text:
    HIGHLANDS INSURANCE COMPANY, Appellant, v. James Alva DANIEL, Appellee.
    No. 219.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 5, 1967.
    Rehearing Denied Jan. 26, 1967.

      Ramey, Brels ford, Flock & Devereux, Donald Carroll and Michael A. Hatchell, Tyler, for appellant.
    Gordon Wellborn & Rex Houston, Vaughan O. Stewart, Henderson, for ap-pellee.
   SELLERS, Justice.

The appellee, James Alva Daniel, brought this suit in the District Court of Henderson County against the appellant, Highlands Insurance Company, to recover on a compensation claim for an alleged back injury received while working for his employer, Brown & Root, Inc. The injury was alleged to have occurred on July 23, 1964. The trial was to a jury and, based upon the jury verdict, the trial court entered judgment for appellee for total incapacity beginning on the date of the injury and continuing for a period of 364 weeks, the judgment being for appellee in the sum of $9,792.06, and for his attorney in the sum of $4,164.46 with interest on both amounts at four percent. From this judgment, the appellant has duly prosecuted this appeal.

It appears from the record that immediately after the injury, appellee was seen by Dr. Mahan and later by several doctors in Houston at the Veterans Hospital. In May of 1965, appellee underwent surgery in the Veterans Hospital and had two discs removed from his back and remained in the hospital for nine weeks. At the time of the trial, he was still in pain and was unable to work. On the trial of the case, appellee sought to recover and did recover the sum of $2,604.00 for services rendered by the Veterans Hospital, which amount was found by the jury to be a reasonable charge for the services rendered.

Appellant in its First Assignment of Error complains of the judgment in allowing appellee to recover the above amount for the reason that appellee had made an assignment of his claim against appellant to the Veterans Administration and had no authority to represent the Veterans Hospital and recover the above amount from the appellant. Appellant cites the following proceedings on page 4 of its Brief:

“ * * * In particular, Plaintiff’s counsel testified as follows:
“ ‘Q. Do you know, in answer to my question, whether or not Mr. Daniel assigned his claim to them ?
‘“A. To such an extent that he can assign workman’s compensation he did * * *
***** *
Mr. Houston, have you been authorized by the Veterans Administration or the Veterans Administration Hospital in Houston to represent them in this matter? Ol
A. No sir, it depends on what you call authorization. I don’t have any written authorization, no.’ ”

The answer to this contention by appellant is Article 8306, Section 3, of the Texas Compensation Act, Vernon’s Ann. Civ.St., which provides that an assignment of compensation benefits by an employee is void. This statute has been held to prevent an assignment of an employee’s compensation as wholly void. Felker Lumber Company et al. v. Superior Insurance Company, Tex.Civ.App., 272 S.W.2d 161, and authorities therein cited.

We do not agree with appellant that Section 2651 of Title 42 of U.S.C.A. overrules the above State statute.

Appellant’s Second and Third Assignments question the sufficiency of the evidence to support the jury’s verdict of total disability for 364 weeks. Several doctors testified in the trial of this case and several lay witnesses, including the appellee himself, testified at length about his condition, and it would unduly prolong this opinion to undertake to set out the evidence here. We deem it sufficient to say that we have carefully reviewed the evidence and find it amply sufficient to support the jury’s finding of incapacity for 364 weeks. Connecticut Indemnity Company v. Henson, Tex.Civ.App., 388 S.W.2d 300, and authorities therein cited.

Appellant contends in its next assignment that the Court erred in giving the definition of “partial incapacity” to the jury. The definition given by the trial court is the same as the one many times given and approved by the courts in this State and just recently approved in the case of Liberty Universal Insurance Co. v. Gill, Tex.Civ.App., 401 S.W.2d 339, writ ref., n. r. e. The assignment is overruled.

Appellant, in its Fifth Assignment, complains of the court overruling its motion to declare a mistrial of the case and discharge the jury for the reason that appel-lee’s attorney, in his opening statement to the jury, made the statement that “the Plaintiff brings this suit for 401 weeks at $35.00 per week, not for the remainder of his life or anything like that, but for the benefits provided by this policy of insurance under the law.” The objection to this language was that it was for the purpose of informing the jury of matters of fact solely within the province of the Court and not material to any issue to be decided by the jury, but for the purpose of informing the jury of the effect of their answers to the Special Issues to be submitted to them.

Similar statements have been made in a number of cases and in each case the contention of appellant has been overruled. Texas Employers' Ins. Ass'n v. Logsdon, Tex.Civ.App., 278 S.W.2d 893; Export Insurance Company v. Johnson, Tex.Civ.App., 401 S.W.2d 324; Travelers Insurance Company v. Sides, Tex.Civ.App., 403 S.W.2d 519. Based upon the holding in these cases, the assignment is overruled. Appellee in a cross-assignment makes the contention that the appeal of this case was taken for delay only and seeks to invoke Rule 438, T.R.C.P. which provides for ten percent penalty in such cases. We have reviewed the cases cited by appellee and are of the opinion that they wholly fail to bring this case within the above rule.

Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: MCDONALD, Chief Judge.

license: Public Domain

text:
    Roy L. POWER et al., Appellants, v. August G. FAREK, Appellee.
    No. 4590.
    Court of Civil Appeals of Texas. Waco.
    Dec. 29, 1966.
    Rehearing Denied Jan. 19, 1967.
    Dunnam & Dunnam, Waco, for appellants.
    McLaughlin, Clark, Fisher, Gorin & McDonald, Charles M. McDonald, Waco, for appellee.
   OPINION

MCDONALD, Chief Judge.

This is an appeal by defendants Power, Colley and The Scotchman, Inc., from a temporary injunction enjoining them from excluding plaintiff Farek from management and operation of The Scotchman Liquor Store, and from selling or encumbering the stock, leases, fixtures or other property of The Scotchman, Inc.

Plaintiff Farek, for some seven years, has been Manager of The Scotchman. Defendants Power and Colley are owners of the stock of The Scotchman, Inc. Plaintiff filed this suit for an accounting to wind up the business, alleging he owned a 1/3 interest in the properties of the business, as well as notes owed him by the business. Plaintiff alleged that on September IS, 1966 he was delivered a letter by defendants terminating his position as Manager, as of October 1, 1966, and that he should be permitted to continue his participation in the business until the properties are equitably partitioned. Plaintiff prayed for an accounting and for temporary injunction enjoining the defendants from excluding him from management and operation of the liquor store and from selling, transferring or encumbering the stock, leases, real estate, fixtures or other property of the business. Defendants alleged that plaintiff’s contract had been terminated and a new Manager employed, and that plaintiff had an adequate remedy at law for moneys due him.

The trial court, after hearing, granted temporary injunction, enjoining defendants from interfering with “the management and operation of the package liquor store and business known as The Scotchman as the same existed prior to October 1, 1966”, and further enjoined defendants from “selling, transferring or encumbering in any manner any of the corporate stock of The Scotchman, Inc., or any of the lands, real estate, fixtures or buildings (except merchandise sold in course of business).”

Defendants appeal on three points, contending the temporary injunction was abuse of discretion by the trial court because under the undisputed facts any rights of plaintiff were settled by the terms of a valid contract.

The record reflects defendant The Scotchman, Inc. (owned by defendants Power and Colley) entered into a contract in June, 1963 whereby plaintiff would operate and manage the liquor store owned by The Scotchman, Inc. for a salary of $500 per month, and for 1/3 interest in the stock of merchandise and fixtures. Such contract provided:

“This contract may be terminated by either party within 15 days from the date of written notice that either party desires to terminate said agreement. In the event said contract is terminated by either party, then and in that event, a complete inventory and audit will be conducted to determine the interest owned by the party of the second part under the provisions of their agreement, and the party of the first part agrees to tender said amount to the party of the second part at the expiration of said 15 days.”

Plaintiff does not attack the validity of the contract, and admits the letter of termination of employment was received on September 15, 1966, and that he continued to manage the store until October 1. Plaintiff and defendants each made inventory and compromised the differences in the two inventories. Defendants tendered plaintiff a check for what they asserted was 14 of the assets, which plaintiff refused to accept, contending his 1/3 to be considerably more than asserted by defendants.

Plaintiff filed this suit for accounting and temporary injunction. The trial court granted temporary injunction as noted.

Here, the rights of the plaintiff’s employment as Manager were fixed by the contract, and were terminated in accordance with the contract. We think the trial court’s action in enjoining defendants from excluding plaintiff from management and operation of the liquor store exceeded his authority and was error.

The judgment is modified dissolving the temporary injunction insofar as it enjoins defendants from excluding plaintiff from management and operation of the liquor store; and is in all other respects affirmed.

Costs of appeal are assessed one-half each against plaintiff and defendants.

