text:
    HUMBLE OIL & REFINING CO., Petitioner, v. Robert S. CALVERT et al., Respondents.
    No. A-11574.
    Supreme Court of Texas.
    March 15, 1967.
    Rehearing Denied May 3, 1967.

      McGinnis, Lochridge, Kilgore, Hunter & Wilson, Lloyd Lochridge, Austin, Dillard Baker, Walter B. Morgan and Craig L. Vollmar, Houston, for petitioner.
    Crawford C. Martin, Atty. Gen., Kerns B. Taylor, Asst. Atty. Gen., Don Bishop, Austin, for respondents.
   POPE, Justice.

Humble Oil & Refining Co., a Delaware Corporation, with its principal place of business in Houston, Texas, sued the State Comptroller, Robert S. Calvert, and other proper officials, to recover certain franchise taxes paid under protest for 1963. Both Humble and the Comptroller filed motions for summary judgment. The trial court sustained Humble’s motion and rendered judgment that it recover the sum of $69,921.00. The court of civil appeals reversed that judgment. 404 S.W.2d 147. We reverse the court of civil appeals’ judgment and affirm that of the trial court.

The question presented is whether the Legislature, by enacting art. 12.02, Title 122a, Tax.-Gen., V.C.S. in 1959, intended to change the corporate franchise tax allocation formula with respect to receipts from intangibles. Humble contends that from 1917 to 1963, in calculating its franchise tax, it did not include the interest and dividends it received from corporations and other entities located outside of Texas as part of its business done in this state. This practice, Humble says, was consistent with the Comptroller’s long-standing construction of the ambiguous phrase, “business done in Texas,” contained originally in art. 7084, V.C.S. Humble argues that since this same phrase appears without definition in the present franchise tax statute, art. 12.02 which replaced art. 7084, it is apparent that the Legislature had no intention of rejecting its well-established meaning and adopting or authorizing a new one. Comptroller concedes that prior to 1959, receipts from intangibles were allocated by what we shall refer to as the location of payor test, and that under that test, the dividends and interest paid to Humble by out-of-state payors would not be included as business done in Texas. However, Comptroller contends that art. 12.02 not only codified art. 7084 but also amended it. By doing this, Comptroller argues that the Legislature manifested an intent to abandon the location of payor test and adopt the commercial domicile and business situs tests under which all of Humble’s receipts from intangibles would be treated as part of its business done in Texas.

Prior to 1959, Texas’ basic franchise tax allocation formula was found in art. 7084. This article provided:

“ * * * every domestic and foreign corporation heretofore or hereafter chartered or authorized to do business in Texas, or doing business in Texas, shall * * * pay * * * a franchise tax * * * based upon that proportion of the outstanding capital stock, surplus and undivided profits, plus the amount of outstanding bonds, notes and debentures * * * as the gross receipts from its business done in Texas bears to the total gross receipts of the corporation from its entire business, * *

The Legislature, however, did not state what receipts were to be included as “business done in Texas.” To cure this omission, the administrators of the franchise tax adopted the location of payor test. Under this test only receipts from intangibles paid by a payor located in Texas were considered a part of the corporate taxpayer’s “business done in Texas.” Receipts from intangibles paid to a corporation by an out-of-state payor were not included within the meaning of “business done in Texas.” The location of payor test was consistently applied by the Comptroller in assessing franchise taxes until 1963.

In 1959, the Legislature recodified the tax laws. Acts 56th Legislature, 3rd C.S., p. 187, ch. 1 (1959). Article 7084 was reenacted as art. 12.02 in the recodification. The only difference between art. 7084 and art. 12.02 is the addition of four subsections which specifically allocate certain items to business done in Texas. Article 12.02 provides:

“Each corporation liable for payment of a franchise tax shall determine the portion of its entire capital taxable by the State of Texas by multiplying same by an allocation percentage which shall be the percentage relationship which the gross receipts from its business done in Texas bear to the total gross receipts of the corporation from its entire business.
“For the purpose of this Article, the term ‘gross receipts from its business done, in Texas’ shall include:
“(a) Sales of tangible personal property located within Texas at the time of the receipt of or appropriation to the orders where shipment is made to points within this State,
“(b) Services performed within Texas,
“(c) Rentals from property situated, and royalties from the use of patents or copyrights, within Texas, and
“(d) All other business receipts within Texas.
“For the purpose of this Article, the term ‘total gross receipts of the corporation from its entire business’ shall include all of the proceeds of all sales of the corporation’s tangible personal property, all receipts from services, all rentals, all royalties and all other business receipts, whether within or outside of Texas. Acts 1959, 56th Leg. 3rd C.S. p. 187, ch. 1.”

Four years later, in 1963, the Comptroller, by reason of the four subsections of art. 12.02, determined that the location of payor test was no longer applicable and that he was authorized to adopt and apply the commercial domicile and business situs tests in allocating receipts from intangibles.

Before determining whether the language of art. 12.02 can bear the Comptroller’s interpretation it is necessary to discuss briefly the various tests applied by taxing authorities to fix the tax situs of an intangible receipt. The four tests that are relevant to the present case are the cj-ni-ion law or mobilia test, location of payor test, business situs test, and commercial domicile test.

The common law adopted the ancient Roman maxim “mobilia sequuntur per-sonam” which taught that movables follow the person. Under mobilia, the courts indulge the fiction that intangibles are associated with the person of the owner and that situs is at the domicile of the owner. The rule was helpful in fixing the situs of intangibles which lack physical characteristics, are represented by paper evidences such as notes and stock certificates, and are mere evidences of enforceable relationships between persons. United Gas Corporation v. Fontenot, 241 La. 488, 129 So. 2d 748 (1961). The rule developed when corporate operations were simple and when incorporation usually occurred in the state where the corporation intended to do its business and where it received its protection from the government. Southern Pacific Co. v. McColgan, 68 Cal.App.2d 48, 156 P.2d 81 (1945). Under this rule all of a corporation’s receipts from intangibles have their location at its legal domicile, the state of incorporation. Newark Fire Ins. Co. v. State Board of Tax Appeals, 307 U.S. 313, 59 S.Ct. 918, 83 L.Ed. 1312 (1939); Farmers Loan & T. Co. v. State of Minnesota, 280 U.S. 204, 50 S.Ct. 98, 74 L.Ed. 371 (1930); Altman & Keesling, Allocation of Income in State Taxation, 34-35, 62, 75 (2d ed. 1950); 51 Am.Jur. Taxation § 463 (1944); 143 A.L.R. 361 (1943); 76 A.L.R. 806 (1932).

“Thus, even though the state of the domicile of the owner of such property confines its tax to income from sources therein, individuals and corporations domiciled in such state may be required to include interest and dividends in computing their taxable income on the theory that such income is derived from sources in the taxing state.” Altman & Keesling, supra at 75.

Prior to 1963, Texas taxing authorities treated a corporation as a Texas corporation if its legal domicile was in Texas and as a foreign corporation if its legal domicile was in another state. Humble’s legal domicile is Delaware, and it is conceded that, if mobilia applies, the receipts from dividends and interest in question would not be allocated to Humble’s business done in Texas.

“Location of payor” is an exception to mobilia. About forty years ago it was adopted as the Texas rule for determining which receipts from intangibles should be allocated to Texas. A number of states have followed this test. Curry v. McCanless, 307 U.S. 357, 59 S.Ct. 900, 83 L.Ed. 1339 (1938); Consolidated Title Corp. v. District of Columbia, 107 U.S.App.D.C. 221, 275 F.2d 885 (1960); John Hancock Mutual Life Ins. Co. v. Neill, 79 Idaho 385, 319 P.2d 195 (1957); Union Electric Co. v. Morris, 359 Mo. 564, 222 S.W.2d 767 (1949); Petition of Union Electric Co., 349 Mo. 73, 161 S.W.2d 968, 143 A.L.R. 141 (1942) ; Union Electric Co. v. Coale, 347 Mo. 175, 146 S.W.2d 631 (1941); Montana Life Ins. Co. v. Shannon, 106 Mont. 500, 78 P.2d 946 (1938); Annot., 11 A.L.R.2d 323 (1950). Under it the domicile of the debtor or payor in the case of interest and the declaring corporation in the case of dividends is regarded as the location of the business receipt without regard to the domicile of the payee. Beamon, Paying Taxes to Other States, ch. 4, p. 18 (1963).

Texas taxing authorities, from 1917 until 1963 used the location of payor test in allocating receipts from intangibles to a corporation’s business done in Texas. Under this test receipts of interest and dividends were included in the numerator of the franchise tax as a part of the business done in Texas if the payor was a Texas corporation or payor. Receipts from a foreign corporation or payor were not treated as business done in Texas. Humble’s argument is that art. 12.02 did not disturb that long-standing method of allocating receipts.

“Business situs” is another exception to mobilia that has been employed in some states to allocate receipts between states. Instead of locating the payee or payor it locates the place where the intangible property is actually “employed as capital * * * or if the possession and control of the property has been localized in connection with a business, trade or profession in the state so that its substantial use and value attach to and become an asset of the business, trade or profession in the state.” Altman & Keesling, supra at 77. Under this rule a corporation such as Humble, would allocate to business done in Texas those receipts which it derives from intangibles that have become an integral part of its local business connected within Texas. 1943 Wis.L.Rev. 371. The rule is justified because of the governmental protection and benefits which the state of the situs accords to the taxpayer’s property within the state. Guaranty Trust Co. of New York v. Commonwealth of Virginia, 305 U.S. 19, 59 S.Ct. 1, 83 L.Ed. 16 (1938); People of State of New York ex rel. Whitney v. Graves, 299 U.S. 366, 57 S.Ct. 237, 81 L. Ed. 285 (1937); Liverpool & London & Globe Ins. Co. of New York v. Board of Assessors, 221 U.S. 346, 31 S.Ct. 550, 55 L.Ed. 762 (1911); City of New Orleans v. Stempel, 175 U.S. 309, 20 S.Ct. 110, 44 L. Ed. 174 (1899); Smith v. Ajax Pipe Line Co., 87 F.2d 567 (8th Cir. 1937); 75 Harv. L.Rev. 953, 1006 (1962); 1943 Wis.L.Rev. 371.

