 broadly provides that any person affected by any ruling, order, decision or other act of the Board may file in court a petition in an action to review, set aside, modify, or suspend such ruling, order, decision or other act. Sec. 13 then provides that in all suits brought under Sec. 12, “the trial shall be de novo, as that term is used and understood in an appeal from a Justice of the Peace Court to the county court.” (Note the similarity to the corresponding language of Sec. 9 of the Act here involved.) Sec. 13 continues by providing that in such de novo trials, no presumption of validity or reasonableness or presumption of any character shall be indulged in favor of any such order, rule or regulation, but that evidence as to the validity or reasonableness thereon shall be heard and the determination made upon facts as in other civil cases, and that the procedure for such trials, etc., shall be governed solely by the rules of law, evidence and procedure prescribed for the courts of this State by its Constitution, Statutes and rules of procedure applicable to the trial of civil actions. As if this were not sufficient to spell out clearly the legislative intent, Sec. 13 then concludes: “It is the intent of the Legislature that such trial * * * shall be made independently of any action taken by the Board, upon a preponderance of the evidence adduced at such trial and entirely free of the so-called ‘substantial evidence’ rule enunciated by the courts in respect to orders of other administrative or quasi-judicial agencies.” (Emphasis ours.)

The Austin Court of Civil Appeals held that Sec. 13 was unconstitutional as being in violation of Art. II, Sec. 1 of the Texas Constitution, Vernon’s Ann.St., providing for the separation of the powers of the three departments of government, conferring purely administrative duties upon the judicial branch of the government. The opinion of the Supreme Court, written by the present Chief Justice, affirming, points out the inconsistency of Sec. 13 in spelling out so meticulously its intent that the dissatisfied party should have a completely de novo trial, and at the same time stating that on such trial “evidence as to the validity or reasonableness thereof (the order complained of) shall be heard and the determination in respect thereto will be made upon facts found therein, etc.” Justice Calvert also points out that prior decisions of the Supreme Court have held that a suit to review the reasonableness of an order, decision, rule or regulation of an administrative agency is a type of de novo trial in that the evidence is heard anew and the reasonableness of the agency’s action is independently adjudged by the court on the basis of evidence admitted in the judicial proceeding, under the substantial evidence rule, and that the only issue to be decided is one of law, avoiding a trial of the fact issues by either the judge or jury.

One of the cases cited in the Southern Canal Company case was Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198, wherein it was held that in the case of an appeal from an order of the county judge denying an application for a license to sell beer, and the statute provided that on such appeal “the trial shall be de novo under the same rules as ordinary civil suits,” with certain exceptions not important here, it was held' that by this statute only a limited review was intended and that the question or issue to be determined in the district court was whether or not the findings of the county judge were reasonably supported by substantial evidence. “Such a trial is one kind of a trial de novo, and the somewhat limited trial can he held, as the statute requires, under the rules applicable to ordinary civil suits.”

See also Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699, 711, holding- unconstitutional Sec. 17 of the Urban Renewal Act (Art. 1269 L-3 V.A.T.S.) which provided that in any suit brought to review or suspend any order or other act of the City or other agency, the trial shall be de novo as that term is understood in an appeal from the Justice to the County Court. It further provided that evidence should not be heard as to the validity or reasonableness of the order and that the trial shall be “entirely free of the so-called ‘substantial evidence’ rule”.

It would unduly lengthen this opinion to set forth a detailed analysis of the history of the substantial evidence rule in this State. Suffice it to say that it now seems well established by the decisions of our Supreme Court that judicial reviews of non-judicial rulings, decisions and orders of administrative bodies must be conducted and determined under the substantial evidence rule, that for the courts of our State to grant a full retrial of the issues in such cases and substitute the judgments of the courts for the decisions of the administrative agencies would constitute an invasion 'by the judicial department of our State government into the exclusive fields set apart by the Constitution to the legislative or executive departments, and that any attempt by the Legislature to provide to the contrary is unconstitutional and invalid.