Modified and affirmed.


author: McDONALD, Chief Justice.

text:
    Orville T. SLAUGHTER, Appellant, v. Mrs. Marcett CARTER, Appellee.
    No. 4587.
    Court of Civil Appeals of Texas. Waco.
    Nov. 10, 1966.
    Porter Johnston, Dallas, for appellant.
    Frank B. McGregor, Waco, for appellee.
   OPINION

McDONALD, Chief Justice.

Plaintiff Carter sued defendant Slaughter for damages resulting from defendant’s negligent operation of his automobile. Defendant filed pleas of privilege to be sued in Bosque County; plaintiff controverted ; and after hearing the trial court overruled such plea of privilege. Defendant appealed to this court from the order overruling his plea of privilege.

Pending the appeal in this court, plaintiff filed motion in the trial court for a nonsuit. The trial court granted such motion and dismissed the cause without prejudice to plaintiff, and taxed all costs against plaintiff.

In such state of the record, defendant’s appeal from the order overruling plea of privilege is moot in this court.

During the pendency of appeal from order overruling plea of privilege, the trial court possesses authority to permit nonsuit at instance of plaintiff, since the powers of the trial court to try the case on the merits was not suspended during pend-ency of appeal from such order. And the question of whether the trial court erred in overruling the plea of privilege is now moot in this court. McNeill v. Hubert, 119 Tex. 18, 23 S.W.2d 331; Gladden v. Thurmond, Tex.Civ.App. (nwh), 77 S.W.2d 703; Knapp v. Knapp, Tex.Civ.App. (nwh), 375 S.W.2d 359; Bray v. Compton, Tex.Civ.App. (nwh), 376 S.W.2d 436; ABC Rendering, Inc. v. Martin, Tex.Civ.App. (nwh), 407 S.W.2d 551. Appeal is accordingly dismissed at costs of appellee.

Appeal dismissed.


author: RENFRO, Justice.

text:
    Johnny Ray SELLERS, Appellant, v. Edna Ray POWERS et al., Appellees.
    No. 16786.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 30, 1966.
    Rehearing Denied Jan. 27, 1967.
    Elton M. Hyder, Fort Worth, for appellant.
    Sam Denny, Fort Worth, for appellees.
   OPINION

RENFRO, Justice.

This is a will construction case. It was agreed that the will of Maedel Sellers, deceased, violated the rule against perpetuities and the only question before the trial court was how should that portion of the estate of the testatrix devised by the sections of her will which would violate the rule against perpetuities pass.

Paragraph three of the will read: “I give, devise and bequeath all the rest and residue of my said property and estate, real, personal or mixed, community or separate, wherever situated, of which I may die seized and possessed, to my daughter Edna Ray Sellers Walker, and my son Johnny Ray Sellers for life, if they both survive me, to have and to hold said residue of my estate as joint tenants during their joint lives; provided, however, if only one of my said children survive me, or if both survive me but one later dies then I give and devise to my surviving child an estate for life in one-half of said residue and to the living issue of my deceased child an estate for life in the other one-half of said residue. Upon the death of the last survivor of my son and' daughter, or upon my death if neither my son nor my daughter survive me, I give, devise and bequeath all the rest and residue of my estate to the issue of my daughter Edna Ray Sellers Walker, and my son Johnny Ray Sellers, as joint tenants during the respective lives of such issue and the life of the survivor, or, if only one of such issue survives me, then I give and devise such property and estate to such survivor for life.”

Paragraph four provided: “Upon the death of the last surviving life tenant heretofore provided for in paragraph Third of this will, I give, devise and bequeath the remainder of my said property and estate in fee simple title to the person who would be entitled to inherit said property in accordance with the laws of descent and distribution of the State of Texas, if I had died intestate immediately after the death of the last surviving life tenant heretofore provided for in paragraph Third of this will.”

At Mrs. Sellers’ death she left surviving her a daughter, Edna Sellers Powers, mother of Toby Walker, Eddie Ray Walker, Bobbie Ray Walker; and a son, Johnny Ray Sellers, to whom was born, after the death of Maedel Sellers, a son, Chad Curtis Sellers.

It was the contention of the guardian ad litem that the court should uphold as much of the will of the testatrix as it could in accordance with the intent of the testatrix evidenced by the four corners of her will and invalidate only as much of paragraphs Third and Fourth of the will of the testatrix as was necessary to conform with the rule against perpetuities.

Plaintiff, Johnny Ray Sellers, contended that the entire paragraph Third was null and void, and the court should declare the property to be vested in testatrix’ children, Johnny Ray Sellers and Edna Ray Sellers Powers.

The court declared null and void the words “Upon the death of the last survivors of my son and daughter, or * * (Emphasis added.)

The court then construed the will as follows: that the two children of Maedel Sellers, Johnny Ray Sellers and Edna Ray Powers, take a life estate in their mother’s property as joint tenants; upon the death of the first to die of Johnny Ray Sellers and Edna Ray Powers, the children of the first deceased take a life estate in their parents’ one-half as joint tenants with the surviving child of the testatrix, and that upon the death of both children of Maedel Sellers her property vest in fee simple in her heirs at law as determined by paragraph Fourth of her will.

Plaintiff, Johnny Ray Sellers, appealed.

He contends the court erred in holding that the intention of testatrix could be carried out by granting to the grandchildren a fee simple estate where only a life estate was plainly intended; that the entire devise under the terms of the will must be abrogated and the property should descend according to the laws of descent and distribution.

The defendants contend the trial court correctly held that it should uphold the prior estates created by the will of the testatrix even though the remainder created by her will was void since the two estates were not inseparable and to uphold the prior life estates would not defeat the dominant purpose of the testatrix.

The law prefers to give to a construction of wills, one that will prevent partial intestacy. It will be presumed that a testator did not intend to die intestate as to any portion of his estate, and this presumption will prevail unless the contrary is clearly expressed or necessarily implied from the language. Boone v. Stone, 142 S.W.2d 936 (Tex.Civ.App., 1940); Bittner v. Bittner, 45 S.W.2d 148 (Tex.Com.App., 1932).

In Atkinson v. Kettler, Tex.Civ.App., 372 S.W.2d 704, affirmed 383 S.W.2d 557, the court held: “However, again reverting to the true intention of the testatrix, we believe that the validity of the life estate interests of the two daughters and their children may be sustained by the application of a well-established principle of law and construction. This rule is that a remainder which is void because in violation of the rule against perpetuities does not necessarily render invalid the prior estate, but that the latter will be sustained, notwithstanding the invalidity of the ulterior estate, when the two are not inseparable and dependent upon the general testamentary scheme, and to uphold the one without the other would not defeat the primary or dominant purpose of the testator. This rule has been applied almost universally. See cases in 28 A.L.R. 382, 75 A.L.R. 124 and 128 A.L.R. 323.” See also Restatement of the Law, Property, § 402, and 168 A.L.R. 321.

We think that the will, when considered from its four corners, shows that testatrix’ dominant intention or general scheme was to provide for a series of life estates.

It appears that her main concern was that her children and grandchildren be given the benefits of her estate.

Her children and grandchildren were natural objects of her bounty. Her evident intent to provide for them should not be denied because of an invalid, remote grant attempted by her.

We agree with the argument of ap-pellees that it would be more in accord with the intent of the testatrix as evidenced by the four corners of the will to uphold as much of the provisions of her will creating life estates as possible rather than to declare all of paragraph three invalid and thus have all the property pass to her children by intestacy.

Nowhere in the instrument does she indicate directly or by implication that she wanted the two children to take in fee.

In our opinion the trial court construed the will properly.

Affirmed.


author: WERLEIN, Justice.

text:
    Thomas E. CROTHERS et al., Appellants, v. MIDLAND PRODUCTS CO., Appellee.
    No. 14897.
    Court of Civil Appeals of Texas. Houston.
    Jan. 12, 1967.

      H. Coke Wilson, Houston, for appellants, Hayden, Pravel, Wilson & Matthews, Donald R. Bernard and Larry G. Myers, Hous-
    Robert A. Hall, Houston, for appellee, Baker, Botts,- Shepherd & Coates, Houston, of counsel.
   WERLEIN, Justice.

This suit was brought by Thomas E. Crothers and Tel-Go Manufacturing Corporation, Inc., residents of Harris County, Texas, to enforce a sales contract entered into by Tel-Go and Midland Products Company on February 12, 1965, and to recover damages for breach of such contract. Midland Products Company, a corporation, domiciled in the State of New Jersey, made a special appearance under Rule 120a of the Texas Rules of Civil Procedure, alleging in its sworn motion that it appeared specially for the limited purpose of objecting to the jurisdiction of the court pursuant to said rule and to move the court to quash, set aside and hold for nought the issuance and attempted service of process in the case upon and through the Secretary of State of Texas, and to dismiss the cause for lack of jurisdiction of the court over the person of the defendant.