The business situs rule has been used as an exception both to the mobilia and the commercial domicile tests. It has not been used in Texas as a test for franchise tax purposes, but it has been employed for other purposes. Texas Land & Cattle Co. v. City of Fort Worth, 73 S.W.2d 860 (Tex.Civ.App.1934, writ ref.); Jesse French Piano & Organ Co. v. City of Dallas, 61 S.W. 942 (Tex.Civ.App.1901, writ ref.). The Comptroller says that art. 12.02 adopted the business situs test. Humble urges that, in the event we hold that art. 12.02 adopted the commercial domicile test, we should hold that the article also adopted the business situs as an exception. Humble says that the greater portion of the intangibles Li question have a business situs outside of Texas, and that receipts from those sources should not be allocated to its Texas business.

The “commercial domicile” test affords still another exception to mobilia. A corporation’s commercial domicile is “where the principal place of business is located and from which the corporation’s activities function and are managed.” United Gas Corporation v. Fontenot, supra; 75 Harv.L.Rev. 953, 1005 (1952). The commercial domicile concept was first employed in tax cases by the United States Supreme Court in Wheeling Steel Corporation v. Fox, 298 U.S. 193, 56 S.Ct. 773, 80 L.Ed. 1143 (1936). Wheeling Steel, a Delaware corporation, was actually managed and controlled from its main offices in West Virginia and for that reason the court held:

“The corporation established in West Virginia what has aptly been termed a ‘commercial domicile.’ It maintains its general business offices at Wheeling and there it keeps its books and accounting records. There its directors hold their meetings and its officers conduct the affairs of the corporation. There * * * ‘the management functioned’. * * * The corporation has made that the actual seat of its corporate government.” (Emphasis added).

The rule allows the state in which a corporation has its commercial domicile to base a tax upon income from all of the corporation’s intangibles which have not established an independent business situs elsewhere. First Bank Stock Corporation v. State of Minnesota, 301 U.S. 234, 57 S.Ct. 677, 81 L.Ed. 1061 (1937); Wheeling Steel Corporation v. Fox, supra; Southern Pacific Co. v. McColgan, supra; Udylite Corp. v. Michigan Corp., 319 Mich. 1, 29 N.W.2d 132 (1947) ; In re Wheeling Steel Corp. Assessment, 115 W.Va. 553, 177 S.E. 535, 104 A.L.R. 802 (1934); Altman & Keesling, Allocation of Income in State Taxation, 33-34, 61-66 (2d ed. 1950); Ramsey, New Theory of Corporate Domicile for Tax Purposes, 23 Am.Bar Ass’n Journal 543 (1937); Federal Limitations on State Taxation of Interstate Business, 75 Harv.L.Rev. 953, 1005-1006 (1952); 35 Mich.L.Rev. 1032 (1937).

Commercial domicile was not adopted in Texas as the test in allocating receipts to business done in Texas under old art. 7084. The Comptroller first asserted it as the correct test in 1963. If art. 12.02 adopted this doctrme, the Comptroller properly included all of the receipts from the intangibles involved in this suit in the numerator of the tax formula as business done in Texas, because Humble’s commercial domicile is in Texas.

Section 3 of Title 122a enacted at the time of the codification of the taxation statutes stated the standard of clarity required for legislative authorization of changes in the law. In our opinion the change of tests insisted upon by the Comptroller, are not consistent with the requirements of that section which provides:

“This Act shall be construed to make a substantive change in the prior law only where the language of this Act manifests a clear intent to make such a change.” Acts 1959, 56th Leg.3rd C.S. p. 187, ch. 1.

The Comptroller relies upon the words of subsection (d) of art. 12.02 as the clear authorization for the asserted change. Those words, after listing certain specific allocations, are “All other business receipts within Texas.” The statute nowhere explains or defines the ambiguous term, “business done in Texas.” The Comptroller, however, finds in subsection (d) a clear legislative intent (1) to abandon the common law rule of mobilia and (2) the departmentally approved location of payor test, (3) the adoption of the new business situs and the (4) commercial situs tests. In our opinion, the Comptroller reads too many far reaching concepts into an ambiguous subsection.

The Comptroller recognizes the difficulty presented by the absence of statutory language about commercial domicile and business situs. He attempts to meet the problem by arguing that, while the statute did not mention either one, it did indicate an intention to adopt a new test. Since the statute failed to show what the new test was to be, Comptroller argues that he is free to look to the common law to find it. When he looks there, however, he is confronted by the common law rule of mobilia. The Comptroller rejects mobilia, and, therefore, looks outside the statute and outside the common law to the commercial domicile and business situs tests. Section 3, supra, forbids the Comptroller to look anywhere except “the language of this Act,” and any change must there be manifested clearly. The Comptroller’s argument demonstrates that the asserted changes can not be found at the only place that they must be found,

The assessment of franchise taxes by the application of the commercial domicile and business situs doctrines must, as section 3 requires, be authorized by the statutes. States which have adopted either business situs or commercial domicile in franchise tax problems have done so, as in Wheeling, supra, by statutory enactment. United Gas Corp. v. Fontenot, 241 La. 564, 129 So.2d 776 (1961); Southern Pacific Co. v. McColgan, supra; In re Dodge Brothers, Inc., 241 Mich. 665, 217 N.W. 777 (1928); In re Pantlind Hotel Co., 232 Mich. 330, 205 N.W. 99, 49 A.L.R. 1291 (1925); Chestnut Securities Co. v. Oklahoma Tax Commission, 173 Okl. 369, 48 P.2d 817 (1935). In Fontenot, supra, the Supreme Court of Louisiana refused to read the commercial domicile doctrine into a statute saying:

“[cjlearly, our franchise tax law contains no language indicating an intent to abrogate the traditional general rule that intangibles owned by a foreign corporation have their situs at the legal domicile of such owner, except insofar as their use in Louisiana operations would give them a business situs in this state. It does not in any manner provide for the allocation of assets to a state in which the corporation has a commercial domicile, as does our income tax law. * * * ”

In the above cases the statutes which have adopted the doctrines have consistently used such terms as “commercial domicile,” “principal place of business,” “business si-tus” “receipts from the use of property with a situs in” a named state, “intangibles used as an integral part of business conducted in” a named state, or some other definitive language. Article 12.02 is barren of such terminology.

To support his contention that the language of art. 12.02, particularly subsection (d), encompasses the commercial domicile and business situs tests, the Comptroller relies on Udylite Corp. v. Michigan Corp., 319 Mich. 1, 29 N.W.2d 132 (1947), and J. M. & M. S. Browning Co. v. State Tax Comm., 107 Utah 457, 154 P.2d 993 (1945). Neither of these cases is applicable to the issue involved in the present case. In Udy-lite, supra, the court’s decision was based on the construction of an amendment to the Michigan franchise tax statute which had been passed for the specific purpose of recognizing the concept of commercial domicile. Prior to the amendment’s passage, the Supreme Court of Michigan had on two occasions refused to apply the commercial domicile test in the absence of specific statutory authority. In re Dodge Brothers, Inc., 241 Mich. 665, 217 N.W. 777 (1928) and In re Pantlind Hotel Co., 232 Mich. 330, 205 N.W. 99, 49 A.L.R. 1291 (1925). This amendment contained language such as “such property shall be considered to be located * * * in this state * * * If used in or acquired from the conduct of its business in this state, irrespective of the domicile of the corporation.” No such language is employed in art. 12.02. The Supreme Court of Utah in J. M. & M. S. Browning Co., supra, held that “business done,” as used in Utah franchise tax statute, included the receipts from intangibles received by a corporation from out-of-state sources. 7. M. & M. S. Browning Co., supra however, differs from the present case in that the Utah court was not confronted with a long-standing administrative interpretation of “business done.” Like Udylite Corp., J. M. & M. S. Browning Co., supra, has no bearing on whether art. 12.02 manifests a clear intent to change the prior law.

Nothing in the legislative history of art. 12.02 suggests any intent to change the administrative construction of art. 7084 or art. 12.02. In 1959 the Legislature examined and codified all of the taxation statutes. In 1959 the governor recommended that the 56th Legislature adopt á three-factor formula (gross receipts, pay roll, property) for the franchise tax instead of the single factor, gross receipts. 56th Leg.Reg.Sess., S. Jr. pp. 35-37. There were three called sessions, and at each of them, the governor urged departure from the one-factor formula. The codification was effected during the third called session but the single-factor formula was unchanged. The governor spoke of the single-factor formula as “the outmoded local receipts formula.” 56th Leg.Reg.Sess., H. Jr. p. 695. In 1961, the governor proposed that the Legislature adopt a two-factor formula (property and gross receipts). He explained the single-factor formula in the same way he had two years earlier. He said that foreign corporations “pay only on that percentage of their capital, debt, etc., that their receipts from sales in Texas bear to their receipts from outside the State.” 57th Leg.Reg. Sess., H. Jr. pp. 64, 65-66. Through all these sessions the problem confronted by the Legislature was whether the one factor “local receipts” formula should be replaced by a three-factor or a two-factor formula. The Legislature did not address itself to the changes that the Comptroller now says were made. The concepts of commercial domicile and business situs were never mentioned in the many bills introduced during the 56th and 57th Legislatures.

