author: MURRAY, Chief Justice.

text:
    Philip G. WATERS et al., Appellants, v. Arnold H. BRUNER et al., Appellees.
    No. 13877.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 7, 1962.
    Rehearing Denied March 7, 1962.

      Whitlow & Cole, Victoria, George Fred Rhodes, Port Lavaca, for appellants.
    Guittard & Henderson, Victoria, John T. Vance, Callaway S. Vance, Edna, Howard G. Hartzog, Port Lavaca, Turner, White, Atwood, McLane & Francis, Lyne, Blanchette, Smith & Shelton, Dallas, Fischer, Wood, Burney & Nesbitt, Corpus Christi, for appellees.
   MURRAY, Chief Justice.

This suit was instituted in the District Court of Calhoun County, Texas, by Philip G. Waters and his wife, James Alan Waters, of Harris County, Texas, B. K. Woodward, Jr., and wife, Jimmie Woodward, D. J. Jordan and wife, LaVerne Jordan, and Ray Revel and wife, Charlene Revel,, all of Jackson County, Texas, against Arnold H. Bruner of Dallas County, Texas, Hugh J. Fitzgerald of Travis County, Texas, Cullen B. Vance and wife, Carrie Lou Vance, of Jackson County, Texas,, and Coastal States Gas Producing Company, a corporation, seeking to impress a constructive trust on the production from a gas and distillate well located on Lot 107, Unit 2, of Port Alto in Calhoun County, Texas, and for resulting damages because of an alleged breach of attorney-client relationship and a civil conspiracy, and to effect an equitable pooling by estoppel of Lot 107 with Lots 106 and 108 of Unit 2. The trial court did not submit the case as to Arnold H. Bruner, Hugh J. Fitzgerald and Coastal States Gas Producing Company, but rendered judgment in their favor as a matter of law. The trial court did submit to the jury, in some nineteen special issues, the case of the plaintiffs against Cullen B. Vance, some of which issues were answered favorably to Vance and others unfavorably to him.

The plaintiffs made a motion for judgment on the verdict, which was overruled. .The defendant Vance made a motion and amended motion to disregard some of the jury findings, which were also overruled. The court then rendered judgment that plaintiffs take nothing against Vance, and the plaintiffs appealed.

Appellants’ first point is as follows:

“The trial court erred in overruling Appellants’ Motion for judgment upon the Jury’s verdict as rendered.”

It will be noted that in their motion appellants did not ask the court to disregard any finding of the jury in answer to any special issue, thus leaving the jury’s findings which were against them in full force and unchallenged. Rule 301, Texas Rules of Civil Procedure, requires a motion and reasonable notice to the adverse party, before the court may “disregard any Special Issue Jury Finding that has mo support in the evidence.” Missouri Pacific R. Co. v. Ramirez, Tex.Civ.App., 326 S.W.2d 50; Continental Nat. Bank v. Hall-Page Tire Co, Tex.Civ.App, 318 S.W.2d 127; Reserve Life Ins. Co. v. Everett, Tex.Civ.App, 275 S.W.2d 713; Service Life Ins. Co. v. Miller, Tex.Civ.App, 271 S.W.2d 301.

The jury found, in answer to Issues Nos. 2 and 3, that the relationship of attorney and client betwen Cullen B. Vance and Waters and Woodward and Revel, in the matter of the oil and gas leases herein involved, had terminated at the time Vance executed his amended lease.

The jury also found, in answer to Issue No. 10, that at the time Vance executed said amended oil and gas lease dated Feb-niaay 28, 1957, by reason of his prior dealings with Waters and Woodward and Reyel, Vance was not required to notify them of the fact that he had executed this amended lease.

The trial court could not properly have granted appellants’ motion for judgment on the verdict without disregarding these findings by the jury, and the court would have committed reversible error if it had done so. Missouri Pacific R. Co. v. Ramirez, supra.

Notwithstanding what we have said above, the evidence conclusively shows that such attorney and client relationship had terminated at the time of the execution of the amended oil and gas lease by Vance. The evidence shows that Vance had never acted as attorney for any of appellants prior to the time he prepared the three original oil and gas leases on Lots 106, 107 and 108, Unit 2, Port Alto. He was not employed by any one of appellants as his regular attorney. He agreed to draft the three leases so they would have identical provisions, and this he did. After he had done this and the leases were executed and recorded, and the bonus money paid, and Vance paid for his services, there was nothing left for him to do. Appellants never again consulted Vance until after the amended lease was executed by him. Vance testified that after receiving the fees of $15.00 each from Waters, Woodward and Revel, he had no more legal business with them, was not representing them in any way, and this was the only legal business he had ever handled for any of them. Waters testified that the only time he had ever dealt with Vance in connection with this lease was at the time of the original lease transaction, and in executing an amendment in 1955, restoring the shut-in gas well clause which Waters had stricken from the lease. He said that after he paid Vance in August of 1955 he had no more conversation or dealings with Vance up to the time of the drilling of the well. He had consulted other lawyers before, and made other leases. Waters further testified that when Vance handled the lease transaction for him and was paid, his legal services were ended, and he had not authorized him to do anything further; his representation of him was at an end. Waters said that the bill he received from Vance was for “procurement of Port Alto lease.”

Woodward testified that he never had any relations with Vance as his lawyer except on the occasion when the lease was made. After the lease was signed and Vance was paid, he considered the transaction ended, and said he had not authorized Vance to do anything further or act on anything else. He said he had business with other lawyers before this lease.

The inference in appellants’ brief that Vance represented Woodward and Revel when they purchased the lot is unwarranted. The reference given to the statement of facts shows that Vance handled the sale of the property as a real estate agent for the owners.

The fact that Woodward considered the attorney relation terminated is shown by a letter written by him to the lessee in 1957. He said that he talked to Grasty, who had completed a well on the Hansard lot or lots nearby, and “I wrote Mr. Arnold Bruner and told him that the Grasty well, Gordon Grasty well, on Hansard’s property had been completed and I would like to know his intentions as to Lot 108.” The reply of Bruner said, “With reference to your letter of January 16, 1957, concerning Lot 108, Unit 2, Townsite of Port Alto, Texas (our Lease No. 365), please be advised that we are watching the progress of the Gordon Grasty well and will probably drill a well on your property in the near future.”

Revel also said that this was the first and only time that he dealt with Vance as his attorney. He said he knew about the correspondence carried on by Woodward and was kept currently advised, thus indicating that he also felt that Vance was no longer acting for him in reference to his lot.

Vance testified: “My employment had terminated and each person was free to do whatever he wanted to with his lot. He could sell it, he could mortgage it, he could do anything he wanted to with it, and I felt the same way. I felt perfectly free to deal with my lot independently of them.”

Thus it was conclusively shown that the relationship of attorney and client had terminated long before Vance executed the amended lease. After the termination of the relationship of attorney and client, Vance was just as free to do- what he pleased with his lot as were the appellants.

As to the duty of an attorney to his client after his employment as such has been terminated, it is stated in 7 C.J.S. Attorney and Client § 126-c, p. 963:

“So long, however, as there is no breach of confidence or use of information or knowledge previously acquired in his professional relations, and no unfair advantage is taken of the client, the termination of the relationship of attorney and client leaves the attorney free to acquire or purchase property previously belonging t© the client or an adverse title, interests or claim. Hence the courts in many instances have sustained an attorney's purchase of a former client’s property at a judicial or tax sale, or his purchase of outstanding claims against his former client; and an attorney may, after the relationship has terminated, buy the title to property wi& reference to which he was previously consulted by the client where the client refused to buy the property after receiving correct advice and the attorney’s purchase is not the result ©£ confidential knowledge previously acquired.”

See, Minchen v. Ament, Tex.Civ.App., 266 S.W.2d 257; Jinks v. Moppin, Tex.Civ.App., 80 S.W. 390; Harrison v. Murphey 39 Okl. 548, 135 P. 1137, 49 L.R.A.,N.S, 1059; Kauder v. Lautman, 114 N.J.Eq. 197, 168 A. 660, aff. 116 N.J.Eq. 145, 172 A. 565; Smith v. Craft (Ky.), 58 S.W. 500; 20 A.L.R.2d 1309.

It is well to here make a full statement-of this case. In 1955, the Vances owned Lot 107, Unit 2, Port Alto, Calhoun County, Texas. To the east was adjoining Lot 106, Unit 2, owned by Waters, and t® the west was adjoining Lot 108, belonging to the Woodwards and the Revels. These three lots fronted on Bay Shore Drive and each had a summer cottage erected! upon it. Thus these parties, insofar as; their summer cottages were concerned,, were neighbors. In 1955 there was an' ‘oil play’ in the area of Port Alto. Vance was a lawyer. He was approached by one • O. K. Crow, seeking an oil and gas lease upon his lot. Vance asked a bonus of $500.00, a ⅜ royalty, and no provision for pooling. Crow left without agreeing to. lease on these terms. Later he returned! and suggested some pooling whereby eas& lot would receive a ¾2 royalty in the event. of-pooling-. On his first visit Crow inquired if there were arty other available leases, and Vance said he would inquire of his neighbors. This he did, and found out they were willing to lease, and wanted to lease on the same terms as Vance. Vance agreed to prepare the three leases, containing the same provisions as his lease. All three leases provided for a bonus of $500.00, a ⅜ royalty, and in case of pooling a ¾2 royalty for each lot pooled. The leases were executed, the bonuses paid and the leases accepted by Arnold H. Bruner and.Hugh J. Fitzgerald and duly recorded in Calhoun County. Vance was paid the sum of $15.00 each by Woodward, Revel and Waters, for his services in procuring and preparing the leases. Appellants seem to contend that Vance stated the three leases would always remain identical, except of course the name of the parties and the description of the lots. There is no evidence to this effect. Waters had struck out a provision in his lease as to shut-in oil • wells, but later executed a new lease restoring this provision. These leases were dated August 16, 1955. They were continued in effect at the end of one year by the payment of $100.00 per lot as delay rental. The parties were all well pleased with ;the deal.

In January, 1957, a well was drilled on Lot 110, which was one lot west of Lot 108, owned by Woodward and Revel. Thereafter, Woodward wrote to Arnold Bruner about that well and inquired when he was going to drill on his lot. By letter dated January 24, 1957, Bruner replied as hereinbefore set out. About a week later, Woodward showed this letter to Vance.