In its special appearance appellee alleges that it was incorporated under the laws of the State of New Jersey and has never qualified to do business in the State of Texas, and was not at the time said contract was executed or at the time plaintiffs’ original petition was filed on December 9, 1965, or at the present time, doing business in or present within the State of Texas. It further alleged that it has not expressly nor impliedly appointed or recognized as its agent to receive service of process of the State of Texas any individual, firm or official of the State; that it was engaged in the business of manufacturing pumps and construction equipment and machinery, and in conducting such business it has no assets of any kind in the State nor any employees who reside in the State, and has no office or place of business in the State, and is not carrying on any business within the State, and therefore is not subject to the jurisdiction of the court.

Appellants in their petition allege that appellee is a resident of New Jersey, and that it is present in the State of Texas, having done, and doing therein, a part of the business for which it was incorporated, and that it does not maintain a place of regular business in this State which would be suitable for service and has not designated an agent for service and has thereby designated the Secretary of the State of Texas as agent upon whom service of process can be made in accordance with Article 2031b, Vernon’s Annotated Texas Statutes; that on February 12, 1965, appellee entered into a written contract with appellants to purchase the outstanding stock and to assume the assets and liabilities of Tel-Go Manufacturing Corporation, which contract is to be performed partly in Harris County, Texas, and that plaintiffs have performed the obligations imposed upon them in connection with such contract.

The trial court, after hearing evidence, entered a judgment sustaining appellee’s special appearance, quashing and vacating the citation and petition served upon ap-pellee through the Secretary of State, and dismissing the cause of action for want of jurisdiction over the person of appellee, from which judgment appellants have perfected their appeal. The question before us is whether or not under Article 2031a, Sec. 4, V.A.T.S., service upon the Secretary of State constituted a valid service on ap-pellee. This in turn depends upon whether or not there were established by the pleadings and the evidence sufficient contacts by Midland Products in Texas to constitute the doing of business by it in this State.

Appellants complain that the trial court erred in requiring them over their objection to assume the burden of proof of establishing the contacts upon which they relied to give the court jurisdiction over the person of appellee. We are of the opinion that the court improperly placed the burden of proof upon appellants. The general rule is that the party who files a plea in abatement must offer proof in support thereof. McDougald v. First Nat. Bank of Beaumont, Tex.Civ.App., 239 S.W.2d 145, writ ref., n. r. e. Rule 120a, T.R.C.P., does not state whether the burden of persuasion and proof is on the plaintiff or the defendant, but its language does place on the defendant the burden of pleading lack of jurisdiction. E. Wayne Thode, Professor of Law at The University of Texas, in an article on Special Appearance, in Texas Law Review, February, 1964, Vol. 42, No. 3, at page 319, states:

“The language of the rule clearly places on the defendant the burden of pleading lack of jurisdiction. Although not spelled out as specifically as might be desired, the burden of producing evidence and the burden of persuasion are both on the defendant.

“Before turning to the language of rule 120a, the reason for the burden of proof being placed on defendant can be found in the fact that the motion to the jurisdiction, is a plea in abatement, and the plea in abatement is not favored by the courts. The rule consistently applied throughout the history of Texas pleading, in the absence of specific statute, is that the party pleading in abatement has the burden of proof.

“An analysis of the language of rule 120a also makes evident that the defendant has the burden of proof. The special appearance includes, but is not limited to, the filing of the motion to the jurisdiction. * * ”■

It is our view that since appellants established and fully developed all the contacts upon which they relied to confer jurisdiction of the court upon appellee, they have failed to show any harm with respect to the improper placing of the burden of proof upon them, and especially so since the hearing-was by the court without a jury. Rule 434, T.R.C.P.

The court made no findings of fact or conclusions of law. It is necessary to look to the contract and the statement of facts in the case to determine whether or not the contacts proven were sufficient to constitute the minimum contacts necessary for conferring jurisdiction upon the person of appellee. The contract, which was executed by Tel-Go and Midland Products Company on February 12, 1965, provides in substance that Midland will purchase all of the outstanding stock of Tel-Go for the price of $10,000.00, payable one-half in 1965 and the remaining one-half in 1966, and Midland will assume all of the assets and all of the liabilities of Tel-Go. which were detailed in an attached balance sheet dated January 31, 1965, and that the Gilbreath stock under contract would revert to Tel-Go on payment of the Gilbreath note, and that such stock will be considered as a part of that referred to in paragraph 2 of the agreement, as all of the outstanding stock of Tel-Go, and that the option to purchase the existing premises of Tel-Go will become the property of Midland, and the option will be amended to incorporate a maximum purchase price option of $25,000.00; that T. E. Crothers will join Midland as a salaried employee on or about March 1, 1965, at a starting salary of $750.00 per month, in addition to certain product license royalty fees, or over-ride, which are set out in detail, and which would apply to Midland as well as Mid-Mar, Ltd., Almar Equipment Company, and any of the Almar industries and/or licensees of Almar Industries, which would supersede any existing license arrangements in existence between Tel-Go and/or T. E. Crothers and Mid-Mar, Ltd.

Crothers testified at the hearing that he was employed in February of 1965 by Midland and in its employ from March 1 until October 23, 1965; that he was paid by Midland during such period of time by checks drawn on a New Jersey bank and mailed to him in Harris County, Texas; that he was furnished business cards, stationery and letterheads by Midland Products, which were mailed to him; that he was Midland’s District Sales Manager to sell Midland Products, and that he traveled on the road, and that “ * * * we had a warehouse here for a time, and were shipping materials from here to Midland’s customers”; that the warehouse was located at 9103 Air Line Drive, and that they kept in the warehouse tampers, concrete rubbing machines, and that he (Crothers) had a Midland pump and their little demonstrator model that he took to the dealers to show the inner workings of the pump; that he had at the time of the hearing four new upright tampers and two large plate-type tampers, one Midland pump and several demonstrators; that Tel-Go never sold Midland Products prior to the time of purchase, and that the products were manufactured by Midland; that such equipment belonged to Midland Products; that he maintained an office in Harris County during his employment, where he paid off debts and received accounts receivable, and shipped materials to Midland’s dealers, and also maintained an office in his home where he took care of correspondence and some files pertaining to the sales work that he did for Midland; that there were Midland pumps sold in Houston and handled by Lee Supply Company in South Houston, and handled by several dealers in Houston; that in the local telephone book there was an advertisement reading “Midland Pumps Distributors, Inc., Embry Engine & Equipment Company” with their address and telephone number, and “Lee Supply Company” with their address and telephone number; that he was requested by Midland Products to store other equipment in the warehouse on Air Line; and that it was not necessary to store Midland pumps in his garage because they had the warehouse.

On cross-examination Crothers testified that his contract of employment was contained in the written purchase contract between Tel-Go and Midland Products, that Midland Products did not, as far as he knew, maintain a bank account in the State of Texas, that he did not have with him stationery furnished him by Midland Products, that the tampers which he testified to did not come from New Jersey, but the pumps did, that the tampers were here before he went to work for Midland, and that he had only one pump in the warehouse belonging to Midland, valued at about $200.00; that when Tel-Go sold to Midland, everything that he had became the property of Midland, everything in the warehouse, the bank account and accounts receivable “which we signed over to Midland, which they drew a check on. We collected accounts receivable” ; that there was nothing in the warehouse that was an asset that came to Texas from New Jersey other than the one pump; that the request made of him by Midland to store some materials in his garage was made when he was in Midland Park, N. J., in February or March, 1965; that to his knowledge Midland Products had no other employee other than himself in the State of Texas; that the contract made the basis of the case was negotiated by Mr. Marlow, President of Midland Products Company, who lived in Connecticut.

On re-direct examination, Mr. Crothers testified that the accounts receivable of Tel-Go assigned to Midland Products were in the sum of approximately $11,000.00, that he collected some of these which went mostly to paying the accounts payable, and some went to Midland Products; that the collection of the accounts was a part of his job; and that he was not required to carry a large inventory of pumps for Midland Products at that time.

Among the exhibits introduced in evidence are stubs of pay checks sent Crothers; one of the Midland Products Company business cards sent to Crothers which has printed in the lower left corner “Tom Crothers, District Sales Mgr. 230 Connie Street, Houston, Texas, 77022. Telephone 713-OX 7-5819”; a $15,000.00 note executed by Tel-Go by Thomas Crothers, President, and Billy Bob Holmes and Thomas Crothers, individually, dated June 19, 1964 and payable to E. C. Gilbreath; a letter written by Midland Products to Gilbreath dated June 9, 1965, stating that in February, 1965 Midland purchased Tel-Go and assumed all assets and liabilities thereof, including among the liabilities the Tel-Go note, which it confirmed it had assumed in the sum of $12,765.80 as of that date, and would continue to pay on the usual basis; and two letters addressed by Midland to Builders Equipment & Tool Company, P. O. Box 8508, Houston, Texas, Attn. Mr. E. C. Gilbreath, advising that Midland had acquired Tel-Go, and expressing an interest in integrating Builders Equipment & Tool Company into Midland’s national distribution of contractors’ equipment, thus in effect soliciting business by mail, and stating that all Tel-Go products would bear the Midland-Tel-Go name.