In view of the language and legislative history of art. 12.02, it is our opinion that the 56th and 57th Legislatures did not intend to reject the location of payor test but through the doctrine of legislative acceptance made it a part of the present law. A statute of doubtful meaning that has been construed by the proper administrative officers, when re-enacted without any substantial change in verbiage, will ordinarily receive the same construction. Texas Employers’ Ins. Ass’n v. Holmes, 145 Tex. 158, 196 S.W.2d 390 (1946); Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269, 153 A.L.R. 1054 (1944); Federal Crude Oil Co. v. Yount-Lee Oil Co., 122 Tex. 21, 52 S.W.2d 56 (1932); Franklin Fire Ins. Co. v. Hall, 112 Tex. 332, 247 S.W. 822 (1923); Heaton v. Bristol, 317 S.W.2d 86 (Tex.Civ.App. 1958, writ ref.), cert. denied, 359 U.S. 230, 79 S.Ct. 802, 3 L.Ed.2d 765; Flowers v. Pan American Refining Corporation, 154 S.W.2d 782 (Tex.Civ.App.1941, writ ref.) ; Clark v. Atlantic Pipe Line Co., 134 S.W. 2d 322 (Tex.Civ.App.1939, writ ref.).

The phrase “business done in Texas” in both old article 7084 and the recodi-fied article 12.02 is ambiguous. From 1917 until 1963 receipts from intangibles were consistently allocated to states under the location of payor test. The domicile of corporations was determined by the common law mobilia rule. The franchise tax statutes were re-enacted six times before 1959, were recodified in that year, and were amended and re-enacted again in 1961. For four years after the seventh re-enactment in 1959 the Comptroller administratively applied the same test applied before 1959. The franchise tax report forms distributed by his office showed that dividends should continue to be reported as those received from “Texas Corporations” and those received from “All Corporations.” See Huey & Philip Hardware Co. v. Shepperd, 151 Tex. 462, 251 S.W.2d 515 (1952). In 1961 the Legislature made amendments to the franchise tax law. Acts 1961, 57th Leg., 1st C.S., p. 71, ch. 24, art. 11. It again considered the franchise tax laws in 1962 and 1963. Up to that time neither the Comptroller nor the Legislature apparently entertained any idea that the long-standing departmental construction had been changed in 1959. It was four years after the 1959 codification that the Comptroller changed the franchise tax forms and accompanied them with instructions to include in the numerator of the formula “all dividends and interest received by a corporation whose principal business management is located in the State of Texas.” The departmental construction of the ambiguous statute was of such long-standing that it should not be changed in the absence of clear statutory authorization.

The Comptroller argues that the inclusion of four new subsections in art. 12.-02 were additions to and revisions of old art. 7084. We regard them as a codification of long-standing departmental practices. Subsection (a) allocated receipts from sales of tangible personal property within Texas, subsection (b) allocated receipts from services performed within Texas, subsection (c) allocated receipts from rentals of property situated within Texas and royalties from patents and copyrights used within Texas, and subsection (d) allocated all other business receipts within Texas. Subsections (a), (b), and (c) show that the act done or the property producing the income must be located in Texas. It was the localization of the transaction in Texas and not the place of physical handing over or receiving of money that was significant. We do not understand the Comptroller contends otherwise. Subsection (d) logically meant all other business receipts of the same kind. It meant what it had always meant — local receipts, those that had their source in Texas and were paid by a Texas payor.

For the several reasons stated, art. 12.02 did not operate to change the departmental construction of art. 7084 with respect to the allocation of receipts from intangibles to a corporation’s business done in Texas. We reverse the judgment of the court of civil appeals and affirm that of the district court.

STEAKLEY, J., not sitting in this case.

      . Gross receipts from business done in Texas - X Taxable capital X Tax rate Gross receipts from entire business

      . Arizona: “ * * * shall be allocated to the state in which the taxpayer has its principal place of business or commercial domicile.” 13 Ariz.Rev.St.Ann. § 43-135 (g) (1956).
      “Income derived from or attributable to sources within this state includes income from tangible or intangible property located or having a situs in this state * * 13 Ariz.Rev.St.Ann. § 43 — 101 (aa).

        California: “Income of nonresidents from stocks, bonds, notes, or other intangible personal property is not income from sources within this State unless the property has acquired a business situs in this State, * * Cal.Rev. & Tax Code Ann. § 17952 (1958).
      Colorado: “Income from sources within Colorado includes income from tangible or intangible property located or having situs in this state * * 7 Colo.Rev. Stats., 1963, ch. 138-1-35 (Oum.Supp. 1966).

        Connecticut: See Footnote 3.

        Idaho: “The term ‘business situs’ shall include or be constituted by the owning or operating of business facilities or property or conducting business or farming operations, including soliciting business, within the state of Idaho, working for salary or wages, * * * provided, however, the receipt of income derived solely from interest and/or dividends from sources within the state of Idaho is expressly declared to be insufficient to establish business situs unless coupled with one or more of the qualifications hereinbefore set forth.” 10 Idaho Code Ann. § 63-3023 (Supp.1965).
      Louisiana: “Other interest and dividends shall be attributed to the state in which the securities or credits producing such revenue have their situs, which shall be at the business situs of such securities or credits, if they have been so used in connection with the taxpayer’s business as to acquire a business situs, or in the absence of such a business situs shall be at the commercial domicile of the corporation.” 25 La.Rev.Stats.Ann. § 47-606 (Supp.1965).

        Mississippi: “Income from intangible property of any kind or nature, if the evidence of ownership has acquired a business, commercial, or actual situs in this state; * * 7 Miss.Code § 9220-12 (1984).

      . California: “ ‘Commercial domicile’ means the principal place from which the trade or business of the taxpayer is directed or managed.” Cal.Rev. & Tax. Code Ann. Sec. 25120 (Supp.1966).
      “Interest and dividends are allocable to this state if the taxpayer’s commercial domicile is in this state.” CahRev. & Tax.Code Ann. § 25126. Colorado: “Dividends received, and gains and losses realized from the sale of corporate stocks, less related expenses shall be allocated to the state in which the principal place of business of the corporation is located.” 7 Colo.Rev. Stat., 1963, ch. 138-1-37.

        Connecticut: “For the purposes of this section, the intangible assets of a company having its principal place of business within the state shall be deemed to have a tax situs within the state unless it can he clearly established that some or all of such assets are held in connection with business conducted during the income year without the state, and a similar rule shall apply to intangible assets of a company having its principal place of business without the state.” 6 Conn.Gen.Stats. Ann. § 12-220.

        Kansas: Has adopted the Uniform Division of Income for Taxation Purposes Act. Same as California, supra. 6 Kan. Stats.Ann. ch. 79-3271 and 79-3277 (1964).

        Oklahoma: “(d) In the determination of the amount of tax payable under this Article where intangibles are involved, such as notes, accounts receivable, stocks, bonds, and other securities, including cash, and business of the corporation is managed, directed and controlled from within the State of Oklahoma, the value of such intangibles shall be apportioned wholly to Oklahoma, unless a commercial or business situs for such intangibles has been established elsewhere.”
      “(e) Management, direction and control of the corporation’s business shall be deemed to be within the State of Oklahoma where (1) the corporation is incorporated under the laws of Oklahoma, or (2) where any corporation organized under the laws of some other state transacts in Oklahoma its principal business, or maintains in this state its ‘business domicile’ or ‘commercial domicile.’ ” 68 Okla. Stats.Ann. § 1209 (1966).

        Louisiana: “(4) Other interest, dividends, and profits from sales and exchanges of capital assets consisting of incorporeal property or rights, shall be allocated to the state in which the securities or credits producing such income have their situs, which shall be at the business situs of such securities or credits, if they have been so used in connection with the taxpayer’s business as to acquire a business situs, or, in the absence of such a business situs, shall be at the legal domicile of the taxpayer in the case of an individual or at the commercial domicile of the taxpayer in the case of a corporation;” 25 La.Rev.Stats. Ann. § 47-243 (Supp.1965).

        Uniform Division of Income Tax PurPoses Act, Sec. 7: Interest and dividends are allocable to this state if the taxpayer’s commercial domicile is in this state. Beaman, Paying Taxes to Other States, Appendix O.


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    Julio GONZALES, Appellant, v. The STATE of Texas, Appellee.
    No. 40237.
    Court of Criminal Appeals of Texas.
    March 22, 1967.
    Rehearing Denied May 10, 1967.
    Spence, Martin & Richie by Gene Richie, Wichita Falls, for appellant.
    Stanley C. Kirk, Dist. Atty., Jim Phagan, Asst. Dist. Atty., Wichita Falls, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is felony theft with two prior felony convictions alleged for enhancement ; the punishment, life.

Appellant supported his motion to quash the indictment on the grounds that Latin Americans had been systematically excluded from service on the Grand Juries in Wichita County by the testimony of three Latin Americans who resided in the county and the testimony of his court appointed counsel.

Jose Arias testified that he knew people who would be qualified to serve on the Grand Jury who were Spanish speaking or Latin American citizens of Wichita County and named ten of them.

Pete Martinez testified that he knew a “goodly number” of citizens of Wichita County of Latin American extraction or Spanish speaking people who were qualified to serve as Grand Jurors and stated that as far as he knew he was the only person of Mexican descent who had ever served on the Grand Jury. On cross examination he admitted that he did not know that Juan Rangel had served on the Grand Jury Commission in 1961 right after he had served, nor did he know that Ivey Gonzales had served on the Grand Jury Commission in said county in 1954, nor did he know that Mack Herrera had served on the Grand Jury in said county in 1954.

Fidencio Navarette gave testimony comparable to that of Jose Arias.

Appellant’s court appointed attorney testified that he had searched the Clerk’s criminal file docket from 1951 through 1966 and ascertained that out of approximately 4,524 indictments returned during that period in Wichita County, 165 were against defendants who had Spanish surnames.

The District Judge of the 30th District Court of Wichita County, where this indictment was returned, testified that he was fully aware of the holdings of the Supreme Court of the United States and of this Court which denounced systematic exclusion and that he was not aware of any such exclusion of Latin Americans since he took office in 1951. He was able to recall from memory only Ivey Gonzales, who had served on the Grand Jury Commission during his tenure, but he did testify that the case at bar was the first one in which a question of discrimination against Latin Americans had ever been raised, and further stated that the Negro population was, like the Latin American population, a “pretty small minority” and that he had appointed a Negro to serve as foreman of the then existing Grand Jury.