Vance did nothing about the matter until he was called by one Williams, an agent of Bruner, on February 15, 1957, some nineteen months after the execution of the leases. Williams told Vance that they wanted to drill on his lot but could not drill 'on a ⅛ royalty and wanted to know if he 'would reduce his royalty to a ⅛. It was 'then that Vance, on March 24, 1957, executed • an amended lease providing for a ⅝ royalty instead of a ⅜, and further providing that his lot was not to be pooled with adjoining lots.

Thereafter, on May 31, 1957, a well was drilled upon Vance's Lot 107. The surface of all three lots was used in drilling this well, but there was no pooling. If lessees had pooled the three lots they would have been required to pay a ¾2 royalty to each lot owner or a ¾2 royalty, while by not pooling they were required to- pay only a royalty. If they had pooled the three lots the added surface would not have increased the allowable on the well very much.

There is nothing in this record to show that in executing the amended lease Vance committed any fraud upon appellants, or used any confidential information that he had obtained by reason of his employment as their attorney to secure the original nil leases. He agreed that he would make the provisions of appellants’ leases the same as his. This he did, and the leases were the same as his. After the leases were executed and recorded he did not possess any confidential information that he or anyone else could not have gained by the reading of the leases as recorded in the public records..

There is no. evidence that Vance ever told appellants that their leases would always remain identical with his. There is no contention that he ever represented that his lease would remain identical with theirs. Even if he did make such a statement, it was made as to what would happen in the future. There is no evidence that he made it fraudulently without any intention to keep such promise, or made it at the time to defraud appellants. It was not in the form of an agreement, appellants did not feel that they had promised never to change their leases, but felt free to do as they pleased with them. To be binding such an agreement would have to be in writing. There is no contention that it was understood that such a provision was to have been placed in each of the leases. Under the undisputed facts in this case, the relationship of attorney and client having terminated, Vance was free to execute the amended lease if he so desired.

Vance’s failure to disclose to his neighbors that there was no pooling did not change the situation in any way. After Vance had executed the amended lease and after the lessees had decided to drill on Lot 107, nothing could have been done by Vance or any of the lessees to change the situation. Appellants’ first point is overruled.

The appellants further contend that the judgment should be set aside and the cause remanded because there was misconduct of the jury, improper argument made to the jury, and because of conflicts in the findings of the jury. We overrule these contentions because we feel the court was right in rendering judgment in favor of Vance as a matter of law, and that the above questions therefore become immaterial. Likewise, believing that Vance had a legal right to execute the amended lease, the court properly granted judgment as a matter of law in favor of Bruner, Fitzgerald and Coastal States Gas Producing Company.

We think the real reason appellants feel they have been defrauded is the proration rule that exists in the Port Alto area which permits a person to secure a lease on one fifty-foot lot and produce oil or gas therefrom without pooling with the surrounding lots. So long as gas may be produced in this field upon such basis, producing companies will no doubt take advantage of such proration rule. It seems that in the future this kind of proration may not be permitted in view of the Nor-manna case of Atlantic Refining Co. v. Railroad Commission of Texas, Tex., 346 S.W.2d 801.

As above stated, the trial court did not err in rendering judgment in favor of Bruner, Fitzgerald and Coastal States Gas Producing Company. Under the original leases, the question of pooling was optional with them; they were in no way required to pool the three lots if they did not desire to do so. They would have been foolish to have pooled them and paid ¾2 royalty instead of ⅛. There was absolutely no evidence that they had been parties to a civil conspiracy and that- appellants had suffered compensable damages as a result thereof. They could not be compelled to respond in damages for doing that which they had a legal right to do. Fletcher v. Huffman, Tex.Civ.App., 149 S.W.2d 313. There is nothing to show that appellants were entitled to recover upon a pooling by estoppel theory. The pooling provisions were elective with the lessees. Kinnear v. Scurlock Oil Co., Tex.Civ.App., 334 S.W.2d 521. Equitable pooling is not recognized in Texas. Ryan Consol. Petroleum Corp. v. Pickens, 155 Tex. 221, 285 S.W.2d 201; Harris v. Wood County Cotton Oil Co., Tex.Civ.App., 222 S.W.2d 331.

The judgment is affirmed.


source: Caselaw Access Project

author: COLLINGS, Justice.

license: Public Domain

text:
    J. Y. HOLBROOK et al., Appellants, v. The STATE of Texas, Appellee.
    No. 3628.
    Court of Civil Appeals of Texas. Eastland.
    March 9, 1962.
    Rehearing Denied March 30, 1962.

      Park Street, San Antonio, for appellants.
    Will Wilson, Atty. Gen., Raymond W. Weber, Elmer McVey, Joseph G. Rollins, Asst. Attys. Gen., for appellee.
   COLLINGS, Justice.

The State of Texas brought suit seeking to condemn for highway purposes an approximately two acre strip of land owned by J. Y. Holbrook and other defendants. The strip condemned was the front portion of an 82 acre tract fronting on preexisting Loop 13, also known as the W. W. White road in Bexar County.

A hearing was had before special commissioners appointed by the court and the sum of $9,500.00 was awarded as damages. Defendants withdrew the sum of the award which had been deposited with the court and timely filed their objections thereto. Upon a jury trial in the County Court it was found that the value of the land at the time of the taking was $8,587.70, and that the value of defendants’ remaining land was the same before and after the taking. Based upon the verdict judgment was entered vesting fee simple title in the State of Texas to the land sought to be condemned and ordering the defendants to pay to the State the sum of $912.30, which was the difference between the damages found by the jury and the award of the special commissioners. J. Y. Holbrook and other defendants have appealed. It was stipulated that all proceedings up to the time of the trial were regular and that the matter was properly before the County Court. It was further stipulated that the State of Texas had the right to condemn the land.

Prior to the taking of the two acre strip appellants were owners of the unimproved eighty-two acre tract East of Loop 13, with substantial frontage thereon. At that time appellants’ property directly abutted on a graveled highway separated from the main traveled portion of Loop 13 by a vacant strip of grass. The right of way of both Loop 13 and the graveled frontage road was already owned by the State of Texas. The purpose in condemning the land was to reconstruct Loop 13 including the graveled frontage road into a “controlled access” highway, consisting of four roadways, separated from each other by median strips, the two outer roadways to be frontage roads on to which the public in general, including appellants, would have direct access from abutting property, in the' same manner that they had to the gravel frontage road on Loop 13 prior to the condemnation. It was proposed that the two inner roadways would be one way express roadways and access to and from the frontage roads was to be afforded by entrance and exit ramps so spaced as to afford protection and safety to the traveling public. Prior to the condemnation appellants’ property fronted directly upon the gravel access road, which was a part of the right of way for Loop 13. Only a few feet separated appellants’ land from the paved and main traveled part of the highway. It was then physically possible to drive from appellants’ property across the graveled frontage road, over the grass strip, and onto the main traveled roadway of Loop 13. Under the proposed reconstruction, it would still be physically possible to so cross onto the main traveled portion of the expressway, but according to the plans no access is to be permitted to or from the two inner roadways except at certain designated points. The basis of appellants’ complaint and claim for damages is that they will be denied the right to cut the frontage road curb which would permit them to obtain direct access to the main highway. Under the proposed plan access to the highway from appellants’ property, after completion, will be to enter the one-way Northbound service road and continue to the Eisenhower road interchange, a distance of 3,000 feet. A traveler desiring to go South will then be required to re-travel this distance by turning across the Eisenhower road interchange and following the Southbound access road to an entrance ramp to the Southbound high speed lane.

Question No. 3 of the court’s charge inquired of the jury concerning the market value of the remainder of defendants’ tract of land immediately after the taking of the 2 acre tract condemned for highway purposes. In connection with such question the court instructed the jury in substance, as follows:

“In answering Question No. 3 above, you will exclude increase in value, if any, and decrease in value, if any by reason of benefits or injuries received by defendants in common with the community generally and not peculiar to them and connected with their ownership, use and enjoyment of the particular tract of land from which the tract of land has been condemned, and taking into consideration the uses to which the tract condemned is to be subjected. — You shall not consider for any purpose benefits, if any, or injuries, if any, sustained or received by defendants’ remaining property arising from or due to traffic regulation by the State or City of San Antonio on the highway involved in this suit.
—You shall not consider for any purpose the temporary inconvenience, if any, or damages, if any, which may or might be suffered by the defendants during the construction period. — You shall not consider for any purpose benefits, if any, or injuries, if any, sustained or received by defendants’ remaining property arising from or due to any additional circuity of travel that results to a vehicle moving be-' tween any other point and defendants’ remaining property by reason of the reconstruction of the present highway into a controlled access highway with frontage roadways providing ingress and egress to and from said highway and defendants’ remaining property.”

Appellants present points in which it is contended that the court erred (1) in overruling their objections to the instructions submitted in connection with Question #3, advising the jury that they should not consider any damage to appellants’ remaining property arising from damage to the access to such remaining property, (2) in refusing appellants requested special instructions to the effect that the jury could consider benefits or injuries to their property occasioned by the effect upon the access to such property on account of the reconstruction of the highway into a controlled access highway, (3) in striking testimony to the effect that the remainder of defendants’ property would depreciate in value because of the difficulty in getting to such property after the construction of the controlled access highway, (4) in repeatedly instructing the jury during the testimony of appellants’ expert witnesses that the jury should not consider any difficulty in travel occasioned by circuitous routes to appellants’ remaining property resulting from the installation and construction of the controlled access highway and (5) in instructing the jury not to consider benefits or injuries, if any, to defendants remaining property due to traffic regulations of the State or City of San Antonio. These points are overruled.