We have concluded that as a matter of law appellants established that appel-lee had sufficient minimum contacts in this State so that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice”. The activities of appellee in Texas were continuous and systematic, at least during the time Crothers was in its employ on a salary for nearly eight months serving appellee in this State as its District Sales Manager. There is nothing in the record to show that it thereafter ceased to do business in Texas, but if it did it would be immaterial with respect to all causes of action arising out of the business there done. Mutual Reserve Fund Life Ass’n v. Phelps (1903), 190 U.S. 147, 23 S.Ct. 707, 47 L.Ed. 987; State of Washington ex rel. Bond & Goodwin & Tucker v. Superior Court (1933), 289 U.S. 361, 53 S.Ct. 624, 77 L.Ed. 1256; Leflar, Conflict of Laws, Sec. 39, p. 66. The contract in question had substantial connection with the State of Texas. The contract in question had substantial connection with the State of Texas. There is more involved here, however, than the mere entering into a contract by appellee with a resident of Texas “ * * * to be performed in whole or part by either party in this State * * There were continuous activities consisting of collections of accounts receivable, the payment of debts, the maintenance of a warehouse where were stored equipment and machinery purchased by appellee from Tel-Go, besides the Midland pump and demonstrator, the assumption and payment on the usual basis of the unpaid balance of the Gilbreath note, the supplying of demonstrators, the assumption of all of the assets and liabilities of Tel-Go and the option to purchase its premises, and the shipping by appellant Crothers of materials to appellee’s dealers. The purchase contract and the activities hereinabove described were sufficient to render appellee amenable to this suit brought in the District Court of Harris County to enforce the obligation and liability arising out of such contract and activities in this State. International Shoe Co. v. State of Washington, etc., 1945, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; Gray Co. v. Ward, Tex.Civ.App., 145 S.W.2d 650, Dism., Judgment correct. See also Trinity Steel Co. v. Modern Gas Sales & Service Co., Tex.Civ.App.1965, 392 S.W.2d 861; McGee v. International Life Ins. Co. (1957), 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223; Hanson v. Denckla (1958), 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283; Hearne v. Dow-Badische Chemical Co., D.C., 224 F.Supp. 90. In light of the allegations in appellants’ petition and appel-lee’s special appearance, service of process in this case was properly made upon and through the Secretary of the State of Texas under Article 2031b.

Judgment reversed and rendered.


author: GRISSOM, Chief Justice.

text:
    The SUPERIOR OIL COMPANY, Appellant, v. BOARD OF TRUSTEES OF the MAGNOLIA INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 4143.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 2, 1966.
    Rehearing Denied Jan. 13, 1967.

      Williams, Lee & Lee, Pat F. Timmons, Houston, for appellant.
    McClain & Harrell, Conroe, E. G. Aycock, Ft. Worth, for appellees.
   GRISSOM, Chief Justice.

This is an appeal from the judgments in two cases, in effect consolidated on appeal, in favor of the School District et al. against the Superior Oil Company. Superior alleged that the Magnolia Independent School District and its board of equalization on September 10th, 1962, arbitrarily discriminated against it in fixing the value of its property and unlawfully levied an excessive amount of taxes against it. Superior sought to enjoin the school district from attempting to collect taxes based upon such alleged unlawful discrimination and valuation and a mandatory injunction requiring the School District to accept in full payment the taxes due an amount theretofore paid by Superior, which amount was based upon its rendition.

Superior alleged that after January 1, 1962, it filed with the tax assessor its rendition and inventory for said year of all its properties within the district, that said rendition showed 37% of the value of all its properties as of January 1, 1962, showing the value of all its property was $4,095,-837 but that its value was actually $4,029,-100.00; that prior to 1961 said district had used 37% of the value of its property on which to compute taxes at the rate fixed by the board; that Superior received notice that the board of equalization would meet and it would be heard; that on September 10, 1962, Superior appeared before said board and presented conclusive and undisputed evidence of the value of its property in said district on January 1, 1962; that said evidence established that the value of its property was $4,029,100.00; that no other evidence was presented but that said board, without evidence raising an issue of fact rejected and disregarded such only evidence before it, and fixed the value of Superior’s property at $6,488,700.00 or $2,-459,600.00 more than the value so established. Superior alleged that the only evidence before the board on September 10th was, as a matter of law, final and fixed its value for 1962.

Superior alleged that said action by the first board (Sept. 10th) was final and that a subsequent attempt of said board to rescind its actions was void and did not affect its finality; that Superior had in another suit filed against said school district, its trustees and the original board of equalization, asserted its right to pay taxes on a $4,029,100.00 valuation equalized at 40%, which amounted to $1,611,640.00 and the taxes thereon to $24,174.60, which had been paid into the court and by it paid to said school district.

Superior alleged that the defendants’ answer in the first case affirmatively recited that a board of equalization for 1962 was created by the trustees on November 6, 1962; that plaintiff was notified to appear before said board on November 23, 1962 to show whether the assessed value of its properties in the district should not be raised; that Superior appeared before that board at said time and protested the validity of the proceedings, introduced evidence and cross-examined a witness for that board and on December 13, 1962, it was notified that said board had fixed the actual cash market value of its properties at $6,159,180.00 and an assessed value, equalized at 40%, of $2,463,670.00; that said new board of equalization in thus fixing the value of Superior’s property acted without authority because the first board at its September 10, 1962, hearing finally fixed Superior’s property value and taxes and same was not subject to rescission but a final adjudication establishing same.

Superior alleged that no evidence was offered other than that of its witnesses, in that, defendants' valuation witness admitted that he made no proper appraisal of plaintiff’s property as of January 1, 1962, nor had he done so for four or five years, nor did he have any knowledge of plaintiff’s current operating costs; that he ignored plaintiff’s gas price; that he did not take into account the existing law on the proper effect of gas price on in-place gas; that while the valuation shown by the evidence on the first hearing, September 10th, was accurate and was based upon evidence of the true actual gas values, said later board ignored same and gave effect to improper and uncertain values and methods of arriving thereat.

Superior alleged that said school district employed its own appraisers; that the/ had placed a value on land in said district at not less than $130.00 per acre; that the school district’s plan of establishing actual cash market value and assessed value was void; that it was neither equal nor uniform, in that, the necessary results of the later board’s action was to equalize Superior’s property at 40% of its actual cash market value and all other land in the district at approximately 24% of its value; that the plan of the district so adopted by its first board of equalization on September 10th was void, as a matter of law.

Superior alleged that the increased valuation placed upon its property by the later board for 1962 was excessive and discriminatory and said increased valuations and the method employed by it denied Superior the rights guaranteed to it by the Constitution of the United States and the laws of Texas to have its value determined equally and uniformly with other taxpayers in the county, and upon the evidence introduced before said board. Substantially the same allegations were contained in the first suit concerning the action of the school district in fixing the value and assessing the taxes of Superior.

The defendants, among other things, denied that the action of the board of equalization which finally fixed the value of plaintiff’s property and the tax thereon herein complained of placed an arbitrary value upon Superior’s property. Defendants alleged that on November 2, 1962, Bradbury, Qualine and Graves, sitting as a board of equalization, by resolution, rescinded in toto and declared of no force all prior acts of its board of equalization, that they resigned as members of said board on November 6, 1962; that a new board of equalization was appointed and met on November 23, 1962, to hear evidence of the value of Superior’s property; that it heard such evidence and on November 30, 1962, that said new board re-convened and heard evidence as to the market value of Superior’s property within said district; that, based upon the evidence adduced before that board as to the cash market value of Superior’s property within the district, it faithfully endeavored to equalize all property within said district subject to taxation and arrive at its true market value, and assessed said properties at 40% thereof.

In a trial to the court, it was decreed that Superior Oil Company take nothing and it has appealed. So far as we are here concerned, the same action and the same disposition was made in each of said cases. Superior in its able brief says in effect that its suit was to enjoin appellees from putting into effect an arbitrary plan of taxation and to enjoin collection of more than $14,000.00 in taxes, illegally levied against it; that by its first suit, presented in court on September 25, 1962, it sought (1) to enjoin appel-lees from arbitrarily assessing appellant’s property at $2,459,600 in excess of its value as established by the undisputed and only evidence heard by the board of equalization on September 10, 1962; (2) to enjoin ap-pellees from putting into effect their unlawful, discriminatory plan to assess Superior’s property at 40% of its market value while the land in the district at 40% of the arbitrary valuation of $75.00 per acre, instead of at its actual value of, at least, $130.00 per acre, established by the undisputed evidence and (3) to prevent ap-pellees from putting into effect their arbitrary and unlawful assessment plan without equalizing land in classes as required by statute.