The Assistant District Attorney prosecuting the case testified that an examination of the county poll tax rolls revealed that in 1960 a total of 15,963 persons paid their poll taxes in Wichita County and of that number, 132 persons had Spanish surnames. A similar check of the rolls for 1963 revealed 24,179 poll taxes of which 244 had Spanish surnames.

An examination by this Court of the list of Grand Jury Commissioners and the Grand Juries during the period in question and which were made a part of this record on appeal reveals that Ivey Gonzales served as a Grand Jury Commissioner in 1954, and that Mack Herrera, Pete Martinez and Juan Rangel each were chosen for service as Grand Jurors.

No evidence was introduced as to the number who served on petit juries since Wichita County operates under the jury wheel.

From the above it will be seen that under Article 339, Vernon’s Ann.C.C.P. as it read at the time of the formation of the jury which returned this indictment, the percentage of those qualified who were of Latin American extraction was so small as to be almost infinitesimal. When considered in connection with the number of the same racial extraction who had actually been selected and had served, we have concluded that appellant has failed in his efforts to make out a prima facie case of the denial of the equal protection clause of the Constitution.

This case is readily distinguishable from Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866, where the population percentage was far in excess of these existing in Wichita County and no person with a Mexican or Latin American name had served on the Jury Commission, the Grand Jury or the Petit Jury in Jackson County for the twenty-five years preceding Hernandez’ trial.

This case is also readily distinguishable from the two cases in which this Court held the indictments void because of systematic exclusion of Negroes from jury service because in these cases the population percentage was substantial. See Davis v. State, Tex.Cr.App., 374 S.W.2d 252, and Stoker v. State, 169 Tex.Cr.R. 59, 331 S.W.2d 310.

His next ground of error is based upon the following argument of the prosecutor at the hearing on guilt or innocence:

“BY MR. KIRK: All right, let’s take the testimony of this alibi witness, Prentice Cox. Prentice Cox, a convicted felon, a drunk, a friend of the defendant, and a foe of police officers. Does that make him a credible witness ? Does that make him worthy of belief ? One of the reasons that a lawyer in cross examining a witness can go into a defendant’s background, that is to see if he has been convicted—
MR. RICHIE: We are going to object to the prosecutor arguing the law to the jury and why they can do this and do that under the law, your honor.
THE COURT: Sustain the obj ection.
(BY MR. KIRK) All right, let me put it this way: This defendant was convicted of various felonies and some misdemeanors involving moral turpitude—
MR. RICHIE: Now your honor, at this stage—
MR. KIRK: I’m sorry—
MR. RICHIE: He referred to the defendant. He told the jury that the defendant had heretofore been convicted of felonies. We object to that line of argument at this stage; it is outside the record, and we ask the court to instruct the jury not to consider that.
MR. KIRK: He won’t have to do it. I’ll do it. I meant to say Prentice Cox.
MR. RICHIE: Also, at this time I have no alternative but, in view of what has been said, to ask the court the declare a mistrial.
THE COURT: Overruled.
MR. RICHIE: Note the exception of the defendant.
(BY MR. KIRK) You all know I was referring to Mr. Cox. He was a convicted felon and you can consider his felony convictions and his misdemeanor convictions for moral turpitude in considering his credibility, whether or not a man like that would be worthy of belief.”

The State concedes that the prosecutor cannot refer to the appellant’s prior record in jury argument where such had not been proven by the testimony up to that point, but points to the entire excerpt to demonstrate that this was a mistake for which the prosecutor expressed his sorrow for using the term “this defendant” when it was clear that he was referring to the witness.

We have concluded that the holding of this Court in Bowling v. State, 165 Tex. Cr.R. 250, 306 S.W.2d 372, is applicable to the facts here presented and should control the disposition of this appeal. It is clear that the first objection did not inform the prosecutor of his error and when such error was made known to him he withdrew the statement and the court then overruled the objection. This is the sequence of events in Bowling v. State, supra.

Finding no reversible error, the judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Wilbert Eugene WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 40285.
    Court of Criminal Appeals of Texas.
    April 19, 1967.

      Thomas K. Bamford (Court appointed), Dallas, for appellant.
    Henry Wade, Dist. Atty., John Emmett, Joe K. Hendley and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

Appellant was convicted for robbery with firearms and punishment was set by the jury at 35 years in the Department of Corrections.

The trial was held subsequent to January 1, 1966.

In his brief filed in the trial court, appellant contends that the evidence is insufficient to sustain the conviction.

Dick Smith, the complaining witness, testified that on the night of February 4, 1966, he was attending the service station which he owned in Dallas when two men, one carrying a shotgun, came into the station. He positively identified appellant as companion to the man carrying the shotgun. Appellant’s companion raised the shotgun, pointed it at the complainant, and demanded his money. The complainant gave the money to appellant.

Complainant Smith told appellant’s companion to point the shotgun away from his face and, since there was no response, shoved the gun aside. Appellant’s companion then hit complainant in the face with the butt of the gun, breaking his nose. The complainant then took the gun from appellant’s companion but appellant hit him on the head from behind approximately four or five times with a lug wrench. Appellant then beat the complainant with his fists, took money and a knife from complainant’s pocket, and cut the complainant across the left, temple with the knife. Appellant and his companion ran away after the complainant managed to run to the middle of the station driveway and call for help.

Appellant took the stand and testified that he was at another location on the night in question. No other witnesses testified in his behalf. He admitted having previously been convicted for burglary in August of 1963, for shoplifting in January of 1964, and for burglary in August of 1964.

The evidence is sufficient to sustain the conviction.

Appellant’s remaining grounds of error relate to the court’s rulings and remarks in connection with the introduction of evidence at the trial. He complains that the state’s witness Dick Smith was permitted to testify: “He (appellant) gave me instructions after that to get in the restroom, but I knew they were going to kill me and there wasn’t no use for me to go any further,” and to testify “I got a good look at the gun because when he put it between my eyes I figured — the plateglass window was back of me and I could just see the top of my head going out the plate-glass window.”

He also complains that the court permitted the prosecuting attorney to make the statement “and we could get him down here”; and to use the term “bandits” in referring to appellant and his companion.

None of such rulings of the court complained of reflect error which would warrant reversal. In fact, the only rulings obtained from the court in regard to the matters complained of, other than those which appellant says were comments which compounded the error, were: “Just tell what happened,” and “Just answer the question.”

Proof that the complaining witness was put in fear of losing his life was relevant. The failure of the court to withdraw such testimony because it was not responsive to the question propounded was not so prejudicial as to call for reversal.

The court ruled: “Just describe that — recall the shotgun, not his head going through the back of the window there, or thought it was.”

The reference to the robbers as “bandits” was not reversible error. Leath v. State, 171 Tex.Cr.R. 209, 346 S.W.2d 346.

The Statement of the District Attorney, “And we could get him down here,” was made during the cross-examination of appellant. In answer to the question of whether he saw anybody in Dave’s Cafe that he knew he said yes, a Mr. Tuck. He was then asked and answered:

“Q. Not a fellow by the name of M. Tuck, is it?
'“A. No sir. * * *
'“Q. Because he is a police officer.
“A. I know.
“Q. And we could get him down here.”

Appellant’s counsel objected “to the prosecutor testifying ‘we could get him down here’ ” and the court, in overruling the objection, remarked: “Lawyers don’t testify; they ask questions. Overruled.”

Neither the question or the court’s comment or both constituted error so prejudicial as to warrant reversal.

There was no objection to the court’s remark and no motion for mistrial or motion for instruction to the jury to disregard it. Franklin v. State, Tex.Cr.App., 409 S.W.2d 422; Crawford v. State, Tex.Cr.App., 412 S.W.2d 57.

The judgment is affirmed.


author: SHARPE, Justice.

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. CORPUS CHRISTI HARDWARE COMPANY, Appellee.
    No. 298.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 30, 1967.

      Leslie S. Lockett, of Kleberg, Mobley, Locket & Weil, Corpus Christi, for appellant.
    James C. Watson, of Keys, Russell, Watson & Seaman, Corpus Christi, for appel-lee.
   OPINION

SHARPE, Justice.

This appeal is from an order of the district court of Kleberg County, Texas, sustaining two pleas of privilege filed by Corpus Christi Hardware Company and transferring the case to Nueces County, Texas. Appellant relies upon subdivision 9a, Article 1995, Vernon’s Ann.Civ.St., to sustain venue in Kleberg County, Texas.

This suit was brought by Venturo Joe Abila, guardian of the person and estate of Crispin Abila in the district court of Kleberg County, Texas, originally complaining of the defendant Missouri Pacific Railroad Company. After that defendant filed a third-party petition against Corpus Christi' Hardware Company, the plaintiff amended and named both Missouri Pacific Railroad Company and Corpus Christi Hardware Company as party defendants. Corpus Christi Hardware Company then filed separate pleas of privilege as defendant and third-party defendant asserting that venue was in Nueces County, Texas, which pleas were duly controverted.

The accident out of which this suit arose occurred substantially as follows: On December 17, 1965 a truck trailer of Hardware Company was then being driven by its employee V. L. Devones, Jr., in a southerly direction on Highway 77 by-pass which lies east of Kingsville, Texas, in Kleberg County. At the intersection of said Highway 77 with the Military Road, which runs generally east-west, a pick-up truck of Railroad traveling eastward and approaching from the right of the Hardware truck-trailer ran through a stop sign and collided with the front portion of the truck-trailer, which then turned over and skidded into a Falcon automobile approaching on Highway 77 from the south. It was alleged that Crispin Abila was an employee of defendant Railroad and a passenger in its pick-up truck at the time of the accident.

