author: WILSON, Justice.

text:
    LAKE AIR DEVELOPMENT COMPANY, a Texas Corporation, Appellant, v. KWTX BROADCASTING COMPANY, a Texas Corporation, Appellee.
    No. 3961.
    Court of Civil Appeals of Texas. Waco.
    Dec. 7, 1961.
    Rehearing Denied Jan. 4, 1962.
    Beard, Kultgen & Beard, Waco, for appellant.
    Ñaman, Howell, Smith & Chase, Hilton E. Howell and Louis S. Muldrow, Waco, for appellee.
   WILSON, Justice.

Summary judgment was rendered for defendant-lessee on the pleadings in plaintiff-lessor’s action to declare forfeiture of a lease for breach of its provisions.

The lease recited its primary purpose was for installation by defendant of an ultra high frequency television broadcasting station, and it authorized lessee “to sublet and sublease any part of the premises” not being used for such broadcasting station. Plaintiff says the lease means that some portion of the premises must be used as a television station; that only the portion so used may be subleased, and then only for use as a television station. One separate section of the lease did expressly permit the subleasing of such a station; but the quoted section authorized subleasing of any part not being so used. We agree with the trial court and appellee that the lease is not subj ect to the pleaded construction. Right to sublease was not limited to the portion of the premises being used as a television station.

Plaintiff further pleaded, however, that lessee had breached an express agreement to keep the leased premises neat and attractive. Defendant insists that no forfeiture could result therefrom. Clause 5 of the lease provided, “Lessee shall keep the leased premises neat and attractive, the lessee shall engage in none but lawful business on said premises and shall not barter or sell intoxicating liquor thereon, and breach of this covenant or condition will render the entire lease subject to forfeiture at election of lessor.” Another clause, 11, provided lessee should engage only in lawful business and should not sell intoxicating liquors on the premises, “and breach of this covenant or condition will render the entire lease subject to forfeiture.”

Appellee says the forfeiture provision relates only to the last restriction against intoxicating liquor, and not to the requirement in clause 5 that the premises be kept neat and attractive; or that the clause is so ambiguous as to preclude forfeiture. It •is not necessary to determine whether these provisions for forfeiture should be so construed, because another separately numbered section, 4(b), of the lease provided that failure of lessee to pay rents as agreed or “failure to comply with the other terms of this lease agreement shall terminate this lease at the option of the lessor.”

Appellee says the power of forfeiture reserved for breach of the specific restrictions as to lawful business and sale of intoxicants first quoted above should control the more general power last quoted, since forfeitures are not favored; and consequently no material issue of fact exists. This rule of construction is not invoked unless intention is not otherwise ascertainable. It is not applied in order to create ambiguity or conflict. Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157. There is no inconsistency between the more general, and the more specific clauses, and we think the expressed intention authorizing termination for failure to comply with provisions other than those concerning lawful business and sale of intoxicants is clear.

The allegations of the petition were sufficient, in our opinion, to present a fact issue to be tried concerning the alleged breach of the agreement to keep the premises neat and attractive. Reversed and remanded.


source: Caselaw Access Project

author: FRASER, Justice.

license: Public Domain

text:
    Teresa Losoya LEYVA and husband, Manuel Leyva, Appellants, v. Luz P. PACHECO, Sr., Appellee.
    No. 5491.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 6, 1961.
    Rehearing Denied Jan. 17, 1962.

      Guinn, Guinn & Truex, El Paso, for appellants.
    Andress, Lipscomb, Peticolas & Fisk, El Paso, for appellee.
   FRASER, Justice.

This is a suit in the form of a trespass to try title action, brought by appellants against appellee. Appellee plead not guilty, and title by limitation. The case was submitted to the jury on eleven issues and, at the conclusion of their deliberations, the court granted appellee’s motion for judgment notwithstanding the verdict, at the same time overruling appellants’ motion for judgment on the verdict.

The common source of title was stipulated to be Manuel, and his wife, Maria, Gallegos. The deed from Gallegos was to the father of the litigants here, Antonio Pacheco, as grantee. There was also introduced in evidence a deed from Antonio Pacheco and wife, Valentina, to appellee, in 1949, some five years after the deed to Pacheco from Gallegos. Appellee claims title by virtue of this 1949 deed, and title by limitations thereunder on a claim of three years’ adverse possession.

The jury found that appellants paid the $300.00 purchase price to Gallegos; that appellee knew it, and that the property was taken in the name of Antonio Pacheco in trust for the use and benefit of appellant; that appellant paid the sum of $975.00 to a contractor for the building of a four-room house on the property; that appellee knew this. That the signature of Valentina M. Pacheco on the 1949 deed was a forgery (Mrs. Valentina Pacheco died in 1951); that Antonio Pacheco did not receive any consideration from appellee for the 1949 deed, and that said Pacheco did not knowingly sign and deliver such instrument to appellee. That appellant was claiming an interest in the property prior to the date of the deed in 1949, and that appellee knew it. Then, in the eleventh issue, the jury found that appellee, either through himself or tenants, had peaceable and adverse possession of the premises, using it and enjoying the same for as long as three years prior to the filing of this suit in 1954.

We will attempt to dispose of this matter as logically as is possible under the circumstances and the state of the record.

Appellant first argues that the court should have rendered judgment for her, because the evidence shows a resulting trust arose in her favor. The record appears to indicate that she testified, as did her sister, to the payment by her of the purchase price of the lots. Mr. Pacheco testified to the same effect, but contradicts himself in the record by a sworn statement issued and signed by him in 1954. In all charity it must be stated that his testimony, taken along with the testimony of others with reference to his health, makes it difficult to get very much substantial or reliable help from his statements. Appellee, of course, denied that appellant paid Gallegos the $300.00 for the lots. Appellant further testified that she paid $975.00 to the contractor, Gonzales, for the building of the house. Appellant, however, introduced in evidence receipts totaling that specific amount, issued by the contractor to Antonio Pacheco, rather than the appellant. This is a record replete with contradiction and denial, along with considerable confusion. Appellee takes the position that no trust could have arisen because such would have been in violation of Article 7425b-7, Vernon’s Annotated Civil Statutes of Texas. Both sides cite some authorities.

It is our conclusion that the appellant here failed to establish what she calls a resulting trust. It is pointed out, in the case she cites, to-wit, Cohrs v. Scott, Tex., 338 S.W.2d 127 (St.Ct.), that the parties are presumed to have intended that the grantee (Antonio Pacheco, here) hold title for the use of him (appellant) who paid the purchase price, and further that the trust arises out of the transaction and must arise at the time when the title passes. Justice Greenhill, in this same opinion, concludes that the parties there did not present sufficient evidence to have caused or proven the creation of a resulting trust. Of course the provisions of the statute quoted above are familiar to all, in that they expressly forbid the creation of a parol trust relating to realty. In Broden v. Broden (Tex.Civ.App., San Antonio, error dismissed), 330 S.W.2d 674, 676, the court points out that, “ * * * Third, appellant, by his parol testimony, seeks to engraft upon deeds absolute on their face, an express trust in violation of the Texas Trust Act, Article 7425b-7.” The Gallegos deed here seems to be regular on its face and recites that, in consideration of the sum of $300.00 paid by Antonio Pacheco * * * grants and sells the said property to the said Antonio Pacheco.

In summing up this difficult question, we must again state that the testimony of the grantee in the Gallegos deed, to-wit, Antonio Pacheco, as found in the record, is confused, contradictory and therefore not very reliable. With reference to the payment of the purchase price of the lots, appellant and her sister testified to one thing, appellee to another. Appellee testified that his father paid for the lots and paid for the house, and produced the receipts to verify the latter assertion. So we have here a deed, regular on its face, upon which appellant attempts to engraft what she styles a resulting trust. Taking all of the evidence into consideration, we do not think that she has provided sufficient or adequate proof to create a parol trust on a deed regular on its face.

Appellant’s next point, or assignment, is that the 1949 deed was a forgery and a nullity. She produces testimony that Valentina Pacheco could not write; also, testimony from Antonio Pacheco denying that he ever signed such deed, and also stating that he received no consideration for it. Appellant argues that, based on the jury’s findings, the deed was a forgery and was procured under circumstances amounting to constructive fraud. The court, in granting its judgment favorable to appellee and contrary to the jury findings, had for its consideration much testimony supporting appellee’s position, which was that he paid his father and mother $500.00 for this property in 1949, in cash. He is supported in this statement by Mr. and Mrs. Cayetano Vasquez, in whose home this transaction was alleged to have taken place, and who are relatives to the parties. Both of these people testified to being present, at least part of the time, and testified that there was a sum of money in bills on the table; that Mr. and Mrs. Pacheco were there, as well as appellee and appellee's wife, and Steve Torres, a notary public. These two witnesses definitely said they saw money on the table during the time appellee was in apparent discussion with his father. Torres, the notary public, testified that he took Valentina Pacheco’s acknowledgment and that she could and did write her name, and that she was examined privily and apart from her husband as the law requires. Mrs. Vasquez testified that she saw Antonio make his mark on this 1949 deed; that there was money on the table, and that she didn’t know whether Mrs. Pacheco could sign her name or not, but that she did see her with a pencil in her hand. Mr. Vasquez testified that he saw Mr. Pacheco signing something on this occasion, and that he saw some paper money in bills on the table. So we have a situation where a deed appears regular on its face, and, several years later, is attacked on the ground that the grantor did not intend to execute it or deliver it, and that grantor’s wife’s name was forged thereon. As indicated above, this testimony is contradicted by witnesses who were not shown to have any monetary interest in the property.

We do not think the jury had sufficient evidence before it to justify its finding that the deed in question was a forgery, or that grantor did not receive any consideration. The deed recites that •consideration passed, and several witnesses testified that they saw money on the table; and, of course, appellee swears that he paid $500.00 in cash at the time to his father. The courts give much credence and weight to the certificate of the notary public reciting, as it does, that both parties did execute the instrument for the consideration therein expressed. This court passed on that matter in the case of Stout v. Oliveira, Tex.Civ.App., 153 S.W.2d 590, 596 (ref’d. w. m.). We quote from the opinion by the late Justice Sutton:

“To overcome the certificate the burden was on Serapio Oliveira to show he had not appeared before Mr. Trevino, or, if he did, that the officer practiced some fraud or imposition on him; that he had not entered into the contract for the purposes and consideration therein expressed. To overcome an instrument in writing and purporting to be duly acknowledged, the proof must be clear and unmistakable. The reason is obvious, because, if the rule were otherwise, titles would be insecure and ruinous consequences would ensue from the doubt and uncertainty with which titles would be clouded. * * * To permit this finding of the jury to stand and the title to be overturned, would subject muniments of title to attack on the weakest sort of unsatisfactory proof. This has not yet been done, and cannot be done.”

