author: CHADICK, Chief Justice.

text:
    SCURLOCK OIL COMPANY, Appellant, v. Forrest E. ROBERTS, Appellee.
    No. 7495.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 6, 1963.

      Ruff Wall, Fred Whitaker, Carthage, for appellant.
    Law Offices of Tom Bankhead, Carthage, for appellee.
   CHADICK, Chief Justice.

This is an action for damage to land caused by negligent failure to prevent crude petroleum from leaking out of a pipeline. A judgment awarding plaintiff $2,400.00 costs, etc., is affirmed.

In conformity with the plaintiff’s pleadings the trial court submitted special issues to determine the fact of alleged negligent omissions of the pipeline operator, which issue the jury answered in the affirmative and found the omissions to be the proximate cause of the plaintiff’s damage. These issues are quoted, to-wit:

(No. 2). “Do you find from a preponderance of the evidence that the defendant, Scurlock Oil Company, failed to maintain its pipeline so as to prevent such oil leaking and escaping onto plaintiff’s land after November, 1958?
(No. 5). “Do you find from a preponderance of the evidence that the defendant, Scurlock Oil Company, failed to provide adequate pipe to prevent the leaking and escaping of oil onto plaintiff’s land after November, 1958?
(No. 8). “Do you find from a preponderance of the evidence that the defendant, Scurlock Oil Company, failed to repair its pipeline so as to prevent such oil leaking and escaping onto plaintiff’s land after November, 1958?”

The jury also found in separate issues, (No. 1) that oil leaked and escaped from the pipeline onto the plaintiff’s land after November, 1958, (No. 11) that oil leaked and escaped from the pipeline and polluted a lake, and (No. 12) the entire tract of land was damaged by pollution of the lake.

Though salt water, rather than crude petroleum, is the polluting agent in Turner v. Big Lake Oil Company, 128 Tex. 155, 96 S.W.2d 221; General Crude Oil Co. v. Aiken, 162 Tex. 104, 344 S.W.2d 668, and Brown v. Lundell, 162 Tex. 84, 344 S.W.2d 863, a principle pronounced in the first case and reaffirmed in the succeeding cases is controlling in the determination of liability in this case. A rule embodying this principle may be synthesized in terms of crude oil as follows: The escape of crude petroleum from a pipeline will not lay the pipeline operator liable for damages proximately caused by the escaping oil unless the operator negligently causes or permits the oil to leak.

The Supreme Court’s opinion in the Turner v. Big Lake Oil Company case quotes 1 Thompson on Negligence, § 694 et seq., with apparent approval. In that text the author uses an artificial body of water in illustrating the principle above discussed. In Sec. 706 he says: “ * * * It follows, therefore, that if a dam breaks away, to the injury of property below, the owner will not be liable unless the person injured can show negligence; and if it appears in proof that the dam was well and properly built, upon a proper model, he will not be liable merely from the fact that it gave way; but otherwise, if it broke away in consequence of having been improperly constructed, or maintained in unsafe condition.” Then in Sec. 707 it is said: “ * * * For this rule of- ordinary care exacts here, as in other cases, a degree of vigilance, attention, and skill in proportion to the probabilities of danger. In an action for damages caused by the breaking away of a dam, it will not do for the owner to say that he built it strong enough to resist ordinary freshets; he must build it strong enough to resist those extraordinary freshets which sometimes occur, and which are therefor reasonably to be anticipated.” By transposition of water and dam to oil and pipeline it may be said that the pipeline operator transporting crude oil is under a duty to use ordinary care to prevent its escape and damage to others. The care required is commensurate with the oil’s harm potential.

The appellant in this court, Scurlock Oil Company, attacks the jury’s affirmative answers to issues 2, 5, and 8, initially quoted, as being without evidentiary support, and as being against the overwhelming weight and preponderance of the evidence. In reviewing a no evidence point, the evidence and legitimate inferences from it must be considered in their most favorable aspect, disregrading unfavorable evidence. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 ; 38 Texas Law Rev. 361. While review of an overwhelming weight and preponderance point requires of this court a consideration of all the evidence and determination of its weight and preponderance. In Re Kings Estate (King v. King), 150 Tex. 662, 244 S.W.2d 660.

On an 800 acre farm in Panola County, Forrest E. Roberts, plaintiff in the trial court and appellee here, and his wife raise cattle and engage in associated agricultural endeavors. More than fifty years before the trial of this suit a pipeline right-of-way was procured and an eight inch diameter pipeline, now owned by Scurlock Oil Company, was constructed across the farm. The line is beneath the ground surface and runs from southwest to northeast, and at one point crosses the southeast corner of a seven acre lake constructed long after the line was laid; for some distance it is in the lake’s watershed and the lake dam covers a short length of it. Transportation of oil under a pressure of from 200 to 250 lbs. per cubic inch is the sole use made of the line. Approximately two feet of the line was exposed when the lake was drained, in an area six or eight feet north of the dam normally covered by water when the lake is filled. The dam is across a slight draw and lengthwise lies generally east-west. The land slopes gently downward from south to north in the lake’s watershed and the dam is placed to collect surface waters flowing to it from a northerly direction.

An oil scum formed on the water surface of the lake in the summer of 1959, and when discovered the fish in the lake were dead or dying. The lake dam was cut on July 4 that year, and the water released to allow the bed to dry. The next summer, August, 1960, a bulldozer was employed in an attempt to deepen the lake. While operating the dozer near the pipeline in the dry lake bed petroleum saturated earth at a depth of approximately two to three feet was turned up. Because of the danger from the oil’s volatile fumes the deepening operation was discontinued and the pipeline operator notified of the saturated earth. The presence of quantities of fresh oil was found. Pools of oil formed in the bulldozer tracks in the dry lake bed. The only known source of crude petroleum in the lake’s vicinity was the pipeline operated by the defendant.

A representative of the pipeline appeared in response to the notice, and according to the plaintiff, “he apologized that he had ruined my lake and said 'somebody is going to have to pay’ ”. This same witness said the pipeline’s representative stated he would “get permission to take the line out of the ground and see what was wrong, stop the leak.” Evidence was offered showing the pipeline had broken below the dam on several prior occasions, causing damage to the land. The plaintiff testified to making an inspection of the line’s right-of-way north (above) of the dam, and finding spots of fresh oil on the right-of-way in that area, at one point seeing a small oil bubble coming from the ground above the pipeline. In this connection he said that the earth backfilled over a portion of the line that had been uncovered seeking the source of the oil in his lake had fresh oil stains in the ditch line. Along the right-of-way above the water line of his lake he testified the area, at trial time, showed seepage of oil through the fill over the line, saying, “Spot out to the side where it seeped out there. Big spot seeped out here half as big as this floor. Two or three little spots over here from tub size to this size, just spots sticking up all through that area.”

Some five or six years before the presence of oil was found in the lake the pipeline operator discontinued inspection by walking the line. Substituted was air inspection from an airplane flown along the line each week. Air patrol replaced ground patrol.

The pipeline representative that responded to the original notice testified that the line was very old, had been in the ground over fifty years, and that a pipeline would deteriorate and rust out in a much shorter time. The operator had the line uncovered for six or seven hundred feet, beginning at a point approximately forty to fifty feet north (above) of the dam, and raised it on skids for inspection. A welder testified that he did some work on old patches while the pipeline was out of the ground where weld beads were deteriorated and eaten out. He found full wrap and half wrap patches, and the pipe corroded and pitted in a few places. His only repair was to build up welds where previous weld beads were eaten out. The plaintiff was not present when the line was uncovered and inspected, being out of the state. The forty to fifty feet of the line immediately above (north) of the dam was not uncovered.

The language used in alleging the negligent omissions, that is, failure “to maintain”, “to provide adequate pipeline” and “to repair”, has an overlap in meaning, and expresses substantially the same thought. An unrepaired pipeline is very close in meaning to an unmaintained or inadequate pipeline, and vice versa. No complaint about this is urged, and it is mentioned only to clarify the fact question presented to the jury. The jury was required, as a prerequisite to recovery by the plaintiff, to find from the evidence that oil had leaked from the line, and that the operator had negligently failed, in the respects mentioned, to prevent it leaking.

The evidence in its most favorable aspect has been recited and if it supports the plaintiff’s allegation it must be found to do’ so by the circumstances proven. There is; no direct testimony of a break or opening-in the pipeline through which oil escaped', or that the defendant failed to repair a. break, once found. However, a jury might reasonably conclude from the facts in evidence that a break had occurred which the pipeline operator negligently failed to repair. Evidence of oil saturated areas in. the right-of-way above the dam, of former breaks, that the line was old, rusted and patched, the unexplained presence of oili in the lake and its vicinity, with the pipeline as the only source of oil has probative force and is strong evidence that oil leaked from the line and gravitated to the place it was found. Considering the character of crude petroleum and its harmful potential, the absence of more thorough patrol and inspection, failure to uncover the line within forty to fifty feet of the dam, and failure to find and repair a break is evidence from which a jury might reasonably conclude that the pipeline operator negligently failed to maintain or repair the pipe so as to prevent the oil damaging plaintiff’s land. The operator’s duty did not cease at a cursory or routine inspection, it was under a duty to find and stop the leak that damaged the landowner.

Turning now to the great weight and preponderance of the evidence point, it becomes necessary to recite additional facts. When the line was uncovered no oil saturated earth was found along the opening. The end of the line was closed and the pump station doubled the ordinary pressure of the oil line and maintained the extraordinary pressure for a period of time to discover leak or leaks if they existed. Pressure gauges remained constant, indicating no leak, as the gauge would reflect a lowering of pressure if the oil was leaking from the line. In addition, it was shown that inspection of the line by airplane patrol was very efficient, and that such inspection succeeded in locating very small leaks. Expert testimony was offered to show the characteristics and tendencies of oil in pipeline leaks and the direction in which oil would normally travel from a leak or break and that no leak in the line was found at any time. This and other testimony created sharply controverted fact issues for the jury to decide. The nature of this evidence is not so weighted with self-evident truth as to justify this court in saying that its great weight and preponderance is contrary to the jury’s conclusions. The point is overruled. The evidence as a whole is such that its effect should be left for jury determination.