It is apparent from the present record that the collision was caused by the negligence of the driver of the Railroad pick-up in failing to stop before entering the intersection in question. In order to defeat Hardware Company’s pleas of privilege it was essential under subdivision 9a, Article 1995, V.A.C.S., for appellant to secure findings or establish conclusively that the driver of the Hardware truck also was guilty of negligence which proximately caused the collision. Findings of fact and conclusions of law were neither requested nor filed. Appellant concedes that the implied findings of the trial court are unfavorable to it on such issues but contends that it carried the burden to sustain venue in Kleberg County, Texas, because the evidence conclusively established that the truck driver of the Hardware Company truck-trailer was guilty of negligence which proximately caused the collision (1) in failing to keep a proper lookout, (2) in failing to sound the horn of his vehicle, and (3) in failing to make a timely and proper application of his brakes.

At the hearing below the deposition testimony of three witnesses to the accident was offered, i. e., V. L. Devones, Jr., Lt. Ted Beckwith and Mrs. Beverly Beckwith, together with two photographs and a diagram.

Devones testified in substance that there is a railroad track which crosses Highway 77 located just north of the Military road and running parallel to it; that he had been traveling toward the south at about 45 miles per hour and as he approached the railroad crossing he slowed to about 35^-0 miles per hour; that he then looked both to his right and left, and did not see a train but did see a white Falcon car approaching from the south on Highway 77; that as he crossed the railroad tracks he saw the Railroad pick-up truck for the first time approaching from his right; that the pick-up truck had run through the stop sign and was almost into the intersection; that the pick-up was going about 40 m. p. h. and struck the right front wheel of the truck-trailer; that he did not have time to do anything but try to steer his vehicle; that if he had applied his brakes, the truck-trailer would have skidded or jack-knifed into the approaching Falcon automobile; that he did not apply his brakes or blow his horn; and that under the conditions, particularly since the highway was wet and slick, he possibly could have stopped his truck-trailer in about 200 feet.

Lt. Ted Beckwith testified that he and his wife were in a car which followed the Railroad pick-up on Military Road going eastward for about two miles; that the pick-up was traveling at about 40 m. p. h. and did not stop at the stop sign for Highway 77; that he realized the pick-up was not going to stop when it was 35-40 yards from the intersection at which time the truck-trailer was about 50-100 yards away from it going about 50-55 m. p. h.; that the railroad tracks are located about 50 feet from the Military Road; that the truck-trailer slowed down and swerved when it was at the railroad tracks and before it entered the intersection but the pick-up continued into the intersection and struck the right side of the truck-trailer; that the truck-trailer turned over and skidded into the white Falcon automobile approaching from the south.

Mrs. Beckwith testified in substance that she had not been watching the road but when she heard her husband say something about the pick-up not going to stop she looked up and at that time the pick-up was about two car lengths from the intersection and the truck-trailer was at the railroad tracks; that the pick-up did not slow down or stop at the stop sign or intersection; and that the pick-up had been going about 40-45 m. p. h. and the truck-trailer 50-60 m. p. h.

It is well settled that a person is not bound to anticipate negligent or unlawful conduct on the part of another. De-Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95, 98 (1955). In this case if it be assumed that Devones kept a proper lookout as he approached the Military Road, all he would have observed was the Railroad pick-up approaching a stop sign at the intersection in question, and he was entitled to rely upon the other driver exercising due care until he was put on notice that such was not the case. The evidence is legally and factually sufficient to support an implied finding of the trial court that at the time Devones realized or should have realized that the Railroad pick-up was not going to stop that there was such a short distance and time involved that the collision was inevitable and could not have been avoided by him. Even if we should agree with appellant that negligence on the part of the Hardware Company truck driver was conclusively established, we cannot hold that such negligence was a proximate cause of the collision as a matter of law. Here again there is an implied finding of the trial court in support of the judgment that such negligence, if established, was not a proximate cause, and the evidence is legally and factually sufficient to support the same. In this state of the record and under well settled rules, we are required to affirm the judgment below. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953); James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959).

Affirmed.


author: RENFRO, Justice.

text:
    FIDELITY-SOUTHERN FIRE INSURANCE COMPANY, Appellant, v. Matthew WHITE et ux., Appellees.
    No. 16816.
    Court of Civil Appeals of Texas. Port Worth.
    March 31, 1967.
    Harris & Ball and Joseph W. Stewart, Arlington, for appellant.
    Jones, Fillmore, Robinson & Lambert and Glynn Purtle, Wichita Falls, for ap-pellees.
   OPINION

RENFRO, Justice.

Suit was brought by Matthew White et ux. against Fidelity-Southern Fire Insurance Company to recover, under extensions of coverage, additional living expense.

Plaintiffs’ residence, except for the foundation, was destroyed by tornado on April 3, 1964.

Defendant paid plaintiffs on April 7, 1964, the full amount of the policy, $12,600.-00, with three checks. Two of the checks, totaling $3,600.00, show on their faces they were in payment of household goods. The other, in the sum of $9,000.00, on its face shows the words, “Accepted in full and f Insd. Payee final payment of , „

On the reverse side of the check appeared the words, “The endorsement hereof by the payee constitutes a receipt and release for the items mentioned in this draft.”

Defendant contends that plaintiffs, by executing a proof of loss, hereinafter mentioned, and by accepting and endorsing the checks, finally and fully released defendant from all damages, and that its motions for directed verdict and for judgment notwithstanding the verdict should have been sustained.

The wording on the $9,000.00 check is ambiguous. It can reasonably be construed to be in full settlement for loss of the dwelling (the policy limit on the dwelling was $9,000.00) or it might be construed to be in settlement of all ’damages arising by reason of the tornado.

When a release is ambiguous parol evidence is admissible to show the real agreement between the parties. Mutual Fire & Auto Ins. Co. v. Green, 235 S.W.2d 739 (Tex.Civ.App., 1950, no writ hist.).

The terms of the policy, language used in the proof of loss, and the wording on the three checks are to be construed to give proper meaning to the ambiguity.

We overrule defendant’s contentions that the proof of loss and checks show a total release as a matter of law.

In answer to Issues Nos. 3 and 4 the jury found that plaintiff White executed a “Sworn Statement in Proof of Loss” (which stated a claim of $12,600.00, $9,-000.00 being designated “Dwg. Item of Policy” and $3,600.00 being described as “Cont. Item of Policy”) and that such instrument contained the language, “In consideration of which the company is discharged and released from further claim as result of the loss herein referred to.”

Issue No. 5 read: “If you have answered Special Issue No. 3 yes and only in that event, then answer the following Special Issue: Do you find from a preponderance of the evidence that at the time of execution, if any you have found, of said instrument, the parties thereto agreed that additional living expense was not included in the transaction. Answer ‘It was included’ or ‘It was not included.’ ” The jury answered, “It was not included.”

Defendant in appropriate points contends the answer to issue No. 5 was without support in the evidence, or that it was so against the overwhelming weight and preponderance of the evidence as to be clearly wrong.

Plaintiff White testified nothing was said by defendant’s agent or himself about additional living expenses at the time the tornado damage was discussed and the various instruments were signed.

Defendant’s Claims Manager who handled plaintiffs’ claim testified the additional living expense provision was discussed and explained to the Whites; that the $9,000.00 check included settlement of any living expense claim they might then or thereafter have.

Mrs. White, being ill at time of trial, did not testify.

The jury could of course reject the Claims Manager’s testimony that the additional living expense claim was settled. Disbelieving him, however, does not establish affirmatively that an agreement was reached. Plaintiff’s testimony that living expense was not discussed, and was not mentioned to defendant until three months after the above mentioned checks were accepted, negatives rather than supports the claim that an agreement was made by the parties on April 7 not to include additional living expenses in the settlement. It is to be borne in mind the court in Issue No. 5 was requesting the jury to find whether an agreement had been made by the parties.

Some support for the jury finding might be found in the various instruments introduced and from the surrounding circumstances.

We agree with defendant, however, that the answer to the issue submitted was so against the preponderance of the evidence as to be manifestly wrong.

We forego further discussion of the contentions of the parties bécause another trial may be tried on different pleadings and submitted to the jury on different issues.

Reversed and remanded,


author: DIXON, Chief Justice.

text:
    FRANKFURT’S TEXAS INVESTMENT CORP., Appellant, v. TRINITY SAVINGS & LOAN ASSOCIATION et al., Appellees.
    No. 16804.
    Court of Civil Appeals of Texas. Dallas.
    March 3, 1967.
    Rehearing Denied March 31, 1967.

      Wayne A. Melton and David S. Curtis, Dallas, for appellant.
    Warren Whitham, Oscar Mauzy, William Andress, Jr., Robert Damron, Dallas, for appellees.
   DIXON, Chief Justice.

Our former opinion is withdrawn and the following opinion is substituted.

This is an appeal from a summary judgment in a garnishment suit filed by appellant Frankfurt’s Texas Investment Corporation, hereinafter referred to as Frankfurt’s Texas, against Trinity Savings & Loan Association, hereinafter referred to as Trinity. Appellant sought to áttach funds on deposit with Trinity in a savings account styled “C. Lynne Development Corporation and Victor Frankfurt, Trustee, or David Lee Frankfurt.” C. Lynne Development Corporation will hereinafter be referred to as C. Lynne.

Trinity answered that it had on hand a balance of $28,114.11 in said account at the time of filing its answer. Trinity inter-pleaded several parties, asked the court to determine the merits of their claims and to order payment of fund to the proper claimants.

At one time W. Ernest Wesch individually claimed an interest in Account No. 2469 but before the rendition of judgment he disclaimed any interest in the fund.

At the trial all claimants, including appellant, filed motions for summary judgment. Thereafter the court sustained motions for summary judgment of certain of the claimants and directed that the fund be distributed as follows:

(1) To garnishee, its costs, including an attorney’s fee of $750.

(2) To S. G. Pappas and Mrs. Katherine Sernos, $6,803.94 in payment of a prior judgment.

(3) To Philip Wilson, $5,698 in payment of a note secured by an assignment of part of the deposit.

(4) To appellant, the balance of the deposit amounting to approximately $15,-500.