The basic questions here presented are determined by the holding in Pennysavers Oil Company v. State, Tex.Civ.App., 334 S.W.2d 546 (Error Ref.). Appellants have not been deprived of access to the highway upon which their property abuts. They have access to the highway system by use of an access road. Their right to access to the highway is satisfied by and is limited to such an access as is here provided. Actually, prior to This condemnation proceeding appellants’ property was already on the gravel frontage or access road to Loop 13.- Since the condemnation, it is still to be on an access road. The only difference is that Loop 13 is changed to a controlled access' highway, and a narrow strip is taken from appellants’ land to permit the construction of the proposed highway system, including a rearrangement of the access road. By virtue of Article 6674w Vernon’s Ann.Tex. Civ.St., the State Highway Commission is authorized to construct and maintain controlled access highways. The rule in such cases is stated by Chief Justice Murray in the Pennysavers case, as follows: “The State has the right under the provisions of Art. 6674w, supra, and its police power, to provide for one-way traffic, no U turns, division barriers, no left or right turns, traffic lanes, speeding and parking regulations, circuitous routes; for the changing of highways generally, and is not responsible for loss of trade to abutting landowners as a result of the exercise of this police power, so long as it does not amount to a complete taking of the right of access. City of San Antonio v. Pigeonhole Parking of Texas, Inc., [158] Tex. [318], 311 S.W.2d 218.” The case of State v. Albright, Tex.Civ.App., 337 S.W.2d 509, cited and relied upon by appellants is not in point. In that case the effect of the condemnation was to leave remaining a small “land locked triangle * * * with no outlet to a public street without trespassing on lands of others; which was not so before the taking.” The Albright case cites the Pennysavers’ case as authority for the proposition that if all right of access is denied there is compensable damage. Appellants have not been denied access to the highway, but have access by means of an access road. They are not entitled to damages because of the construction of and regulation of the controlled access highway in such manner as to deny them direct access to the two inner express roadways. It follows that the court did not err in striking testimony tending to show that the remainder of defendants’ property would depreciate in value because of difficulty in getting to such property after the proposed construction. Neither did the court err in repeatedly instructing the jury not to consider any difficulty in travel occasioned by circuitous routes to appellants’ remaining property after the proposed construction. The instruction was proper and the court did not err in so instructing the jury on every occasion that the question arose. Points urging error in this respect are overruled.

We, likewise, do not agree with appellants’ contention that the court erred in refusing to admit testimony concerning the length of time it would take to complete the project and instructing the jury not to consider any damage to appellants’ remaining property because of temporary inconvenience arising during the construction of the controlled access highway. There was no showing of any damage to appellants for which they were entitled to recover for any possible injury arising during the construction period. Even if it should be held that appellants would be entitled to damages because of lack of access to the highway during construction, the evidence was to the effect that there would be no interference with such access during the period of construction. There was no evidence of any compensable damage because of dust or noise. Appellants’ points in this connection are overruled.

The disposition we have made of points bearing upon the liability of the State for damages to appellants’ land renders it unnecessary to pass upon the remaining point complaining of the exclusion of certain exhibits and other evidence material to a determination of the amount of the claimed damages. We have carefully considered all points and find no reversible error.

The judgment of the trial court is affirmed.


author: HUGHES, Justice.

text:
    The YOUNGSTOWN SHEET AND TUBE COMPANY, Appellant, v. Henry W. PENN et al., Appellees.
    No. 10916.
    Court of Civil Appeals of Texas. Austin.
    March 7, 1962.
    Rehearing Denied March 21, 1962.

      L. L. James, Tyler, for appellant.
    Morrison, Dittmar, Dahlgren & Kaine, San Antonio, for appellees.
   HUGHES, Justice.

Our former opinion dismissing this appeal is withdrawn. We will determine its merits.

The appeal is from a summary judgment in favor of appellees, Henry W. Penn, J. K. Stark and J. P. Hale.

Appellant, The Youngstown Sheet and Tube Company, sued Texita Oil Company, alleging it to be a partnership composed of appellees and Gordon W. Johnson, I. A. McNab and Morris Cannan.

The nature of the suit was upon a sworn account covering the period from March 14, 1958 to December 4, 1959, and for foreclosure of materialmen’s liens on two oil and gas leases in Atascosa County.

Gordon W. Johnson and I. A. McNab answered alleging that Texita Oil Company was a partnership and that they were the partners composing it.

Appellees answered, under oath, and denied that they were partners, as alleged, and denied “that they were at any time material to this suit or otherwise engaged in a partnership or mining partnership with Texita Oil Company or were joint adventurers with” it in developing the leases in suit.

Appellees’ motion for summary judgment was based upon two grounds, and supported by affidavits. The first ground was that it is conclusively shown that they and Texita were not partners and that there were no pleadings or facts upon which they could be held liable as partners since it is conclusively shown that the credit extended by appellant was extended exclusively to Tex-ita and without any reliance upon the liability of appellees.

The second ground of the motion for summary judgment was that appellant failed to perfect a materialmen’s lien, as to the interests owned by them in the leasehold estates, because of failure to state in the affidavit filed by it for the purpose of fixing such lien, as required by Art. 5476a, Vernon’s Ann.Civ.St., that the notice required by Art. 5476c, V.A.C.S. was given to appellees, and because such notice was not in fact given.

Attached to the motion for summary judgment were several affidavits, one of which was made by Gordon W. Johnson who was a partner with I. A. McNab operating as Texita Oil Company from March, 1950 to December 1, 1958. Mr. Johnson stated that during such time Texita had no other partners, and that appellees were not partners and never held themselves out as partners. He also stated that all purchases made by Texita from appellant were made exclusively on the credit of Texita. That from time to time appellant required Texita to execute notes secured by deeds of trust on interests owned by Texita in the leases in suit. Mr. Johnson further stated that Texita developed and operated the leases in suit under a written agreement which was attached to appellees’ answer and referred to in his affidavit. Other statements were made by him to the manner in which appellant billed Texita for purchases made; the bankruptcy proceedings of Texita and the failure of appellant therein to claim that anyone but Texita was liable for its account, and the fact that appellant accepted dividends from the bankruptcy court without any notice or reference to appellees. Appellant’s claim in the bankruptcy court was based, in part, upon the account sued on here.

Mr. Johnson also swore that no notice was given to any of appellees that appellant intended to file a materialmen’s lien against their interests in the leases in suit.

Mr. Michael J. Kaine, an attorney for appellees, made an affidavit, attached to the motion for summary judgment which confirms, in many respects, the affidavit of Mr. Johnson.

Attached also to the motion for summary judgment were copies of two materialmen’s lien affidavits made by the Treasurer of Continental-Emsco Company, relied upon by appellant to establish the liens claimed by it, which contain the statements that “Continental-Emsco Company has furnished, sold and delivered to Texita Oil Company, a partnership comprised of Gordon W. Johnson and I. A. McNab” materials etc.

The operating agreement was between “Texita Oil Company, a partnership composed of Gordon W. Johnson and I. A. McNab,” called operator, and appellees, called non-operators. These parties owned all the working interest under an oil and gas lease on certain described lands. The agreement recites that “it is the desire of the parties hereto that operator shall be in charge of operations under” the lease. It provided that operator should have “exclusive charge, control and supervision of all operations of every kind” in the development and operation of the leases. It also provides that operator shall charge to a joint account all costs and expenses incurred by him under the agreement and that monthly statements should be made by him to non-operators who should pay, in accordance with the interest of each, the account within 15 days, and each non-operator granted operator a lien on his interest to secure the payment of such expenses.

The agreement provided that operator should not incur any item of expense in excess of $5,000.00 without the written approval of non-operators, with certain exceptions. It also provided that each party should have the right to receive in kind and separately to dispose of such parties’ share of any minerals produced. We copy from the agreement as follows:

“10. LIABILITY OF PARTIES: The Joint Leases shall not be operated hereunder as a partnership venture, and the liability of the parties hereunder shall be several and not joint or collective. Each party shall be responsible only for his obligations as set out herein and shall be liable only for his proportionate share of the cost of operation hereunder.”

The agreement further provides that it shall not constitute a partnership under Federal taxing laws or under any similar State laws.

Appellees J. K. Stark and J. P. Hale filed affidavits in support of the motions for summary judgment, both similar. We quote from the affidavit of Mr. Hale:

“Continental-Emsco Company billed all of the items upon which its suit is based directly to Texita Oil Company and did not send any of the invoices therefor to me and no inquiry was ever made of me by Continental-Emsco Company regarding any responsibility on my part for the payment of such debts incurred and owing by Texita Oil Company. That the materials, supplies, equipment and services upon which the
Plaintiff’s suit is based were not ordered by me or any authorized agent, servant or employee of mine, and were not furnished to me by the Continental-Emsco Company as alleged in the Petition. That no demand was ever made upon me by Continental-Emsco Company for the payment of the debts which are made subject to this suit, or any part thereof, and no notice was ever given to me by Continental-Emsco Company that any lien was claimed or being asserted against my leasehold interest in the above lease. That during the existence of this operating agreement with Texita Oil Company, I was regularly submitted statements by Texi-ta Oil Company for the payment of my proportionate share of ,'Costs of performing the contract, as provided in the operating agreement, all of which were paid by me to Texita Oil Company, including the costs covering the period in which the Plaintiff claims the indebtedness to it was incurred by Tex-ita Oil Company. I do further deny that I have ever been engaged in a mining partnership, partnership, or joint venture with Texita Oil Company, I. A. McNab, or Gordon W. Johnson.”