Actually, the evidence produced by appellant consists of a denial by the aged Mr. Antonio Pacheco that he signed the statement, and statements by a sister and aunt, one of whom lived in El Paso and the other in California (Valentina Pacheco lived in Ysleta), that Valentina Pacheco could not sign her name. We do not think this is sufficient evidence to uphold the jury’s findings and overturn the notary’s certificate and the evidence of the other witnesses, plus the existence of a deed that appears completely regular on its face. It is especially significant that several witnesses support the notary public’s testimony. Lastly, without detailing same it appears that the evidence is adequate to sustain the jury’s finding that appellee did acquire possession by limitation. Again there is some contest between the parties, but the jury apparently believed that Antonio Pacheco occupied the property as the tenant of appellee — this, on the basis of the testimony of appellee in which he mentions having plastered the inside of the house, remodeling it, etc.

It must be noted that, in 1954, Mr. Antonio Pacheco made a statement to attorney A. C. Gonzalez, Jr., who testified that he explained everything carefully in Spanish to Mr. Pacheco. In this statement Mr. Pacheco said that he did buy the property himself, and did convey it to his son for $500.00; also, that his son (appellee) had helped him, and the appellant had not; that he was getting old and wanted the property in his son’s name, too, so that he could pay the taxes, and because of expected help from appellee. In his deposition for this trial, he denies making any deed to appellee, stating that appellant was the owner of the property; and denied that ne appeared in the office of W. C. Peticolas and signed the aforesaid statement in the presence of two witnesses, to-wit, Eleanor McCoy and Floy Crites. In conclusion, we are constrained to state that understanding of, or disposition of, this case is impossible without a complete reading of the record, both as to the Statement of Facts and the Transcript. For reasons of brevity, we have not detailed all of the testimony, but have tried to paint as much of the factual picture as is practicable. The entire record, as we have stated earlier, is full of such contradictions and denials and confusion that a careful and complete reading of the Statement of Facts in this case is peculiarly essential.

All appellants’ points are accordingly overruled, and the decision of the trial court is in all things affirmed.


author: CLAYTON, Justice.

text:
    John A. GRATTON, Appellant, v. E. L. FITCH, d/b/a E. L. Fitch Trucking Company, Appellee.
    No. 5489.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 13, 1961.
    A. R. Archer, Jr., Monahans, for appellant.
    McDonald, Shafer & Gilliland, Odessa, Lucius D. Bunton, Odessa, of counsel, for appellee.
   CLAYTON, Justice.

Appellant Gratton filed this suit in the 143rd District Court of Ward County, Texas, against appellee, E. L. Fitch, doing business as Fitch Trucking Company, for damages arising from personal injuries sustained during the process of skidding a rig belonging to appellant’s employer, the Aldridge and Stroud Drilling Company, on a drilling location in Ward County. Appellant was a tool pusher for the drilling company. It had become necessary to change a derrick or “mast” on the rig, and for this purpose the rig had been skidded away from the well hole. In order to skid the rig back in place appellant needed heavier, equipment, and he had ordered a tandem winch truck with a tall gin pole from appellee company to come out to the location to furnish the power to skid the rig back in position. The truck had also brought a mast to replace the one removed from the rig. The truck driver and winch operator was one Brooks Franklin, and he was accompanied by a “swamper”, both of whom were employees of appellee company. Franklin assisted in replacing the mast under the supervision of appellant, and he was then directed by appellant to assist in skidding the rig back over the hole. This was to be done by use of the truck and its winch and line. Franklin drove his truck to a point north of the rig, preparatory to skidding the rig; the winch line was pulled over to the rig and tied to an H-beam on the rig under the direction of the appellant. When this was done, the appellant turned to walk away from the rig. The winch was started up and the winch line, in tightening up, apparently whipped back and forth and struck the appellant, causing the injuries set out in the petition. Who, if anyone, directed the winch operator Franklin to start the winch is not shown by the testimony. Appellant testified that he did not, and Franklin did not appear as a witness.

At the close of appellant’s case the ap-pellee filed a motion for a directed verdict, or, in the alternative, that the case be withdrawn from the jui'y and judgment be entered for appellee. The motion set out the following grounds: First, that there was no probative evidence showing any act of negligence on the part of any agent, servant or employee of the appellee; and second, that Franklin, the truck driver and winch operator, was a “loaned servant” of appellant and his employer, Aldridge and Stroud. Without specifying upon which ground the judgment was founded, the trial court withdrew the case from thé jury and entered judgment for appellee. Hence this appeal.

In appellant’s first point, complaint is made that there was ample evidence that appellant’s injuries were caused by the negligence of appellee’s employee, Brooks Franklin, and that therefore the cáse should not have been withdrawn from the jury. In appellant’s second point, a like complaint is made on the basis that appellant had plead the doctrine of res ipsa loquitur, and the facts of the case would justify a submission of such issue to the jury.

It is considered preferable to deal with the second point first, since if this is a res ipsa loquitur situation, the proof thereof would aid in the establishment of negligence on the part of appellee’s employee.

“Res ipsa loquitur is a rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened, provided (1) the character of the accident and the circumstances attending it lead reasonably to the belief that, in the absence of negligence, it would not have occurred, and (2) the thing which caused the injury is shown to have been under the management and control of the alleged wrongdoer.” (Honea v. Coca Cola Bottling Co., 143 Tex. 272, 183 S.W.2d 968, 160 A.L.R. 1445.)

Starling Thomas Morris, in a comprehensive article in 26 Texas Law Review 257, 761, entitled “Res Ipsa Loquitur in Texas”, relates further:

“Frequently a third element is stated. (3) There must be an absence of responsible contributing conduct on the part of the injured person.”

The same author has this to say relative to this third element:

“* * * if both the injured person and the defendant have some control over the instrumentality an inference that plaintiff was negligent is as acceptable as an inference that defendant was negligent. In either case preponderant probability does not point to the defendant as the negligent person, and a verdict of negligence on his part would be purely speculative.”

Ignoring for the moment the first element set out above and directing our attention to the second and third elements, we find in the appellant’s testimony certain illuminating statements bearing on the matters of control and management over the instrumentality in this case, i.e., the winch on which the line was wound, and the winch line which struck the appellant. The evidence establishes satisfactorily that appellant did not instruct appellee’s truck driver how or when to operate the winch or the tandem truck on which it was mounted. But with regard to the tying of the winch line on to the rig, the appellant testified on direct examination :

“Q. But I believe you did testify that you just said where to tie it onto the rig.
“A. That’s right.
“Q. Now, then, immediately, when you saw the winch line was proper2y attached, that is, or attached the way you wanted it attached.
“A. Yes, sir.
“Q. You said that you just turned' around and started to walk away and had taken maybe a step or a half a step or a step and a half when something hit you ?
“A. That’s right.”
On cross-examination, appellant testified:
“Q. And you were the one who was supervising the job, weren’t you?
“A. That’s right.
* * * ⅝ * ⅜
“Q. And you wanted to be as absolutely certainly that that line was tied exactly the way you wanted it tied.
“A. That’s right.
******
“Q. And that was the reason that you were attending to all of the tying of the line on to that rig, that is, seeing that it was tied exactly where you wanted it?
“A. That’s right.”

The line was actually tied on by one of appellant’s coworkers, either alone or assisted by the swamper, appellee’s employee. The testimony does not reveal what caused the winch line to whip or lash out in such a manner as to strike the appellant, and no witness could remember any similar occurrence in the oil fields.

We do not consider this a res ipsa loquitur situation. It seems certain from the evidence that it was the winch line that struck and injured the appellant. Of course, it seems equally apparent that the winch line would not have whipped back and forth without the winch, to which the line was attached, having been set in motion. By the same reasoning, the winch having been set in motion would not have injured appellant except for the fact that the line was tied on to the rig, and this was done under the direct supervision of the appellant, and in just the manner that he wanted. Under these circumstances. and putting the matter in a light most favorable to appellant, both he and appel-lee’s employee had some management and control over the offending instrumentality, and res ipsa loquitur cannot be invoked to raise an inference of negligence on the part of the appellee. Appellant’s second point is accordingly overruled.

Without assistance in proving negligence from the doctrine of res ipsa loq-uitur, we find no evidence of negligence on the part of appellee’s servant of sufficient probative value to justify submission of such issue to the jury. It is not shown that appellee’s employee set the winch in motion. But if it were shown that he did, either on his own volition or in response to a signal from someone, appellant testified that he was ready for this to be done. If appellant, after supervising the tying on of the line, was ready for the winch to begin operating, the act of setting the winch in motion could not have been considered by appellant to have been a negligent act. Nor is there any other act attributable to appellee’s employee to he found in the record which, under the evidence, may he denounced as negligent. We find that appellant’s first point must likewise he overruled.

Appellant’s third and fourth points complain of the action of the trial court in withdrawing the case from the jury and rendering judgment in favor of the ap-pellee on the basis of the truck driver and winch operator being a “loaned servant” of appellant and his employer, contending that this issue should have been submitted to the jury.

There being no negligence on the part of the truck driver and winch operator, the question of whether or not he was a loaned servant becomes immaterial, and there was therefore no issue to be submitted to the jury on this matter.

Finding no error on the part of the trial court, the judgment therein rendered is affirmed.


author: MURRAY, Chief Justice.

text:
    BEXAR COUNTY, Texas, Appellant, v. CITY OF SAN ANTONIO, Appellee.
    No. 13830.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 15, 1961.
    Rehearing Denied Jan. 10, 1962.