In determining the priority of the above claims the court applied the well established rule that in garnishment proceedings allowable claims which are prior in time are prior in right of payment. Harrell v. Mexico Cattle Co., 73 Tex. 612, 11 S.W. 863; Armengol v. Richter, Tex. Civ.App., 141 S.W. 1028 (writ dism.); Megargel Drilling Co. v. City Nat’l Bank in Wichita Falls, Tex.Civ.App., 352 S.W.2d 796 (ref. n. r. e.).

Only Frankfurt’s Texas has appealed. And its appeal is limited. In its brief appellant says, “To the extent this judgment allowed the claims of S. G. Pappas and Mrs. Katherine Sernos, and Philip Wilson, to be classified on a priority superior to that of Frankfurt’s Texas Investment Corp., Appellant herein, this appeal has been perfected * * In its brief Frankfurt’s Texas prays that the judgment of the trial court be reversed and rendered, or in the alternative that the cause be remanded for a new trial.

The parties stipulated that all papers and instruments filed in certain numbered causes in various district courts of Dallas County on or before December 2, 1965 were before the court in the instant case for all purposes subject to legal objections as to relevancy. These causes were either main suits or garnishment suits involving C. Lynne. The said papers and instruments have now been brought forward into the record before us on this appeal.

In points on appeal appellant takes the position that the court erred in rendering judgment in favor of Philip Wilson (1) because Wilson’s claim is not supported by the pleadings or established by any form of proof; and (2) because Wilson’s assignment of rights to the savings account is not valid.

Wilson’s answer and plea in intervention are indeed in certain particulars defective as pleadings in a suit on a note secured by an assignment of interest. And in appellant’s apswer to Wilson’s petition these defects w^re specifically described in a plea in abatement and a motion to dismiss. It was pointed out that Wilson’s pleading failed to allege that the note was unpaid, or the date when due, or that demand for payment had been made. The note was not fully described nor was a copy of it attached to or made a part of the pleading.

But appellant’s plea and motion apparently were never presented to the court for determination. Certainly the record contains no order showing that the court ever acted on them, or refused to act on them. Therefore, under Rule 90, Vernon’s Texas Rules of Civil Procedure, they must be considered as waived and appellant will not now be heard to complain of the defects in Wilson’s pleading. Rule 90, T.R. C.P. expressly states:

“Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by motion or exception in writing and brought to the attention of the judge in the trial court before * * * the rendition of judgment, shall be deemed to have been waived by the party seeking reversal on such account.” (Emphasis ours.)

Both Rules 90 and 67, T.R.C.P. have been held to be applicable to situations similar to that which we have here. Hall v. Fowler, Tex.Civ.App., 389 S.W.2d 730 (no writ hist); Olivares v. Service Trust Co., Tex. Civ.App., 385 S.W.2d 687 (no writ hist.); Hilley v. Hilley, Tex.Civ.App., 305 S.W.2d 204 (ref. n. r. e.); Andrews v. Austin Motor Truck Co., Tex.Civ.App., 259 S.W. 2d 772 (no writ hist.); Murchison v. Post Ind. School Dist., Tex.Civ.App., 258 S.W.2d 229 (ref. n. r. e.) ; Employers Mutual Casualty Co. v. Lee, Tex.Civ.App., 352 S.W.2d 155 (no writ hist.); Weisenberger v. Lone Star Gas Co., Tex.Civ.App., 257 S.W.2d 331 (dism.); Coastal Bend Mutual Ins. Co. v. McLaren, Tex.Civ.App., 234 S.W.2d 116 (no writ hist.); Dillingham v. Associated Employers Lloyds, Tex.Civ.App., 233 S.W.2d 191 (no writ hist.) ; Stalnaker v. Howard, Tex.Civ.App., 230 S.W.2d 563 (dism.); Robinson v. Glasse, et al., Tex.Civ.App., 188 S.W.2d 598 (no writ hist.); Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562; Johnson v. Miller, Tex.Civ.App., 173 S.W.2d 280, 283, aff. 142 Tex. 228, 177 S.W.2d 249.

Rule 90 is applicable when a party, though he files exceptions, or motions, or a plea in abatement, does not bring his exceptions or motions, or plea in abatement to the attention of the judge, and no order is entered by the court disposing of them. Kirkman v. Alexander, Tex.Civ.App., 280 S.W.2d 365 (ref. n. r. e.) (plea in abatement) ; Lozano v. Kazen, Tex.Civ.App., 313 S.W.2d 894, 897 (no writ hist.); Polk v. Grogan’s Wholesale & Retail Lumber, Tex. Civ.App., 325 S.W.2d 201, 207 (no writ hist.); Webb v. Mitchell, Tex.Civ.App., 371 S.W.2d 754, 761 (no writ hist.); Talbert v. Herrera, Tex.Civ.App., 353 S.W.2d 948 (no writ hist.); Smith v. Pulliam, Inc., Tex.Civ.App., 388 S.W.2d 329 ref. n. r. e., Tex., 394 S.W.2d 791). The rule is applicable to suits on a promissory note, Continental Nat’l Bank of Fort Worth v. Conner, 147 Tex. 218, 214 S.W.2d 928. Appellant’s point that appellee Wilson’s pleadings are defective is overruled.

However, we must agree with appellant’s contention that Wilson’s claim and summary judgment have not been established by any form of proof. In this case the judgment recites that the court heard and considered “the pleadings, depositions, admissions, stipulations and papers and instruments filed in connected cases so stipulated, affidavits on file in this cause, matters which the court may notice judicially and the statments of counsel * *

No affidavits, depositions, or other documents were filed by Wilson in support of his motion for summary judgment. The defects in his pleading would not alone be sufficient to defeat his motion for summary judgment if his motion had support in the evidence; Womack v. Allstate Ins. Co., 156 Tex. 467, 296 S.W.2d 233, 237 (1956); Gonzales v. T.E.I.A., 408 S.W.2d 521 (Tex.Civ.App., Eastland, 1966); but pleadings alone without any supporting evidence will not support a summary judgment. Dillon et ux. v. Greenville Hospital Authority, 404 S.W.2d 956, 958 (Tex.Civ. App., Dallas, 1966); Texas State Board of Registration for Professional Engineers v. Trimble, 366 S.W.2d 124, 126 (Tex.Civ. App., El Paso, 1963, no writ hist.). It has been held that in a summary judgment proceeding where neither the original note nor a certified or sworn copy thereof was attached to plaintiff’s pleadings or motion for summary judgment a defendant’s general denial alone will raise an issue of fact as to whether plaintiff is the present owner and holder of the note unless plaintiff produces and offers the note sued on. Alexander v. Houston Oil Field Material Co., 386 S.W.2d 540, 543 (Tex.Civ.App., Tyler, 1965, writ ref. n. r. e.).

Wilson claims that an admission made by C. Lynne in a pleading entitles Wilson to judgment. The alleged admission is as follows:

“That on the 2nd day of June, 1965, C. LYNNE DEVELOPMENT CORP. pledged savings share account No. 2469 and physically delivered the certificate and passbook evidencing said account to Philip Wilson of Brady, Drake & Wilson to secure the payment of a Promissory Note in the sum of $5,000.00 contemporaneously authorized by the Board of Directors.”

We cannot agree with Intervenor Wilson for two reasons:

1. The alleged admission did not state that Wilson was still the owner or holder of the note at the time the pleading was filed on August 26, 1965 or on the date of the trial, or the due date of the note or that it had not been paid,

2. Even if the allegation were to be accepted as a complete admission by C. Lynne, it would not be binding on appellant Frankfurt’s Texas. Opryshek v. McKesson & Robbins, Inc., 367 S.W.2d 357 (Tex.Civ.App., Dallas, 1963); Justin McCarty, Inc. v. Ash, 18 S.W.2d 765, 768 (Tex.Civ.App., Beaumont, 1929, no writ hist.); St. Louis S. W. Ry. Co. of Texas v. Bishop et al., 14 Tex.Civ.App. 504. 37 S.W. 764, 765 (1896, no writ hist.).

We sustain appellant’s point that Inter-venor Wilson’s claim is not supported by any evidence.

In its second point appellant asserts that there is a fact issue with reference to the validity of the assignment to Wilson of part of Account No. 2469. In an unsworn pleading to Wilson’s claim appellant alleges that the Board of Directors of C. Lynne did not meet on June 2, 1965, therefore any alleged assignment to Wilson by the Board on that date is void. We find no evidence in the record before us to support appellant’s pleading. However, neither do we find any evidence binding on appellant in the record to support Wilson’s allegation in his unsworn pleading. Neither of the two unsworn pleadings, one an affirmation, the other a denial, is supported by evidence. The burden was on Wilson as movant to show that there was no genuine issue of material fact and that he was entitled to judgment as a matter of law. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.Sup.1965). This he failed to do. Appellant’s second point is sustained. However, it should be understood that in sustaining the point we are not holding that Wilson’s assignment was invalid. We are simply holding that Wilson as movant in this summary judgment proceeding failed to sustain the burden which was on him to prove the validity of the assignment.

In its third point on appeal appellant attacks the court’s holding that the interest of Frankfurt’s Texas in the savings account in question was secondary to the interests of the interpleaded S. G. Pappas and Mrs. Katherine Sernos. The basis for this contention is that the said account is in the nature of a trust fund for the specific benefit of Frankfurt’s Texas and trust funds are not subject to garnishment.

The undisputed evidence is contrary to appellant’s contention. In 1962 Frankfurt’s Texas loaned C. Lynne $100,000 evidenced by a note. The $28,114.11 on deposit with Trinity in Account No. 2469 was part of this loan. Victor Frankfurt says that he and his son were made “trustees” in order to see that the money was spent in connection with the development of a real estate addition owned by C. Lynne. The money was to be paid out only upon the joint signatures of W. Ernest Wesch, C. Lynne’s president, and either Victor Frankfurt or his son.

As the trial court viewed the matter and as we view it, title to the money in controversy belonged to C. Lynne, not Frankfurt’s Texas. When money is loaned it becomes the property of the borrower. In this case the alleged trust arrangement has nothing to do with title or ownership of the fund. It simply provided a procedure for withdrawing the money.