In opposition to the motion for summary judgment, Mr. C. L. Vickers, appellant’s General Credit Manager, made an affidavit from which we quote:

“Soon after the said Texita Oil Company began the development and operation of said leases, for and on behalf of all the owners of each lease respectively, they applied for and was granted a line of credit by The Continental Supply Company and its successor Continental-Emsco Company, a Division of The Youngstown Sheet and Tube Company, for the purchase of supplies and equipment to be used in the development and operation of said leases.
“Affiant further says that when the said Texita Oil Company began the purchase of such supplies and equipment for said leases from The Continental Supply Company, the said The Continental Supply Company charged such supplies and equipment to the Texita Oil Company and to each and all of the other owners of the lease for which said material and supplies were being purchased. In each instance the Texita Oil Company, its duly authorized agents and representatives, would furnish the names of the other owners of the lease for which such material was being purchased. This procedure was followed until Texita Oil Company acting through Gordon W. Johnson, one of the partners, requested The Continental Supply Company to place all of said charges under one account as a matter of convenience. Thereafter, aH charges for materials and supplies purchased by Texita Oil Company from The Continental Supply Company or from Continental-Emsco Company for use on the said leases, including the leases involved in this suit, were charged to Texita Oil Company but a separate record was kept by the said The Continental Supply Company and Continental-Emsco Company of the supplies and materials purchased for each lease so that if it became necessary or desirable the said The Continental Supply Company and/or Continental-Emsco Company could enforce the collection of their accounts for such materials and supplies against all the owners of said leases and could, if they so desired, file a statutory lien against the lease for which such material and supplies were delivered.
* * * * * *
“Affiant states that over a period of several years the Texita Oil Company offered and did execute certain notes payable to The Continental Supply Company and Continental-Emsco Company covering materials, equipment and supplies purchased for said leases, and further offered and did execute certain Deeds of Trust covering their interest in various leases securing said notes and executed Chattel Mortgage covering certain drilling equipment owned by Texita Oil Company to secure said debt, but in accepting the said notes and security, The Continental Supply Company and Continental-Emsco Company did not agree to accept said security in substitution or release of its rights against the other owners in said leases, and specifically provided in said notes that same did not in any way waive any lien rights existing in favor of The Continental Supply Company or Continental-Emsco Company by virtue of the laws of the State of Texas.”

Mr. Vickers also stated that no officer of his company knew of the operating agreement between Texita and appellees, and further that appellant after 1957 would not have sold supplies to Texita solely on its credit, and that “when said credit was extended and said supplies were sold, affiant was looking to each and all of the owners of each lease for the payment for said supplies.”

Mr. Herbert P. Dawkins, an assistant credit manager for appellant, made an affidavit similar in import to the affidavit of Mr. Vickers, but adding:

' “On or about the 30th day of October 1956, the Defendant, Henry W. Penn, in Affiant’s presence, assured Mr. McNab that he would pay them at least $25,000.00 in time for Texita to send the check to The Continental Supply Company in time for it to be received during October.”

Attached to the affidavit were several letters. One dated September 27, 1955, was from Texita to appellee Stark. This letter, very difficult to read, states the conditions upon which an interest in one of the leases in suit was sold to Mr. Stark. We cannot see its relevance here.

The second letter, May 8, 1957, is from Texita to Mr. Garson Reiner, a copy apparently going to appellee Penn. This letter discusses the account of Mr. Penn with Texita. It also refers to “these joint operations” between it and Mr. Reiner. We are not advised how this letter is binding on or admissible against Mr. Penn.

The third letter, September 27, 1955, is from Texita to, approved and accepted by appellee Penn. This letter relates to the purchase by Mr. Penn of an interest in one of the leases in suit. We find nothing in this letter relevant here.

The fourth letter is from Texita to Gar-son Reiner, dated July 8, 1957. Appellant quotes, in its brief, the following excerpt from this letter.

“It is understood and agreed that we will be the operator of the lease and that a joint operating agreement will be prepared and entered into between you and us, and the agreement is to be similar to the ones that we have in force and effect with you on the jointly owned Bishop, Hoover Hoover ‘K’, Hoover ‘M’ and Hoover ‘N’ Leases.”

The last letter is from Texita, dated February 3, 1958 and is addressed to Working Interest Owners in the Shannon “A”, Hoover “D” and Hoover “E” Leases. Appellant, in its brief, copies from such letter:

“ * * * It is our most sincere desire to cooperate with all parties and to furnish the information pertinent to joint operations in which you are interested. However, you can readily see that it would not be practical to call up each of you individually and discuss our joint operations.
“ * * * Again we would like to point out to you that we would appreciate your selecting either an individual or a committee for each of these three leases to represent all of the working interest owners and have this individual or committee to feel free to call upon us at any time in connection with any matters that pertain to the joint operation of these leases.”

There is also an affidavit and supplemental affidavit made by Mr. L. L. James, attorney of record for appellant.

Mr. James states that the claim filed in the Texita bankruptcy proceedings, based on the accounts involved here, was a secured claim, and that in such proceedings the Referee in Bankruptcy was advised that appellant was attempting to collect its debt from others than the bankrupts.

Mr. James also set out in his affidavit the oral deposition testimony of Gordon W. Johnson given January 14, 1960. Mr. Johnson testified that in some instances appellant charged Texita and “some other names” for purchases made by Texita. He further testified:

“Q. Do you remember any particular instances of that, Mr. Johnson; where that happened ?
“A. I would have to look back in old invoices to find particular names. It was quite confusing, and we finally asked Continental to set it all up in Texita.
“Q. Yes. Mr. Johnson, do you know whether or not the owners of those several leases respectively knew, during the time that Texita was developing and operating those several leases, that Texita was purchasing the equipment, material and supplies, and services, on open account?
“A. Some of them, I’m sure, did, but a lot of them I’m sure had no idea. There’s no reason why they would know how purchases were being made. We would invoice them for what they owed us for their respective interests, and they would pay us direct, which is about the only way it could be handled.”

In a supplemental affidavit Mr. James attaches a partial transcript of the testimony given by Gordon W. Johnson in a creditor’s meeting in the matter of the Texita bankruptcy.

Mr. Johnson, in testifying, several times referred to the other interest holders in the leases as “partners.” He explained the use of this word, and specifically denied the existence of a partnership between Texita and the other interest owners as shown by the following testimony contained in the transcript attached to the affidavit of Mr. James:

“Q. Well, now at the time of the petition in bankruptcy, the adjudication, did some or were some of those operators — I mean some of those owners indebted to Texita for operating costs ?
“A. At that time, a few; not very many. It was down because we had not been operating or billing or incurring any indebtedness for some time, and, so, we didn’t have a big backlog.
“Q. In other words, Mr. Johnson, the relation existing between Texita and these other owners, generally speaking, is simply just the ordinary mining partnership, wasn’t that what you would call it so far as you know?
“A. Well, as far as I know, it would be just the ordinary joint owner-operator agreement.
⅜ ⅜ ⅜ ⅝ ⅝ ⅜
“Q. When you speak of partners, you speak of other working interest holders—
“A. Yes, sir.
“Q. * * * other than Texita on each and every lease?
“A. That’s right; ‘partners’ is used as a loose term. They are not actually partners but interest holders in these particular leases.”

Appellees rely principally upon the case of United States Truck Lines v. Texaco, Inc., 337 S.W.2d 497, Eastland Civ.App., writ ref., to sustain the judgment insofar as it denied the existence of a partnership between Texita and themselves and their resultant personal liability.

We are of the opinion that this decision, on this question, is controlling even though it is distinguishable in at least two respects from this case. There the Court only sustained a fact finding that no partnership existed. Here the question presented is one of law. There the operating agreement contained the provision: “It is not the intention of the parties * * * that this contract is made for or is intended for the benefit of any third person.” No similar provision is found in the operating agreement in suit.

The basic provisions of the operating agreement in United States Truck Lines are present here. These are, exclusive control of development and operations by operator (Texita) and its duty to make required purchases of supplies etc., several, not joint, liability of the parties and denial ■of a partnership relationship.

We also note that the accounting procedures in that case are very similar to those set out in the present operating .agreement.

Construction of the operating agreement, as presented, is a question of law. We hold, in accordance with the opinion in United States Truck Lines and cases cited in it, that the agreement in suit does not constitute a partnership relationship between the operator, Texita, and the interest holders, appellees, for the reason that it docs not establish joint operation of the leases nor mutual agency of the parties.

We are also of the opinion that there was no other evidence sufficient to sustain a finding of partnership as claimed by appellant.

Mr. Gordon W. Johnson explained that his reference to appellees as “partners” was “loose” terminology. Without this explanation, the evidence would still be lacking in probative force. In law, a partnership has legal significance and is created only by the presence of certain facts, the existence of which are not here shown. The legal conclusion of Mr. Johnson, fully dissipated by him, was no evidence of the asserted partnership.

The same result attaches to statements made by officers of the appellant company to the effect that it would not sell to Texita solely on its credit and that it was looking to interest owners for payment of supplies purchased by Texita.

These statements of appellant’s attitude and thinking are purely subjective. An agreement cannot be made solely by unilateral mental process. Unless appellees in some manner indicated their assent to appellant’s unexpressed thoughts, there could be no agreement between them.

It is wholly immaterial that appellant did not know of the operating agreement. Appellant sold to Texita knowing that it was a partnership composed only of Johnson and McNab. It would be appellant’s good fortune if other partners were found. It cannot complain of its bad fortune in failing to uncover additional partners.

The statement of Mr. Dawkins that ap-pellee Penn told Texita that he would pay it $25,000.00 in order that payment could be made by Texita to appellant merely confirms the manner in which the parties operated. Penn’s obligation was to Texita. Texita’s obligation was to appellant. No kind of estoppel is predicated on this promise of Mr. Penn’s and could not be since it is not shown that this payment was not made as promised.

There is a complete absence of evidence upon which an estoppel in favor of appellant could be based. Appellees did nothing and said nothing to estop them. Nor did they, dutifully, fail to act or speak.

The only remaining point is as to the validity of the materialmen’s liens claimed by appellant against the leasehold interests of appellees.

Appellant seeks to establish a lien under Art. 5473, V.A.C.S. This article provides that any person who shall “under contract” with the owner of any mineral interest furnish materials used in developing and maintaining development of such mineral interest shall have a lien on the whole of such mineral interest.

In Bethlehem Supply Corp. v. Wotola Royalty Corp, 140 Tex. 9, 165 S.W.2d 443, it was held that “ * * * it is the settled law of this State that the lien accorded by Article 5473 extends only to the property of the person under whose auspices the labor or material is furnished; it does not authorize the fixing of liens upon the property of third persons. Thus, if labor, supplies, machinery, or materials are furnished to a leaseholder, the lien accorded by Article 5473 does not attach to the underlying fee title to the land.”

The affidavit which appellant filed to fix its lien recites that it “has furnished, sold and delivered to Texita Oil Company, a partnership comprised of , Gordon W. Johnson and I. A. McNab” certain supplies, etc.

This affidavit and other evidence in the records conclusively show that appellant had no contract with appellees to furnish them the supplies etc. involved in this suit. Appellant, therefore, had no right to a lien against appellees’ leasehold interests under Art. 5473.