Appellant’s point 5 sets up for review the action of the trial judge in overruling the defendant’s motion to strike plaintiff’s second amended petition. The basis of the motion was that the pleading was filed five days before the date of trial, and alleged for the first time that oil and petroleum substances were still escaping from defendant’s pipeline at the time the pleading was filed. The record contains no order, bill of exception, or other memorial evidencing that the motion to strike was urged upon the trial judge, denied by him, or that the judge in fact acted upon it. Pleadings may be amended at any time an amendment does not surprise opposing litigants with new matter. Rule 63, Vernon’s Ann. Texas Rules.

Very recently, June 12, 1963, the Supreme Court in Sabine River Authority of Texas v. Willis, Tex., 369 S.W.2d 348, 6 Tex.Sup.Ct.Journal 518, held that a motion to abate a suit would be treated on appeal as not raised in the trial court when the record did not show that the motion was called to the attention of the trial judge or acted upon by him. The authority of that case effectively disposes of the point of error, but it is important to mention that the record does not reflect that the amendment actually caught the defendant by surprise with its allegation of a continuing leak. The defendant’s witnesses in the trial court testified to recent inspection of the line and denied finding a continuing leak or a leak of any kind. The burden is upon the complaining party to show the action of the trial court was arbitrary or resulted in substantial injury to him. Weaver v. Bogle, Tex.Civ.App., 325 S.W.2d 457; Davis v. National Acceptance Company, Tex.Civ.App., 233 S.W.2d 321, W.R., N.R.E.

Appellant’s points of error have been given exhaustive study. The points must be overruled as reversible error is not shown. It follows that the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    Helen HILL, Appellant, v. Joe CAPARINO et ux., Appellees.
    No. 14176.
    Court of Civil Appeals of Texas. Houston.
    Sept. 12, 1963.
    Peter P. Cheswick, Houston, for appellant.
    Robert A. Scardino, Houston, Vincent J_ Musachia, Houston, of counsel, for appel-lees.
   COLEMAN, Justice.

This is an appeal from a summary judgment rendered for the defendant in a suit: for damages by reason of personal injuries..

Appellee made certain requests for admissions and, in accordance with Rule-169, Texas Rules of Civil Procedure, stated' in the instrument containing the request: “You are required to serve your answer-at the expiration of eleven days from the-date on which you receive a copy of this-request.” Appellant contends that under Rule 169 only the trial court can extend the-time for the answer to be filed to a date-more than ten days from the date of receipt of the request.

Rule 169 provides:

“ * * * Each of the matters of which an admission is requested shall. ffie deemed admitted unless, within a period designated in the request, not ■less than ten days after delivery thereof or within such further time as the court may allow on motion and notice, the party to whom the request is directed delivers * * * a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. * * * ” (Emphasis added)

.Appellant’s contention is not well taken.

Appellant objects to the form of the request in that the attorney for appellee filed in the Clerk’s office a certificate that a correct copy of the request was mailed by ordinary United States mail to the attorney for appellant, contrary to the provisions of Rules 169, 21a, and 21b, Texas Rules of •Civil Procedure.

Rule 169 requires that a true copy of such a request for admissions, together with proof of the delivery thereof as provided in Rule 21a, shall be filed promptly in the •Clerk’s office by the party making the request. Rule 21a provides for service either in person or by registered mail. Rule 21b provides that service by certified mail may be had in any case where registered mail would be proper.

Appellee’s certificate reflects that the request for admissions was deposited in the ■ordinary United States mail on August 30, 1962, a date which we judicially know fell ■on a Thursday. Appellant filed an answer on September 13, 1962, also on a Thursday. Appellee then filed a motion to have the facts inquired about in the request for admissions deemed admitted because the answer was not timely filed and because the answer filed was so vague and evasive as to constitute no answer. After a hearing, the trial court found that the answer was not filed within the time required by Rule 169 and that the answer filed late was so vague and evasive as to constitute no answer, and ordered that the Request for Admissions of Relevant Facts be deemed answered affirmatively as a matter of law. There is nothing in the record reflecting that appellant requested an extension of time within which to file a new answer, or to amend her answer. No bills of exception have been filed.

Appellant has not contended in her brief that the answer was timely filed. It is her contention that since appellee failed to comply with the rules in making his request, appellant was not required to file an answer.

Rule 21a provides that any notice required by the Rules may be served by delivering a copy of the document to the attorney of record of the party to be served, in person or by registered or certified mail. A certificate that notice has been so given constitutes prima facie proof of service. The trial court was authorized to determine from evidence other than the prima facie proof mentioned in Rule 21a that the appellant had received the Request for Admissions and the date on which such request was received. Farmer v. Cassity, Tex.Civ. App., 252 S.W.2d 788; Parr v. Leal ex rel. Duval County, Tex.Civ.App., 290 S.W.2d 536; Bell v. Jasper Lumber Company, Tex. Civ.App., 287 S.W.2d 746, writ dism.; Billingslea v. Greaves, Tex.Civ.App., 196 S.W. 2d 945; Cunningham v. Associates Investment Co., Tex.Civ.App., 295 S.W.2d 687, err. dism.

Nothing in the facts presented by the record indicates that appellant was deprived of a full eleven days in which to file her sworn answer to the request for admissions. In support of the trial court’s judgment on the motions, it is presumed that evidence was presented which supported his action in finding that the answer was filed late. In the absence of a motion to permit a late filing of the answer, there can be no complaint of the action of the trial court in entering his order decreeing that the Request for Admissions of Relevant Facts be deemed answered affirmatively. O’Connor v. City of Dallas, Tex.Civ.App., 337 S. W.2d 741, err. dism.; Burnett v. Cory Corp., Tex.Civ.App., 352 S.W.2d 502, ref., n. r. e.; Longoria v. Violet Gin Company, Tex.Civ. App., 309 S.W.2d 484, ref., n. r. e.

Since the answer to the Request for Admissions was filed too late to be considered, it is not necessary to lengthen this opinion by an extended discussion of the trial court’s further holding that the answer as filed was so vague and evasive as to constitute no answer. We agree with this finding, which is a sufficient basis for the action taken by the trial court.

The answers to the Request for Admissions, together with the matters set out in the affidavit filed with appellee’s motion for summary judgment were sufficient to negative the pleaded grounds of recovery unless questions of fact were raised by the sworn answer to the motion for summary judgment. The matters deemed admitted could not have been contradicted by testimony at a trial on the merits. Masten v. Masten, Tex.Civ.App., 165 S.W.2d 225, err. ref.; Frierson v. Modern Mut. Health & Accident Ins. Co., Tex.Civ.App., 172 S.W.2d 389, ref., w. m.; Billingslea v. Greaves, supra.

The answer to the motion for summary judgment was sworn to by appellant’s attorney and there is nothing in the answer showing that he was competent to testify to the matters of fact stated therein. No issues of fact could have been raised by this answer. Richards v. Smith, Tex.Civ.App., 239 S.W.2d 724, ref., n. r. e.; Youngstown Sheet & Tube Co. v. Penn, Tex.Sup., 363 S.W.2d 230.

In the last cited case the Supreme Court of Texas, while discussing Rule 166-A, Texas Rules of Civil Procedure, said:

“Although there is no express requirement that the affidavits state that they are made on the personal knowledge of the affiant, we think this is the intendment of the rule. Hearsay may not be made the basis of a summary judgment, and the trial judge should not be required to speculate as to whether the affiant could establish the facts stated in his affidavit if he were testifying from the witness stand.”

While appellant’s answer to the motion for summary judgment does not meet the requirement of this interpretation of Rule 166-A, the affidavit in support of the motion clearly does.

The trial court did not err in granting appellee’s motion for summary judgment in the absence of an affidavit raising questions of fact in support of the pleadings filed by appellant. Baxter v. Beaupre, Tex. Civ.App., 295 S.W.2d 718; Sandone v. Dallas Osteopathic Hospital, Tex.Civ.App., 331 S.W.2d 476, ref., n. r. e.; Allen v. Western Alliance Ins. Co., Tex.Civ.App., 343 S.W. 2d 765, aff’d 162 Tex. 572, 349 S.W.2d 590.

The judgment of the trial court is affirmed.


author: POPE, Justice.

text:
    ALAMO PRODUCTS COMPANY, Appellant, v. N. A. RHYNE, Appellee.
    No. 14138.
    Court of Civil Appeals of Texas. San Antonio.
    July 10, 1963.
    Rehearing Denied Sept. 4,1963.

      Ewers, Toothaker, Ewers, Byfield & Abbott, McAllen, for appellant.
    Smith, Mcllheran & Jenkines, Weslaco, for appellee.
   POPE, Justice.

N. A. Rhyne, a vegetable grower, recovered judgment for $2,711.20 on a cross-action against Alamo Products Company for breach of contract. The court made findings of fact. Rhyne sued Alamo Products for breach of two contracts, one of which related to Rhyne’s 1959 bean crop and the other to his 1959 pea crop. The two written contracts were lost, but their terms are not disputed, since they were the forms customarily used at that time by Alamo Products. The essence of Alamo Products’ defense to both contracts is that the contracts did not impose upon it the obligation to harvest the two crops. Rhyne •contended that Alamo refused to harvest his crops or to release him, Rhyne, from the contract obligations which gave Alamo Products control over the harvesting, with the result that both the bean and pea crops were lost.