That money on deposit in Account No. 2469 is not a trust fund in the sense now contended by Frankfurt’s Texas is evidenced by its affidavit for garnishment after judgment. This pleading, together with the judgment in the main suit, is the basis for appellant’s suit, King v. Tom, Tex.Civ.App., 352 S.W.2d 910 (no writ hist.) ; L. T. Wright & Co. v. Smith, Tex.Civ.App., 13 S.W.2d 953 (dism.); Stevens v. Simmons, Tex.Civ.App., 61 S.W.2d 122 (Syl. 8).

In its affidavit for garnishment Victor Frankfurt, one of the alleged trustees and the president of Frankfurt’s Texas, swore that Frankfurt’s Texas had a money judgment for $25,500 against C. Lynne and “that the only assets belonging to said Defendant,” is a savings account on deposit with Trinity, “being account No. 2469.”' (Emphasis ours.) Not a word is said in the affidavit about any claim that Frankfurt’s Texas owned a trust interest in the fund. Since the fund, according to appellant’s own affidavit, belonged to C. Lynne it was subject to garnishment by C. Lynne’s creditors, including appellant, irrespective of the name in which the deposit stood. Stevens v. Simmons et al., Tex.Civ.App., 61 S.W.2d 122 (no writ hist.).

We must hold that the suit and judgment upon which the garnishment of Frankfurt’s Texas depends involved only an ordinary suit and judgment for debt, no claim being made that Account No. 2469 was encumbered in favor of Frankfurt’s Texas. We have reached this conclusion because:

(1) Appellant’s affidavit for garnishment so shows.

(2) The record in Cause No. 77,570-G/A was before the trial court and considered by the court; and in the present garnishment suit the court refused to recognize appellant’s belated and inconsistent claim that the garnisheed deposit is a trust fund. The trial court may take judicial notice of the proceedings and judgment in the main suit. See McCormick & Ray, “Texas Law of Evidence,” Vol. 1, p. 204 and cases there cited.

(3) Neither Victor Frankfurt, as alleged trustee, nor his son, David Lee Frankfurt, as alleged trustee, has appealed from the adverse judgment.

, Appellant admitted in oral argument that his position involves inconsistencies. If we were to hold that Account No. 2469 is a trust fund according to appellant it would not be subject to any of the garnishment judgments awarded in this case, including the judgment awarding appellant approximately $15,500 under its garnishment. Appellant is thus undertaking to do the very thing which it says Pappas and Mrs. Sernos and Wilson have no right under the law to do. Appellant’s third point is overruled.

In its fourth point appellant complains because Trinity did not interplead the other claimants in an earlier suit for garnishment after judgment in which Pap-pas and Mrs. Sernos were awarded judgment. This point cannot be sustained. There has been no appeal from the judgment denying Frankfurt’s Texas a recovery against Trinity and allowing Trinity its costs including an attorney’s fee. In this case the court entered a temporary injunction, which was later made permanent, whereby Pappas and Mrs. Sernos were restrained from causing execution to issue to enforce their earlier garnishment judgment. The purpose of said injunction was to maintain the money in Account No. 2469 intact until the court in this case could determine the merits and priorities of the various claims. Appellant has in no way been harmed because of Trinity’s failure to implead appellant in the earlier garnishment suit. Appellant’s fourth point is overruled.

The judgment in favor of S. G. Pappas, and Mrs. Katherine Sernos is affirmed.

Because there is no proof to support the judgment in favor of Philip Wilson said judgment is reversed and remanded to the trial court for further proceedings not inconsistent with this opinion.

Affirmed in part and reversed and remanded in part.

      .The parties impleaded by Trinity are as follows:
      1. S.- G. Pappas and Mrs. Katherine Sernos, individually and as Independent Executrix of Estate of Tom Sernos, Deceased.
      2. O. Lynne Development Corporation, W. Ernest Wesch, President.
      3. Frankfurt’s Texas Investment Corporation (Victor Frankfurt, President).
      4. Philip Wilson, holder of note and assignment.
      5. Victor Frankfurt, individually and as trustee for C. Lynne Development Corporation.
      6. David Lee Frankfurt, individually and as trustee for C. Lynne Development Corporation.
      7.W. Ernest Wesch individually, holder of note.
      W. Ernest Wesch owned 500 shares and his wife one share of stock in C. Lynne. Victor Frankfurt owned 450 shares and his daughter 50 shares of stock in C. Lynne.
      The Board of Directors of C. Lynne consisted of W. Ernest Wesch, his wife and Don Robert Wesch. None of the Frankfurts was a director.

      . The attorneys who now represent appellant did not represent appellant in the trial court. They have come into the casé since the appeal was perfected.

      . The material allegations in appellant’s affidavit for garnishment are as follows:
      “Comes now Frankfurt’s Texas Investment Corporation * * * and applies for a Writ of Garnishment against Trinity Savings and Loan Association, * * * Garnishee, and upon oath, through its president and agent, Victor Frankfurt, says that Plaintiff has heretofore in Cause No. 77570-G/A, in this Court, obtained a judgment against C. Lynne Development Corporation, * * *. Said judgment rendered in Cause No. 77570-G/A is in the amount of Twenty-Five Thousand Five Hundred (§25,500.-00) Dollars, plus interest thereon at ten per cent (10%) per annum from February 28, 1963, until same is paid, plus one-half the costs of Court in said action, totalling in the aggregate approximately Thirty-One Thousand ($31,000) Dollars. Said judgment is final, valid, and subsisting and remains wholly unsatisfied.
      “The said Defendant, O. Lynne Development Corporation, has not, within Af-fiant’s knowledge, property in it’s possession within this State, subject to execution, sufficient to satisfy said judgment. To the best of Affiant’s knowledge and based upon sworn testimony in Cause No. 77570-G/A, Affiant believes that the only assets belonging to said Defendant, is a savings account on deposit with Trinity Savings & Loan Association, Garnishee, being Account No. 2469, and containing an approximate present balance of Twenty-Eight Thousand ($28,000.00) Dollars.” (Emphasis ours.)


author: HUGHES, Justice.

text:
    TIDELANDS LIFE INSURANCE COMPANY, Appellant, v. Billy G. ARMSTRONG, Appellee.
    No. 11498.
    Court of Civil Appeals of Texas. Austin.
    March 29, 1967.

      Fischer, Wood, Burney & Nesbitt, Scott T. Cook, Corpus Christi, for appellant.
    G. H. Kelsoe, Jr., Robert M. Kennedy, Dallas, for appellee.
   HUGHES, Justice.

Billy G. Armstrong, appellee, sued Tidelands Life Insurance Company in the District Court of Dallas County for damages for alleged breach of an exclusive agency contract. Appellant filed its plea of privilege to be sued in Nueces County, the County of its residence. After a hearing, this plea was overruled; hence, this appeal.

Appellee seeks affirmance on the grounds that venue is properly laid in Dallas County under Subdivisions 23 and 28a, Art. 1995, Vernon’s Ann.Tex.Civ.St.

Appellant is a statewide Mutual Assessment Corporation (Association) with its residence and principal place of business in Nueces County.

Sub. 23, supra, provides, in part, that suits against a corporation may be brought in the County “ * * * in which the cause of action or part thereof arose ⅜ ⅜ ‡ »

The parties entered into an exclusive agency contract in Dallas County under the terms of which appellee was to receive certain commissions on policies sold for appellant, and renewals thereof, by subagents of appellee. Under the agreement appellee had the sole right to employ and terminate the employment of subagents. The sub-agents employed by appellee had appointments under the State Board of Insurance. These subagents sold insurance with premiums on an annualized basis of $228,000.00, on which appellee claimed renewal commissions for three years from the termination of his contract, which termination appellee contends was wrongful. Appellee also claimed damages for loss of the services of his subagents, allegedly caused by the wrongful termination of his contract with appellant.

The contract between the parties provided that appellee should be given thirty days notice of its termination. This notice was not given.

The parties operated under the contract until the management of the appellant company was removed by the State Board of Insurance for misappropriation of funds and because they were found to be unworthy of the trust and confidence of the public. The new management of appellant terminated the contract in suit because of misrepresentation of policies to policy holders by subagents of appellee.

It is uncontroverted that while appellee was licensed generally as a life insurance agent in Texas during the existence of his contract with appellant he was not appointed by the State Board of Insurance to represent appellant as an insurance agent as required by Art. 21.01, Texas Insurance Code, V.T.C.S., which reads:

“It shall not be lawful for any person to act within this State, as agent or otherwise, in soliciting or receiving applications for insurance of any kind whatever, or in any manner to aid in the transaction of the business of any insurance company incorporated in this State, or out of it, without first procuring a certificate of authority from the Board.”

In Perkins v. Lambert, 325 S.W.2d 436, writ dismissed, Tex.Civ.App., Austin, this Court held void and unenforceable a contract between a licensed insurance salesman for Southland Life Insurance Company and local agency manager for Fidelity Union Life Insurance Company whereby Lambert was to receive a commission for causing holder of a term policy in Fidelity to convert it into permanent insurance for the reason that Lambert had not complied with Art. 21.01, supra, in that he had not received authority from the State Board of Insurance to represent Fidelity.

We follow this decision and hold the contract between the parties void and unenforceable.

A cause of action under Sub. 23 of Art. 1995 is not established when it is based upon a void or illegal contract. Uvalde Construction Co. v. Shannon, 165 S.W.2d 512, Tex.Civ.App., Eastland, n. w. h.

Appellee also sought to maintain venue in Dallas County under the provisions of Sub. 28a V.T.C.S., which provides:

“In all actions brought against Fraternal Benefit Societies and/or Statewide Mutual Assessment Companies, regardless of the plan upon which they operate and whether incorporated or not, growing out of or based upon any alleged right or claim or loss or proceeds due, arising from or predicated upon any policy or contract issued or made by such Fraternal Benefit Society and/or Statewide Mutual Assessment Companies, venue shall lie in the county where the policyholder or beneficiary instituting such suit resides or in the county of the principal office of such association or where such cause of action arose.”