Appellant has points directed to the insufficiency, in some respects, of the affidavit supporting the motion for summary judgment. We need not discuss these points in detail for the reason that the material facts upon which this decision is based are not subject to the objections made to the affidavits.

The operating agreement while not attached to the affidavit of Mr. Johnson was attached to the current answer of appel-lees. It was before the Court and the effect of it has been the principal question argued on this appeal. The affidavit of Mr. Johnson in support of the motion for summary' judgment referred to such agreement as being attached to the original answer of appellees “which is made a part hereof by reference as if fully rewritten herein.” This was a sufficient adoption under Rule 58, Texas Rules Civil Procedure.

The judgment of the Trial Court is aft-firmed.

Affirmed.

      . Morris Cannan was not before the Court when judgment was rendered.

      . Continental-Emsco Company is a division of The Youngstown. Sheet and Tube Company anti most of the transactions here were made in the name of Continental-Emseo Co.


author: POPE, Justice.

text:
    WESTERN NATURAL GAS COMPANY et al. Appellants, v. F. G. KINGSLEY et al. Appellees.
    No. 13880.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 21, 1962.
    Rehearing Denied March 21, 1962.

      Liddell, Austin, Dawson & Sapp, George Wear, Butler, Binion, Rice & Cook, Neal Powers, Jr., Robert H. Singleton, Houston, for appellants.
    Wood & Boykin, Corpus Christi, Weldon Cabaniss, Rockport, for appellees.
   POPE, Justice.

This venue action essentially concerns §§ 5, 23 and 27, Art. 1995, Vernon’s Texas Civil Statutes. Section 14, originally relied upon, has been abandoned, and Section 29a becomes unimportant. Plaintiffs, F. G. Kingsley and Roger Millikin, are the owners of certain gas rights in the Lamar Field in Aransas County. They filed suit in Aransas County against Western Natural Gas Company and Continental Oil Company, which provide a pipe line and buy the gas from plaintiffs under a written contract. They also sued Reynolds Metals Company and Reynolds Mining Corporation. The four defendants filed their pleas to be sued in Harris County, and the court overruled them. We shall first discuss venue with respect to Western and Continental, and then shall separately discuss venue with respect to Metals and Mining.

In 1953, plaintiffs entered into a contract by which Western and Continental agreed to purchase from plaintiffs a minimum quantity of gas per month. The contract recited that the gas was for delivery and sale to Metals under the terms of a prior contract that Western and Continental had made with Metals. Metals later began buying additional gas from Mining, its subsidiary which had acquired several gas wells in the same reservoir. Plaintiffs’ one well is located on a 143-acre tract. Metals and Mining have five wells located on a fifty-one acre tract. Plaintiffs do not contend that Western and Continental have breached the express terms of their contract which stated the minimum quantity of gas which must be taken. Plaintiffs urge that their contract with Western and Continental has an implied covenant to take gas ratably from their well, and that they have breached the covenant. Plaintiffs seek damages. The contract is silent about a ratable taking among the wells in the reservoir.

The briefs exhaustively discuss the existence, vel non, of such an implied covenant, but we deem that a matter which may be decided on the merits. For the purpose of this appeal, we shall assume, without deciding, that the contract impliedly requires Western and Continental to take ratably among the wells producing from the common reservoir, that they have failed to do so by taking a disproportionate amount of gas from Metals and Mining’s wells, and that Western and Continental, therefore, have breached their contract to purchase and take gas ratably. After assuming all of these things, the essential ingredient which plaintiffs must prove as a venue fact to hold the case in Aransas County is still lacking. Plaintiffs must prove that the contract expressly provides for performance of the obligation sued upon in that county. 1 McDonald, Texas Civil Practice, § 4.11. The assumed implied covenant still does not carry with it the further implication to pay in Aransas County. There is no express provision for the place of payment even under the express provisions about taking. The place of taking gas is not necessarily the place of payment. Rorschach v. Pitts, 151 Tex. 215, 248 S.W.2d 120, states the reasons that Section 5 is not applicable in this precise situation: “The basic allegations of the suits * * * were that the relator-defendant had failed to receive, and accordingly failed also to pay for, the full amount of gas he was bound to accept and pay for under the contract * * *. As stated, the relief sought was money damages. * * * From this it would apparently follow that the essential obligation in suit for venue purposes is that of payment, and since no place of performance of that obligation is stated in the contract, no exception to the general rule of venue at the domicile is involved.” Venue in Aransas County as to Western and Continental therefore fails.

Venue in Aransas County under Section 5 also fails with respect to Metals and Mining. The path which plaintiffs follow to impose an express obligation against Metals which is performable in Aransas County is tortuous. Plaintiffs’ first reason that their contract with Western and Continental has the implied covenant of ratable taking. They next reason that the same contract is for the benefit of Metals, not a signatory to the contract, because Metals is a third-party beneficiary. As a third-party beneficiary, plaintiffs claim that Metals is liable for the breach of the contract for their benefit. We again shall assume all that plaintiffs claim, but there is still no express obligation to pay in Aran-sas County. Rorschach v. Pitts, supra.

Plaintiffs make the further contention that Metals and Mining may be sued in Aransas County under Sections 23 and 27, because they tortiously induced the breach of the contract, and that the cause “arose” as provided in Section 23, and “accrued” as provided in Section 27, in Aransas County. There is an abundance of documentary evidence in the record. Some of those documents show that Metals contracted with Mining about the amount of gas which Metals would take from Mining’s wells. Other documents show that Metals contracted with Western and Continental about transporting that gas from Aransas County to its plant located in San Patricio County. There is no proof of any violation of the express quantity requirements in plaintiffs’ contract with Western and Continental. If there was a violation of an implied covenant under the evidence, it is a breach but not a tortious breach. We are pointed to no tortious conduct by Metals or Mining, and the tort may not be proved by surmise. Terry v. Zachry, Tex.Civ.App., 272 S.W.2d 157; Tidal Western Oil Corporation v. Shackelford, Tex.Civ.App., 297 S.W. 279. Plaintiffs were required to prove a tort and that it occurred in Aransas County. They proved neither.

For Section 29a to be applicable, the plaintiffs must prove that venue in Aransas County is proper as to some defendant, and that the other joined defendant is a necessary party. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758. Plaintiffs have failed to prove venue as to any defendant. This case has been exhaustively briefed, but the venue points may be reduced to these basic principles. In our opinion, venue does not lie against any of the defendants in Aransas County, and the cause is reversed and remanded with instructions that it be transferred to Harris County, the defendants’ residence.


author: NORTHCUTT, Justice.

text:
    TEAGUE BRICK SALES COMPANY, Appellant, v. Richard K. DEWEY, Appellee.
    No. 7104.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 19, 1962.
    Rehearing Denied March 26, 1962.
    Mixson & Haley, Waco, W. A. Keils, Jr., Teague, for appellant.

      Folley, Snodgrass & Calhoun, Amarillo, Richard S. Morris, Claude, for appellee.
   NORTHCUTT, Justice.

This is a plea of privilege case from the District Court of Armstrong County, Texas. Appellant, defendant below, filed plea of privilege to move said case to Freestone County. Plaintiff filed controverting plea claiming venue in Armstrong County under Subsec. 23, Art. 1995, R.C.S., Vernon’s Ann.Ciy.St. art. 1995, subd. 23 upon the theory that plaintiff’s cause of action, or a part thereof, against defendant corporation, arose in Armstrong County. The trial court overruled defendant’s plea of privilege and defendant appealed. The appellant presents this appeal upon four assignments of error. It is contended by appellant’s first point of error that the appellee, plaintiff below, failed to prove by a preponderance ■ of the evidence that he had a cause of action- against the appellant. The pleadings may not be as complete as they should have been but we think they: are sufficient to show that appellant sold the brick in question and that they were defective and unfit for use in such resident building in that they crumbled and chipped where exposed to the weather and were unsound. There were several pictures introduced showing the condition of the brick used in the residence. The appellee testified the brick deteriorated badly and he thought it would be necessary to completely replace them. The appellant wrote a letter .to the appellee, which was introduced in evidence, stating it had been brought to their attention by their distributor that appellee was having trouble with the brick appellant manufactured. Appellant contended under appellee’s pleadings that appellee was required to prove in order to show a cause of action in the venue hearing (1) that appellant sold the brick; (2) that appellant warranted the brick to be sound, fit, and proper for the use which appellee desired to make of them; (3) that appellant breached the warranty in some way; (4) that appellee was damaged. There • is no question but what appellant was a corporation and sold the brick in question. Since the pictures showed the condition of the brick, and appellee testified the brick deteriorated badly and he thought it would be necessary to completely replace them, we think this is sufficient to show appellee was damaged. It was not necessary for appellee to show the amount of his damages. We - think this evidence shows a breach of warranty, if in fact there was a warranty. Since there is no expressed warranty shown, we will only consider if there was an implied warranty.

A manufacturer from whom an-article is purchased impliedly warrants that such article is reasonably fitted for and will! reasonably perform the services for which it was manufactured and sold. Oil Well Supply Co. v. Texanna Production Co. et al., Tex.Civ.App., 265 S.W. 203 (Writ Dismissed) ; Johnson v. Agricultural Bond & Credit Corporation, Tex.Civ.App., 114 S.W.2d 385; Price v. Advance-Rumley Thresher Co., Tex.Civ.App., 264 S.W. 113; Turner & Clayton Inc. v. Shackelford, 288 S.W. 815, by the Com. of App. We believe there is sufficient evidence to show an implied warranty that the brick were suitable for such intended purpose. Appellant’s first point of error is overruled.

The appellee was not damaged until and unless the brick began to crumble and chip after being placed in the walls around the house as pleaded. If the bricks were so damaged, as alleged, it happened in Armstrong County and would show that appellee’s cause of action, or a part thereof, arose in Armstrong County. Appellant’s second point is overruled where it is contended appellee failed to show the cause of action, or part thereof, arose in Armstrong County.

By appellant’s third point it is contended appellee’s controverting plea does not allege that his cause of action, or part thereof, if any, arose in Armstrong County, Texas. The controverted plea sets out the suit was brought in Armstrong County, Texas, the county in which the cause of action, or a part thereof, arose under the authority of Subdivision 23 of Art. 1995, R.C. S. of the State of Texas. Appellant’s third point is overruled.