      Charles J. Lieclc, Jr., Dist. Atty., L. J. Gittinger, J. W. Sewell, Asst. Dist. Attys., ■ San Antonio, for appellant. •
    Carlos C. Cadena, City Atty., Crawford ’Reeder, Asst. City Atty., San Antonio, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by the City of San Antonio, a municipal corporation, organized and existing under the laws of the State of Texas as a home rule city, against Bexar County, a political subdivision of the State of Texas, to recover the sum of $285.-92, for sewer charges rendered against certain properties belonging to the County which are used exclusively for public purposes and are connected with the City’s sewerage system. The account covered a period from March 17, 1960 to July 31, 1960. The charges were based upon rates fixed by an ordinance of the City dated March 17, 1960, and numbered 28,351, as amended by another ordinance of the City dated July 14, 1960, and numbered 28,732. The County refused to pay this bill, contending, among other things, that the ordinances upon which such sewer charges were based were unreasonable, arbitrary, confiscatory, void and illegal, and that the charges were in fact a tax levied by the City upon the County. The case was submitted, largely upon stipulated facts, and the hearing resulted in judgment for the City against the County for the amount sued for. The County has prosecuted this appeal.

Appellant’s first contention is that the City levied these charges against county property used exclusively for public purposes, and that such sewer charges were in fact taxes or assessments not authorized to be levied by a municipal corporation against a county, and that such sewer charges were illegal and void.

Unquestionably, a city cannot levy taxes or assessments against property of a county used exclusively for public purposes in this State, unless authorized to do so by a legislative act, and, under the stipulated facts in this case, if the charges sued for were in fact taxes or assessments against the properties they were illegal and void. Harris County v. Boyd, 70 Tex. 237, 7 S.W. 713; Art. 11, § 9, Texas Constitution, Vernon’s Ann.St. Thus the real question here presented is whether or not, under all the facts in this case, the so-called sewer charge was in fact a tax and assessment against Bexar County. It has been decided that a city may make a reasonable charge for the benefits received by those who use its sewers, sufficient to operate and maintain such sewer system and to provide for replacements and future extensions thereof. City of Texarkana v. Wiggins, 151 Tex. 100, 246 S.W.2d 622; City of Fort Worth v. Westchester House, Tex.Civ.App., 274 S.W.2d 732; City of Wichita Falls v. Landers, Tex.Civ.App., 291 S.W. 696; Mulkey v. City of Kaufman, Tex.Civ.App., 286 S.W. 620; Cooley on Taxation, 6 36.

Appellant contends that inasmuch as the sewer charge fixed by the above ordinances would produce the sum of $1,600,-000.00 per year, while the cost of maintaining and operating the sewerage system of the City is the sum of $490,000.00 per an-num, that the charge was not a reasonable charge for the service rendered but a tax levied for the purpose of raising revenue, and therefore not applicable to Bexar County. It is stipulated, among other things, that the City has expert advice to the effect that it will be necessary to spend, during a period from 1960 to 1970, the sum of $16,301,650.00 for capital improvements in the sewerage collection and treatment system to meet the City’s sewerage requirements for such period. A city is entitled to fix its sewerage rate so as to create not only the cost of operating and maintaining its present sewerage system, but also the cost of making replacements and extending and improving such system. Louisville & Jefferson County Metropolitan Sewer Dist. v. Barker, 307 Ky. 655, 212 S.W.2d 122, 4 A.L.R.2d 588; City of Texarkana v. Wiggins, supra; City of Fort Worth v. Westchester House, supra; Mulkey v. City Kaufman, supra.

We therefore conclude that the fact that the sewer charge would produce a greater sum than the cost of operating and maintaining the City’s sewerage system, does not render such a charge a tax or assessment. Being only a reasonable charge for the service rendered, it was a proper charge by the City against the County.

There is a presumption in favor of the validity of a municipal ordinance and the burden of showing that it is invalid is upon the party attacking it, and unless such showing is clearly made the action of the city council in enacting the ordinance is conclusive and cannot be reviewed by the Court. City of Abilene v. Woodlock, Tex.Civ.App., 282 S.W.2d 736, error refused, certiorari denied, 351 U.S. 925, 76 S.Ct. 782, 100 L.Ed. 1455.

The County contends that the above two ordinances were not enacted for the purpose of making a reasonable charge, but for the purpose of raising revenue. The County in making this contention does not take into consideration the value, at the present time, of the City’s sewerage collecting and treating system, its depreciation each year, the cost of replacing parts that can no longer be used, and the cost of making extensions to meet the rapidly growing population of the City. The burden was upon the County to show these things if it expected to establish the fact that the City’s sewer charges were for revenue purposes, and not a charge for service rendered, but in fact a tax. These items must be taken into consideration in determining whether a sewer charge is excessive.

In Mulkey v. City of Kaufman, 286 S.W. 620, the Court said:

“The amount charged for the use of sewer is not inherently, in a legal sense, a tax, not even levied and collected as such, but a charge made without discrimination for a service rendered in value equal to the respective sums charged. Such charges are not collected by the tax collector or assessor, but collected through the water and sewer department, and the sum thus collected does not constitute any portion of the ad valorem tax levied and collected by appellee. Appellee city, existing under the general laws of Texas as a municipal corporation, is authorized to operate a waterworks and sewerage system, and, under authority conferred by law, has the power to assess such charges for its water and the use of its sewer system as within the judgment of its governing body should be necessary to support and maintain and properly care for the city’s property and to make such extension thereof as in their best judgment should be necessary. All of this is for the sole purpose of furnishing the inhabitants of the city with an adequate and wholesome supply of water and a sanitary sewerage system so necessary for the preservation of health.”

It is provided by ordinance of the City that all revenues from sewer service rendered outside or inside the City limits be placed in the “City of San Antonio Sewer Reserve Fund,” a fund created by Ordinance No. 20747. Said ordinance also provided, in Section 18 thereof, as follows:

“Any revenues in excess of those required to establish and maintain the funds as above required may be used for the redemption of the bonds or for any lawful purpose.”

The fact that under the above provisions some of the funds collected as sewer charges may ultimately be used for any lawful purpose does not render such service charges a “tax”.

The exact question as to whether a City is authorized to collect a sewer charge from a County has not been directly passed upon by any Court in this State, but the question was passed upon in the State of Kentucky, in Louisville & Jefferson County Metropolitan Sewer District v. Barker, 307 Ky. 655, 212 S.W.2d 122, 4 A.L.R.2d 588, wherein it was held that such a charge could be made against a county.

“Sewer Charges” have been held not to be a “tax” by the Courts of this State. City of Wichita Falls v. Landers, Tex.Civ.App., 291 S.W. 696, error ref.; Mulkey v. City of Kaufman, Tex.Civ.App., 286 S.W. 620. The same thing is implied in the cases of City of Texarkana v. Wiggins, 151 Tex. 100, 246 S.W.2d 622, and City of Fort Worth v. Westchester House, Tex.Civ.App., 274 S.W.2d 732.

The County next contends that Ordinances Nos. 28,351 and 28,721, attached as exhibits to the City’s pleadings, were not admissible in evidence. We overrule this contention. Municipal ordinances being presumed to be valid, the burden was upon the County to show the invalidity of these ordinances, and having failed to discharge this burden, the ordinances were admissible in evidence.

County further contends that said Ordinances Nos. 28,358 and 28,721, and 20,747, were not admissible in evidence because they impose a penalty, fine or forfeiture, and were not published as is required by Section 17 of the Charter and Code of the City. This section requires that every ordinance imposing any penalty, fine or forfeiture for a violation of its provisions shall, after passage thereof be published, etc.

Article 1013, Sec. 1, Vernon’s Ann.Civ. Stats., provides for the publication of penal ordinances. If Ordinances Nos. 28,358, 28,721 and 20,747, are to be classified as penal ordinances, then they are ineffective because not published. The County summarizes the questions here presented as follows :

“1. Does the power given to the City of San Antonio in Ordinance No. 28,358 to disconnect the sewer connection of any premises to which such sewer charges are applicable and the right to discontinue the furnishing of water to such premises, together with the fee of $5.00 to cover the cost of disconnection (payable to the City) and the fee of $2.00 for resuming the furnishing of water (payable to the City Water Board) constitute a penalty, fine or forfeiture within the contemplation of Art. 1013 R.C.S. of Texas, and the Charter and Code of the City of San Antonio, which requires publication of such ordinances, and is such ordinance therefore a penal ordinance ?
“2. Does the power given to the City of San Antonio in the same ordinance to refuse to give either water service or sewer service to the person who leaves premises where sewer charges are applicable and owes sewer charges, at a new location, regardless as to whether or not such new location is actually connected with the sewer system of the City of San Antonio, constitute a penalty, fine or forfeiture within the contemplation of Art. 1013 R.C.S. of Texas and the Charter and Code of the City of San Antonio, requiring publication of ordinances containing a penalty, fine or forfeiture, and such ordinance therefore a penal ordinance ?
“3. Does the failure to pay sewer charges, or the failure to pay any fees for disconnection of service or failure to pay a fee for resumption of water service render such person amenable to the provisions of Sec. 1-5, the General Penalty Ordinance, which says that when the doing of an act is required by ordinance, where no specific penalty is otherwise provided, the violator of any such provision of the code or ordinance shall.be punished by a fine not to exceed $200.00 and each days violation of the Code or ordinance shall constitute a separate offense?
“4. Since the ordinances on their face contain no separable clauses, are they separable in fact to the extent that the rates fixed for sewer services as set out by the ordinance of March 17, 1960, as reduced by the later ordinance of July 14, 1960, are collectible, although it should be held that the provisions with regard to the fee for disconnection of the sewer service, the collections of fees for resumption of water service and the failure to provide service in a new location where sewer charges are due and unpaid at a residence previously occupied by the applicant for service, constitute a penalty, fine or forfeiture, and if not separable in fact are such ordinances void and unenforceable ?”