Rhyne was not free to harvest the bean crop because the contract gave Alamo Products the control over the crop. Alamo Products exercised that control in such a way that it did not harvest the crop itself, nor did it permit anyone else to harvest it. The contract provided:

“4. Grower agrees that he will not pick, nor permit to be picked, any Green Beans grown on the acreage described herein except as directed by Canner. Sale or delivery of Green Beans from this acreage to any other person or firm shall constitute a violation of this contract by Grower. It is further agreed by and between the parties that a representative of the Canner may enter the fields contracted hereunder during the period of planting, growing and harvesting, for the purpose of inspecting said crop, and that a representative of the Canner shall determine the proper time and manner of harvesting the Green Beans grown hereunder.”

Rhyne was not free to harvest the pea crop because that contract gave Alamo Products control over that crop in these terms:

“IV. Grower agrees that he will not pick, nor permit to be picked, any peas grown on the acreage described herein except as directed by the buyer. Sale or delivery of peas from this acreage to any other person, firm, partnership or corporation shall constitute a violation of this contract by the grower. It is further agreed by and between the parties that a representative of the buyer may enter the fields contracted hereunder during the period of planting, growing and harvesting, for the purpose of inspecting said crops, and that a representative of the buyer shall determine the proper time for harvesting peas grown hereunder.”

The essence of Alamo Products’ defense is that these contracts did not impose upon it the duty of harvesting. If that be true, the contracts at least forbade Rhyne from harvesting or selling the crops to others without Alamo Products’ authorization. The evidence shows that Rhyne, the grower, unsuccessfully sought to be released from the contract on several occasions while the crops still could have been saved. Each time Alamo Products stated that it would harvest the crops. In failing to harvest or permit Rhyne to sell to others, Alamo Products breached the contracts. Kerr v. Blair, 47 Tex.Civ.App. 406, 105 S.W. 548. There is no dispute about the value of the lost crops.

The judgment is affirmed.


author: COLLINGS, Justice.

text:
    Arvel C. CURTIS et al., Appellants, v. PIPELIFE CORPORATION, Appellee.
    No. 3793.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 13, 1963.
    Rehearing Denied Oct. 4,1963.
    Biggers, Baker, Lloyd & Carver, Dallas, for appellants.

      Thompson, Knight, Wright & Simmons, Dallas, for appellee.
   COLLINGS, Justice.

Appeal from the 160th Judicial District Court of Dallas County.

Pipelife Corporation brought suit against Arvel C. Curtis, I. C. S. Corporation and Industrial Coating Service, a partnership, seeking a temporary injunction, a permanent injunction and damages. The court granted plaintiff’s request for a temporary injunction as prayed and defendants have appealed.

Appellant, Arvel C. Curtis, is also a partner in Industrial Coating Service and the chief stockholder and executive officer of I. C. S. Corporation. He is the inventor of certain devices for the internal cleaning and coating of pipelines which were assigned by him to appellee Pipelife Corporation. It was alleged in appellee’s pleadings as plaintiff that Curtis at the time of the assignment agreed not to compete with Pipelife Corporation within the field of work defined as cleaning and coating of pipelines. It was alleged that such non-competitive agreement was contained in two certain contracts dated, respectively, December 28, 1954, and March 1, 1956. It was further alleged by appellee that Curtis and the other defendants were engaging in such work in violation of the non-competitive agreement and that Pipelife Corporation would suffer irreparable harm and damage unless all of the defendants were enjoined from engaging in such work, in that, defendants were holding themselves out as being ready, willing and able to do such work and they thereby frustrated the efforts of appellee to interest third parties in investing in the business activities of appellee in connection with such cleaning and coating process.

Appellants, as defendants in the trial court, alleged that Curtis had secured the consent of appellee Pipelife Corporation to engage in such work by virtue of oral authority granted by the president of appellee corporation during the year 1960, by virtue of authority contained in a letter from the president of appellee corporation addressed to Curtis in 1960 and by virtue of a formal written license agreement of Pipelife Corporation as licensor to I. C. S. Corporation, as licensee, dated July 15, 1961. Appellants further alleged that Pipelife Corporation had ratified engaging in such work by appellants and that appellee was estopped to question the validity of the licenses, or the rights of appellants to engage in such work.

By supplemental petition appellee, Pipe-life Corporation, alleged that the licenses had not been approved by its board of directors and that a by-law of such corporation required unanimous approval of the board of directors for granting of licenses. Appellee further alleged that the formal license agreement dated July 15, 1961, was secured by fraud on the part of Curtis.

The evidence is undisputed that Curtis is the inventor of the patented process known as the “Pipelife Process”, for cleansing and coating of pipelines internally in place and being applied either before or after the pipeline has been put in use for carrying oil, gas, water or other liquids. Such patents were granted to Curtis in 1947. The patents were assigned by Curtis to Pipe-life Inc., a Texas corporation. In 1954 Pipecote Service Company, Inc., acquired all the capital stock of Pipelife Inc. At the same time a written license agreement was entered into between Curtis and Pipecote Service Company, Inc., by virtue of which Curtis was granted a royalty on all work performed under his patented inventions and as a part of the agreement Curtis agreed that he would not compete with Pipecote Service Company, Inc., within the field of work of cleaning and coating pipelines internally in place. Pipecote Service Company, Inc., apparently became Pipelife Corporation or, at least, operates as such. On March 1, 1956, a written agreement was entered into between Curtis and Pipelife Corporation, the plaintiff in this suit, which, among other things, again provided for a royalty to Curtis on his patented inventions and again provided a non-competitive agreement reading as follows:

“During the term of all patents and patents rights within the field of work, Party of the First Part agrees that he will never compete with Party of the Second Part within the field of work either as proprietor, partner, stockholder, employee, agent, or in any other capacity, except with the consent of Pipe-life.”

Curtis testified that prior to July 31, 1960, Patrick H. Downing, President of Pipe-life Corporation orally gave Curtis consent and authority to operate as a licensee of Pipelife Corporation. The evidence shows a letter dated July 31, 1960, reading as follows :

“Industrial Coating Service
“Dallas, Texas
“Att: Mr. A. C. Curtis
“Dear Arville:
“As President of Pipelife Corporation, you have authority from me to use the Pipelife method of coating pipe internal in place as long as you pay to Pipelife Corporation the 5% royalty that is required by coating service companies working under contracts with Pipelife.
“I am in no position to give you a non-exclusive. This will have to be passed on by the Board. However, I will be glad to present your wishes at the next Board Meeting and see that it is voted on.
“I feel like someone has to keep this from completely getting out of circulation at this time and until we can get something worked out where we can put Pipelife in a position to work, I see no reason why you should not continue doing .this type of work.
“Very truly yours,
“/s/ Patrick H. Downing
“Patrick H. Downing
“PHD: cr”

The evidence also shows checks from Industrial Coating Service payable to Pipe-life Corporation for royalty for work done by Industrial Coating Service using the “Pipelife Process,” both before and after the above letter of July 31, 1960. Appel-lee, Pipelife Corporation does not question the existence or validity of the above letter of authority.

In appellants’ first and second points it is contended, in effect, that the court abused its discretion in granting the temporary injunction because, appellants contend, (1) the oral authority from the President of Pipelife Corporation to Curtis to engage in the cleaning and coating of pipelines constituted the consent for Curtis and associates to so engage, and as a licensee of Pipelife Corporation and (2) the letter of July 31, 1960, from Pipelife Corporation by its President, addressed to Industrial Coating Service constituted authority for Curtis and associates to engage in cleaning and coating pipelines, and consent to Curtis and associates to so engage as a licensee of Pipelife Corporation. We cannot agree with appellants’ contentions in their first and second points and they are overruled. The effect of the letter as above set out was simply an indication of permission to Curtis to continue doing the type of work in question until something could be “worked out where we can put Pipelife in a position to work.” The letter stated that the writer as President of appellee corporation was not in a position to “give you a non-exclusive. This will have to be passed on by the Board.” The evidence shows that the Board of Directors would have to approve any non-exclusive license, and that Curtis had knowledge of this fact. The effect of the letter and of the prior oral agreement was simply to grant to Curtis permission to do such work, subject to the right of appellee Pipelife Corporation, to, at any time, withdraw such permission.

It is contended in appellants’ third point that the court abused its discretion in granting the temporary injunction because of a written license agreement dated July 15, 1961. It is undisputed that a formal written license agreement purporting to be from Pipelife Corporation, as licensor, to I. C. S. Corporation, as licensee, dated July 15, 1961, was signed by the President of Pipelife Corporation, attested by the Secretary of the corporation and signed by four of the five directors of the corporation, including the President, Mr. Downing. The license agreement was not signed by the fifth and remaining director of Pipelife Corporation. The agreement was signed on behalf of I. C. S. Corporation by A. C. Curtis. The agreement provided, in substance, that the I. C. S. Corporation be granted a license for the entire life of the patents in question, and any improvements thereon, to engage in the cleaning and coating of pipelines internally in place within all of the United States and Canada, and provided for a royalty to be paid by I. C. S. Corporation to Pipelife.

Appellee, Pipelife Corporation contends that the above described license agreement dated July 15, 1961, is invalid. Appellee urges that the license was not granted with the unanimous consent of all of the directors of Pipelife Corporation; and that on June 11, 1960, appellee’s Board of Directors amended their by-laws so as to require that any license granted could be granted only upon the unanimous consent of the directors; also that such license was not granted at a duly assembled meeting of the Board of Directors of Pipelife Corporation; and that Mr. Curtis secured the signature of the President and directors who signed the license agreement by misrepresentation. Appellee, Pipelife Corporation is a Delaware Corporation. Sec. 141 of the Delaware General Corporation Law, 8 Del.C. § 141, provides that the business of every corporation shall be managed by a board of directors. The general rule is that directors of a corporation must sit as a board in order to constitute valid corporate action. In 19 C.J.S. Corporations § 744, at page 84, it is stated that:

“In general a board of directors may exercise its powers only as a body at a meeting duly assembled and conducted.”