Appellant’s fourth point contends appellee’s affidavit, attached to his controverting plea, is insufficient to put venue in issue. The point does not state why the affidavit is insufficient hut appellant argues that neither in the body of the controverting plea, nor in appellant’s jurat does ap-pellee unequivocally state that the facts in appellee’s petition are true and correct.

In appellee’s controverting plea he pleads that appellant’s plea is incorrect and should be overruled for the following reason, to wit: “that as is fully shown in plaintiff’s original petition, which is herein adopted and made a part therof as though fully copied herein ...” Then in the same controverting plea pleads the cause of action, or a part thereof, arose in Armstrong County, Texas under Subdivision 23 of Art. 1995. The attorney then swore to the plea and stated he had read the controverting plea of privilege, and was familiar with the facts stated therein and that the facts were true in substance and in fact.

In the case of A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619, by the Supreme Court, and relied upon by appellant, it is stated:

“The statute specifically requires that a controverting affidavit to a plea of privilege must be verified. The controverting affidavit filed in this case referred to the petition ‘for the purpose of showing that this is a civil libel suit,’ and it does not appear that it was the purpose in referring to such petition, as was done, to unreservedly swear to the allegations contained therein. To meet the requirement of the statute, it was necessary for the controverting plea to unmistakably allege that the party who swore to such plea made the petition a part thereof, and thereby swore to the essential facts embodied in the entire petition. The statement made by plaintiff in his controverting plea, wherein he refers to his original petition ‘for the purpose of showing that this is a civil libel suit,’ and that he was a resident of Taylor County ‘at the time of the accrual of said cause of action,’ is not a sufficient compliance with the rule to defeat the plea of privilege as prescribed by Article 2007. See also Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347; Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300.”

In that case the court in answering the question involved held:

“Article 2007, which provides that the controverting affidavit to a plea of privilege shall set out ‘specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending,’ as applicable to a ‘suit for damages for libel’ as provided for in Subdivision 29 of Article 1995, is not sufficiently complied with by allegations in the controverting affidavit that the action ‘is a civil libel suit’ and that plaintiff was a resident of the county in which the suit was filed ‘at the time of accrual of said cause of action’; and it is necessary, in order to comply with Article 2007, that said controverting affidavit, either directly or by reference to an adoption of allegations in plaintiff’s petition, allege as venue facts the essential elements of the alleged cause of action.”

See also Cogdell et al. v. Martin et al., Tex.Civ.App., 176 S.W.2d 982, where it is stated:

“The affidavit attached to the controverting plea, among other things, reads: ‘ * * * upon his oath says that the above and foregoing plea controverting the defendants’ plea of privilege is true in substance and in fact.’ Since the petition was made a part of the controverting affidavit, affiant swore to the whole plea. This is all that is required by the law.”

Appellant’s fourth point is overruled. We believe the appellee has sufficiently pleaded and shown facts that he had a cause of action and that the cause of action, or a part thereof, arose in Armstrong County. Judgment of the trial court is affirmed.


author: ARCHER, Chief Justice.

text:
    Rudolph A. SUPAK, Appellant, v. Jerry BAYER, Appellee.
    No. 10942.
    Court of Civil Appeals of Texas. Austin.
    March 7, 1962.
    Rehearing Denied March 28, 1962.
    John S. Simmang, Giddings, Richard Spinn, Brenham, for appellant.
    Charles C. Smith, Jr., Cameron, Walter M. Hilliard, Caldwell, for appellee.
   ARCHER, Chief Justice.

This case involves the location of a right of way easement. Rudolph A. Supak, plaintiff in the trial court, appellant on appeal, owner of the dominant tract of land containing 170 acres, brought suit against Jerry Bayer, owner of the servient tract, containing 30 acres. Title to both tracts are by deeds of the same date from Mrs. Lydia E. Bayer, widow of William Bayer, deceased, and her children, the appellant’s deed being also signed by appellee, Jerry Bayer, one of the children; the deed to Jerry Bayer being signed by Mrs. Lydia E. Bayer, his mother, and brothers and sisters.

In the deed to appellant, after describing the 170 acres, is the following: “Second tract: constitutes an easement or right of way over and across the Jerry Bayer 30 acre tract mentioned in the first tract herein-above described, to be used as an outlet from the William Bayer homestead to the public road.” In the deed to Jerry Bayer, appellee, after describing his 30 acres, is the following: “ * * * said tract of land being subject however, to an easement or right of way over and across the same to be used as an outlet from the William Bayer homestead to the public road.”

The 170 acres constituted William Bayer’s homestead and appellant alleged that when he purchased there was only one roadway from the William Bayer homestead across the 30 acres deeded to appellee, Jerry Bayer, that led to the public road, which he used for about two years when appellee plowed up and obstructed appellant’s use of same.

Appellant filed this suit seeking to have a formerly used right of way across appel-lee’s 30 acre tract located as same was located at the time the 170 acre tract was conveyed to him, or alternatively that the Court designate and locate a right of way from appellant’s land across appellee’s land to a public road.

The trial was begun with the aid of a jury, but at the conclusion of plaintiff’s testimony, on motion of defendant, the Court withdrew the case from the jury, denied plaintiff the right to use a way formerly used in going from the land now owned by appellant across appellee’s land to the public road, and designated a roadway tendered by defendant across the south end of defendant’s 30 acre tract which had been graded by the County Commissioner at defendant’s expense as a roadway to the public road.

The appeal is based on three points and are that the Court erred in withdrawing the case from the jury, denying plaintiff the use of the roadway formerly used, and requiring plaintiff to accept another roadway, because the testimony showed that only one right of way existed at the time of the sale of both the 170 acre tract and the 30 acre tract and that only one roadway existed from the 170 acres across the 30 acre tract to the county road.

The two tracts at one time constituted a 200 acre tract known as William Bayer homestead. Subsequent to the death of Mr. Bayer, his widow, Mrs. Lydia E. Bayer, and her children on April 2, 1957 conveyed the north 170 acres of the original tract to Rudolph A. Supak and in this deed is a recitation as follows:

“Second Tract: constitutes an easement or right of way over and across the Jerry Bayer 30 acre tract mentioned in the First Tract hereinabove described, to be used as an outlet from the William Bayer homestead to the public road.”

On April 2, 1957 Mrs. Bayer, joined by her children, other than Jerry Bayer, conveyed to Jerry Bayer a 30 acre tract of land and in the deed there is this recitation:

“Said tract of land being subject, however, to an easement or right of way over and across the same, to be used as an outlet from the William Bayer homestead to the public road.”

There is no question but that appellant is entitled to an easement to be used as an outlet from his land to the public road. In his petition plaintiff sought to have located the right of way in use when he purchased the land and described the roadway in general terms as 12 to 15 feet in width, beginning at a point in the Jerry Bayer 30 acre tract, where the end of the public road intersected the southwest line; thence N. 45 E. 160 varas to a turn in the traveled road; thence N. 55½ W. across the 30 acre tract to the division line.

The Trial Judge found that the road ran at a slightly different place from the recited courses and distances and failed to describe a road in a sufficient manner to identify its location and so the boundaries thereof could be ascertained with reasonable certainty.

We believe the Court was justified in withdrawing the case from the jury and in rendering judgment locating the easement for use as an outlet from appellant’s 170 acre tract across appellee’s 30 acre tract.

We are inserting in this opinion a map prepared by a surveyor showing the location of boundary lines of the 30 acre tract, its common boundary line with the 170 acre tract, the roadway formerly in use, and the roadway tendered by appellee Bayer as an outlet, being the easement for an outlet as ordered by the Court for appellant’s use.

The plaintiff having sought such as an alternative outlet and no question being raised as to the adequacy of the outlet as fixed by the Court, cannot be heard to complain. There is no contention that the outlet as fixed by the Court is not adequate and does not meet the need of appellant.

21 Tex.Jur.2d p. 187; Sassman v. Collins, Tex.Civ.App., 115 S.W. 337, error ref.; Cozby v. Armstrong, Tex.Civ.App., 191 S.W.2d 786; Holman v. Patterson, 34 Tex.Civ.App. 344, 78 S.W. 989, error ref.

The judgment of the Court is affirmed.


author: BELL, Chief Justice.

text:
    W. Howard LEE, Relator, v. Hedy Lamarr LEE et al., Respondents.
    No. 13973.
    Court of Civil Appeals of Texas. Houston.
    March 15, 1962.
    Butler, Billion, Rice & Cook, Jack Bin-ion, Fletcher H. Etheridge, Houston, for relator.
    Fred Parks and Donn C. Fullenweider, Houston, for respondents.
   BELL, Chief Justice.

This is an original proceeding for an injunction to restrain Respondents from taking certain depositions pending the disposition by this Court of the merits of the appeal in Cause No. 13968 pending in this Court. The appeal in that cause is from the action of the 133rd District Court in dissolving a temporary injunction that had theretofore been issued by the 113th District Court restraining the taking by Respondents of the depositions of Relator and others.

Relator and Respondent, Hedy Lamarr Lee, were divorced in Harris County. The judgment in the divorce suit has become final. Mrs. Lee, through her attorneys, in May of 1961, filed a statement pursuant to Rule 187, Texas Rules Civ.Proc., giving notice of her intention to apply for commissions to take the depositions of Relator, Mrs. Gene Tierney Lee, Relator’s wife, Gordon Edge, Donna Lee, James Stephens, Frank Knapp, Willard B. Shuart, Sylvia Hollis, William E. Stein, James B. Radetsky, Jack Okin, Annette Gillespie Phair and Mrs. Hedy Lamarr Lee. Relator filed suit asking that Respondents be enjoined from taking such depositions to perpetuate testimony to be used in a lawsuit Respondent Hedy Lamarr Lee anticipated filing. We need not here notice all the grounds set up but substantially the basis of the injunction suit was that the statement of Respondents as to the purpose of the depositions was not sufficiently made and that the statement was not made in good faith. As above stated, a temporary injunction was granted, but after Respondents had amended their statement pursuant to leave granted by the court, and after hearing on a motion to dissolve the temporary injunction, the injunction was dissolved. Relator appealed from such action and has perfected his appeal to this Court. He did not apply to the trial court for an order suspending the order of dissolution, which is authorized by Rule 385, T.R.C.P. and Article 4662, Vernon’s Ann.Civ.Tex.St.