The fact that the City is authorized to disconnect the water or sewerage connection of a delinquent user, does not make these ordinances penal in their nature. Such provisions are nothing more than regulations whereby the City can prevent a person from using its sewers without paying the sewer charge. The five-dollar fee for re-connecting the sewer or the two-dollar fee for re-connecting the water is simply a fee to cover the cost of such operations. The fact that a delinquent user cannot move to a new address and there secure a water and sewer connection without paying up past due charges and connecting fees is intended simply to prevent one from avoiding sewer charges by the device of changing from one address to another. City of Wichita Falls v. Landers, supra; Patterson v. City of Chattanooga, 192 Tenn. 267, 241 S.W.2d 291; West Texas Construction Company v. Doss, 128 Tex. 339, 96 S.W.2d 1116; City of Lampasas v. Huling, Tex.Civ.App., 209 S.W. 213.

The fact that the rate imposed by Ordinance No. 28,720 is based upon the amount of metered water used upon given premises rather than upon the amount of sewerage carried away therefrom, does not render such rate arbitrary, confiscatory or void. There is a close relation between the amount of water used and the amount of sewerage carried away. There can be no doubt that a greater percentage of metered water goes into the sewer in winter than in summer, due largely to the watering of lawns during the summer months. To meet this situation the ordinance provides a graduated scale rate, depending upon the amount of water used. This, to some extent, takes care of the variance between winter and summer, as to the percentage of water going into sewers. It would certainly be very expensive, if not an impossible undertaking, to measure the amount of sewerage discharged by each user. A sewer charge based upon the amount of water used certainly is not mathematically exact as to the actual amount of water used on given premises which goes into the sewer, but the fact that it is not mathematically correct does not render such a rate unreasonable, arbitrary, or otherwise illegal.

In Rhyne, Municipal Law, Sec. 20-5, we find the following:

“The overwhelming weight of authority holds that sewer service charges based on the amount of water used on the premises is a reasonable and valid regulation.”

In Antieau, Municipal Corporation Law, Sec. '19.03, it is stated:

“Many cases have permitted munici- ' palities to measure sewer charges by the water delivered to the premises through water meters. Says the Oklahoma Court: ‘In the absence of actually measuring the flow of sewage, this seems to be the most equitable manner of determining the extent of usé of the sewer system by the different users,’ ” citing Sharp v. Hall, 198 Okl. 678, 181 P.2d 972.

The Supreme Court of Pennsylvania had this to say in In Re City of Philadelphia, 343 Pa. 47, 21 A.2d 876:

“ * * * ⅛6 amount of water which flows into a building is apt to be roughly proportional to what flows out as sewage. While’ there are exceptions without doubt, and while it might be more equitable to consider some further factors having to do with types of use, yet we cannot say that a measure of sewer use based upon water use is inequitable.”

Under all the facts shown herein, the graduated sewer charge based upon water-used, was not unenforceable, arbitrary, confiscatory and void.

The judgment of the trial court is affirmed.


text:
    Sam KING, Appellant, v. Jim TOM, Appellee.
    No. 5495.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 6, 1961.

      G. G. Hazel, Midland, for appellant.
    Stubbeman, McRae, Sealy & Laughlin, Boyd Laughlin, Midland, for appellee.
   FRASER, Justice.

This is an appeal from a judgment rendered by the District Court of Midland County. No jury was used, the court granting judgment for balance due on note, attorney’s fees, and interest. The original suit was filed on a note in the principal sum of $2,800.00, alleged to have been executed by appellant in favor of appellee, December 1, 1958. It was an installment note with the usual provisions for attorneys’ fees and acceleration. It appears that the note was given by appellant to appellee as part of a deal wherein appellant was buying some land from Josephine and C. P. Filler. The Statement of Facts is in narrative form and, of course, having been agreed to by both parties, we accept it at face value. In this Statement, appellant states that as the result of a conversation with Mrs. Filler, he met her in the office of appellee, Mr. Tom, and concluded the deal to buy the lots in question; further, that it was agreed that the purchase price was $4,000.00, of which he was to pay $1,200.00 to the Fillers for their equity, and then he states as follows: “For the balance of the property and for the interest of Mr. Jim Tom, as I understood, I executed a vendor’s lien note to Mr. Tom in the sum of $2,800.00.” It seems that the Fillers had owed the sum of $2,800.00 to Mr. Tom before appellant bought the property. One payment was made on this note in the amount of $125.00. It appears from the record that appellant deemed it necessary to file a trespass to try title suit, claiming that the title was insufficient. In his pleadings, appellant maintains that if he is successful in disposing of “an adverse claimant to the title to the said land”, and if his (appellant’s) title is established and sustained in said suit, then he expects to satisfy the note herein sued upon; but should he not be successful, he claims the note should not be enforced because of the breach of warranty of the said Fillers and Jim Tom. This is a situation where a purchaser of real estate paid part cash and executed a vendor’s lien to a third party; in other words, to someone other than -the vendor.

We have examined the exhibits, and the note executed by appellant appears to be legal and regular on its face, and recites the consideration as “for value received.” There is a deed, also, apparently regular, from Mr. and Mrs. Filler (only) to appellant. We, of course, will have to be guided in this matter by the rule that, as a reviewing* court, we must indulge all reasonable in-tendments and presumptions not contradicted by, or inconsistent with, the record, in favor of the proceeding below and in support of the action and rulings of the trial court. 4 Tex.Jur.2d 286.

Appellant’s first four points allege that the note was without consideration, failure of consideration, no legal delivery, and that the note was a unilateral agreement. We do not find merit in the two points referring to consideration. As stated above, the note is regular on its face, and no claim of fraud or ambiguity is made. Mr. Tom did not deed this property to the appellant and could not be responsible for any title defects. There is some confusion as to whether Mr. Tom was to release a note in the same amount which he held against the Fillers, or whether he was to loan the stated amount of money to appellant. In any event, we do not find in this record proof of failure of consideration as the law prescribes. Appellant bought the land from Fillers and made the note to Mr. Tom. These two points are therefore overruled.

In this same group of points, appellant claims there was no legal delivery of said note to appellee. We do not find merit in this point, as appellee apparently had the note to bring suit upon, and it will be presumed, not only by law, but in support of the judgment, that his possession of the note in his favor was accomplished by due delivery of same. We also overrule Point 4, as we are unable to find sufficient evidence to prove appellant’s argument that this note constituted a unilateral contract. It must not be overlooked, with reference to these points, that appellant did make one payment of $125.00 to appellee, and stated in his pleadings that he would pay the note if his title became satisfactory. As to being unilateral, by his own testimony appellant executed this note in the presence of the Fillers and the appellee, as part of the purchase price of the property. It has been held that one who occupies a position such as appellee occupies here — in other words, the holder of a vendor’s lien note without having been the vendor — does not become a warrantor of the title to the land. Roberts v. Prather, 158 S.W. 789 (Civ.App.1913, no writ history). Then, too, it cannot be denied that the note or the deed do not contain any contingent or executory provisions, and it appears that appellant gave this note as part of the purchase price, in the method requested by the Fillers and Mr. Tom.

In his fifth, seventh, tenth and eleventh points, appellant maintains that the trial court did not dispose of all of the issues in the case. The judgment is short and formal, and recites, after the usual preamble, that “the court is of the opinion and finding that the law and facts are with the plaintiff, Jim Tom”, and then proceeds to render judgment in his favor for balance due on note, attorneys’ fees and interest. Appellant complains that the court does not make specific itemized disposition of his cross-action. We think the judgment, by its terms, disposes of all of the matters before the court. 3 Tex.Jur.2d 355 et seq. The above text states, among other things— “Thus, a judgment for the amount claimed by plaintiff’s petition is necessarily a finding against a counter claim: * * * ” That is what the court did here, when he rendered judgment in favor of the appellee for the amount claimed.

Appellant’s Points 7 and 10 complain of the failure of the trial court to release certain funds that had been subjected to garnishment. This matter was apparently not before the trial court, and, of course, such has always been an ancillary proceeding depending on the main suit. Walton & Stockton v. Corpus Christi Nat. Bank, 185 S.W. 369 (Civ.App., no writ history). This case merely illustrates the well-known law that garnishment must depend on the outcome of the main, or original, lawsuit.

As to the point stating that the court should have foreclosed the vendor’s lien, we find no merit in this point that would accrue to the benefit of appellant, as he is being sued for the amount due on the note, and it is difficult to see why he feels harmed by a judgment that does not foreclose the lien in the note executed by him. In any event, by his own admission, there exists a dispute as to the title to this property, and it is not likely that the court could have determined, until such dispute was resolved, whether or not plaintiff had a good vendor’s lien that was forecloseable. These points are therefore overruled.

Appellant, in Points 6, 8 and 9, complains of the refusal of the trial court to hold for him in his cross-action where, he alleges a wrongful garnishment. First, it must be remembered that appellant did make one payment on this note, and then ceased to make any payments; also, that there was a lawsuit over the title to the land. Appellee garnished a sum in the neighborhood of $1,200.00 found in two Midland banks. Appellant argues that this was wrongful, because he says there were properties in his name in Midland worth more than the amount sued for by Mr. Tom. This matter was one for the court to accept or reject, as the record shows no proof other than appellant’s own statement; nor does appellant make adequate proof that appellee knew or should have known of appellant’s other resources or properties. It has been held that, to prevail in a wrongful garnishment action, the injured party must not only show that he had sufficient unencumbered property to satisfy the debt, but also that his adversary had knowledge of the existence of such property. Such proof is not present here. Edmondson v. Carroll, Tex.Civ.App., 134 S.W.2d 378 (wr. dis’m., judgment correct) ; Allied Finance Co. v. Kelly, Tex.Civ.App., 317 S.W.2d 790 (wr. dis’m.). We do not believe that the appellant, here, has presented adequate proof to support his cross-action asserting wrongful garnishment of his funds. It is not clear from the record that he ever made any attempt to free said funds in the method provided by law. He states that he was damaged and handicapped by the impounding of this money. He does not point out why, if he had other unencumbered property with a value in excess of the amount claimed by appellant (which he implies should have been taken), he did not or could not use such property, or its value, to effect the release of the $1,206.10 which was impounded.

These three points, then, along with all the other points of error presented by appellant, are accordingly overruled, and the decision of the trial court affirmed.


text:
    Lucio GONZALEZ et al., Appellants, v. Marin GARCIA, District Clerk of Starr County, et al., Appellees.
    No. 13884.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 13, 1961.