It is our view that the function and action of appellee in the case before us was neither judicial nor quasi-judicial and that the trial court was correct in applying the substantial evidence rule. Appellant’s second point is therefore overruled.

Appellant’s third and fourth points will be treated together, as they are in appellant’s brief. By its third point appellant urges that it was error to grant the summary judgment because the evidence raised genuine issues as to material facts; and its fourth point argues that, if appellant’s rights are to be determined under the substantial evidence rule, appellant is entitled to have that rule applied to the evidence heard in court rather than merely to the evidence adduced in the administrative hearing.

It is apparent from the record before us that there was no evidence introduced in or admitted by the trial court in support of, or which was competent to support, the motion for summary judgment. It is well established that in such cases the trial court does not act as a reviewing court in the sense that it reviews the evidence adduced at the administrative hearing and then determines whether that evidence was substantial enough, or sufficient to establish the action of the administrative body. There must be substantial evidence introduced in the trial court and admitted and heard by that court to the effect that at the time of the administrative order appealed from there was in existence substantial evidence to support the same. Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022; Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198.

So far as we can determine from the record before us, appellee’s'motion for summary judgment was presented in the trial court and considered by that court on the theory that the function of the court below was to review the testimony heard by appellee at the administrative hearing and determine whether or not it was sufficient to support the order revoking appellant’s license.

Appellee’s motion for summary judgment recites that there are attached thereto and made a part thereof “the sworn statements of” five witnesses who testified at the administrative hearing including Dr. John R. Beall, Administrator of the appellant. Included in the record is a typewritten volume entitled “Transcript of Proceedings” in which the “testimony” of the five witnesses at the administrative hearing is included. In each instance, after reciting the name of the witness, appear the following words: “having been previously sworn, testified on his oath as follows:” No showing whatever is made as to what person authorized by law to administer oaths administered any oath to the said witnesses, nor what oath was administered; and no showing whatever is made that any of the five witnesses was competent under law to make oath. Nowhere in the entire record do we find the signature of any one of the five witnesses or even a recitation that the so-called “testimony” was ever signed or sworn to by any of the witnesses. The only signature we find is that of John W. Rice, Jr., who certified at the end of the said “Transcript of Proceedings” that he reported in shorthand the proceedings had at the time and place set forth and that the volume contains a full, true and correct transcript of said proceedings. Under Rice’s signature appear the words “Court Reporter.” We find no authority in the Texas Hospital Licensing Law for the appointment of an official reporter to report its proceedings and hence must assume that John W. Rice, Jr., was employed by one party or the- other to report the proceedings. No showing is made either that Rice was a Notary Public or that he administered any oath to any of the witnesses.

Rule 166-A, Vernon’s T.R.C.P., provides in Sub-division (c) that “The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In Sub-division (e) it is provided that “Supporting and opposing affidavits, shall be made on personal knowledge, shall set forth such facts as would be admissible-in evidence, and shall show affirmatively that the affiant is competent to testify to-the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” Attached as Exhibit “A” to appellee’s answer is a copy of a document entitled “Rules,. Regulations and Minimum Standards Approved by the Licensing Agency” State-Board of Health as specified in the Texas-Hospital Licensing Law, Senate Bill No. 121, passed by the 56th Legislature, regular session, codified as Art. 4437f V.C.S.. This does not purport to be certified or sworn to by anyone. Another copy of this-document, certified to by the Secretary of’ State, is among the papers transmitted to-this Court, although there is- nothing in-the record to indicate that it was introduced' in evidence or considered by the trial court..

The judgment appealed from does not recite that the court heard any evidence, merely that “the court after duly considering all of such pleadings and after hearing argument of counsels (sic) is of the-opinion that the Motion for Summary Judgment of the defendant Texas State Board’ of Health should be in all things affirmed.”'

Our Supreme Court has held that a party is entitled to a summary judgment only by-virtue of the provisions of Rule 166-A and' that before such a judgment can properly-be rendered the provisions of that rule-must be strictly followed. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274; Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233; Wilson v. Mitchell, Tex.Civ.App., 299 S.W.2d 406, no wr. hist. See also McDonald, Texas-'Civil Practice, Vol. 4, page 1392, Sec. 17.-26 (VI).