After the order dissolving the temporary injunction, Respondents took out a commission to take the deposition of James Stephens

We are asked to enjoin Respondents from taking the depositions of the above named parties pending the disposition' of the appeal by the appellate courts on its merits in order to protect the jurisdiction of this Court to pass upon the merits.

We have jurisdiction to grant such writs as may be necessary to enforce or protect our jurisdiction over a pending appeal. Article 1823, V.A.T.S.; Lowe and Archer, Injunctions and Other Extraordinary Proceedings, Sec. 301, pp. 294-296; Weart v. Mahone, Tex.Civ.App., 176 S.W.2d 197, 204; Madison v. Martinez, Tex.Civ.App., 42 S W.2d 84, 86 (C.C.A.); Moore v. McLennan County, Tex.Civ.App., 275 S.W. 478, 479; and Gibbons v. Ross, Tex.Civ.App., 167 S.W. 17, 19.

The subject matter of the appeal in a temporary injunction proceeding is whether the trial court abused its discretion in granting or refusing a temporary injunction or in dissolving one previously granted. The sole relief sought in the court was an injunction to prevent the taking of depositions. If the depositions are taken pending appeal, the appeal will become moot. Corpus Christi Developers v. Chiles, Tex.Civ.App., 275 S.W.2d 700. The taking of the depositions will destroy the subject matter of the appeal. Lowe and Archer, Injunctions, etc., Sec. 301.

We cannot agree that there is anything in Rule 385, T.R.C.P. or Article 4662, V.A.T.S., requiring Relator to resort to the trial court for the suspension of his order where, as here, the purpose of in-junctive relief is to preserve the jurisdiction of this Court. Madison v. Martinez, supra.

Injunctions in situations the same in principle as we have here haye been granted in all of the cases first above cited by us in order to preserve the jurisdiction of the Court of Civil Appeals.

The cases cited by Respondents are deemed by us to be inapplicable. They were all cases where the petitioner sought an injunction solely to prevent damage to himself pending appeal. Of course, this Court in such situation could not grant such relief. Madison v. Martinez, supra.

The petition for the injunction as prayed for will be granted. Respondents and each of them are enjoined pending the decision by this Court of the merits of the appeal in Cause No. 13968, from taking the deposition of any of the parties named in the second paragraph of this opinion. The injunction will remain in full force and effect until such time as the Supreme Court of Texas should act on any application for writ of error that might be filed by such of the parties to the appeal as might be dissatisfied with the ruling we finally make on the merits. If no such application for writ of error is filed within the time prescribed by law, it shall remain in effect until our judgment on the merits of the appeal is carried into effect by the trial court.

We have not considered the merits of the appeal and nothing said by us should be construed as any indication as to our views on the merits of the appeal. The sole purpose of the injunction is to preserve our jurisdiction over the appeal.

No motion for rehearing will be entertained.


author: RENFRO, Justice.

text:
    D. C. HALL TRANSPORT, INC., et al., Appellants, v. J. L. HARD, Appellee
    No. 16299.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 23, 1962.
    Rehearing Denied March 23, 1962.
    Rawlings, Sayers, Scurlock & Eidson, and Nelson Scurlock, Fort Worth, for appellants.
    Barwise, Magoffin & Carrigan, Tilley, Hyder & Law and Thos. H. Law, Fort Worth, for appellee.
   RENFRO, Justice.

Plaintiff Hard brought suit against D. C. Hall and D. C. Hall Transport, Inc., for commission of $75,000 for procuring a buyer for certain motor freight properties.

The jury was asked: “Do you find from a preponderance of the evidence that defendant, D. C. Hall, agreed to pay plaintiff, J. L. Hard, a 5% commission if plaintiff would procure a buyer, upon terms satisfactory to defendant, for the Hall Motor Freight Lines properties, which are the subject of this law suit? Answer ‘yes’ or ‘no’.” The jury answered in the affirmative. In answer to issue two the jury found that Hard procured a buyer. The jury found $10,000 to be a reasonable attorney’s fee.

No exceptions were taken to the charge and no other issues were requested or submitted.

In a motion for judgment notwithstanding the verdict, defendants contended they were entitled to judgment as a matter of law because the sale involved real estate and capital stock, and that plaintiff was not a licensed real estate broker or salesman and was not licensed under the Securities Act.

The court sustained defendants’ motion and rendered judgment for defendants.

On appeal we reversed the trial court’s judgment and rendered judgment for the plaintiff. Hard v. Hall, Tex.Civ.App., 318 S.W.2d 108.

The Supreme Court in Hall v. Hard, Tex., 335 S.W.2d 584, said:

“Plaintiff’s cause of action was based upon one ground of recovery, to wit: the contract to pay him a commission for procuring a purchaser for the Hall properties. One of the elements of this ground of recovery, under the facts as they developed upon the trial, was whether or not the terminal leases were a part of such Hall properties. This question presents a fact issue. There being no request for a jury issue on this question, and therefore no jury finding, it was for the trial court to make a finding on this issue, upon proper request. Rule 279, Franki’s Vernon’s Annotated Rules of Civil Procedure. This court has no power to make findings of fact, but the trial court does possess such power. * * * The record in this case raised a fact issue as to whether or not the sale of the Hall properties consisted in part of the sale of securities as defined in the Securities Act. No issue was submitted nor requested on which a finding could have been made by the jury on this question. * * *' The trial court should also make a finding as to this issue, upon proper request. Based upon the trial court’s findings upon this issue, and upon the issue as to real estate being involved in the sale of the Hall properties, the Court will enter its judgment. * * * ” The Court concluded: “We therefore must remand the cause to the trial court with instructions to proceed with the disposition of the cause under Rule 279 just as though no judgment non obstante veredicto had been entered. Rodriguez v. Higginbotham-Bailey-Logan Co., Tex.Civ.App.1943, 172 S.W.2d 991, wr. ref.; Id., 138 Tex. 476, 160 S.W.2d 234.”

On September 15, 1960, the parties argued their respective motions for findings of fact. No evidence was offered by either party. On January 31, 1961, the court made the following findings: “1. I find that the employment contract entered into between the defendant Hall and the plaintiff Hard did not contemplate nor include the sale of real estate. 2. I find that the employment contract entered into between the defendant Hall and the plaintiff Hard did not contemplate nor include the sale of securities.”

On March 31, 1961, the above findings were incorporated in the court’s judgment wherein it rendered judgment for plaintiff for $85,000, to bear interest from the date of the original judgment non obstante.

This appeal is from the 1961 judgment.

In their brief defendants urge that:

“1. Since it appeared from the pleadings and the verdict that the plaintiff was a real estate broker as defined by the statute, was not licensed, and was endeavoring to recover for having obtained a listing and then find a purchaser of the ‘Hall Motor Freight Lines properties,’ a business enterprise, the court was required to enter a judgment on the verdict for the defendants, and it erred in failing and refusing to do so.

“2. The trial court erred in failing to render judgment for defendants because plaintiff is seeking to recover a commission for an act set out in Tex.Civ.Stat., Art. 6573a, Sec. 4(1) (k) (Vernon Supp.1956), having to do with the sale of business enterprises, without pleading and proving that he was licensed as a broker or salesman as required by Sec. 19 of the same statute.

“4. Since the plaintiff failed to plead and prove that he was licensed as a real estate broker, it was error for the trial court to award the plaintiff a commission of five percent of the consideration paid for the sale of the Hall properties, described in the contract dated October 29, 1955, which, as determined by the Supreme Court, included the terminal leases.

“5. Since the evidence is undisputed that the sale of the Hall properties, described in the contract dated October 29, 1955, was for one consideration which was not divisible and that such properties included certain real estate, namely, the terminal leases, it was error for the trial court to award plaintiff a commission of five percent of the entire amount.

“6. Since the plaintiff failed to plead and prove that he was licensed as a stock broker, it was error for the trial court to award plaintiff a commission of five percent of the consideration paid for the sale of all the Hall properties described in the contract dated October 29, 1955, which embraced capital stock of certain corporations.”

The evidence presented by Hard as to his contract with Hall and the contract between Hall and the buyer Braswell Motor Freight Lines is to be found in the two reported decisions heretofore cited.

The record, in so far as the evidence is concerned, is exactly the same now as it was on the former appeal. The Supreme Court held that fact issues were raised as to whether leases were included in the Hall properties and whether or not the Hall properties Hard was to sell consisted in part of securities. For those reasons the case was remanded to the trial court to make findings thereon and enter its judgment. If the defendants had been entitled to a judgment as a matter of law, as they contend in the above points of error, the Supreme Court would have so directed. There would have been no occasion for directing the trial court to make findings on the disputed issues and “enter its judgment”. Being of the opinion the herein-above points were necessarily held against defendants, we overrule said points of error.

Defendants contend the findings that plaintiff’s contract with Hall did not contemplate the finding of a purchaser for any real estate nor for any securities were contrary to the overwhelming weight and preponderance of the evidence.

Although Hard testified at one point that under his contract with Hall he was to sell everything involved in the Motor Freight Lines, he also testified he had nothing to do with the leases; the price at which Hall listed the properties for sale included only the Interstate Commerce Commission Certificate under which defendant operated his truck line, and the furniture and equipment used in the business, that his employment with Hall did not cover the sale of leases. Plaintiff’s testimony was corroborated by attorney Christopher, Braswell’s attorney. It was Christopher whom Hard contacted in regard to a proposed sale from Hall to Braswell. He testified Hard was attempting to get Braswell to buy all the operating certificates and all equipment used in connection with the operation.

The points are overruled.

Defendants contend that since the Hall-Braswell contract included leases it was error for the court to allow plaintiff five per cent commission on the entire amount; further that the sales price was less than $1,500,000 and the presumed finding of the trial court that the consideration received by Hall was the above amount is against the overwhelming weight and preponderance of the evidence.

• It is true that in the Hall-Braswell contract Braswell agreed to assume the terminal leases. The contract, however, does not show any consideration for such agreement.