      Hill, King, McKeithan & Reynolds, Mission, Joe N. Chapman, Sulphur Springs, Arnulfo Guerra, Roma, for appellant.
    F. R. Nye, Jr., A. J. Vale, Glenn H. Ramey, Pope & Pope, Rio Grande City, for appellees.
   MURRAY, Chief Justice.

This suit was instituted by Lucio Gonzalez, Alonzo Alvarez, Erasmo Perez and Virgilio H. Guerra, in the District Court of Starr County, Texas, against Marin Garcia, District Clerk of Starr County, and others, seeking a mandamus requiring Garcia, as such District Clerk, to fix the amount of a bond to be given by them as contestees in a school trustee election, as is provided by Art. 9.09, Texas Election Code, V.A.T.S. The trial court refused to grant the writ of mandamus and the above named relators have prosecuted this appeal. The appeal turns upon whether Article 9.09, Texas Election Code, applies to election contests for the office of School Trustee. This is a question of first instance in this State.

We have concluded that the provisions of Article 9.09, supra, do not and cannot apply to election contests for the office of School Trustee. In the first place, the office of School Trustee does not carry any salary or fees, and therefore the District Clerk could not possibly determine the amount which would be double the probable amount of salary or fees or both of a School Trustee. Art. 9.09, supra, provides in part as follows:

“ * * * the contestee shall, within twenty (20) days after the service of said notice and statement of such contest upon him, file with the clerk of the court in which such contest is pending a bond * * * payable to the contestant, to be approved by said clerk, in an amount to be fixed by said clerk, and not less than double the probable amount of salary or fees or both, as the case may be, to be realized from the office being contested for a period of two (2) years; * *

It is true that Art. 9.10, Texas Election Code, provides that if the contestee fails to file such bond, then a similar bond may be filed by contestant. Article 9.11, Texas Election Code makes it the duty of the clerk to officially notify the Governor that contestant has filed such bond, and Art. 9.12, Texas Election Code makes it the duty of the Governor to issue a commission to such contestant.

Appellants are now in office and they fear that if they cannot give the bonds provided for in Art. 9.09, supra that contestants will give the bonds provided for by Art. 9.10, and thereby acquire commissions from the Governor enabling them to take over as School Trustees. Of course, if the Clerk cannot fix the amount of bond for a contestee, because Art. 9.09, supra, does not apply to an election contest for School Trustee, by the same token he cannot fix the amount of bond provided for in Art. 9.10, supra, to be given by a contestant.

The above Articles cannot be applied to the contest of a school trustee election for many reasons, among which are: (1) There is no salary or fees provided for the office of School Trustee; (2) the Governor has no authority to issue a commission to a School Trustee, and (3) Art. 2746, Vernon’s Tex.Civ.Stats., makes it the duty of the Board of Trustees to canvass the returns of a school trustee election and issue to the persons elected their commissions as such trustees. See opinion of the Attorney General, dated May 27, 1950, addressed to Hon. Allan Shivers, Governor of Texas.

The trial court properly refused to issue the writ of mandamus prayed for by appellants.

The judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    The STATE of Texas, Appellant, v. Ralph E. LASITER et al., Appellees.
    No. 3930.
    Court of Civil Appeals of Texas. Waco.
    Dec. 7, 1961.
    Rehearing Denied Dec. 28, 1961.
    W. G. Walley, Jr., Frank M. Adams, Beaumont, for appellant.
    Black & Lindsey, Port Arthur, for appel-lee.
   McDONALD, Chief Justice.

This is a condemnation case wherein the State of Texas condemned .0998 acres of the land of Lasiter and others, for highway purposes. Trial to a jury resulted in a verdict of $5,200. for the land taken, and $5,000. damage to the remainder. The Trial Court entered judgment on the verdict.

Prior to the taking of testimony, defendants moved to suppress any evidence concerning the location of a sewer line across the property to be taken. On hearing on such motion, out of the presence of the jury, it developed that on 12 May 1959 the District Court of Jefferson County, on petition of plaintiff, ordered the subject land of defendants condemned, and that title be vested in plaintiff; that on 29 April I960 the District Court of Jefferson County rescinded its order of 12 May 1959 and ordered the land restored to defendants; that while such order was in effect the Texas State Highway Department issued a document giving the City of Groves approval for laying a sewer line across the subject property. On 3 May 1960 the State instituted the instant condemnation proceedings for the property. On 31 May 1960 the City of Groves asked the State Highway Department if they could proceed with the •construction of the sewer line, and were told they should proceed. The State Highway Department required the removal of the sewer line from an existing location to the location on defendants’ property, to which it was removed.

The Trial Court sustained defendants’ motion to suppress all evidence concerning the existence of the sewer line across the land sought to he condemned, and the witnesses’ testimony as to valuation of such property did not take into account the presence of the sewer line across it.

Plaintiff appeals, seeking a reversal, contending the Trial Court erred in sustaining defendants’ motion to suppress evidence of the existence of the sewer line across the property; that the existence of the sewer line across the property was a fact at the time of the taking (7 December 1960) ; that the existence of such line rendered the property less valuable than it would have been without such line; and that plaintiff was entitled to evidence of the property’s value as it stood, at the time of the taking.

The record reflects that defendants’ property was free of all easements and sewer lines of any sort; that on 12 May 1959, the State of Texas seized defendants’ property under an Ex Parte Order which gave the State title and possession of the property here involved; that thereafter, the State Highway Department instructed and required the City of Groves to move its sewer line from the existing location and place it across the land here involved, and prescribed the exact location for the placing of the line. On 29 April 1960 the Ex Parte Order divesting defendants of title and possession to the property was set aside. The instant condemnation proceedings were instituted by the State of Texas on 3 May 1960. The City of Groves inquired upon beginning of construction, on May 31, 1960, as to whether they should proceed with the construction of the sewer line, and were advised by the State Highway Department to proceed. The sewer line was completed on 8 July 1960. The instant property was condemned on 7 December 1960.

In such state of the record, the State contends that the property should be valued on the date of taking, 7 December 1960, with the sewer line across the property. (It is undisputed that the sewer line lowers the value of the property). We cannot agree with such contention.

It is undisputed that the City of Groves committed a trespass on defendants’ land by constructing the sewer line across same. To constitute a trespass, entry on the land of another need not be in person, but may be committed by causing or permitting another to cross and enter onto the landowner’s property. 87 C.J.S. Trespass § 13, Glade v. Dietert, 156 Tex. 382, 295 S.W.2d 642.

In cases where railroads have trespassed by building across an owner’s land without purchasing or condemning same, and years later seek to condemn such land, our Supreme Court has determined that the measure of damages is the value of the land taken at the time of condemnation, considered as if it were not occupied by the railway. San Antonio & A. P. Ry. v. Ruby, 80 Tex. 172, 15 S.W. 1040; Texas Western Ry. v. Cave, 80 Tex. 137, 15 S.W. 786.

“In the Cave case, supra, the court said: * * * a holding that a past unlawful occupancy, which gave no right to continue to occupy, would cut off the right of a land-owner to damages based on every element entering into the measure of compensation for taking of land for a public use, could find no justification in principle or authority. Such a holding could stand only on the theory that the wrongful possessor, who thereby has acquired no property in the thing possessed, should, for his wrong-doing be placed in a ■■more favorable position when he seeks ■to recover the right to possess than would the person who seeks lawfully to acquire the right to possess and use before he takes possession. The law offers no such rewards for wrong-doing.”

Likewise, in a case wherein a water dis-trict appropriated the lands of the land- • owner without compensation, and backed water onto the landowner’s land with a dam, • our courts approved submission of the issue of damages in the case, requiring the jury to find “what would have been the market value of the [landowner’s] land at the time •of trial, if the dam and its appurtenances had never been constructed and put into . operation.” Tarrant County Water Control & Improvement District #1 v. Fowler, Tex.Civ.App., 175 S.W.2d 694; W/E Ref. WOM, 142 Tex. 375, 179 S.W.2d 250.

In Glade v. Dietert, 156 Tex. 382, 295 S.W.2d 642, the City of Ft. Worth, prior to •condemning certain right of way from a 'landowner, instructed a contractor to enter • on the land and do certain work. The contractor did so, and destroyed 3 trees before realizing that the right of way had not been • acquired. On the question as to whether ■ the loss of the 3 trees (which occurred pri- ■ or to condemnation), should be considered in determining the value of the land taken :in condemnation, our Supreme Court said:

“ * * * the law should not be so strictly construed as to preclude * * (the landowner) from recovery * * of all damages to which they may be entitled, including the diminishment of the land value caused by the removal of the trees.”
“While technically it may be said 'that the entry by the contractor as the . agent of the City constituted a separate cause of action * * *, yet, under the circumstances in such a case as this, to require the trial of 2 separate causes •of action with double consumption of ■time and expense, when all of the ■ damage actually was occasioned on ac- ■ count of the public improvement project and in pursuance thereto, would be a hardship on all parties, as well as useless and unnecessary. The destruction of the trees is an element of value to be considered in determining the compensation owed by the City to the landowner for the acquisition of * * his property.”

In the instant case, the State, prior to gaining title to defendants’ land, authorized, instructed and required the City of Groves to trespass on defendants’ land by laying a sewer line across it. Thereafter, when the State condemned this same property, the State contends the property is worth less with the sewer line across it than it would be without it, and that the evidence should only reflect the value of the property at the time of its taking, with the sewer line across it. The State admits that the City of Groves has committed a trespass, but contends the landowners’ remedy is against the City of Groves.

Under the authorities cited, we think the State, as the causing force of the trespass on defendants’ land, by the City of Groves, was itself likewise a trespasser, and as such, it would be wrong to permit it to stand in a more favorable position when it seeks to recover the right to possess, than would be the person who seeks lawfully to acquire the right to possess and use before he trespasses or takes possession without right. We think the law offers no such reward for wrongdoing. San Antonio & A. P. Railway v. Ruby, supra; Texas Western Railway v. Cave, supra.

Moreover, the laying of the sewer was occasioned by and on account of the public improvement project involved in the building of the new road for which the defendants’ land was condemned, and under Glade v. Dietert, supra, damages occasioned by same are recoverable against the State.

The Trial Court did not err in suppressing evidence as to the existence of the sewer line, and in valuing defendants’ land as of the date of the taking, as if the sewer line were not across it.