No case has been cited to or found by us applying this exception to claims or suits based upon any character of contract except contracts for insurance.

It is our opinion that the language of the exception precludes its application to any species of contracts except contracts for insurance. The words used are peculiarly applicable to insurance contracts. Note the words “loss,” “proceeds due,” “policy holder,” “beneficiary.” These words are not usually or generally applicable to the run of the mill contracts.

The only word in this exception which casts any doubt upon our construction of it is the word “contract.” However, when this word is considered in context with the word following “issued,” it is inescapable that “policy” and “contract” are used to express the same meaning. Insurance policies, which are insurance contracts, are “issued.” Ordinary contracts are not “issued.” They, are executed.

It is our opinion that venue was not shown to lie in Dallas County, and that this cause should be reversed and remanded with instructions to transfer it to a District Court of Nueces County. It is so ordered.

Reversed and remanded with instructions.


author: PHILLIPS, Chief Justice.

text:
    TEXAS HYDRAULIC & EQUIPMENT COMPANY, Inc., Appellant, v. ASSOCIATES DISCOUNT CORPORATION, Appellee.
    No. 11489.
    Court of Civil Appeals of Texas. Austin.
    March 29, 1967.

      Gragg, Storey, Griffith & Gilmore, J. Willard Gragg, Dallas, for appellant.
    Robert R. Cole, Dallas, Rogan B. Giles, Austin, for appellee.
   PHILLIPS, Chief Justice.

Proceedings in the court below were instituted by Associates Discount Corporation, the appellee here, against one C. H. Lane and Texas Hydraulic & Equipment Company, Inc., the appellant, wherein suit was brought on a note for the principal sum of $19,763.65 and foreclosure on a chattel mortgage lien on a 1963 Mack dump truck. The note and chattel mortgage lien were executed by C. H. Lane, payable to the order of DEFCO Equipment Company, and thereafter subsequently transferred and assigned to appellee.

Lane is not a party to this appeal.

Appellant Texas Hydraulic & Equipment Co. filed its answer and cross-action against appellee and C. H. Lane asserting its ownership to a certain Daybrook dump body and hoist which appellant had sold to Lane and placed upon the truck in lieu of a damaged hoist and body. By its cross-action, appellant sued Lane and appellee for the respective damages claimed against each seeking judgment against appellee for $1,500.00 by reason of its wrongful action in sequestering and taking possession from appellant of its hoist and body, said amount being the reasonable market value of the hoist and body.

Appellant, by a trial amendment filed in the court below, tendered and obligated itself to replace the damaged hoist and dump truck body on the truck at its own expense and asked in the alternative that in the event that it was not entitled to recover damages as alleged in its original action and cross-action, then appellant prayed that title and possession of the body and hoist that it had placed upon the truck should be awarded to appellant free and clear of any lien or claim by appellee.

Appellee, by supplemental petition, alleged that appellant, by making delivery of such dump body and hoist to Lane, relinquished any lien or title it had into such hoist and body and waived its lien and all rights thereto, and further alleged that the new bed and hoist becáme a part of its mortgaged truck.

Trial was to the court without a jury and judgment was rendered for appellee against Lane for $14,751.94 together with interest and costs of court, and judgment was rendered for appellee, jointly and severally, against Lane and appellant foreclosing its chattel mortgage lien against the 1963 model Mack dump truck and adjudging all costs against both Lane and appellant.

Judgment was also rendered that appellant take nothing against appellee by virtue of its cross-action against appellee and the cross-action against Lane was dismissed without prejudice, from which judgment appellant has perfected its appeal to this Court.

We affirm.

Appellant is before this Court on six points of error, the first being the error of the court in holding that its dump body and hoist by attachment to the truck mortgaged to appellee, thereby became a part of such truck by accession and that appellee was entitled to foreclose its chattel mortgage and certificate of title lien on the truck, and also the hoist and body as a part thereof.

We overrule this point.

Basically this case presents two questions: namely, whether appellant had by some means either retained or regained ownership and title to the dump body and hoist; and whether appellant had some character of lien against the dump body and hoist.

Appellant contends that the dump body and hoist had not become a part of the truck by accession. In this connection he points to testimony to the effect that the body and hoist, although welded to the body of the truck, can be cut off with a torch, leaving no damage to the body. On the other hand, appellee calls our attention to testimony that the dump truck had a body or hoist at the time it was originally sold, that it was not a dump truck without a dump bed and that the new dump body had been welded, and in addition bolted, to the bed of the truck.

There was ample evidence for the trial court to find that the dump body and hoist had become part of the truck by accession. Since there were no findings of fact and conclusions of law requested in the trial court, and none was filed, we must presume that all fact issues were favorably found in support of the judgment.

In this connection appellant cites cases to the effect that vendor of chattels installed on various vehicles can reacquire said chattels as against third parties where no damage would be done to the vehicle. It is not necessary to discuss these cases in detail as they are not in point. In each the vendor of the chattel in question had either retained title to the chattel or had some type of lien thereon to secure hi debt. One additional case cited presenten a situation where a truck was mortgaged at a time when it had no truck bed. Here the court allowed the vendor of a bed subsequently installed on the truck to reacquire the bed from the mortgagee stating that in addition to the fact that the bed was not on the truck at the time of the mortgage, it was easily detachable by removing a few bolts and no damage would be done to the truck.

As a general rule where accessories are sold or furnished without effort on the part of the vendor to retain title, the accessories are permitted to pass with the chattel. 43 A.L.R.2d 819; Am.Jur.2d Vol. 1, p. 276-277, Accession.

Appellant’s points of error numbers two, three, four and five, briefed together, are the error of the court in holding that the delivery of posession of the new dump body and hoist to Lane thereby deprived appellant of any right of title and possession or of any lien against its dump body and hoist placed upon the truck; in holding that appellee was entitled to foreclosure of its chattel mortgage against the hoist and dump body placed by appellant upon the truck mortgaged to appellee as a part of such truck; in denying and refusing to render judgment in favor of appellant for its damages occasioned by the conversion by appellee of the hoist and dump body; in holding and failing to render judgment in favor of appellant against appellee for the title and possession of the dump body and hoist placed by appellant upon the truck mortgaged to appellee.

We overrule these points.

It is undisputed that appellant, in making the transaction with C. H. Lane whereby the dump body and'hoist were attached to the truck by welding, did not have any character of written contract with Lane, a chattel mortgage, or any other agreement which in any way purported to make the sale conditional. Nor was there any attempt to retain title to the dump body and hoist in appellant Texas Hydraulics.

Instead, the evidence given by appellant’s own witness indicated that an absolute sale and transfer of the dump body and hoist was made at the time of delivery of the truck to Lane after the dump body and hoist had been welded on. Appellant had refused to release possession of the dump body and hoist until satisfactory arrangements had been made for their payment which clearly evidenced the fact that appellant was aware that delivery of the truck with the hoist and bed was a significant step in its transaction with Lane.

Upon being advised by appellant that he could not have the truck with the dump body and hoist until payment had been made, Lane informed appellant that he was expecting an insurance company to pay some money because of the damage done to the old dump body and- hoist which had been removed. Appellant then made inquiry directly to the insurance company about its position, and upon receiving the promise from the insurance company that it would pay the money on the old dump body and hoist jointly to appellant and to Lane, appellant released possession of the truck, dump body and hoist to Lane and delivered the same to him, taking a delivery receipt.

Appellant relied on and accepted the promise of a third party (Waussau Mutual Insurance Company) for payment before making delivery of the truck, dump body and hoist to Lane, and that, coupled with delivery and the complete absence of any attempt by appellant to enter into a written conditional sales contract, or to retain a chattel mortgage lien on the chattels sold by it clearly indicate that appellant considered the sale to be complete at the time of delivery. See Gay v. Hardeman, 31 Tex. 245.

Vernon’s Ann.Tex.Rev.Civ.Stat. art. 5503 provides for a lien to the garageman who makes repairs to the vehicle. But this lien is lost, on voluntary delivery of the vehicle to the owner where no fraud in obtaining possession is involved. Also, by coming into the possession of the vehicle again after the original voluntary delivery, the garagéman’s lien is not revived. Caldwell v. Auto Sales & Supply Co., 158 S.W. 1030 (Tex.Civ.App. Austin 1913, no writ.).

Appellant’s point of error number six is the error of the court in holding that appellee was entitled to foreclosure of its unrecorded chattel mortgage lien on the truck, new hoist and dump body placed thereon by appellant.

We overrule this point.

Appellant maintains that appellee instituted suit on a note secured by a chattel mortgage and attached a copy of such note and chattel mortgage as a part of its petition. Appellant argues that the pleading does not allege that the chattel mortgage was ever recorded, nor does it allege that appellant had notice of such chattel mortgage.

In Perkins v. Martel, 277 S.W.2d 741, (Tex.Civ.App. Beaumont 1955, no writ), the Court held that where automobile vendor’s lien for the purchase price was noted on the certificate of title issued to the vendee, the mechanic, who subsequently repaired the automobile, had constructive notice of the lien and vendor’s chattel mortgage lien was superior to the statutory lien of the mechanic even though not recorded. Also see Motor Truck Sales Co. v. Hauck, 388 S.W.2d 214 (Tex.Civ.App. San Antonio 1965, writ ref’d n. r. e.); Vernon’s Ann. Tex.Pen. Code art. 1436-1, secs. 43-46.

The judgment of the trial court is affirmed.

      . A. Meister & Sons v. Harrison, 56 Cal. App. 679, 206 P. 106; Havas Used Cars, Inc. v. Lundy, 70 Nev. 539, 276 P.2d 727; Lincoln Road Equipment Company v. Bolton, 127 Neb. 224, 254 N.W. 884.

      . Johnson v. Interstate Security Co., 152 Kan. 346, 103 P.2d 795.