Superior says that, after the September 10th hearing and before the first suit was filed, the tax rolls for the district based upon that hearing had been made up, except as to some tabulations, but not approved by the board; that when such first suit was filed appellees stated to the court that it would not be necessary to issue restraining orders or citations because it had rescinded all of its acts and submitted its resignation, which had been accepted and approved and a new board appointed.

Superior says that in its second suit presented in the trial court on January 31, 1963, following the first one presented on September 25, 1962, it pleaded substantially as in the first that the board at its September 10, 1962 hearing in fixing the value of Superior’s property at $2,459,600 in excess of the value established by the undisputed evidence, arbitrarily disregarded the undisputed evidence but sought to escape the finality thereof by attempting to rescind and annul the legal effect of such evidence and its September hearing; that the November 1, 1962 hearing, called by the second board, could not set aside the valuation of Superior’s property established by the undisputed evidence at the hearing before the first board on September 10th, but, if the second board could legally fix the value of said property, it was illegally and arbitrarily fixed at $2,463,670 in excess of its actual value under all the evidence; that appellees were planning to assess the land without equalizing it in three classes; that they were attempting to put into effect an illegal and discriminatory plan to assess appellant’s property at 40% of $75.00 per acre instead of 40% of its fair market value of $130.00 per acre, which value was established by the uncontradicted evidence; that said second hearing was objected to by Superior because it had no authority to undo the value already established at the first hearing; that all questions as to value were at issue in the first suit, and that the parties in the first suit had agreed that the tax rolls would not be approved until the matters were heard and agreed upon.

Superior says that in the second hearing there was involved the mineral value of its gas dependent upon the sale price under its contract and the amount it was permitted to retain by the Federal Power Commission, being 14.5^ and 9.5‡ Mcf, respectively.

Superior states its theory substantially as follows:

(1) That at the September 10, 1962 hearing before the first board the only and undisputed evidence established the value of Superior’s property as a matter of law and that the board arbitrarily disregarded same and fixed a much higher value. In support thereof it cites Articles 7211, 7212; Wells Independent School District v. St. Louis Southwestern Railway Company, Tex.Civ.App., 324 S.W.2d 442; Republic Insurance Co. v. Highland Park Independent School District, 129 Tex. 55, 102 S.W.2d 184.

(2) That fixing the value of Superior’s property in excess of the value established by the undisputed evidence at the September hearing was illegal and that the value so established is the value of its property for taxation. Citing Bexar County v. Humble Oil & Refining Co., Tex.Civ.App., 213 S.W.2d 882, and Article 7206.

(3) That Superior under its first suit is entitled to enjoin appellees from carrying out their plan to assess Superior’s property at the board’s arbitrary and excessive value, rejecting the value established.

(4) That appellees unlawfully attempted to rescind the legal effect of the boards action of September 10th.

(5) The final valuation, upon undisputed evidence at the September 10th hearing, as a matter of law remains the value of appellant’s property for tax purposes and the later attempt to enlarge its value was void.

(6) The appointment of the second board of equalization and its hearing fixing appellant’s • valuations was void and must be wholly disregarded.

Superior says, as the record shows, that it has already paid into court and the court, with its consent, has paid to the school district the taxes paid by Superior based upon its valuation, which it contends was fixed by the undisputed evidence on September 10th and that, therefore, the judgment in both cases should be reversed and the cases dismissed.

Superior says that, in the event this court should hold that the undisputed evidence at the September 10th hearing did not establish the value of Superior’s property or that the board could legally annul the value so established and that the subsequent board legally held a hearing reassessing Superior’s properties, then Superior presents the additional contentions, to-wit:

(8) The value of appellant’s gas could not be determined by the contract price, which the Federal Power Commission had not approved and had prohibited appellant from retaining.

(9) As the Power Commission prohibited appellant from retaining more than 9.5⅞⅜ per Mcf for its gas, its taxable value could not be based on the higher contract price of 14.5;⅜ and 19.5(5, to which it legally had no title.

(10)That the testimony on which the board of equalization based its excessive valuation was so conjectural as to have no weight and, therefore, furnished no support for the value that the board placed on Superior’s property.

In support of appellant’s first 4 points, to the effect that valuation was conclusively established September 10th and could not be disregarded nor rescinded and that the attempt to rescind could not destroy the legal effect thereof, says in effect: (1) that appellant’s inventory was not accepted by the tax assessor and appellant appeared before the board of equalization on September 10, 1962; that the board directed the assessor to assess all land at 40% of $75.00 per acre; (2) industrial improvements at 40% value and (3) oil and industrial properties at 40% of value; that it objected to the plan; that no witness testified in support of the value that the board of equalization placed on Superior’s property; that the only and undisputed evidence was the following: that its witness, Bill Johnston, a petroleum engineer, testified that he evaluated appellant’s properties in the school district; that the 100% value thereof was $4,029,100. An Industrial Appraiser, Mr. Lunsford, testified that his valuation of Superior’s Lake Creek Unit at $333,120 more than Mr. Johnston’s valuation was “based on the contract price”, not the amount retained and that the commission permitted appellant to retain only 9.5^ per Mcf.

Appellant argues that under Articles 7211 and 7212 that evidence is required to be heard to determine the value of the property; that boards of equalization shall increase or diminish valuations, shall call persons who shall testify with respect to value and that the court “after hearing the evidence shall fix the value of such property in accordance with the evidence so introduced and as provided in the preceding Article and their action in such case or cases shall be final.”

Appellant says in its first suit that it rendered its property; that the board set the hearing for September 10, 1962; that appellant presented evidence of the value of its property; obj ected to the value fixed by the board; that thereafter the tax collector prepared and completed the tax rolls, except as to some tabulations; and appellant then filed the first suit not only to restrain collection of taxes but to enjoin completion of the tax rolls under the board’s plan under which appellant’s taxes would have been approximately $14,000.00 more than it would have based upon the value established by the undisputed evidence presented on September 10th. Appellant says that the valuation fixed by the board without any evidence was void; that it set the matter for hearing, listened to appellant’s witnesses, called no witnesses of its own, arbitrarily fixed a value and adjourned, and that the board could not annul that which the law had made final; that the board could not undo the legal effect of evidence presented at the hearing on September 10th legally finally establishing the value of Superior’s property.

In Wells Independent School District v. St. Louis Southwestern Railway Co., Tex.Civ.App., 324 S.W.2d 442, n. r. e., the railway company, after rendering its property, was notified by the board of equalization to attend a hearing of the board for the purpose of equalizing the company’s values. It appeared and offered the only evidence, which was rejected. The higher value fixed by the board was protested. It was held that the increase caused it to suffer material injury. In this connection appellant stresses the fact that said railway company did not sue to enjoin the tax plan but to enjoin collection of taxes in excess of the amount tendered, while here the suits are to enjoin carrying out the illegal plan of taxation and to enjoin collection of the taxes. Superior says that in Republic Insurance Company v. Highland Park Independent School District, 129 Tex. 55, 102 S.W.2d 184, the company successfully sued to enjoin the school district from disregarding the value fixed by the board and to make such value final. It asserts that the same rule applies if the board disregarded undisputed evidence because in both instances the board disregarded the values established at the tax hearing.

Superior completes its brief on said points with the argument that the September 10th hearing was final and the value of Superi- or’s property was arbitrarily and illegally fixed contrary to the uncontradicted evidence at the September 10th hearing and, since appellant has paid the taxes due on its established value, that the judgment should be reversed and judgment rendered for appellant.

Superior’s points S, 6, and 7 are, in effect, that the court erred in failing to hold (5) that the district’s plan to value the land at about 24% of its value, but to value appellant’s property at 40% of its value was arbitrary and discriminatory and substantially injurious to appellant; (6) that such illegal plan would cause substantial injury to appellant and (7) that, to prevent arbitrary and unlawful discrimination, appellant’s property should have been assessed at 24% of its value instead of 40%.

Superior says that the board’s plan was to fix the value of the land at $75.00 per acre, assess it as 40% of such value, or $30.-00 per acre; that the tax assessor testified that under that plan the Hamil 722 acres was assessed at $30.00 per acre, 40% of $75.00, although its market value was $130.00 per acre; that Smith’s 43 acres was assessed at $30.00 per acre but the market value per acre was $180.-00, and that the lowest value of land was $130.00 per acre, the highest being $500.00 per acre. Under the board’s plan land was valued at only $75.00 per acre, and for tax purposes it was placed on the rolls at 40% of $75.00, to-wit, $30.00 per acre, instead of 40% of $130.00 or $52.00 per acre. Superior then proceeds with illustrations showing that (if its contentions are correct) that it has been hurt by the alleged action in so assessing its property. It says that taxing other land in the district at 24% but Superior’s at 40% of its value is discrimination, which substantially injures it and that such discrimination or scheme has been condemned. It cites Rowland v. Tyler, Tex.Com.App., 5 S.W.2d 756; State v. Richardson, 126 Tex. 11, 84 S.W.2d 1076; Wells Independent School District v. St. Louis Southwestern Railway Co., Tex.Civ.App., 324 S.W.2d 422, n. r. e.; Willis v. State, Tex.Civ.App., 142 S.W.2d 385. It contends the board’s plan was to value all land at $75.-00 per acre, regardless of value, and to place it on the rolls at $30.00, being 40% of the $75.00 valuation, while the undisputed evidence shows that the land in the district was worth from $140.00 to $180.00, generally, and none less than $130.00 per acre, and instead of taking 40% of the value of the lands they let $130.00 minus $75.00 escape all taxation yet appellant’s property was taxed at 40% of its full value; that, by disregarding the September 10th undisputed evidence, the board thus unlawfully fixed the value of appellant’s property.