We do not hold that summary judgment ■procedure is improper in this case, and do not intend hereby to foreclose appellee from presenting such a motion upon another trial of this case. We merely hold •that in this instance appellee’s motion for •summary judgment does not meet the requirements of Rule 166-A. Accordingly we sustain appellant’s fourth point, reverse the judgment and order the case remanded •to the trial court for further proceedings mot inconsistent with this opinion.

Reversed and remanded.

      . At the general election in November 1962 a proposed amendment to Art. II of the Texas Constitution, -which would have authorized the Legislature to provide by general law for appeals to the courts from actions of administrative agencies under such provisions and limitations as the Legislature may deem necessary and desirable, requiring the courts to determine such appeals by a true de novo trial, was rejected by the voters.


author: DENTON, Chief Justice.

text:
    Buster COLE, Appellant, v. WESTERN BRICK & SUPPLY COMPANY, Inc., Appellee.
    No. 7220.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 28, 1963.
    Rehearing Denied Feb. 25, 1963.

      Finley & Scogin, Kermit, for appellant.
    Treadaway & Blumrosen, Lubbock, for appellee.
   DENTON, Chief Justice.

This is an appeal from an order of the trial court overruling appellant’s plea of privilege. Appellee filed suit in the District Court of Yoakum County against appellant and other defendants seeking recovery for labor and materials furnished. This action is brought under the provisions of Article 5160, Vernon’s Ann.Texas St. The materials furnished were used in the construction of a maintenance office, storage shop, and service station building for the Texas Highway Department. The appellant timely filed his plea of privilege seeking to remove the case as against him to Ector County, the county of his residence. Appellee’s controverting affidavit sought to maintain venue in Yoakum County under Article 1995, Subsection 30 and Article 5160(G), V.A.T.S.

Article 5160 requires a performance bond on the part of prime contractors of construction work for the State and all its political subdivisions; and further provides a remedy for claimants who furnished labor and materials on such projects. Article 1995, Subsection 30 reads as follows:

“30. Special venue. — Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”

Article 5160(G) reads in part as follows:

“All suits instituted under the provisions of this Act shall he brought in a court of competent jurisdiction in the county in which the project or work, or any part thereof, is situated.” (Emphasis added.)

Article 5160(G) is a special venue statute pertaining to suits for the collection for labor and materials furnished prime contractors on projects contracted by the State or any of its political subdivisions. A statute of this nature which authorizes a particular action and procedure and describes its venue is especially made a part of the venue statutes by the very terms of Subdivision 30 of Article 1995. Universal Credit Company v. Dunklin, 129 Tex. 324, 105 S.W.2d 867. Ballard v. Shock, (Tex.Civ.App.), 91 S.W.2d 385.

After the filing of the appellant’s plea of privilege, the burden was on the appellee both to allege and to prove as venue facts the following: (1) That the suit is brought under Article 5160; (2) That the District Court of Yoakum County was a court of competent jurisdiction; (3) That the project or work, or any part thereof, was situated in Yoakum County. Both the pleadings and uncontradicted evidence bring this suit under Article 5160. The amount in controversy was in excess of one thousand dollars; and it was stipulated that the materials were delivered to the project; and it is undisputed the project described above was constructed in Yoakum County,

Appellant’s contentions that there is no evidence or there is insufficient evidence that appellant was a necessary or proper party or that proper notice had been given as required by Article 5160 are defenses to the alleged cause of action, and are to be considered when the case is heard on its merits. We are of the opinion, and so hold, that in a suit under the provisions •of Article 5160, V.A.T.S. venue is controlled by the provisions of Article 5160 itself and not by the provisions or exceptions of Article 1995. Cowan v. State, (Tex.Civ.App.), 356 S.W.2d 170, (Error Dismissed.) Appellee’s pleadings and proof clearly brought the case under Article 5160 and the requirements of Article 5160(G) have been •met.