The evidence shows that the license relied upon by appellant was not granted at a duly assembled meeting of the Board of Directors of appellee corporation. The action of a majority of the individual members of the Board was therefore ineffective to bind the corporation. The evidence shows also that a resolution was passed by the board of directors of Pipelife on June 11, 1960, prior to the license agreement dated July 15, 1961, which provided that no license could be granted by Pipelife unless there was unanimous consent of the board of directors. The evidence shows that the board of directors did not unanimously agree to approve the purported license agreement dated July 15, 1961. Subsection (g) of Section 141 of the Delaware General Corporation Law provides that any action required to be taken at a meeting of the board of directors could be taken without a meeting if prior to such action a written consent is signed by all members of the board and such written consent is filed with the minutes of the board. No such consent was shown nor was the license agreement participated in by all the members of the Board. The purported granting of the license was therefore ineffective to bind the corporation. It was contrary to the by-laws of the corporation and did not comply with the Delaware General Corporation Law.

There is also evidence to the effect that because Pipelife Corporation found itself in a precarious financial condition, it became necessary to secure additional financing; that in the early part of 1961, Bob Williamson, one of appellee’s leading stockholders, contacted Atlantic Refining Company and interested some of its officials in Pipelife; that initial proposals were that Atlantic Refining Company might contribute as much as $250,000.00 in capital to Pipelife. Appellant, Curtis, was also attempting to acquire a non-exclusive license and other advantages by making a capital contribution to Pipelife Corporation. The evidence indicates that a meeting of the Board of Directors of Pipelife Corporation was held in Austin, Texas, on May 24, 1961, at which time two proposals were presented to the Board. One of the proposals was by appellant Curtis and the other by Bob Williamson. Curtis proposed that he should receive a non-exclusive license under certain conditions but no action was taken by the Board of Directors at such meeting concerning either proposal. An informal meeting of the directors was held in Dallas on June 16, 1961, at which time Curtis and Williamson again presented written proposals to appellee Pipelife Corporation. It was provided in the proposal by Curtis that he should receive a non-exclusive license under certain conditions. There was evidence to the effect that on this same day Curtis approached Downing and told him that he was negotiating several contracts and that some of the contracts provided for monies to be borrowed from the Small Business Administration; that to get this money, he, Curtis, needed evidence that he had a license. Curtis thereupon dictated a letter dated June 16, 1961, which was signed by Downing, the President of appellee corporation stating that the Board of Directors had granted such a license to the I. C. S. Corporation. There is no evidence that any other directors of appellee corporation knew of or approved this letter at that time. Curtis, thereafter, approached Downing and asked that the license be prepared. Downing told Curtis to see Howard Marsh, one of the directors of appellee corporation, who was an attorney, and have him prepare the license. Curtis stated that he endeavored to contact Marsh but was unable to do so and that he had his own attorney prepare the license. Curtis then took the license to Downing and told him that he, Curtis, had been to Philadelphia and had been advised by a representative at Atlantic Refining Company that he, Curtis, would have to have a non-exclusiv'e license before any money could be obtained from Atlantic. Downing testified that, based upon this representation, he signed the license as one of the directors of appellee corporation for the use of Curtis in securing such financing and prevailed upon some of the other directors to do likewise. Another one of the directors also testified that Curtis told him that the license agreement was necessary to the completion of the Atlantic deal. There is further evidence to the effect that Atlantic Refining Company was and still is interested in financing Pipelife Corporation, but only if the purported license agreement with Curtis is not in effect.

The evidence in our opinion raises a fact issue on the question as to whether Curtis used fraudulent means to obtain the signatures of the directors of appellee corporation to the license agreement. In support of the judgment it must be presumed that the court so found. For all the reasons above stated the purported granting of the license in question was ineffective.

We also overrule appellants’ points urging that Pipelife Corporation ratified “all the license agreements” and is estopped to question same. The question of ratification is a mixed question of law and fact. A showing of consent to be bound by a contract or the showing of acts which clearly evidence such an intent may constitute ratification. However, “acts which are a mere continuance of the former transaction do not amount to a ratification.” 10 Tex.Jur. page 109. The action and conduct of appellee Pipelife Corporation as shown by the evidence and relied upon by Curtis do not show ratification and estoppel. The acceptance of the royalty checks by appellee were merely a continuance of the former oral and letter agreement of Curtis and his associates to use the patented process in the internal cleaning and coating of pipelines on a temporary basis. Appellant particularly urges in this connection the fact that appellee Pipelife Corporation took no action until this suit was filed in November, 1961. There is ample evidence, however, that during June, July and .August of 1961, all parties to this suit were working together to secure financing from Atlantic Financing Company. Curtis and Williamson were in conflict, each urging different plans and proposals to accomplish the desired aim, but both were seeking to help appellee Pipelife Corporation by securing financial backing from Atlantic. As heretofore pointed out, there was evidence to the effect that the purported license relied upon by Curtis was signed by a majority of the individual directors of appellee corporation for the sole purpose of assisting Curtis in his efforts to secure financial help for the corporation. The evidence does not show and certainly does not conclusively show ratification and estoppel.

For the reasons stated we hold that the trial court was not guilty of an abuse of discretion and that its action in granting the temporary injunction was amply supported by the evidence.

The judgment of the trial court is affirmed.


author: GRISSOM, Chief Justice.

text:
    Pauline Ardis KLEIN, Appellant, v. Robert E. KLEIN, Appellee.
    No. 3798.
    Court of Civil Appeals of Texas. Eastland.
    June 28, 1963.
    On Motion for Rehearing Sept. 6, 1963.
    Rehearing Denied Oct. 4, 1963.

      William Andress, Jr., Dallas, for appellant.
    Matthews & Weaver, Dallas, for appellee.
   GRISSOM, Chief Justice.

Appealed from the Court of Domestic Relations Number 1 of Dallas County.

Mrs. Klein sued Mr. Klein for divorce, custody of their adopted son and partition of property. The defendant filed a cross-action seeking the same relief. Judgment was rendered giving Mr. Klein a divorce, awarding custody of the son to Mrs. Klein and dividing the property. Mrs. Klein has appealed.

Appellant complains only of the property division. The court recognized that the Hood Street property was the separate property of the wife. It was awarded to Mrs. Klein. But, she complains because the court, having found that Mrs. Klein was indebted to the community estate, fixed a lien on that property for $1,625.11, in favor of the community estate, subject to all homestead rights of Mrs. Klein, and so partitioned the community estate as to award such lien to appellee, subject to said homestead rights. Appellant’s first point is that the wife’s separate property not being liable for her general spending of community funds, the judgment, insofar as it fixed a lien on her separate property for the benefit of the husband, is erroneous and void. She argues that a wife is not liable for community debts to a greater extent than the community property she has received and that community creditors have no right to subject her separate property to payment of community debts and that her husband has no greater right than the creditors. Ap-pellee’s counter point is that the court did not err in establishing an equitable lien in favor of the community and in so partitioning the community as to award appellee said lien, subject to homestead rights. Ap-pellee correctly points out that there was evidence that monthly payments were made by the community estate totaling $1,625.11, to discharge a purchase money lien on the Hood Street property. Appellee says that where community funds are thus expended, the community estate is entitled to reimbursement and an equitable lien on separate property. In Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620, 627, the court said:

“Our decisions hold that where a spouse improves his or her separate property with the funds belonging to the community estate, the other spouse, or his or her heirs, would be entitled to reimbursement out of his or her separate property, to the extent of their share of the community funds so used, and that their claim for such reimbursement is in the nature of a charge upon the property so improved. Rice v. Rice, 21 Tex. 58; Cameron v. Fay, 55 Tex. 58, 61; Roberson v. McIlhenny [Hutchins & Co.], 59 Tex. 615; Furrh v. Winston, 66 Tex. 521, 525, 1 S.W. 527; Clift v. Clift, 72 Tex. 144, 149, 10 S.W. 338; Robinson v. Moore, 1 Tex.Civ.App. 93, 20 S.W. 994. In other words, the principles of reimbursement in accounting between estates apply, without distinction, to both separate and community estates.”

The court further said at page 629 of 83 S. W.2d that:

“In case a complete partition in kind cannot be had, so as to award each party his or her equitable portion, the court can, if necessary, award certain property to one or more of the interested parties, impressing it with a money charge in favor of another, which charge may be ordered enforced by sale, if not satisfied by payment of the money within a fixed period of time.”

Appellee also cites in support of said contention Smith v. Smith, Tex.Civ.App., 187 S.W.2d 116. The cases of Norris v. Vaughan, 152 Tex. 491, 260 S.W.2d 676, and Manning v. Benham, Tex.Civ.App., 359 S. W.2d 927, (Ref.N.R.E.), relied upon by appellant as authority for her contention that the court erred in impressing a lien on the Hood Street property, are distinguishable on the facts. The Norris case concerned efforts of a husband to obtain reimbursement from the community for separate funds expended for “living expenses”, not in discharging a purchase money lien against the wife’s separate property, as was done here. It held, however, that the community should be reimbursed for its funds spent on separate property. Manning v. Benham was not a divorce suit and Article 4638, Vernon’s Ann.Civ.St., which directs a division of the “estate of the parties”, meaning all property of the parties, whether community, separate or homestead, was not applicable.