In subsequent points appellant contends, in effect, that appellees’ plan was void also because, the improved lands were not divided into three classes; that the value of appellant’s mineral property cannot be determined by the contract price of its gas in excess of the amount the commission permits it to retain. Of course, we agree with such abstract proposition. Appellant’s tenth point is that the court erred in failing to hold that appellant’s contract price of 14.5^ and 19.50 per Mcf for gas, which contract price has been suspended by the commission cannot be used to determine the value thereof because the Federal Power Commission rejected such price and permitted appellant to retain only 9.5^ per Mcf for gas. With reference to this general contention about the board’s fixing the price of appellant’s gas by its contract price and the amount the commission permitted it to retain, the contract price does not fix the value of the gas, neither does the present percent that the Power Commission permits appellant to retain, but both may be considered in fixing the value thereof.

Appellant’s 11th and 12th points get to the gist of this contest. The 11th point is that the court erred in failing to hold that the hearing before the second board of equalization was void and that it could not fix the value of appellant’s property, which had been established by undisputed evidence at the hearing before the first board on November 10th, and (12) that the court erred in failing to hold there was no substantial evidence to sustain the value of appellant’s property as fixed by the second board.

In the beginning of our consideration of this case We are faced with the contention of appellees that appellant’s brief assumes that proof was made in the district court of the facts mentioned, whereas, the record shows that no facts were proved there. Appellees say that Superior’s exhibits were offered expressly and solely for the purpose of showing what transpired before the boards, not as proof of facts stated therein, nor of the accuracy of the testimony transcribed there; that in the first case it was agreed that transcription of the proceedings before the first board were accurate but that they were not offered as proof of the facts which they purported to show but merely to show what occurred before that board; that the statement of facts in the second case and the transcript of the testimony before the second board was offered in evidence for the limited purpose of showing what transpired before that board but, expressly, not to show that the evidence presented before that board was true; that it was agreed that it was offered for the limited purpose of showing only what occurred before such board, rather than as original evidence before the trial court and, therefore, there was no evidence of the facts presented to the trial court and there was no evidence of values or plans; that the statement of facts in the first case shows there were three hearings held by boards of equalization for 1962 and the only two transcripts offered do not include the proceedings before the board on November 30th and November 23rd. Wherefore, appellees insist that Superior’s claim that proof was made in the trial court that appellees were attempting to put into effect an illegal and discriminatory plan to assess its property at 40% of its fair cash market value while assessing land generally at 40% of $75.00 per acre, (appellant claiming that such land had a market value of $130.00 per acre) is not supported by the record, nor by any proof in the trial court and that Superior’s statement of the nature and results of the suits is not supported by the record. Appellees say that, at most, these suits present, merely the question of whether the action of the board on September 10th rescinding all actions was valid and there being no proof in the trial court as to values of any property or of a discriminatory plan, briefing in connection with established values is ineffective, not supported by the record and cannot furnish a predicate for the relief sought by Superi- or. The school district says the case has been briefed by appellant as if there had been a full trial upon the merits in the District Court while the record shows the contrary; in the first case the record consists solely of a transcript of the testimony of appellees’ tax assessor identifying appellant’s rendition for 1962 and as to what was done in connection with such renditions by the board and that such record shows it was not established in the trial court that there was any change between the assessed valuation tentatively fixed by the first board on September 10th and the values finally fixed by the last board after the November 23rd hearing; that there was also included in said record a copy of appellant’s rendition, proceedings before the boards, which, as above noted, were admitted only for the purpose of showing what transpired before the boards not for the purpose of showing the facts or that any of the testimony submitted was accurate, and the order of the board entered on November 2nd rescinding all previous orders of the first board of equalization, together with the resignation of the members of that board; acceptance of such resignations and some preliminary activities of the succeeding board on November 23rd; that the record in the second case, similarly, shows no testimony as to facts in the trial court, but merely a transcript of the testimony heard by the board at its meeting on November 23rd; letters reflecting the action of the board fixing the values of appellant’s property and Superior’s motion for a summary judgment, defendants’ answer and the order of the court overruling said motion. We think such contentions of the appellees are correct and controlling, must be sustained and the trial court’s judgment affirmed for said reasons.

However, the school district, as it says, out of an excess of caution, proceeds to brief its case on the theory that even if Superior had submitted the facts in the trial court and adduced the evidence claimed by it to be shown by the record, that nevertheless, the judgment should be affirmed. We will proceed to discuss in some detail appellant’s contentions in support of its last mentioned conclusion. Without stating appellees’ counterpoints in detail we shall discuss, generally, their reply to Superior’s theory. Ap-pellees contend (1) that rescinding its actions at the September 10th hearing and resignation of its members was lawful; (2) that the action of a later board in finally fixing the taxable value of appellant’s properties based upon evidence then presented was lawful; (3) appellant failed to produce any evidence in the trial court showing any plan of appellees to arbitrarily value appellant’s property and therefore, appellant was not entitled to the relief prayed for, (4) that the first board’s tentative action being under attack, it lawfully rescinded and set aside its action fixing the value of Superi- or’s property and (5) the final valuation thereof, based upon evidence heard by the later board, was valid; (6) that the first board, having rescinded all its actions and its members having resigned, the board of trustees of the district were authorized to appoint a new board and that (7), appellant having failed to pay the taxes based upon values thus fixed, the judgments in both cases should be affirmed.

Appellees present a reply to appellant’s alternative theory (8) to the effect that the value of Superior’s property for tax purposes was lawfully based upon evidence of the cash market value and proper assessable value of such property, rather than upon the contract price for appellant’s gas, same being merely one of the factors there considered in fixing market value; (9) that the taxable value of appellant’s property was based upon evidence of its cash market value, which included merely as an element thereof the contract price for its gas, and (10) that the testimony presented to the last board, upon which it based its final action, was submitted by a qualified expert, agreed to be qualified, and that said board could rely upon his testimony in fixing the values in question.

As stated, we are of the opinion that the judgment should be sustained because there was no evidence of an unlawful plan to tax appellant’s property. The transcripts of the proceedings before the boards were not introduced as evidence of the facts essential to appellant’s recovery but were expressly limited to showing what happened before the boards. “Generally, an administrative agency may rescind its action on a matter that has not become final.” 1 Tex. Jur.2d Sec. 30, Page 671. It was so held by our Supreme Court in South Taylor County Independent School District v. Winters Independent School District, 151 Tex. 330, 249 S.W.2d 1010, 1012. It was stated to be the law in 73 C.J.S. Public Administrative Bodies and Procedure § 158, at page 495.

The board of equalization’s order of November 10th, fixing the value of appellant’s property was lawfully set aside. The later boards’ actions were not shown to be invalid. The transcript of proceedings before the boards of equalization did not constitute evidence in the trial court capable of showing the facts essential to appellant’s recovery. The judgment is affirmed.


author: CLAUDE WILLIAMS, Justice.

text:
    A. G. NASH et al., Appellants, v. J. V. CONATSER et al., Appellees.
    No. 16830.
    Court of Civil Appeals of Texas. Dallas.

      Dec. 30, 1966.

      Dan Gibbs, of Gibbs, Hooks & Wyrick, Dallas, for appellants.
    Joe A. Keith, Sherman, for appellees.
   CLAUDE WILLIAMS, Justice.