The judgment of the trial court overruling the plea of privilege is affirmed.

Affirmed.


text:
    Buster COLE, Appellant, v. SMITH & WARDROUP, INC., Appellee.
    No. 7221.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 28, 1963.
    Rehearing Denied Feb. 25, 1963.
    Finley & Scogin, Kermit, for appellant.
    Brown & Shuman, Lubbock, for appellee.
   DENTON, Chief Justice.

This is a companion case to Buster Cole v. Western Brick & Supply Company, Inc., Tex.Civ.App., 364 S.W.2d 761. The disposition made in that case in affirming the order of the trial court in overruling appellant’s plea of privilege is controlling here.

The judgment of the trial court overruling the plea of privilege is affirmed.

Affirmed.


author: NORTHCUTT, Justice.

text:
    Joe B. ROAN et al., Appellants, v. K. S. REYNOLDS, Appellee.
    No. 7217.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 28, 1963.
    Rehearing Denied Feb. 25, 1963.

      Ray & Knudtson, McCarthy, Carnahan, Fields & Haynes, Amarillo, for appellants.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellee.
   NORTHCUTT, Justice.

Plaintiff, K. S. Reynolds, brought this suit in the 108th Judicial District Court of Potter County, Texas, against Joe B. Roan, his wife, Jean Roan, and Henry Roan to recover against Joe Roan and Jean Roan on a promissory note and mechanic’s lien contract for improvements contracted on the property of Joe Roan and his wife, and against Henry Roan on his guaranty contract. Henry Roan is the father of Joe Roan and executed an instrument by which he guaranteed payment of the promissory note in question. The defendants answered with pleas of failure of consideration and illegality of contract in the alternative. Before this suit was filed, Joe Roan and his wife, Jean Roan were divorced and the house in question was awarded to Jean Roan. Trial was before a jury and after both parties had rested and closed the trial court instructed the jury to return a verdict for plaintiff for the amount of the note sued upon and for foreclosure of the mechanic’s lien contract and also against Henry ■ Roan upon his guaranty contract. All parties defendant have perfected their appeal from the judgment of the trial court on the instructed verdict of the jury.

The plaintiff will hereafter be referred to as appellee and the defendants as appellants. The appellants contend by their assignments of error that the trial courterred in rendering judgment for the plaintiff; in failing to grant appellants’ Motion-, for Instructed Verdict at the close of ap-pellee’s testimony; in failing to grant appellants’ Motion for Judgment N.O.V.; in-instructing the jury to return a verdict forthe appellee; in holding parol evidence inadmissible to show that the real intention' of the parties to the mechanic’s lien contract in question was .that a barber shop-would be constructed on the Roan property rather than servant’s quarters; and in excluding the testimony of appellant, HenryRoan, to the affect that the oral plans and-specifications agreed upon between him and appellee called for the construction of a. barber shop on the Roan property ratherthan a servant’s quarters.

The main contention of appellants is that, the building which was constructed could', not be used as a barber shop because such use was not permitted under the Amarillo-Zoning Ordinance No. 1874. It is admitted'. that a barber shop could be constructed upon the property in question if constructed according to the ordinance. It is further admitted that servant’s quarters could be constructed upon the property. For the building to be used as a barber shop under the terms of the ordinance, it had to be in. some manner attached to the residence.. Attachment could be a breezeway. It is-undisputed that Joe Roan removed some-trees and told appellee to build the buildingwhere the trees were removed and appellee built the building where Roan instructed him to build it. Joe Roan did not testify in the case. Henry Roan testified he knew where the building was being constructed and made no objection to its location. If all the oral testimony should be considered', to the effect that appellee originally agreed; to construct the barber shop it would not be a void agreement because under the ordinance a barber shop could have been constructed and all of the parties knew the kind of building that was being constructed at the time it was being built until it was completed.

This is not a case where appellee could not construct a barber shop without violating the city ordinance so as to be void. Even under the contention and oral testimony of appellants, a contract to construct a barber shop could have been performed in a legal manner and would not be void because it might have been constructed in an illegal manner. Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146; Labbe v. Corbett, 69 Tex. 503, 6 S.W. 808.