The court had authority to fix a lien in favor of the community for the com-, munity funds expended in discharging a purchase money lien against the separate property of the wife. The lien fixed by the court in favor of the community against appellant’s separate property became an asset of the community estate and was subject to distribution as any other asset. Article 4638 provides that in pronouncing judgment in a divorce case the court shall order a division of the “estate of the parties” in such a way as the court shall deem just and right. The court’s discretion in dividing the “estate of the parties” will not be disturbed unless it is manifestly unjust and unfair. The appellant has the burden of showing an abuse of discertion. Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299; Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21. The “estate of the parties” directed divided by Article 4638 includes all property of the parties, community, separate and homestead. 20 Tex.Jur.2d 549. In Williams v. Williams, Tex.Civ.App., 171 S.W.2d 530, the court said:

“On a certified question in the case of Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21, 23, in discussing the power vested by statute in the trial court, Judge Greenwood, speaking for the Supreme Court, said: ‘The court pornouncing a decree of divorce is invested with wide discretion in disposing of any and all property of the parties, separate or community, and * * * its action, in the exercise of such discretion should be corrected on appeal only where an abuse of discretion is shown in that the disposition made of some property is manifestly unjust and unfair.’ ”

The evidence justifies conclusions that the community debts were past due at the time of the trial, most were incurred after separation, some after the divorce suit was filed and that all benefited appellant. They totaled $5,999.48, excluding the indebtedness on the Princess Lane house and payments made by appellee to appellant after the suit was filed. The evidence supports a conclusion that of the $12,219.96 community assets received by both parties from March 21, 1961, until March 13, 1962, the date of the trial, appellant received $8,952.12 and ap-pellee received $3,167.84. Under the circumstances, it is not shown that the court erred in awarding the community claim against the Hood Street property to appel-lee. We cannot say the partition was manifestly unfair and unjust.

Appellant’s second point is that the community homestead and other exempt community property is not subject to the claims of unsecured creditors and the judgment ordering application of the funds from their sale to general debts, rather than to the spouses, is erroneous and an abuse of discretion. The record shows that counsel for both parties were appointed as receivers, without bond and without compensation, to take charge of certain community property, sell it and pay the proceeds into the registry of the court. Appellant says they were ordered to sell it for payment of the debts listed in an exhibit attached to the judgment. There is a list of debts attached to the judgment, but the judgment does not provide, except as to insurance, that the proceeds of the community property ordered sold shall be used to discharge such debts, merely that the proceeds shall be paid into the registry of the court, presumably to be equitably divided between the parties. The community property ordered sold included an automobile, the homestead on Princess Lane, the household furniture and furnishings, and a half interest in the cash value of the husband’s life insurance. Appellant says that the Princess Lane house, household and kitchen furniture and automobile and the cash surrender value of life insurance policies in force more than two years are exempt from the claims of creditors; that no creditor had the right to have them sold and the proceeds applied to discharge unsecured debts and, therefore, the court did not have the power to order said property sold and so applied, but that the court should have ordered the exempt property sold and, after payment of lien creditors only, divided the net proceeds between the spouses. The judgment is modified so that the proceeds of all exempt property shall be paid into the registry of the court, to be divided as to the court may seem just and fair.

Appellee says the court did not err in appointing receivers to sell the community property, including the Princess Lane house and the 1959 Oldsmobile and ordering the proceeds paid into the registry of the court in order to conserve the community estate and protect it from loss through forced sale. Appellee says that, as a matter of fact, appellant agreed to and participated in the sale of the Princess Lane homestead. This statement is not denied. He says it is evident that appellant does not object to designation of the Hood Street property as her homestead; that the real question presented is: When in a divorce action a wife agrees to the sale of the community homestead and designation of another house as such and, thereafter, such first house is sold, is the court required to divide the proceeds equally between husband and wife, or may the court in its discretion award part, or all, of such proceeds to either upon evidence that such a division is fair and just? Appellee says there is no requirement that the court shall equally divide the proceeds of sale of exempt community property between the spouses. He quotes the following from Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299, 302:

“ * * * The trial court is required, under Art. 4638, to decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing therein shall be construed to compel either party to divest himself or herself of the title to real estate. In other words, the statute puts the duty on the trial court to make a partition of the community property whenever the pleadings of either party show the existence of such property. The trial court shall consider all the facts and circumstances shown by the evidence and then partition the community property, both personal and real estate, in such manner as may be just and right. * * * If it is not subject to partition in kind the trial court can appoint a receiver and order so much of the property as is incapable of partition to be sold and the proceeds divided between the parties in such portions as, in the discretion of the court, may be a just, fair and equitable partition, having in mind the rights of the parties and the children.”

We agree with appellee’s said contentions. See 20 Tex.Jur.2d 549; Berg v. Berg, Tex. Civ.App., 232 S.W.2d 783. Reversible error is not shown.

Appellant’s third point is to the effect that the court erred in failing to fix a purchase money lien in her favor on the Princess Lane house for the amount of her separate cash invested in it. Appellant testified that she made a cash payment of $3,000.00 when the Princess Lane house was purchased. She testified that she got the money in cash out of a safety deposit box in an unnamed bank. Her testimony with reference to such payment did not compel belief by the court any more than the testimony which was disbelieved in Ex parte Preston, 162 Tex. 379, 347 S.W.2d 938, 939. There was evidence from which the court could properly conclude, as it apparently did, that such payment was made from community funds.

Points five and six are to the effect that the court erred in holding that the diamond earclips, a bracelet and a mower and edger were community property. There was evidence that they were bought during marriage and paid for out of community funds. They were presumed to be community property. The party asserting the contrary had the burden of proving it. The court, unquestionably, had the right to conclude they were community property. Article 4619; Hardee v. Vincent, 136 Tex. 99, 147 S.W.2d 1072.

Point seven is to the effect that the court erred in ignoring a check for $10,000.00, signed by the husband and payable to the wife, in adjusting the property rights of the parties. Mrs. Klein introduced a check for $10,000.00 dated December 25, 1966. The wife’s testimony was to the effect that the check was for money the husband owed her; that it was given in June, 1957, and that it was dated far into the future because her husband thought he would then have that much money in the bank. The husband testified that he executed said check on December 25, 1956; that he didn’t have any money to buy his wife a Christmas present and that she jokingly suggested he write her a check for $10,000.00, and that he wrote the check, as a joke, under such circumstances. The court had a right to believe the husband’s testimony, as it did.

Appellant’s case has been ably presented by counsel who did not participate in the trial, but we think reversible error is not shown. All points are overruled. The judgment, as modified, is affirmed.

ON MOTION FOR REHEARING

Mrs. Klein urges that we should reform the judgment by (1) holding the lien against her Hood Street house invalid; (2) instructing the trial court not to pay the proceeds of the sale of éxempt property to unsecured creditors; (3) properly divide the cash surrender value of appellee’s life insurance policy and (4) award the 1959 Oldsmobile to appellant. We sustain the first two contentions, the third in part and overrule the fourth.

Appellant first contends that we erred in holding there was evidence that monthly payments were made from community funds to discharge a purchase money lien on her Hood Street house, or that the trial court so found; that we erred in holding a lien was properly fixed against appellant’s Hood Street house, because there was no evidence, or finding, of enhancement in its value by reason of such payments, if any. Appellant says appellee did not plead that community funds were spent for the benefit of her separate property, for which the community was entitled to reimbursement. She says that the lien for $1625.11, was fixed against her Hood Street house by virtue of a finding by the trial court that the wife was “generally” indebted to the community, presumably because of her general and free spending of community funds. Appellant says there is no evidence of enhancement in the value of said property by virtue of such payments by the community, if any. The rule relative to enhancement of the value of the property of one estate by payments made by another applies to improvements. It is not necessary to decide whether it applies to payments to discharge a purchase money debt and lien. The right to reimbursement between estates is not a fixed right in the property sought to be charged but only an equity. “The decisions have correctly classified the right of the one making such advancement as an equity, and the final determination of the rights of the respective parties is . to be determined upon equitable principles as to the amount of reimbursement, as well as the means of enforcing the same. It is not a mere question of balancing ledger accounts.” Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620, 627. In Colden v. Alexander, 141 Tex. 134, 171 S.W.2d 328, 334, the court said “interest paid during coverture out of community funds on the prenuptial debts of either the husband or the wife on land, and taxes, would not even create an equitable claim for reimbursement, unless it is shown that the expenditures by the community are greater than the benefits received.” It is true, as pointed out by appellant, that appel-lee definitely testified that he did not make any payment on the Hood Street house. However, he did thereafter testify that some check records showed payments out of a fund unnamed, for a purpose unstated, to Metropolitan Savings and Loan on Mrs. Ardis’ house on Hood Street. (See s. f. 355). Appellant correctly contends the trial court made no express finding that such payments were made out of the community estate to discharge- a purchase money debt and lien against appellant’s Hood Street house. Defendant’s exhibits 24, 25 and 26 show fourteen payments to Metropolitan of $48.95 and one of $112.61, aggregating $797.91. This could not sustain the lien to the extent of $1625.11 against appellant’s Hood Street house in favor of the community. The record shows that for some period of time during the existence of the marriage the Hood Street house was rented for $60.-00 per month. The rent belonged to the community. Since the right to reimbursement is but an equity and the record does not disclose that income from the property to the community was less than the amount paid out by the community, if any, on said property, under the holding of the Colden case, supra, there was not even an equitable claim for reimbursement. We sustain said first contention, grant the motion for rehearing to that extent and reform the judgment so as to disallow any lien in favor of the community against appellant’s Hood Street house.

We also sustain appellant’s second contention. The court cannot, over appellant’s objection, pay the proceeds of exempt property to unsecured creditors. We also sustain appellant’s third contention, in part. Under Article 3832a the cash surrender value of appellee’s life insurance policy, in force more than two years, is exempt from liability for debts and cannot, over appellant’s objection, be applied to the payment of unsecured creditors. It is community property and is to be divided between the parties in accord with established legal principles. See 20 Tex.Jur.2d 556, 559. As we understand the evidence, despite that pointed out by appellant, there was evidence that the automobile was not paid for out of appellant’s separate estate. Its status was a question of fact. The fourth contention is overruled.

No one asks for a reversal of the judgment. Appellant prays that it only be reformed. Our former judgment is set aside. Costs of appeal are taxed against the appel-lee. The motion for rehearing is granted in part and the judgment of the trial court is reformed in accord with our holdings on appellant’s first three stated contentions. As so reformed, the judgment is affirmed.


author: FANNING, Justice.

text:
    Wayne ANDERSON, Appellant, v. Frank L. KING, Jr., Appellee.
    No. 7510.
    Court of Civil Appeals of Texas. Texarkana.
    Sept 3, 1963.