This action was originally instituted by A. G. Nash and Mack W. Nelson, as plaintiffs, against J. V. Conatser and W. E. Con-atser, doing business as J. V. Conatser Insurance Agency, as defendants, in which plaintiffs sought specific performance of an alleged memorandum of agreement dated December 1, 1965 for the sale of the personal and real property comprising the J. V. Conatser Insurance Agency located at 501 West Woodard Street, Denison, Texas. Bethel L. Conatser and Dorothy Weems Conatser, the wives of the original defendants, intervened in the action as defendants. By their first amended original petition plaintiffs joined Conatser Properties, Inc. and Joe Keith as defendants, alleging that subsequent to the filing of the original action the original defendants and interve-nors had, with the idea and intention of placing certain assets belonging to the insurance agency out of the reach of plaintiffs, executed a deed from themselves to Conatser Properties, Inc., a Texas corporation such deed describing the real estate occupied by the insurance agency. Plaintiffs further alleged that contemporaneous with the delivery of said deed the corporation executed its deed of trust covering the property in question to Don Elliott, Trustee, to secure Joe A. Keith in the payment of one certain promissory note executed by such corporation in the amount of $30,000, such act on the part of the defendant corporation being a willful intent to place such property beyond the reach of the contract involved and for which specific performance was sought. It was further charged that defendant Joe A. Keith attempted to assign the note to Citizens National Bank of Denison, Texas and that such act on the part of the defendant Keith was an attempt to place the property of the insurance agency beyond the reach of plaintiffs. Plaintiffs again sought specific performance of the December 1, 1965 memorandum of agreement and further urged that each defendant should be “ordered to place such properties back in their original position at the date of the contract or make them available for the compliance of such contract.” As an alternative prayer plaintiffs sought actual and exemplary damages against defendants for their acts and conduct in allegedly breaching the contract sued upon. All defendants answered and set forth many legal and factual defenses.

Following nonjury trial judgment was rendered denying plaintiffs any relief. Plaintiffs appeal, contending that the judgment should be reversed because of nine errors. Inasmuch as each of appellants’ points attempts to assail findings of fact made by the trial court we deem it necessary and advisable to here summarize the material and relevant findings of fact as well as conclusions of law based thereon.

FINDINGS OF FACT

At all times material herein, the business known as J. V. Conatser Agency was an insurance agency owned solely by J. V. Conatser and his son, W. E. Conatser, but owned by them as part of the community estate of themselves and their wives. At all material times, legal title to the real estate upon which the insurance agency was located was owned one-third by J. V. Con-atser and his wife Bethel L. Conatser, one-third by W. E. Conatser and his wife Dorothy Weems Conatser, and one-third by J. C. Conatser. That at all material times prior to the conveyance of said real property to Conatser Properties, Inc. the real property was part of the homestead of J. V. and W. E. Conatser and their respective wives. That the wives of J. V. and W. E. Conatser had refused to execute any conveyance to appellants of the real estate in question.

During the latter part of November 1965, and the early part of December. 1965, the J. V. Conatser Agency was in financial straits from the viewpoint of ready cash, in that it did not have at all times enough ready cash to meet all of its obligations and was behind in payments to various insurance companies. At all material times the business was solvent, from a book viewpoint, and made money consistently each year, and had net earnings, including amounts withdrawn by the partners, of a little less than $24,000 per year, for the period of five years beginning with 1961 and ending with 1965.

Negotiations with J. V. Conatser and W. E. Conatser with respect to the J. V. Con-atser Agency began on November 23, 1965, when they were visited by the appellants and their attorney, Dan Gibbs. Previously, appellants had obtained balance sheets covering a period of about ten months ending with October 31, 1965, such revealing some figures shown on the books of J. V. Conatser Agency, but which did not contain any figures showing the value of the agency’s insurance business in force, that is, the list of policy expirations, and did not contain any figures for the good will of the agency except an amount of $1,000. At that time appellees were informed by appellants that they were not interested in purchasing the agency in its entirety, and particularly advised that they were not interested in buying the accounts receivable of the agency. The negotiations at that time proceeded on the basis of an offer by appellants to purchase the specific assets of the agency, including the insurance in force (representing one and one-half times the average annual commissions received by the agency over the past three years), the building, equipment and fixtures, less mortgages and indebtedness, leaving a net balance of $51,600. Based upon such figures, appellants told appellees Messrs. Conatser that they would be willing to pay $50,000 in cash and pay the mortgage of about $11,800, with the understanding that the $50,000 would be placed in escrow to pay the accounts of the agency.

On December 1, 1965, a further meeting was held between the parties at which the above mentioned figures were reiterated and after consultation and negotiations appellants offered to raise the figure of $50,-000 to $52,000. The parties then discussed and agreed that the appellants would have complete legal papers drafted setting out the conditions and agreements which appellants desired to be included, and that such papers would then be submitted to ap-pellees for their consideration and in order to enable them to have such papers reviewed by their attorney and their accountant, all such papers to be agreeable to all parties. As a memorandum of the matters involved, appellant Nash dictated to appellant Nelson in longhand the contents of the instrument identified as Plaintiffs’ Exhibit 1 and Defendants’ Exhibit 1, as follows:

“It is understood that we the undersigned hereby agree to sell to A. G. Nash and Mack W. Nelson the J. V. Conatser Agency located at SOI W. Woodard, Denison, Texas, under the following terms :
$52,000.00 paid to the Citizens National Bank in escrow, to pay all accounts of the Agency.
“Mr. Nash and Mr. Nelson will pay the mortgage on the building.
“The undersigned are to keep the Accounts Receivable.
“When the money is posted with the bank, possession is to commence December 1, 1965. Building is to be deeded as requested.
“/s/ J V Conatser_
J. V. Conatser
“/s/ W E Conatser_
W. E. Conatser
“Terms accepted by purchaser.
“/s/ A G Nash_
A. G. Nash
“/s/ Mack W Nelson_
Mack W. Nelson
“Dated 12/1/65

On December 6, 1965 appellants submitted to appellees three written instruments, identified as Defendants’ Exhibits 2, 3 and 4 (being proposed contract of sale of the agency, escrow agreement and covenant not to compete), said instruments being signed by appellant Nash as well as by L. K. Busch and Dan Gibbs, who were not parties to the memorandum of December 1, 1965 and not parties to this suit. These instruments were never signed by appellant Mack W. Nelson nor were they ever executed by any of the appellees. Upon receipt of these papers appellees transmitted same to their attorney for his review and numerous objections were raised by such attorney. On December 10, 1965 appellants made arrangements to deposit in escrow $52,000 in the Citizens National Bank in Denison and also a checking account of $3,000. On that date they were informed that the proposed sale of the agency would not be consummated.

On December 16, 1965 appellees executed Articles of Incorporation of Conatser Properties, Inc. which were filed by the Secretary of State of the State of Texas on December 17, 1965. On December 18, 1965 they conveyed certain real estate to Conatser Properties, Inc. On the same date the corporation executed its promissory note for $30,000 in favor of Joe A. Keith and its deed of trust on the real estate to secure payment thereof. Keith borrowed $15,000 from Citizens National Bank and as security assigned to the bank the above mentioned note of Conatser Properties, Inc. The $15,000 was used to make payment to Home Insurance Company on the indebtedness of the agency of said company. The Messrs. Conatser invested additional money in the business with the re-suit that all creditors of the agency were paid.

That the instrument of December 1, 1965 did not contain all of the essential terms of the proposal between the parties and was only a memorandum to be used to draw up the agreements to be proposed and considered. That Defendants’ Exhibits 2, 3 and 4 not only contained terms and provisions in addition to those reflected by such instrument of December 1, 1965 but, moreover, various terms and provisions contained therein were at variance with those of such instrument of December 1, 1965 and at no time did appellees agree to the terms and provisions contained in Defendants’ Exhibits 2, 3 and 4. That said memorandum of December 1, 1965 contained no description of real property, nor did it refer to any available writing in which such a description can be found, nor does it contain any key to such a description. That the terms of said memorandum claimed by appellants were not understood or agreed to by appellees, and the minds of the parties executing it did not meet with respect to the subject matter thereof or the essential terms thereof. That such memorandum of December 1, 1965 was and is incomplete and does not possess the attributes of a binding and legal contract.

Furthermore, at the time of the negotiations of November 23, 1965 and December 1, 1965 appellants represented to appellees that they were willing to and were offering to pay appellees $81,000 less ten per cent for the Conatser Agency’s business in force, that is, the list of expirations. That appellees were induced to believe and did believe that appellants were offering to and were willing to pay them $81,-000, less ten per cent for the agency’s business in force, such belief being caused partly by appellants’ representations to that effect, and also caused partly because of the confusing method of presentation followed by appellants in such negotiations. That appellees relied upon such representations in executing the instrument of December 1, 1965, and except for such belief and reliance would not have signed such instrument. That such representation was untrue and was known by appellants to be untrue. That such was untrue because of appellants’ efforts to deduct $56,000 for accounts receivable, notwithstanding that appellants’ offer to purchase did not include accounts receivable. That the true offer which appellants made, but which was concealed from appellees and by which they were confused by such representation and presentation, was that appellants would pay $52,000 in cash, of which $28,200 was to be paid for the equity in the building ($40,000 less mortgage of $11,800), and which $6,500 was to be paid for equipment and fixtures, leaving only $17,300 to be paid for the insurance in force, that is, the list of expirations. That such offer was not fair or adequate. That appellees did not discover the falsity of such representation until December 8, 1965 when their attorney undertook to review the proposed instruments submitted to state clearly what assets were to be sold and the amount to be paid therefor. That appellees could not reasonably have discovered the falsity of such representation at an earlier date.