Plaintiff’s points are overruled and the judgment of the Trial Court is Affirmed.


author: POPE, Justice.

text:
    Carl L. MURPHY, Appellant, v. Charles STIGALL, Appellee.
    No. 13883.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 20, 1961.
    Rehearing Denied Jan. 17, 1962.
    Talbert, Giesel, Cutherell & Barnett,. Houston, for appellant.
    House, Mercer, House & Brock, San Antonio, for appellee.
   POPE, Justice.

This is an appeal from an order of dismissal for non-prosecution of plaintiffs’ action, and a judgment on defendant’s cross-action. Plaintiffs, Carl L. Murphy and Glen-Moore, sued Charles Stigall for damages, arising out of an automobile collision. Defendant Stigall answered and cross-acted for damages to his vehicle. The parties appeared in court for trial on the action and cross-action on March 8, 1961. The court was then in the trial of another cause, and plaintiffs asked that this case he re-set for March 27, 1961. Late in the afternoon of Saturday, March 25, plaintiffs’ attorney, in Houston, called defendant’s attorney, in. San Antonio, and stated that he had conflicting settings for Monday and asked him to agree to a postponement. Defendant’s, attorney would not agree to a postponement, but stated he would not oppose plaintiffs’ request for one, provided plaintiffs obtained the approval of the trial judge. Plaintiffs’ counsel then called the home of the District Judge in Halletsville. He was unable to reach him, but left a message with a lady who answered the phone. On the-date set for trial, defendant’s local counsel appeared in court in Seguin, and the trial judge stated that he had not approved any postponement. Plaintiffs were not present, but defendant and his local counsel were. Defendant then proved his cross-action against Carl L. Murphy. The trial court. dismissed plaintiffs’ action with prejudice, and granted defendant a judgment for $400.00 against Carl L. Murphy but denied recovery against Glen Moore. Plaintiffs timely filed a motion for new trial and, after hearing, it was overruled.

Dismissal is the proper order when one fails to prosecute his claim with reasonable diligence. First Nat. Bank of Houston v. Fox, 121 Tex. 7, 39 S.W.2d 1085. The power to dismiss does not empower the court to adjudicate and deny the dismissed claim. Smock v. Fischel, 146 Tex. 397, 207 S.W.2d 891. A court does, however, possess the power to proceed upon defendant’s cross-action and award relief. It can do this though the resulting judgment may bar the subsequent assertion of the claim which was dismissed for non-prosecution. Barrier v. Lowery, 118 Tex. 227, 11 S.W.2d 298, 13 S.W.2d 688; Griffin v. Chubb, 16 Tex. 219; 4 McDonald, Texas Civil Practice, §§ 17, 18. From all of this, we conclude that the court had the power to dismiss plaintiffs’ action, hut not to do so “with prejudice.” It had the power, however, to grant defendant’s prayer for relief against Murphy and deny it as to Moore.

Whether the court abused its discretion in dismissing plaintiffs’ action must still be determined. Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85. Under the facts of this case, we can not say that there was an abuse of discretion. The case was set on the date selected by plaintiffs. The judgment of dismissal finds as a fact that when the case was reset, plaintiffs were notified that the new setting would be adhered to and the case then tried. It was set at a time when plaintiffs’ attorney knew he had a conflicting setting. For two weeks he knew this, but waited until late on Saturday before the case was to be called on Monday, before taking steps to eliminate the conflict in settings. The trial judge, no doubt, already had arranged his docket for Monday. Plaintiffs’ attorney was under a duty to obtain the approval of the judge, which he did not obtain. He filed no motion for continuance, and it seems that other members of his firm could either have appeared or attended to the filing of appropriate motions for postponement or continuance. Rules 247, 251, 253, 330(c), Texas Rules of Civil Procedure.

The judgment is corrected by the deletion of the words “with prejudice” in the order of dismissal of plaintiffs’ action, and as corrected is affirmed.


text:
    STATE of Texas, Appellant, v. U. J. LUNDY et ux., Appellees.
    No. 3969.
    Court of Civil Appeals of Texas.
    Nov. 30, 1961.
    Will Wilson, Atty. Gen., Watson C. Arnold, Asst. Atty. Gen., for appellant.
    Willard McLaughlin, Sam Lanham, Waco, for appellees.
   McDONALD, Chief Justice.

This is a condemnation case which resulted in judgment for the plaintiff, State of Texas, for certain lands and a money award to landowner defendants. Defendants filed Motion for New Trial, which was granted by the Trial Court. Plaintiff, State of Texas, appealed from such order granting a new trial in the case, and caused transcript to be filed in this court on 10 October, 1961.

Plaintiffs have filed no brief, and further have made it known to the court that it does not desire to prosecute such appeal further.

Appeal is therefore Dismissed.

Dismissed.


author: COLEMAN, Justice.

text:
    Gladys Marie SCHOELLMANN et vir, Appellants, v. Homer AMMANN, Appellee.
    No. 13818.
    Court of Civil Appeals of Texas. Houston.
    Jan. 4, 1962.
    Rehearing Denied Jan. 25, 1962.

      L. L. Duckett, El Campo, W. James Kronzer, Jr., Houston (Duckett & Duckett, El Campo, Hill, Brown, Kronzer & Abraham, Houston, of counsel), for appellants.
    Ingram & Moore, Wharton, Butler, Bin-ion, Rice & Cook, Houston (Irving Moore, Jr., Charles C. Ingram, Jr., Wharton, W. N. Blanton, Jr., James E. Crowther, Houston, of counsel), for appellee.
   COLEMAN, Justice.

This is an action for damages for personal injury resulting from an automobile accident. After a jury trial, judgment was entered for the defendant.

Appellants contend that the verdict •of the jury is so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust. As required by the decision in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, we have carefully reviewed this entire record, weighing the evidence both for and against the verdict, and we find that the evidence fully supports the verdict of the jury finding that the negligent conduct of the plaintiff, Richard Schoellmann, was a proximate cause Of the accident in question in the following particulars: (1) improper speed, (2) improper application of brakes, (3) failure to turn to the left, and (4) failure to sound horn. In view of this determination, it is unnecessary to decide whether the other issues submitted to the jury are supported by sufficient evidence to be permitted to stand. Since the jury has found on sufficient evidence that appellant was contributorily negligent in certain respects, its verdict on other contributory negligence issues and on the primary negligence issues could not affect the decision to be rendered in the case.

Appellant has also assigned error to the action of the trial court in sustaining the motion in limine of appellee, the effect of which was to prevent appellants from offering certain evidence relating to the action of the defendant in paying a fine assessed against him for the offense of failure to yield the right of way. We find it unnecessary to discuss the questions raised by the point of error since the evidence would not have affected the answers made by the jury to the issues concerning turning to the left and the sounding of the horn. Rule 434, Texas Rules Civil Procedure; Valdez v. Yellow Cab Co., Tex.Civ.App., 260 S.W.2d 715.

Appellants insist that the trial court erred in refusing to submit certain requested issues concerning discovered peril. The only question is whether or not the evidence raises such an issue. Appellee testified that he saw appellants’ car when it was at a barn, which was approximately 282 feet from the intersection, and that it was traveling at a speed of from 40 to 50 miles per hour. He further testified that at that time he was almost stopped at the intersection and thought he had time to cross in front of appellants. He testified that the car was 100 to 150 yards away when he first saw the car, about a city block or better. After glancing at the car he started across the intersection and didn’t see appellants’ car again until after the collision. While a jury would not be bound by this testimony, its rejection would not supply affirmative testimony to the contrary. Lathern v. Missouri-Kansas-Texas Railroad Company of Texas, Tex.Civ.App., 350 S.W.2d 379.

In order to charge appellee with any responsibility under the discovered peril doctrine, there must be evidence, either direct or circumstantial, from which the jury could conclude that appellee saw appellant after he reached a point so close to the intersection that appellant could not, or in reasonable probability would not, avoid a collision. Appellee testified that he “thought he could get across * * * I never thought nothing about it until he hit me * * * never thought nothing about being hit * * I figured I had time to get across.” Under the facts of this particular case, we think that in the absence of affirmative testimony from appellee that he ever realized appellant’s peril or saw him in a position of peril, the proof must show some action of appellee indicating he in fact saw appellant when he was so close to the intersection that if both parties kept the same course and speed a collision would probably result.

In Safeway Stores, Inc. v. White, Tex., 348 S.W.2d 162, the Supreme Court said:

“The ‘could have’ or ‘should have’ standard for measuring the proof required to raise the discovery issue has never been recognized by this Court and will not be adopted now. Actual discovery is an essential element of the doctrine of discovered peril as applied in Texas. If the rule were otherwise, a plaintiff could recover notwithstanding his own contributory negligence by proving that the defendant was guilty of nothing more than primary negligence in failing to discover his peril. The trier of facts is not required to accept the testimony of the defendant or his agent, and discovery may be established by circumstantial evidence. Where there is no direct evidence raising the issue, however, the plaintiff must prove facts and circumstances from which it can fairly be inferred that the defendant did actually become aware of the peril.
“While the jury was free to disbelieve Clark’s statement that he did not realize there was any danger, his testimony in that respect is not evidence that the opposite of what he said is true. See R. T. Herrin Petroleum Transport Co. v. Proctor, Tex., 338 S.W.2d 422. There is no other direct evidence bearing on the question, and the facts and circumstances proven do not point to realization on his part. Casually turning around to lay down some papers is not the conduct of one who has just realized that a business acquaintance only a few feet away is in danger of serious injury. At the time Clark turned his back, plaintiff was six or eight feet away and approaching at a little trot. The latter was not in-such immediate danger that anyone seeing him would necessarily have been aware of the peril. In view of the size of the truck, the noise of its engine, and the distance from the moving vehicle to the doorway where plaintiff was looking, Clark had good reason to believe the plaintiff was fully cognizant of the truck and its movement. Plaintiff had not previously entered the building through the south door, and his statement about going to Brookshire’s indicated that he did not intend to do so on the occasion in question. While the fact that plaintiff continued to approach at a little trot after making such statement perhaps should have alerted Clark to the danger, it does not constitute evidence that he actually discovered the plaintiff’s peril. His testimony that he did not realize the danger is not conclusive, but there is nothing in the record to suggest that he did.”