In the Hall-Braswell agreement the properties conveyed were set out by items, and the contract provided that the reasonable market value of all the properties required to be transferred was $1,500,000. The leases were not mentioned as one of the properties required to be conveyed.

The jury was entitled to find that the total purchase price was for the things Hall agreed for Hard to sell, which, as the trial court has found, did not include the leases.

Hall-Braswell agreed that the price to be paid by Braswell would be reduced by percentage until consummation of the sale. Hall, however, continued to use the properties until the transfer was made final. The loss of dollars to Hall was made up by the continued use of the properties. We agree with plaintiff that the evidence supports the finding that the amount of commission earned by plaintiff was on the agreed Hall-Braswell price of $1,500,000.

We overrule defendants’ contention that the court erred in the judgment of March, 1961, in awarding interest from March 13, 1958, the date of the judgment non obstante.

It is to be remembered the Supreme Court did not remand for a new trial. The case was remanded with directions to the trial court to make certain findings, on the evidence adduced at the original trial, and enter judgment in accordance with such findings. In effect the 1961 judgment was the judgment which should have been rendered on March 13, 1958, when the non obstante judgment was rendered. Since the judgment non obstante was erroneous, and the 1961 judgment took its place, plaintiff was entitled to interest from the date of the erroneous judgment. Smith v. American Fire & Casualty Co., Tex.Civ.App., 242 S. W.2d 448.

We also overrule defendants’ point of error which is based on the argument that the court had no authority to act in the matter on March 31, 1961, because that date was two months after the “next term” of court following the July, 1960, term in which the case was taken up before the court following the receipt of the Supreme Court mandate. The term had been properly extended to February 1, 1961. The court had authority by virtue of amended Rule 330(j), which became effective January 1, 1961, to further extend the time for entry of judgment.

All points of error are overruled and the judgment of the trial court is affirmed.

Affirmed.


author: WALTER, Justice.

text:
    James COATES, Appellant, v. Morgan COATES, Appellee.
    No. 3653.
    Court of Civil Appeals of Texas. Eastland.
    March 2, 1962.

      George T. Thomas, Big Spring, for appellant.
    Pat Beene, Ivanhoe, for appellee.
   WALTER, Justice.

This is an injunction case. Morgan Coates was granted an injunction against James Coates enjoining and restraining him from “going about or near or in any way intimidating or bothering the said Morgan Coates and he is further restrained and enjoined from interfering, changing or molesting the natural flow of the water as it existed upon the 9th day of February and from any way changing it from entering upon or across plaintiff’s land. The Court further enjoins the said defendant, James Coates, from entering upon the lands of the said plaintiff, Morgan Coates, except that he is hereby permitted to enter upon Morgan Coates’ lands so as to go down or travel upon the road leading toward Morgan Coates’ house, and in this connection he is restrained and enjoined from traveling upon such road any further than to a point 300 yards from Plaintiff’s house.”

James Coates had appealed, contending the court erred in enjoining him because there was no evidence to support the judgment and the injunction is so vague and indefinite in its terms as to be unenforceable.

Appellee has not filed a brief and did not avail himself of oral argument. He has not challenged in any manner the statements in appellant’s brief relative to the facts and the record. The Court of Civil Appeals must assume as true all facts stated by appellant in his brief and render judgment in conformity therewith. Rule 419, Texas Rules Civil Procedure; Gonzales v. Gonzales, Tex.Civ.App., 224 S.W.2d 520 (Writ Ref.).

Mrs. Ruth Coates was divorced from Morgan Coates in 1958. They owned a ranch in Borden County and each party was awarded approximately an equal number of acres. The home place is located on the property awarded to Morgan Coates and a tank is located on the property awarded to Mrs. Coates. Mr. Coates was awarded the right to pump water from the tank for domestic use.

A road on the section line between the tract upon which the house is located and the tract upon which the tank is located is one of the causes of this litigation. The extent to which the road is on Morgan Coates’ land and Ruth Coates’ land is disputed. The county built the road long before the divorce was granted. Morgan Coates claims the road is on his land. He testified he had the land surveyed recently and was going to have it surveyed again because the first surveyor “lacked 3 feet and 9 inches going further enough east at my southeast corner.” The road provides access to the home place and also to the adjoining tract where the tank is located. James Coates is the son of Morgan and Ruth Coates and works Mrs. Coates’ land on a share basis.

Morgan Coates testified substantially as follows: that he was under a doctor’s care; that all he was asking was that people didn’t bother him because of his health; that he had doctor’s orders for people not to bother him; that he was asking the court to instruct the appellant to refrain from coming about him or around his land because of his health.

James Coates testified substantially as follows: that he hadn’t been to Morgan Coates’ house since the divorce and had no intention of going there; that he had not directly or through any other person threatened Morgan Coates in any manner; that he had not molested Morgan Coates and had no intention of doing so. When asked the question, “Then, why do you object to being restrained from going around him or bothering him? ”, he answered “I haven’t bothered him. * * * I am not guilty, Sir. I don't bother him. I tend to my own business.” Appellee’s pleadings do not describe his land other than to assert he owns certain lands in Borden County, Texas. The order is even more indefinite than the petition, in that, it refers only to “plaintiff’s land” and “lands of the said plaintiff, Morgan Coates.”

Rule 683, T.R.C.P., provides as follow!

“Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agent, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.”

Our Supreme Court in San Antonio Bar Association v. Guardian Abstract & Title Company, 156 Tex. 7, 291 S.W.2d 697, at page 702, said:

“ ‘ * * * that an injunction decree must be as definite, clear and precise as possible and when practicable it should inform the defendant of the acts he is restrained from doing, without calling on him for inferences or conclusions about which persons might well differ and without leaving anything for further hearing.’ Villalobos v. Holguin, 146 Tex. 474, 208 S.W.2d 871, 875.”

“Not only must the threatened act be one which if committed will work a legal injury. Some danger must portend. There must be a well-grounded probability of an injury that is imminent, an emergency, not merely a fear or apprehension that wrong will be done. A mere possibility of injury, then, will not warrant an injunction. And the relief will be denied where injury is purely conjectural, where the wrongful act is only temporary in character and conditions will be restored within a reasonable time without injury, or where it is sought to allay fears of individuals which exist without substantial reason. These rules are embodied in the statute which authorizes injunction in cases where the applicant is entitled to the relief demanded and the relief requires the restraint of a prejudicial act. The word ‘requires’ is mandatory in its significance, meaning ‘to have imperative need of.’ Accordingly, the writ should be denied if the evidence shows no intention on the part of the defendant to do the thing sought to be enjoined.” 24A Tex. Jur., Section 24, page 51.

Measured by Rule 683 and the authorities above cited, we hold there is no evidence to support the judgment in so far as it restrains James Coates from “going about or near or in any way intimidating or bothering the said Morgan Coates.” The remainder of the judgment is not specific in its terms and does not describe in reasonable detail the acts sought to be restrained. It appears that the case was not fully developed and the ends of justice will best be subserved by remanding the case.

The judgment is therefore reversed and remanded.


text:
    The CITY OF HOUSTON et al., Appellants, v. Billy S. TURNER et al., Appellees.
    No. 13911.
    Court of Civil Appeals of Texas. Houston.
    March 8, 1962.
    R. H. Burks, City Atty., Charles A. East-erling, Senior Asst. City Atty., Houston, for appellants.
    Charles E. Heidingsfélder, Jr., Houston, for appellees.
   BELL, Chief Justice.

Appellees, Billy S. Turner and Wallace E. Crowder, were and are police officers of the City of Houston. On February 22, 1961, they were indefinitely suspended from their position as police officers. It is not necessary for purposes of this appeal to notice the rule infractions charged against them. Each appellee appealed to the Civil Service Commission and after a hearing that body entered the following order in each case:

“On this the 13th day of March 1961, the Commission considered the evidence heard in the matter of the appeal of -from an order of indefinite suspension as Detective, Police Department, City of Houston, Houston, Texas. From all the facts presented to this honorable body, the Commission is of the opinion and finds that the evidence was not sufficient for an indefinite suspension, and instead assesses a temporary suspension of 60 days, effective February 22, 1961 through April 22, 1961.
“It is, therefore considered by the Commission and so ordered that the ap- : peal of - be sustained and that-be reinstated on April 23, 1961, as a Detective in the Police Department, with a base pay of $457.-00 per month, plus longevity, and that he serve a probationary period of one year in this classification. If, within the one year probationary period, it becomes necessary for the Chief of the Police Department to discipline --in any way, then the indefinite suspension will automatically become effective.”

Each appellee filed suit in the District Court, seeking to set aside the order and seeking recovery of 60 days’ salary. The orders were attacked on the ground there was no substantial evidence to support them and because the Commission had no jurisdiction to assess the probationary sentence contained in the last paragraph of the above-quoted order.

The trial court held the order null and void and entered a money judgment in favor of each appellee for 60 days’ salary. The basis of the court’s action holding the order void is not stated. We have no statement of facts before us.

Appellant has asserted several points of error. We need notice only the assertion that the trial court was without jurisdiction because there was no final order entered by the Commission. We sustain this point.

The appeal to the courts is limited to a final order of the Civil Service Commission'. Allen v. Crane, Tex.Civ.App., 257 SW.2d 357, ref., n. r. e. To be a final order there must be nothing left open for disposition. Where some right is made contingent upon the occurrence of some future event, the order is not final. Allen v. Crane, supra.

Here the order provides that if within one year any disciplinary action becomes necessary, then the indefinite suspension will automatically become effective. The presence of such a provision leaves something to be determined in the future.

Appellees urge that fixing a probationary period is beyond the power of the Commission. Appellants seem to concede as much. This may be true but the presence in the order as entered by the Commission of the provision that if any disciplinary action is necessary within one year the indefinite suspension given in this case by the Chief of Police shall automatically become effective amounts to a failure to finally and definitely set aside the indefinite suspension. For all we know, a 60 day suspension assessed may have been dependent on the authority of the Commission to fix a period of probation.

The judgment of the trial court is reversed with directions to enter a judgment dismissing the appeál for want of jurisdiction. Appellees may obtain a final order from the Commission and may then institute their appeal if they so desire.