Here we have a mechanic’s lien note and mechanic’s and materialman’s lien contract signed by Joe B. Roan and wife, Jean Roan, and duly acknowledged giving a lien upon the property here in question. Henry Roan, under the terms of a written instrument duly signed by him and acknowledged, guaranteed the payment of the mechanic’s lien note. The mechanic’s lien and also the instrument executed by Henry Roan described the building to be constructed as being a IS1' x 20' servant’s quarters upon the property here involved (describing the property). Under this record there is no question but that the building 15“’x20/ was built upon the property in question. The appellants did not attempt to show in what manner the appellee failed to construct the building as covered by the mechanic’s lien contract, but seemed to rely solely upon the fact that the building was not attached to the residence so that it might be used as a barber shop. Joe Roan instructed appellee where to construct the building and the contract does not require appellee to attach the building to the residence. It is not contended there is any ambiguity involved in either of the instruments. The instruments here involved comply with the provision of Section 50 of Article 16 of the Texas Constitution, Vernon’s Ann.St. establishing a lien on the homestead of Joe and Jean Roan.

It is stated in Patton v. Crews, Tex.Civ.App., 264 S.W.2d 467 (NRE) as follows:

“The legal theory of written contracts includes the presumption that the writing itself merges into the instrument all the oral agreements then existing between the parties, the writing thus becoming itself an instrument embodying the parties’ whole and entire agreement. Lewis v. East Texas Finance Co., 1941, 136 Tex. 149, 146 S.W.2d 977. In the absence of fraud, accident, or mistake, parol evidence is inadmissible to vary, add to, or contradict the terms of a valid written instrument. This is a proposition of such universal acceptation that it is unnecessary to cite authorities to sustain it. Likewise, in order to vary, add to, or contradict such an instrument by oral testimony, fraud, accident or mistake must be alleged as foundation of the right to introduce such parol evidence. No such allegations were made in the pleadings of this case, hence the testimony tending to alter or contradict the contract sued upon should not have been admitted in evidence.
“The reason underlying the rule is given by the court in San Antonio Mach. & Supply Co. v. Allen, Tex.Com.App., 1926, 284 S.W. 542, 544, as follows: ‘If the judgments of the lower courts should stand in this case, it would only mean that a contract the parties reduced to writing has been grossly violated by the introduction of parol testimony. The advantage of upholding written contracts as written has long been recognized by all the courts. The agreements of the parties are reduced to writing in order to avoid the very thing which has been here attempted.’ The parol evidence rule is not merely one of procedure, but is one of substantive law, and evidence admitted in violation of it is without probative force, even though not objected to. Texarkana & Ft. S. R. Co. v. Brass, Tex.Com.App., 1924, 260 S.W. 828; John E. Morrison Co. v. Riley, Tex.Civ.App. Fort Worth, 1917, 198 S.W. 1031; Southern Surety Co. v. Nalle & Co., Tex.Com.App., 1922, 242 S.W. 197; Henry v. Phillips, 1912, 105 Tex. 459, 151 S.W. 533; 17 Tex.Jur., p. 793, sec. 353.”

;We do not believe there is any pleading here to justify parol evidence based upon fraud, accident, or mistake. The contracts here involved were capable of being given a definite legal meaning and parol evidence is not competent to render it ambiguous. Barr v. Southwest Wholesale Furniture & Appliance Co., Tex.Civ.App., 331 S.W.2d 343; National Surety Corp. v. Curators of University of Mo., 8 Cir., 268 F.2d 525 and cases there cited.

If there is any fraud pleaded or proven herein, the undisputed record here shows that the appellants were equally cognizant of all the facts that were known to the appellee. There cannot be actionable fraud where each of the parties are equally cognizant of the facts. Seideman v. Callahan, Tex.Civ.App., 34 S.W.2d 406 (writ dismissed). Finding no reversible error, the judgment of the trial court is affirmed.