      J. D. McLaughlin, Fisher, McLaughlin & Harrison, Paris, for appellant.
    Pat C. Beadle, Clarksville, for appellee.
   FANNING, Justice.

Frank L. King, Jr., sued Wayne Anderson for unlawful conversion of a truck of the alleged value of $1625.00 and of a trailer of the alleged value of $95.00, aggregating the total sum of $1,720.00, and King in the alternative sued for $1,720.00 as the purchase price for the truck and trailer which Anderson had agreed to pay when buying such property as the highest bidder at a public auction sale. King also sought judgment for $400.00 as a reasonable attorney’s fee.

Trial was to the court with the aid of a jury. The jury’s responses to the special issues submitted were favorable to plaintiff, with the jury finding in effect that neither plaintiff nor his agents, etc., made a guaranty or representation to defendant that the truck was in excellent condition on the date of its purchase by defendant, and also finding that such truck was in excellent condition at the time it was purchased by defendant. The jury also found that the value of the truck was $1625.00. Judgment was rendered for plaintiff for $1720.00, plus $400.00 attorney’s fees, and certain stated interest and for costs. Defendant Anderson has appealed.

Appellant presents five points on appeal. His first three points are grouped and raise the contentions that the trial court erred in entering judgment for the purchase price of the truck because appellee failed to establish a title thereto with the consideration failing, because appellee relies upon an unlawful and void transfer of title to-support the consideration therefor and further that the trial court erred in entering judgment because of the failure to join as a party King Construction Company, owner of the truck, contending that it was a necessary party to the suit.

On February 3rd, 1961, Blake Moore Associates conducted a public auction sale at the ranch owned and operated by Frank L. King, Jr., near Clarksville, Red River County, Texas, under the name of “Cu-thand Ranch”, to sell any property and equipment gathered there for the sale. Appellant Anderson was the highest bidder upon two items of equipment offered for sale, namely, a 1960 model Dodge pickup truck with 4 wheel drive and a four wheel trailer, and appellant gave his check in the amount of $1720.00, dated Feb. 3, 1961, drawn upon a bank in Paris, Texas, payable to Blake Moore Associates in payment therefor, of which sum $1,625.00 represented payment for the truck and $95.00 for the trailer. The truck and trailer purchased by appellant at such sale was delivered to him upon delivery of his check.

After the sale was closed the check was endorsed by Blake Moore Associates and delivered by them to appellee King for deposit in his bank for collection. At the time of the deposit of the check in the bank for collection there was attached to it an envelope in which were enclosed the certificate of title to the truck and its current registration receipt. The assignment on the back of the certificate of title was signed “King Construction Co., by Frank L. King, Jr., Pres.,” before a Notary Public of Red River County, Texas.

Before the check was presented to the bank upon which it was drawn for payment, appellant stopped payment on the check. He claimed the truck was mechanically defective and the breach of an express warranty as to its condition as a reason for stopping payment on the check.

Under the record in this case the evidence shows that the legal title to the truck was in King Construction Company, a corporation. The record is not conclusive as to whether the legal title to the trailer was in King or in the corporation, but it was in one of them.

However, Frank L. King, Jr., who had possession of the truck and trailer on his “Cuthand Ranch”, was President of King Construction Company, a corporation, and was the sole owner of all of the stock of said corporation. Thus King Construction Company was a “one man corporation” with Frank L. King, Jr., as its President and sole owner of all of its stock. Also no rights of any creditors of King Construction Company (if it has any creditors) are involved in this suit.

While the legal title to the truck was in King Construction Company, a corporation, the beneficial or equitable ownership of the assets of the said corporation was owned by appellee Frank L. King, Jr., the President and sole owner of all of the stock of said corporation. In this connection see Arkansas Pass Harbor Company v. Manning, 94 Tex. 558, 63 S.W. 627; Boston & Texas Corp. v. Guarantee Life Ins. Co., Tex.Civ.App., 233 S.W. 1022, writ refused.

The legal title to the truck being in the corporation, the equitable or beneficial title to the truck being in King as sole owner of all of the stock of the corporation, with there being no rights of any creditors of the corporation being involved herein, and with the corporation, by King ■ as its President, executing the written assignment, it is clear that such assignment passed title to the truck to appellant Anderson. The fact that the name of the purchaser was left blank in the assignment does not make the assignment invalid as between the parties under this record as it is clear that appellant Anderson had the implied authority to fill in his name as the transferee in the blank space therefor in the assignment. In this connection Blake Moore, the auctioneer testified: “That was the instructions that were given before they purchased the vehicle, that Mr. King: would sign the titles and leave them open where they could be transferred onto their names, which is common practice around the auction business.” Also in this connection see World Fire and Marine Insurance Co. v. Puckett, Tex.Civ.App., 265 S.W.2d 641, wr, ref,, n. r. e., wherein it was stated: “The name of the transferee was not filled in upon this application, but the party to whom the application was delivered was impliedly authorized to fill in the blank.” Also in Rush v. Smitherman, Tex.Civ.App., 294 S.W.2d 873, wr, ref., it was stated: “So, despite the failure to transfer the certificate and the Act’s declaration that the non-transfer will render the sale void, as between the parties and when the purposes of the Act are not defeated, the sale is valid.” (emphasis added).

While undoubtedly it would have been preferable practice for the corporation, the owner of the legal title to the truck, to have brought the suit in question here and while it was in all respects a proper party to bring the suit or join in the suit, we hold that under the unusual facts in this cause it was not a necessary party. The suit was on two counts, for conversion and for the purchase price of the truck and trailer. The judgment for the value of the truck and trailer can be supported on both theories. With respect to the theory of conversion a recovery by King for the value of the truck and trailer can be very clearly supported. He was in possession of the truck and trailer at the time of the conversion and was also the owner of the equitable title to the truck and trailer. In 42 Tex.Jur., Trover & Conversion, Sec. 21, p. 530, 531, it is stated in part as follows: “In some of the cases it is simply said that in order to maintain tro-ver a plaintiff must have had some right or title to the chattel in question at the time of the alleged conversion. In other decisions it is declared that the plaintiff must have had either a general or special ownership and, in addition, either possession or the right to immediate possession of the property in question. * * * actual possession of a chattel at the time of its conversion is sufficient prima facie evidence of the right to; maintain trover except as to the true owner or one claiming under him. * * * ” It is our further view that under the unusual facts in the case at bar that King, as President and sole owner of all of the stock of the corporation, could also recover on the second theory as well, to-wit, for the purchase price of the truck and trailer, without the necessity of joining the corporation as a party to the suit. The act of King in selling the truck and trailer at public auction to Anderson and his execution of the assignment to the truck, as President of the corporation, of which King was the sole owner of its entire stock, was binding on the corporation. See 10 Tex.Jur., Sec. 50, “One Man” Corporations, pp. 651-2-3. Since the corporation was hound by King’s acts and suit it could not recover again in another suit against Anderson for the truck and trailer under the facts in this case. Also whatever accounting King would make to King Construction Company, King’s “one man” corporation, would be of no concern to appellant Anderson, there being no creditor’s rights involved herein.

Appellant’s 1st, 2nd and 3rd points are overruled.

By his fourth point appellant contends that the trial court erred in rendering judgment for the purchase price of the trailer, which was $95.00, contending that the appellant had theretofore tendered same to appellee. This suit was filed by appellee on April 13, 1961. Appellant offered to pay for the trailer in his first amended original answer filed Nov. 10, 1962, however no de-' posit of money or of a check accompanied thé ofíer made in the pleadings, nsr was there any proof offered that if such a check had been tendered that it was good, nor was there any tender of money or of check (shown to be good) made prior to that time. Under this record no lawful tender was ever made by appellant for the purchase price of the trailer. Appellant’s 4th point is overruled.

Appellant by his 5th point contends to the effect that as a matter of law appellee was not entitled to an attorney’s fee in this cause.

Art. 2226, Vernon’s Ann.Civ.St., footnote 1, the statute with respect to attorney’s fees, is penal in nature and must be strictly construed. Perry v. Leuttich, 132 Tex. 159, 121 S.W.2d 332; Huff v. Fidelity Union Life Insurance Company, 158 Tex. 433, 312 S.W.2d 493.

The contention made by appellee in support of the attorney’s fee item is that the pickup truck and trailer were “material furnished” within the meaning of such term under Art. 2226, V.A.C.S.

In Davenport v. Harry Payne Motors, Inc., Tex.Civ.App., 256 S.W.2d 245, it was held that the term “material furnished” as used in Art. 2226, V.A.C.S., did not embrace a disc plow or a disc harrow and that attorney’s fees in a suit upon verified account for purchase of such farm implements was not authorized. The Davenport case cited, among other authorities, American Indemnity Co. v. Burrows Hardware Company, Tex.Civ.App., 191 S.W. 574, which case ascribed to the Legislature a definition of the word “material” as not including machinery and tools.

Also in King Construction Company v. Flores, Tex.Civ.App., 359 S.W.2d 919, wr. ref., n. r. e., it was held that a dragline, dragline buckets, clam shell buckets, a pump and section hose were not “material furnished” within the meaning of Art. 2226, V.A.C.S.

The only case cited by appellee in support of his position that the pickup truck and trailer were “material furnished” within the meaning of Art. 2226, V.A.C.S., is the case of United States of America for the use and benefit of Caldwell Foundry and Machine Co., Inc. v. Texas Construction Company et al., 5 Cir., 237 F.2d 705. We think such case is clearly distinguishable from the facts in the case at bar as evidenced by the following quotation from said case, to-wit:

“Appellees further call attention that, in the case of Davenport v. Harry Payne Motors, Inc., Tex.Civ.App., 256 S.W.2d 245, 247, it was held that a disc plow and a disc harrow are not “material furnished” within the meaning of Article 2226 of the Revised Civil Statutes of Texas, footnote, 1 supra. The plow and harrow were, of course, only tools and implements used to plow and cultivate the farm, and the reason for the holding was that they did not enter into any structure and were not consumed. On the other hand, the hoisting machinery here involved was actually installed and became a part of the Lavon Dam. Under the rationale of that case, we think that this hoisting machinery is ‘material furnished’.” (Emphasis added.)