In an earlier case, Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561, the Supreme Court held:

“The quantum of proof required of the plaintiff on these elements of discovered peril in order to entitle him to have them submitted to the jury was such facts and circumstances as taken together with all reasonable inferences therefrom constituted some evidence of probative force of their existence. White v. White, 141 Tex. 328, 172 S.W.2d 295; Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725; Fitz-Gerald v. Hull, [150 Tex. 39,] 237 S.W.2d 256.
“In determining whether the plaintiff discharged this burden we must view and interpret the evidence in the record in its most favorable light to the plaintiff, disregarding all evidence and the inferences therefrom favorable to the defendant. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; White v. White, supra.”

Applying these rules, we are unable to discover evidence sufficient to have permitted the trial court to have submitted the issues ■on discovered peril to the jury.

The judgment of the trial court is affirmed.


text:
    Minnie Ella Porter BEAMAN et vir, Appellants, v. Rufus D. (R. D.) BELL, Appellee.
    No. 13846.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 20, 1961.
    Rehearing Denied Jan. 17, 1962.
    Robert I. Wilson, Kerrville, for appellants.
    Robert H. Rice, San Antonio, for appel-lee.
   MURRAY, Chief Justice.

This suit was instituted on January 20, 1958, by Minnie Ella Porter, a feme sole, in the nature of trespass to try title, in the District Court of Real County, against Rufus D. Bell, seeking to recover title and possession of 200 acres of land located in Real County, about fourteen miles northwest of Leakey, and fully described in the pleadings. Minnie Ella Porter later married James Edward Beaman and he became a party to the suit. The trial was before the court without the intervention of a jury, and resulted in judgment in favor of Rufus D. Bell, and Mr. and Mrs. Bea-man have prosecuted this appeal. No findings of fact or conclusions of law were requested, and none were filed.

Appellants’ first contention is that Mrs. Beaman was unlawfully deprived of her land by a void foreclosure sale under a deed of trust, in that the bidding was stifled by the trustee and the mortgagee who became the purchaser at said sale.

The evidence shows that Mrs. Beaman was the former wife of Jack Porter. They were divorced in November, 1953. As a part of the property settlement Jack Porter conveyed to her the 200 acres here involved. This deed was recorded on November 16, 1953. Ralph E. Cadwallader represented Mrs. Porter, now Mrs. Beaman, in the divorce case. He also arranged for a loan in the sum of $2,200.00 for her from Rufus D. Bell, the appellee here. A note in that sum and a deed of trust creating a lien on the 200 acres were signed by Mrs. Beaman. Ralph Cadwallader was named as trustee in the deed of trust. Mrs. Beaman paid him the sum of $100.00 for representing her in her divorce case, and another $100.00 for securing the loan. The note was to be paid in monthly installments of $35.00. After making one monthly installment Bell heard nothing more from Mrs. Beaman, and neither he nor Cadwallader was able to locate her. Cadawallader told Bell he might just as well foreclose by a trustee’s sale, and he prepared a request from Bell to himself as trustee, to sell the property. Bell signed the request for sale, and acknowledged it before Cadwallader’s secretary, who was a notary. Cadwallader caused notices to be posted and sold the 200 acres at public sale to Bell for the sum of $1,900.00, and executed a trustee’s deed to him.

Appellants contend that the sale must be set aside because Cadwallader stifled the bidding at the sale. Jack Porter and one Davenport told Cadwallader that they wanted to bid on the land and were ready and willing to do so, but Cadwallader told them it would be best for them not to bid, and after Bell had purchased the property he would get Bell to sell it to Jack Porter at a profit. This they agreed to, but neither Porter nor Davenport talked to Bell about the matter until after the sale. Bell first said he would sell the land to Porter for a profit, “if it was the right thing to do,” but later decided “it would not be the right thing to do,” and finally refused to sell it to Porter. There was evidence that the land was worth $10,000.00 or more. Davenport was interested in buying the land for his son-in-law, one Larry Jenkins, who was going to secure a veteran’s loan and purchase the 200 acres. Cadwallader testified that he was attorney for Bell and had made several other loans for him. Porter and Davenport testified that Cadwal-lader was Bell’s attorney. Bell denied that Cadwallader was his attorney at the time of the foreclosure sale. He later sent a check to Cadwallader in the sum of $250.00, and just what this check was to cover is not clear. Cadwallader returned it to him uncashed, stating that he would be paid when the deal was closed, apparently meaning the sale of the 200 acres to Jenkins. The evidence was not conclusive as to whether Cadwallader was attorney for Bell at the time he sold the 200 acres as trustee at public sale, and in the absence of findings of fact we must presume that the trial court found that Cadwallader at the time he sold the land as trustee was not acting as attorney for Bell.

The trustee’s sale was regular in every respect, and under the facts here the trustee’s deed was not void but voidable at most, and could not be set aside in the suit based only on formal allegations of trespass to try title. Slaughter v. Qualls, Tex.Civ.App., 149 S.W.2d 651, affirmed 139 Tex. 340, 162 S.W.2d 671.

There is another reason why Mrs. Beaman cannot recover this land. After the trustee’s sale, she executed a deed to her former husband, Jack Porter, conveying to him all of her interest in the 200 acres, and based upon this deed Jack Porter brought suit against Bell in an attempt to recover the 200 acres. This deed shows conclusively that at the time Mrs. Beaman 'brought this suit against Bell she had conveyed any and all interest she had in the 200 acres to Jack Porter. Both the trustee’s deed and this deed to Porter, until set aside, stand as barriers preventing Mrs. Beaman from recovering these 200 acres of land from Bell.

Appellants contend that the court erred in admitting in evidence the deed from Mrs. Beaman to her former husband, Jack Porter, because it was not one of the instruments relied upon by Bell to establish his title, and was not shown in his abstract of title. Bell did claim that Mrs. Beaman was the common source of title and did not show the deed to Jack Porter in his abstract of title. He introduced the Porter deed, not to show title in himself, but for the purpose of showing that Mrs. Beaman, the common source of title had conveyed all of her title to her former husband, Jack Porter, and for this reason could not possibly prevail in this trespass to try title suit. The court properly admitted the deed in evidence.

The judgment of the trial court is affirmed.


author: BELL, Chief Justice.

text:
    TEXAS GULF TRUST COMPANY, Appellant, v. Nicholas S. NOTIAS, Appellee.
    No. 13866.
    Court of Civil Appeals of Texas. Houston.
    Jan. 4, 1962.
    Rehearing Denied Jan. 25, 1962.
    Gerald S. Gordon, Houston, for appellant.
    Harold R. DeMoss, Jr., Bracewell, Reynolds & Patterson, Houston, of counsel, for appellee.
   BELL, Chief Justice.

Appellant sued appellee on a promissory note in the amount of $2,000.00, alleging the note to have been executed, signed and delivered by appellee and his wife on July 10, 1958 and made payable to appellant as payee. The note was attached as an exhibit to the petition.

The appellee, denying liability, answered that Everette B. Fearrington approached him and requested that he become surety on a loan to be made to Fearrington, the loan to be secured by a lien on Lot 7, Block 3, Preston Place in the City of West University Place. Fearrington represented that he wanted to make some repairs on the property and rent it for enough to cover the first and second mortgage payments, but he could not get the necessary loan unless ap-pellee would become his surety. On July 10, 1958, Fearrington produced some papers representing they were the papers he needed to have appellee sign so Fearrington could get the loan. The representation was made that appellee would be but a guarantor or surety. Among the papers was the note sued upon. This was not known to appellee who did not read the instruments because he was relying on Fearrington’s representations that he was merely signing as a surety. He signed the note as maker without knowing it.

The above allegations find support in the evidence. Too, it appears from the evidence that Fearrington and his wife executed a deed to appellee and wife conveying the above described property. The deed recited that a part of the purchase price was the note sued upon payable to appellant. Also it recited the assumption by appellee and wife of a $10,700.00 indebtedness payable to Carl Peterson & Son, Inc. A vendor’s lien was retained in the deed to secure the note sued on. The deed was never delivered and appellee and his wife never knew of it until later when demand was made on them for payment of the note. The evidence further shows that before execution of the note Fearrington contacted an officer of appellant about buying a second lien note secured by a lien on the above property. In addition to the officer of appellant, he talked with Mr. Gordon, the appellant’s attorney. A check was made on appellee’s credit and it was satisfactory to appellant. Appellee never made any application to appellant for a loan. Mr. Gordon was told by Fearrington the note had not been executed so Mr. Gordon prepared the note sued upon and the deed. Since the note had not been executed Mr. Gordon prepared it so as to make appellant payee. The agreement between appellant and Fearring-ton was that appellant would pay $1,000.00 though the note was for $2,000.00. Thereafter Fearrington took the note and deed to a title company who issued their mortgagee’s policy to appellant. Neither appellee nor his wife ever had any contact with appellant or the title company. The title company paid to Fearrington the $1,000.00 furnished by appellant less some closing costs. The first appellee knew of appellant’s claim was when he received notice about making payments and he then told appellant of his agreement with Fearrington that he would become surety only. There is no suggestion that appellant had any actual notice of the real agreement between appellee and Fear-rington.

The jury found facts establishing fraud on the part of Fearrington and found that actually appellee was only to be a surety. The facts found by the jury were such as to constitute a defense as between appellee and Fearrington.

Appellant complains here that the trial court erred in not granting its motion for instructed verdict and its motion for judgment non obstante veredicto. The contentions are based on its assertion that it was a holder in due course of a negotiable promissory note within the meaning of Section 52 of the Negotiable Instruments Act, Vernon’s Ann.Civ.St. art. 5935, and, if it was not a holder in due course it was a holder for value under Section 29 of said Act, Vernon’s Ann.Civ.St. art. 5933. It is conceded that if appellant is not a holder for value or a holder in due course, the trial court acted correctly.