Appellant’s 5th point is sustained.

The judgment of the trial court is modified by deleting the $400.00 item of attorney’s fees therefrom and as modified the judgment of the trial court is affirmed.

In view of the modification made we deem it equitable to adjudicate the costs in the following manner: Four-fifths (fi) of the costs in the court below and in this court are taxed against appellant, and one-fifth (1/5) of such costs are taxed against appellee.

Affirmed as modified.

      . “Any person, having a valid claim against a person or corporation for personal services rendered, labor done, material furnished, overcharges on freight or express, lost or damaged freight or express, or stock killed or injured, or suits founded npon a sworn account or accounts, may present the same to such person or corporation or to any duly authorized agent' thereof; and if, at the expiration of thirty (30) days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount tliere-of as presented for payment to such person1 or corporation, he may also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees, if represented by an" attorney.”


text:
    MIDWESTERN INSURANCE COMPANY, Appellant, v. Mallie WAGNER, Appellee.
    No. 3783.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 6, 1963.
    Rehearing Denied Oct. 4, 1963.

      Clayton, Martin & Harris, Amarillo, for appellant.
    Scarborough, Black & Tarpley, Abilene, for appellee.
   GRISSOM, Chief Justice.

On December 13, 1961, W. H. Wagner was a truck driver for Texas Tank Lines, Inc. About 12:00 o’clock at night he arose for the purpose of going to his employer’s yard, starting a diesel truck and hauling asphalt for his employer. The temperature was below freezing and it was misting. He went to his employer’s yard, tried to start the defendant’s truck, being unable to start it, he went to the home of his employer’s mechanic, told him he had been trying unsuccessfully to start the truck and asked the mechanic to help start it. The mechanic agreed to do so and Wagner drove his automobile back to the truck. The mechanic lived just off the employer’s yard. He quickly dressed and went to the truck. When he got there Wagner was standing beside the truck. The mechanic started it. Wagner climbed into the truck and drove it across his employer’s yard to a maintenance house on the yard where a fire was burning. Wagner left the truck running in an attempt to melt ice off the truck and went with the mechanic into the maintenance house where there was another employee. They stood and talked by the fire about ten minutes. Wagner then fell to the floor, gasped once or twice, and died. His widow brought this suit to recover death benefits under the workmen’s compensation law.

Issues were submitted to a jury and answered as follows:

1.
"Do you find from a preponderance of the evidence that immediately prior to his death that W. H. Wagner suffered a heart attack as the result of a strain or over exertion ? — ANSWER: Yes.”
2.
“Do you find, from a preponderance of the evidence, that immediately prior to his death that W. H. Wagner was engaged in the course of his employment for TEXAS TANK LINES, INC.? — ANSWER: Yes.”
3.
“Do you find, from a preponderance of the evidence, that the work, if any you have found, that W. H. WAGNER was doing in connection with his employment with TEXAS TANK LINES, Inc., was a producing cause of his heart attack? — ANSWER: Yes.”
4.
“Do you find, from a preponderance of the evidence, that the death of W. H. WAGNER was not due solely to disease wholly independent of any injury, if any, sustained by him? — ANSWER: It was not due solely to disease.”

The court rendered judgment for the plaintiff for $11,334.31. The insurance carrier has appealed.

Appellant’s first point is that, the cause of Wagner’s death being in dispute, the court erred in admitting in evidence a copy of Wagner’s death certificate executed by a Justice of the Peace and certified by the County Clerk. The court erred in admitting said certificate. Service Mutual Insurance Company v. Banke, Tex.Civ.App., 155 S.W.2d 668, (Writ Ref.); Boehme v. Sovereign Camp Woodmen of the World, 98 Tex. 376, 84 S.W. 422; Universal Life & Accident Insurance Company v. Ledezma, Tex.Civ.App., 61 S.W.2d 165, 166; Armstrong v. Employers Casualty Company, Tex.Civ.App., 357 S.W.2d 168, 170; Washington National Insurance Company v. Chavez, Tex.Civ.App., 106 S.W.2d 751, 752, (Writ Dis.); Article 4477, Rules 41a, 51a and 54a, Vernon’s Ann.Civ.St. The certificate recited that Wagner died as a result of a heart attack. While that fact was not expressly admitted, it is evident from the entire record that there was actually no controversy over the fact that Wagner’s death was caused by a heart attack. It is undisputed that Wagner, who was about 62, arose on a very cold, damp night, drove to his employer’s premises, spent some time trying to start a cold truck, was unable to start it, got another employee to start it for him, drove the truck to a house on the employer’s premises where a fire was burning, left the engine running in order to melt ice off the truck, went inside, and ten minutes later, while talking to two other employees, fell to the floor, gasped once or twice, and died. Appellant says there was a serious dispute as to the cause of death. We think this statement is not supported by the record. Appellant presented no evidence, its cross examination was not directed against the conclusion, which was evident, that Wagner died from a heart attack. The real controversy was whether the work Wagner did in the course of his employment immediately before his death caused the heart attack. We conclude that admission of said certificate was not reasonably calculated to cause and did not probably cause rendition of an improper judgment. Texas Rules of Civil Procedure, rule 434.

Appellant’s second point is that the court erred in overruling defendant’s obj ection number one to issue one because the jury was not thereby restricted to strain or overexertion in the course of Wagner’s employment. The third point is that the court erred in overruling defendant’s objection number two to the charge wherein it pointed out that the charge did not submit any issue inquiring whether Wagner suffered a personal injury to his body which was a producing cause of his death. The fourth point is that the court erred in overruling defendant’s objection number five to the charge and in submitting issue one which inquired whether Wagner suffered a heart attack as a result of strain or overexertion, because there is no evidence that Wagner suffered a heart attack as a result of strain or overexertion. The fifth point is that the court erred in overruling appellant’s fifth objection to the charge and in thereafter submitting issue one inquiring whether Wagner suffered a heart attack as a result of strain or overexertion, because the evidence is insufficient to support said issue. The sixth point is that the court erred in overruling grounds two and eleven of appellant’s motion for judgment non obstante veredicto, because there is no evidence that Wagner suffered a heart attack as a result of strain or overexertion. The seventh point is the same as the sixth except it presents the contention that the answer to issue one that Wagner suffered a heart attack as a result of strain or overexertion is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust.

There was testimony from which the jury had a right to conclude that Wagner strained or overexerted himself by climbing in and out of the truck and that such action caused his heart attack and death. Approximately two hours passed between the time Wagner arose, went to the employer’s premises under abnormal weather conditions in the middle of the night, attempted to start the truck, was unable to do so and, finally, got it started by his employer’s mechanic, drove to the maintenance house on the employer’s premises, left the engine running in an attempt to melt ice off the truck, talked about ten minutes with his fellow employees and fell dead. There was evidence that even mild exertion will quicken the heartbeat and place a greater strain on the heart than exists while a person is not exerting himself and that the exertion in evidence caused Wagner’s death. A hypothetical question, which included all material facts and circumstances in evidence with reference to Wagner’s actions in the course of his employment immediately before his death, was propounded to a doctor who testified that in his opinion the precipitating cause of Wagner’s heart attack was climbing in and out of the truck. It was evident that Wagner died on his employer’s premises, in the course of his employment, of a heart attack. The question was whether the heart attack was precipitated by a strain or overexertion caused by what Wagner did immediately before in the course of his employment. It was not necessary for the court to define personal injury. The jury was asked whether immediately prior to his death Wagner suffered a heart attack as a result of strain or over exertion; whether immediately prior to his death Wagner was working in the course of his employment and, if so, whether such work was a producing cause of Wagner’s death. The insurer pleaded that he died of natural causes. The court also submitted an issue inquiring whether his death was due solely to disease.

In United States Fidelity & Guaranty Company v. Herzik, Tex.Civ.App., 359 S.W. 2d 914, 919, the court held that if a strain caused by lifting any weight in the course of employment caused a rupture of the heart and death that it was compensable under the workmen’s compensation law. It said:

“Nor should it be said that an injury from overexertion by one in a debili- , tated condition is not an accident simply because it required less violent exercise to produce the injury. Since we cannot fix any standard of condition, neither can we fix any standard of sufficiency of cause operating upon the condition. The legal principle is the same, whether the injury results from lifting weights, as a can of paint, or by some other form of physical overexertion.”

From the whole record we conclude there was evidence supporting the findings of the jury, including the answer to issue one that immediately prior to his death Wagner suffered a heart attack as a result of strain or overexertion. In Massachusetts Bonding & Insurance Company v. Massey, 5 Cir., 123 F.2d 447, 449, the court said:

“But it is also too well settled to require any detailed statement of the principle by us, that the fact that disease contributes to a death or disability is no reason for denying compensation for it, if something unforeseen occurred in the course of the employment which, acting with the disease, caused the injury; that it is only where the disease is the sole cause of the injury that a recovery is denied. * * * Appellant’s argument seems to be very much like that which was advanced, but did not prevail, in the Brodtmann case, supra, that there must be direct evidence that the death was caused by, that is, connecting the death with, a particular exertion or activity. This will not do. It is sufficient if taking all the facts and circumstances, there is a reasonable basis for the conclusion that in the course of his employment, there was an exertion, the accidental and unlooked for result of which was a physical injury to his heart causing its failure and his death.”