The appellant is not a holder in due course because it is the payee in the note. Texas follows the rule that a payee may not be a holder in due course because the instrument in the payee’s hands has never been “negotiated.” It has been “issued” to the payee. To be a holder in due course the instrument must have been negotiated and to be negotiated the instrument must have been in existence. It is the instrument itself that is negotiated. A nonexistent negotiable instrument cannot be negotiated. J. I. Case Threshing Machine Co. v. Howth, 116 Tex. 434, 293 S.W. 800; Williams v. Jones, 122 Tex. 61, 52 S.W.2d 256; Foster v. Security Bank and Trust Co., 288 S.W. 438, Tex.Com.App.; The Chesser Company v. Riverside Motors, Inc., Tex.Civ.App., 306 S.W.2d 911, no writ hist.

Appellant relies on the case of Belt v. Smith, Tex.Civ.App., 264 S.W. 1027, no writ hist. The case does support his position. The case has never been cited in Texas and we regard the holding to be contrary to subsequent Supreme Court and Commission of Appeals decisions and that it has therefore been overruled.

Appellant says it is nevertheless a holder for value because it paid value without notice of any defect.

We overrule this Point of Error.

The appellee while appearing to be a maker had not in fact agreed to become a maker and did not know he had become such. His agreement with Fearrington was to become a surety or guarantor and thus only secondarily liable. He was induced by the fraud of Fearrington to sign as maker. Factually, therefore, he was not an accommodation maker. Had he been, then under Section 29 of the Act he would be liable to a holder for value despite there being no consideration for his becoming a maker. Section 29 merely provides in substance for liability to a holder for value of a maker, drawer, acceptor or endorser though he has received no consideration.

Also Section 58 of the Act provides that in the hands of a holder other than a holder in due course, the negotiable instrument is subject to the same defenses as a non-negotiable instrument. As we have held, appellant is not a holder in due course. As between Fearrington and appellee certainly appellee had a defense of fraud in inducing the execution as maker. The same defense is available as to appellant who is not a holder in due course.

We have no issue made in this case of the existence of any estoppel against appel-lee and therefore do not pass on appellant’s rights under such theory. Appellant merely seeks to stand on the contention that it is a holder for value.

The judgment of the trial court is affirmed.


text:
    L. W. BEASLEY, Appellant, v. Joe BARSHOP, Individually and d/b/a Fruit Distributing Company and Banana Distributing Company, Appellee.
    No. 13849.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 20, 1961.
    Rehearing Denied Jan. 17, 1962.

      Perkins, Floyd, Davis & Oden, Alice, for appellant.
    Lang, Byrd, Cross, Ladon & Oppenheimer, Stanley D. Rosenberg, San Antonio, for appellee.
   POPE, Justice.

This is a venue case which concerns Section 5 of Article 1995, Vernon’s Tex.Civ. Stats. Plaintiff, Joe Barshop, filed suit in Bexar County and the trial court overruled L. W. Beasley’s plea to be sued in Jim Wells County.

Barshop filed suit on January 16, 1961. The petition asserted an action upon a written sworn account. After defendant timely filed his plea of privilege, Barshop on February 13, 1961, filed his controverting affidavit and adopted the allegations of his petition. Thereafter, Barshop filed a first amended and a second amended petition. These later pleadings relied not only upon a sworn account but also prayed for foreclosure of a chattel mortgage which, according to Barshop) fixed venue in Bexar County. The controverting affidavit was never amended to allege, include, or adopt the new grounds, different facts and additional relief contained in the amended petitions. We are, therefore, concerned only with the venue facts asserted and raised by the plea of privilege and the controverting affidavit, without regard to the subsequent amendments not incorporated into the controverting affidavit. Pelton v. Powell, Tex.Civ.App., 196 S.W.2d 46; 1 McDonald, Texas Civil Practice, § 4.50; Clark, Venue in Civil Actions, 235.

Barshop did, however, sufficiently prove a contract in writing under Exception 5, Article 1995. He proved that Beasley bought produce from him, as evidenced by invoices delivered at the time of sale. The first of these invoices was for produce which showed a charge made to Beasley in the amount of $1,370.41. Written on the invoice delivered to Beasley’s representative, were the words: “All bills payable at San Antonio, Bexar County, Texas.” The invoice shows that the produce was billed to Beasley and accepted by Israel “Lili” Sanchez, who was sent to San Antonio to receive the produce for defendant, and that he signed the invoice upon receipt thereof. This was a written proposal accepted in writing, and sufficiently met the rule for a contract in writing obligating the defendant to perform the obligation sued upon in Bexar County. Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825; Nelson v. Dunigan Tool & Supply Co., Tex.Civ.App., 265 S.W.2d 680; Dowdell v. Ginsberg, Tex.Civ.App., 244 S.W.2d 265; Clark, Venue in Civil Actions, 40.42.

The judgment is affirmed.


author: MOREMEN, Judge.

text:
    CITY OF WINCHESTER, Kentucky, Appellant, v. H. B. SPENCER et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 3, 1961.
    Rehearing Denied Feb. 9, 1962.
    Michael A. Rowady, Winchester, for appellant.
    White & McCann, Winchester, for ap-pellees.
   MOREMEN, Judge.

Appellant, City of Winchester, condemned a right-of-way for a water transmission pipeline through a farm belonging to appellees, H. B. Spencer and Anna S. Spencer. The Spencer farm lies on the east side of the Boonesboro Road, just south of Winchester, and consists of 140 acres. It is adjacent to the golf course of the Winchester Country Club, an expensive subdivision, and a well-kept race horse farm. Just across the Boonesboro Road are located high priced modern homes. All parties agree that this farm is highly suitable for subdividing. The right-of-way condemned runs near the rear of the 140 acre farm on the opposite side of the farm from the Boonesboro Road, a distance of 2382 feet in a line which is situate in the average 132.5 feet from the rear property line. The easement is 30 feet in width and contains 1.94 acres of land. The strip between the easement and the rear property line contains 8.3 acres of land.

In order to describe the character of the easement obtained by the city we will list a few of its conditions and limitations. The city was given the right (a) to construct, maintain, alter, repair and rebuild the pipeline which had an outside diameter of 24 inches, (b) to ingress and egress over the remaining land, (c) to remove trees or other obstacles on the right of way, (d) to extend to the surface of the ground air valve boxes, gate valve boxes and blow-off discharge lines, but was required to locate them in places where they would offer only minimum interference with the cultivation of the land. (It was required that the water line be placed thirty inches below the surface of the ground.) The land owner was denied the right to (1) construct or permit to be constructed “any house, structures or obstructions on or over or that will interfere with the construction, maintenance or operation of the pipeline or any appurtenance constructed hereunder,” and (2) change the grade over the pipeline.

In the Clark County Court, after commissioners had reported, appellees were awarded the sum of $1,975. An appeal was taken to the Circuit Court where a trial resulted in a verdict for $5,500. From a judgment entered on that verdict, this appeal has been taken.

Appellant believes the judgment should be reversed because (a) the award was excessive, and (b) the testimony of appellees’ witnesses was based on a false hypothesis and had no probative value.

At the trial appellee Spencer, in addition to being the owner of the farm, qualified as a real estate expert. He is the owner of several farms in Clark County and rental property in the City of Winchester. He has bought and sold real estate, and he evidenced considerable knowledge of such transactions. He estimated that the fair market valué of the tract of land before the ■taking was about $155,000, and afterwards, about $145,000.

O. L. Hamilton, who has been a real estate broker and auctioneer for over twenty-five years, also placed the difference in the before and after value at $10,000.

R. F. McCready, who has appraised over a thousand tracts of land in Clark County, has developed several successful communities and has acted as a real estate broker many times and whom all parties seemed to recognize as being eminently qualified, fixed the difference in value at $6,144.

H. L. Jones, also a successful real estate broker and auctioneer, placed the difference in value at $6,726.

All of these witnesses skillfully and with full detail supported their estimates.

Appellant’s witnesses placed the amount of the difference between the before and after fair market value at about $2,000.

It is argued by appellant that due to the fact that witnesses for appellees based their estimate of the value of the farm on the basis of its use as a potential subdivision and were of opinion that the transverse by this pipeline would damage about eight acres of ground for subdivision purposes, their testimony was based on an erroneous assumption because engineers introduced by the city were of opinion that the land was no less ideal for the purpose of subdividing because of the presence of the pipeline.

It is insisted that since neither Spencer., Hamilton, McCready nor Jones is a civil engineer, none of them is qualified to lay off the land in subdivisions and therefore their testimony is of no probative value. This argument is based on an erroneous impression that grew out of some of our opinions concerning the methods of valuation in condemnation cases. So far as we have been able to find, this court has strictly adhered to the rule that the true measure of damages is reached by determining the amount which would equal the difference in the fair market value of the entire property immediately before and after the easement is condemned. In connection with establishing the value before condemnation we have permitted various experts to use any pertinent elements which would assist in establishing that value. In cases where property . has adaptability for particular uses which would result in an increased valuation, we have permitted this item to be considered as an element in assessing damages. For instance, in East Kentucky Rural Electric Cooperative Corporation, Inc., vs. Smith, 310 S.W.2d 535, where it was shown that farm land was reasonably adaptable and that there was expectation that in the near future it would be divided into town lots, it was held that that factor should be considered and the increased value used in estimating the true value of the land before the taking.

In Kentucky Utilities Company, Inc. vs. Barnett, Ky., 252 S.W.2d 12; Commonwealth vs. Crutcher, Ky., 240 S.W.2d 605; and Cranley vs. Boyd County, 266 Ky. 569, 99 S.W.2d 737, where it was shown that ■city lots were adaptable to business purposes even though not used for the purpose at the time, such suitability was held to be an element properly to be considered in assessing damages.

Nevertheless there are many elements which must be considered in connection with establishing the true market value before and after the taking — not just adaptability for other uses. That is just one of the separate items which help form the integral estimates as to value. The composite of all elements by which the expert reaches his conclusion is acceptable as a true valuation. Here appellees’ experts all testified that the land had been damaged for subdivision purpose in sums greater than the amount of the verdict. Appellant’s experts thought it was less.

We have found the estimates given in behalf of appellees convincing, as did the jury, even though the valuations fixed differed from those fixed by witnesses for tha city. This conflict was resolved by submis-mission to the jury under instructions which have not been challenged as to correctness. The jury also visited the premises and formed its opinion as to the extent of the damage. Under the circumstances we see no reason to interfere with its verdict or the judgment based upon it.

Judgment affirmed.