In Traders & General Ins. Co. v. Rooth, Tex.Civ.App., 268 S.W.2d 539, 541, (Ref. N.R.E.), the court said:

“Compensation benefits can be awarded if the workman, as a result of job exertion, sustains * * * heart attacks, notwithstanding the fact that predisposing factors contribute to the incapacity or death. * * * whatever the physical condition of the individual may be, if it is such that it requires some physical exertion or strain to cause the rupture, the injury is properly classed as an accidental one.”

In Texas Employers’ Ins. Ass’n v. Tal-madge, Tex.Civ.App., 2S6 S.W.2d 945, 949, (Ref.N.R.E.), the court said:

“If the appellant is contending under this point that death or injury to a workman caused by over-exertion and strain while working on his job is not an accidental injury, the argument is •overruled. Since the decision in the Carter case, Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581, it has been well established that an accidental injury in the course of employment is shown by the evidence that the injury or death occurred while the employee was at work and was caused by strenuous physical exertion.”

It has been held, apparently with approval of the Supreme Court, that testimony such as we have here is sufficient to support a finding that an employee died as a result of a heart attack brought about by strain or overexertion in the course of his employment. We think there is a reasonable basis in the evidence for the conclusion that in the course of Wagner’s employment, there was an exertion, the accidental and unlooked for result of which was a physical injury to his heart, causing its failure and his death. Massachusetts Bonding & Insurance Company v. Massey, 5 Cir., 123 F.2d 447, 449. From the very nature of the case much of the evidence was circumstantial or based on the answer of a medical expert to hypothetical questions, nevertheless, we think' that a fact issue was raised as to whether the heart attack that killed Wagner was precipitated by strain or overexertion in the course of his employment.

A heart attack caused by such a strain or overexertion is an accidental injury to the physical structure of the body within the meaning of the workman’s compensation law. Proof thereof, occurring in the course of employment, is sufficient to show a causal connection between injury and an employee’s death resulting from such a heart attack. 45 Tex.Jur. 494; Carter v. Travelers Insurance Company, 132 Tex. 288, 120 S.W.2d 581, 584; Texas Employers’ Insurance Association v. Lovett, Tex.Civ. App., 19 S.W.2d 397, 399, (Writ Ref.); Federal Underwriters Exchange v. Poison, Tex.Civ.App., 148 S.W.2d 956, 960, (Writ Dis. C. J.) ; Hartford Accident & Indemnity Company v. Gant, Tex.Civ.App., 346 S. W.2d 359, 363; and Texas Employers’ Insurance Association v. Lovett, Tex.Civ.App., 19 S.W.2d 397, 400, (Writ Ref.). However, it is not essential that there be a finding that deceased’s injury was the result of an accident. Texas Employers’ Insurance Ass’n v. Agan, Tex.Civ.App., 252 S.W.2d 743, (Writ Ref.) ; Aetna Insurance Company v. Hart, Tex.Civ.App., 315 S.W.2d 16?, 172, (Ref.N.R.E.) ; Texas Employers’ Insurance Ass’n v. Smith, Tex.Civ.App., 235 S.W.2d 234.

The medical testimony that climbing in and out of the truck precipitated Wagner’s heart attack is stronger than that in some other cases where a finding in accord with such an opinion has been sustained. See Texas Employers’ Insurance Ass’n v. Hatcher, Tex.Civ.App., 365 S.W.2d 641, 649; Texas Employers’ Insurance Ass’n v. Frazier, Tex.Civ.App., 259 S.W.2d 242, 244, (Ref.N.R.E.) ; Texas Employers’ Insurance Ass’n v. Talmadge, Tex.Civ.App., 256 S.W. 2d 945, 952, (Ref.N.R.E.).

The court did not err in awarding interest on past due installments. Article 8306, Section 15; Article 8306a; 45 Tex. Jur. 633; Consolidated Underwriters v. Saxon, 265 S.W. 143, 147, (Tex.Com.App.).

We have carefully considered all of appellant’s points. They are overruled. We think reversible error is not shown. The judgment is affirmed.


text:
    Mrs. Sloane CALLAWAY et al., Appellants, v. G. Preston TATE, Appellee.
    No. 3784.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 6, 1963.
    Rehearing Denied Oct. 4, 1963.
    Gib Callaway, Brownwood, for appellants.
    Ben D. Sudderth, Comanche, for ap-pellee.
   COLLINGS, Justice.

Appeal from the District Court of Comanche County.

This suit was brought by Mrs. Sloane Callaway joined by her husband and all other heirs of Mrs. Stella Callaway, deceased, and by Mark Callaway, administrator of the estate of Mrs. Stella Callaway, against G. Preston Tate to recover the alleged balance due on a certain promissory note executed and delivered by Tate to Mrs. Stella Callaway on October 23, 1950, in the sum of $15,000.00, together with interest and attorney’s fees. The defendant Tate answered by general denial and further specially alleged that the note was non interest bearing; that the principal indebtedness had been paid in full; that the $15,000.00 received by the defendant was a gift from Mrs. Stella Callaway; that the indebtedness had been cancelled, and that the suit was barred by both the two and four year statutes of limitation. Trial was before the court without a jury and judgment was rendered that plaintiffs take nothing. Plaintiffs have appealed.

The record shows that when appellant Mark Callaway became administrator of the estate of Mrs. Stella Callaway, deceased, he found that appellee Tate had been making monthly payments to Mrs. Callaway for several years in the approximate sum of $150.00, but could find no note or other evidence of the indebtedness among Mrs. Callaway’s papers. Mr. Gib Callaway, attorney for appellants, testified in effect, that Tate admitted to him that he had made a note to Mrs. Callaway which provided for monthly payments of $100.00 plus accrued interest. Appellants called appellee Tate, as an adverse witness, and elicited testimony from him to the effect that Mrs. Stella Callaway had made and delivered to him on October 20, 1950, a check in the sum of $15,000.00. Appellants also tendered in evidence appellee Tate’s first amended original answer in which ap-pellee admitted the execution of a note to the deceased, on October 23, 1950, stating as follows: “Defendant would show— that such note, described in plaintiff’s original petition was a non-interest bearing note, and that the entire principal sum of said note has been fully paid.” Appellee’s pleadings further sets out in itemized form and admits the amounts and dates of certain payments by appellee to Mrs. Stella Callaway or her estate at the Dublin National Bank in Dublin, Texas, covering a period of several years and in a total amount of more than $15,000.00. Appellants do not question the amounts of such payments. Thereafter, counsel for appellee Tate placed him on the witness stand and asked him to state the terms and conditions of the note which he had executed and delivered to Mrs. Stella Callaway, particularly whether said note contained any provision as to when payments were due, whether there was a provision for payment of interest, whether the money received by appellee was a gift from Mrs. Callaway, and whether decedent cancelled said indebtedness.

In appellants’ first point it is contended, in effect, that the court erred in permitting appellee to testify concerning such transactions with the deceased, Mrs. Stella Callaway, in violation of Article 3716, Vernon’s Ann.Tex.Civ.St, which provides as follows:

“In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”

Appellee Tate contends that appellants by calling him as a witness to identify the $15,000.00 check and eliciting his testimony admitting the receipt and endorsement thereof and his receipt of the money in the amount of the check thereby waived the prohibition set out in Article 3716, supra. Appellants contend that their action in calling Tate as a witness and eliciting such testimony from him did not waive the statute generally and thereby permit Tate to testify over their objection concerning the terms and provisions of the $15,000.00 note executed by Tate to Mrs. Stella Callaway, deceased. The effect of appellants’ contention is that the testimony and admissions which they elicited from Tate is entirely separate and independent and not a part of the same transaction involved in the testimony of which they complain. We cannot agree with appellants’ contention that reversible error is shown.

Appellants sued Tate upon an alleged promissory note in the sum of $15,000.00. They did not produce the note in evidence but established its existence by admissions in Tate’s pleadings that he had on October 23, 1950, executed and delivered a $15,000.-00 note to Mrs. Stella Callaway. Appellants also called Tate as a witness and established by his testimony that on October 20, 1950, he received the $15,000.00 check from Mrs. Callaway. The $15,000.00 check and the note for the same amount are parts of the same transaction. According to Tate’s testimony the note was given by him as consideration for and at approximately the same time as the check. Appellants contend that the note provided for 5 per cent interest and attorney’s fees. Although the note is not in evidence appellants contend that the existence of the provision in the note for interest is established by the amount of the monthly payments admittedly made by Tate. The court, over appellants’ objection, permitted Tate to testify further concerning the transaction and to describe the note which was given in consideration for the check and to deny the existence of a provision for interest. The court properly permitted Tate to testify concerning the transaction with Mrs. Stella Callaway, deceased, in which the check and note were executed and delivered by the respective parties, because Tate had been “called to testify thereto by the opposite party.” When appellants called Tate to testify about the $15,000.00 check made by Mrs. Callaway the very terms of the statute permitted Tate to tell about the entire transaction surrounding the making of the check, including the terms and provisions of the note executed by him in connection therewith.

The case was tried before the court without a jury and there are no findings of fact or conclusions of law. If there is evidence to support the judgment on any theory set out in the pleading it must be presumed that the court made findings in support of the judgment and the judgment must be sustained. The evidence as above substantially set out supports a finding that the note sued upon was in the sum of $15,000.00, as contended by all parties hereto, and was non-interest bearing, as alleged and testified to by Tate. The evidence shows and is undisputed that Tate paid Mrs. Callaway or her estate more than $15,000.00 and that the $15,000.00 indebtedness has therefore been paid in full. These findings required the judgment rendered by the trial court regardless of other contentions by appellants to the effect that there was error in permitting Tate to testify concerning the cancellation of the note by Mrs. Callaway, and an instruction by Mrs. Callaway to give any payments made on the note to Mrs. Nima Tate, the wife of ap-

pellee. We have carefully examined other contentions by appellants and find nothing which constitutes reversible error or could require a different judgment.

The judgment is affirmed.