CONCLUSIONS OF LAW

The memorandum of December 1, 1965 is incapable of enforcement and it would be inequitable to attempt to enforce it. Said memorandum is inadequate and insufficient either as a basis for specific performance or as a basis for plaintiffs’ prayers for damages. That said memorandum of December 1, 1965 is void for uncertainty, and, as to the real estate which plaintiffs claim was covered thereby, it is void and unenforceable under Art. 1288, Vernon’s Ann.Civ.St., commonly known as the Statute of Conveyances, and under Art. 3995, V.A.C.S., commonly known as the Statute of Frauds. That the terms of said memorandum claimed by plaintiffs in this suit were not understood or agreed to by defendants and the minds of the parties executing it did not meet with respect to the subject matter thereof or the essential terms thereof. That such memorandum was and is incomplete and does not possess the attributes of a binding and legal contract, and is so indefinite as to make it impossible to fix a legal or equitable liability of the parties thereto. As reflected by the instruments identified herein as Defendants’ Exhibits 2, 3 and 4 and by other evidence herein, various of the terms and provisions essential to the consummation of the proposed sale and purchase were not agreed upon, but were left open to future negotiation and to be agreed upon if possible, with the result that at the most, said memorandum of December 1, 1965 was an agreement to make an agreement. The granting of any relief based thereon would necessarily rest on guess or conjecture.

The instruments identified as Defendants’ Exhibits 2, 3 and 4 contain provisions never agreed upon by the parties and they are therefore not subject to equitable enforcement and cannot constitute the basis of legal relief.

In view of the conveyance of the real estate to Conatser Properties, Inc., the subsequent mortgaging thereof and the assignment of such note and liens securing payment thereof to the Citizens National Bank of Denison, Texas (not a party to this litigation), it would be impossible to grant specific performance even if such remedy were otherwise justified, which it is not.

In view of the additional money invested during December 1965 by defendants and the change of its financial condition as a result thereof, it would be inequitable and unjust to grant specific performance as sought by plaintiffs even if such remedy were available, which it is not.

That defendants were induced to execute the memorandum of December 1, 1965 on the basis of false representation, known to be untrue by plaintiffs, and therefore defendants were fully entitled to decline and to refuse to consummate the proposed transaction on the basis of such untrue representation.

That the wives of the defendants were within their rights in declining and refusing to execute conveyances to plaintiffs covering the real estate in question for the additional reason that such property was a part of their homestead at the time involved and did not lose its homestead character while owned by said husbands and wives.

That plaintiffs have not suffered any compensable damages. That plaintiffs’ expenditures of time and money following the signing of such memorandum of December 1, 1965 were based on their hope of making an agreement under which they could acquire the business of the agency and they were not misled or deceived into making such expenditures of time or money by any act or omission by, on the part of or attributable to, the defendants. That plaintiffs are not entitled to the relief sought by them herein and all relief is denied.

ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

That there was no contract between plaintiffs and defendants; that the memorandum of December 1, 1965 was not a contract, and is not enforceable. That plaintiffs have suffered no compensable injuries.

That there is no evidence, or alternatively, the evidence is insufficient, to establish on any material date the reasonable cash market value in Denison, Texas or in the vicinity thereof, of the J. V. Conatser Agency, or any of the specific assests thereof, except only the reasonable cash market value at such place and time of the business in force of the agency, that is, the list of expirations, which, as shown by a finding above, had a fair value on December 1, 1965 of $81,000 less ten percent.

OPINION

A proper determination of appellants’ appeal is rendered somewhat difficult by the mode of attack utilized by appellants in their brief. While each of appellants’ points of error begins with the phrase “The court erred in finding”, we find no reference in appellants’ brief to the original or supplemental findings of fact and conclusions of law made by the court at the request of appellants. If these points are to be considered as attacks on the court’s findings and conclusions they fail to comply with Rule 418(c). Vernon’s Texas Rules of Civil Procedure, which requires (i) a fair, condensed statement of the facts pertinent to the points raised by an appellant, with reference to the pages in the record where the same may be found; and (ii) such discussion of the facts and authorities relied upon as may be requisite to maintain the point at issue. Only in Points 5 and 7 of appellants’ brief are we advised that the attacks on the findings and conclusions are based upon a contention of “no evidence” or “insufficient evidence”, or in fact,, any other reason. While we entertain doubt that appellants have sufficiently complied with the rules to adequately assault the court’s findings yet we, in a spirit of liberal construction of briefing rules, have attempted to determine from appellants’ arguments contained in their brief the nature of their contention. We have carefully reviewed the entire record and have done so in the light of the rules as set forth In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. In arriving at the answer to the question of whether or not there is any evidence of probative force to support the findings on the part of the trial court we have reviewed the evidence in the light most favorable to the findings and disregarded that which is favorable to appellants. 4 Tex. Jur.2d, §§ 806-808, pp. 329-338; Barker v. Coastal Builders, Inc., 153 Tex. 540, 271 S.W.2d 798; Tips v. Gonzalez, Tex.Civ.App., 362 S.W.2d 422; Potter v. Garner, Tex.Civ.App., 407 S.W.2d 537.

Preliminary to a discussion and disposition of appellants’ points of error we set forth the following well established legal guidelines relating to the equitable remedy of specific performance which have application to this appeal:

(1) A decree of specific performance must be based on a valid completed contract that possesses the essentials of a binding legal obligation. It will not be granted where material terms of the contract were not agreed to but left to future adjustment. 52 Tex.Jur.2d, Specific Performance, § 24, pp. 545-546.

(2) A decree for specific performance of a contract is not a matter of right, but rests in the sound discretion of the court; a discretion not arbitrary but judicial, and exercised under the established doctrines and settled principles of equity. Bergstedt v. Bender, Tex.Com.App., 222 S.W. 547; Restatement of the Law on Contracts, § 359.

(3) The right to the remedy depends upon certain conditions: (a) The contract must be reasonably certain, unambiguous and based upon valuable consideration; (b) it must be fair in all its parts, free from misinterpretation, misapprehension, fraud, mistake, imposition or surprise; (c) the situation of the parties must be such that specific performance will not be harsh or oppressive; and (d) the one seeking the remedy must come into court with clean hands. Restatement of the Law on Contracts, § 367; Riggins v. Trickey, 46 Tex.Civ.App. 569, 102 S.W. 918; 52 Tex.Jur.2d, Specific Performance, § 68, pp. 606-607, § 69, pp. 608-609.

(4) Specific performance will not be decreed unless the terms of the contract are so expressed that the court can determine with reasonable certainty what is the duty of each party and the conditions of performance. The usual aids to interpretation may be utilized by the court to determine the true agreement of the parties. Restatement of the Law on Contracts, § 370; Bendalin v. Delgado, Tex.Sup.Ct., 406 S.W.2d 897; 12 Texas Law Review, 359-360.

(5) A court will not order specific performance of a contract for sale of land or interest therein unless the contract describes the land or interest, or within itself furnishes the means by which the property may be identified with reasonable certainty. 52 Tex.Jur.2d, Specific Performance, § 38, p. S62.

(6) Specific performance will not be decreed where it appears that performance of the contract by the defendant is impossible. Thus, where defendant does not own the land involved in the agreement he he may not be compelled to perform. 52 Tex.Jur.2d, Specific Performance, § 71, p. 610 and cases there cited; § 76, p. 618 and cases cited.

(7) As a general rule specific performance of a contract will not be decreed unless it can be completely enforced so as to secure substantially all that the parties contemplated at the time the contract was made. 52 Tex.Jur.2d, Specific Performance, § 72, p. 612.

(8) An executory contract for sale of homestead made by husband alone will not be specifically enforced as long as the homestead exists. It may be enforced as against the husband if the homestead is abandoned. 52 Tex.Jur.2d, Specific Performance, § 91, pp. 636-637; Lewis v. Brown, Tex.Civ.App., 321 S.W.2d 313.

(9) Equity, as a general rule, refuses to order specific performance of a contract relating to personal property. It is where remedy at law is inadequate that equity will enforce such relief. 52 Tex. Jur.2d, Specific Performance, § 95, p. 645; Green v. Hannon, Tex.Civ.App., 369 S.W.2d 853.

With these general principles of law in mind we turn now to a consideration of appellants’ points 1 through 4, inclusive, briefed together, wherein appellants contend that the court “erred in finding” (1) the contract incapable of enforcement; (2) the contract of December 1, 1965 was inadequate and insufficient for specific performance ; (3) that the contract dated December 1, 1965 was not partially performed by plaintiffs; and (4) that the contract dated December 1, 1965 was void for uncertainty and unenforceable under Articles 1288 and 3995, V.A.C.S. Our review of the record in the light of the rules above announced leads us to the conclusion that the trial court was justified in making the findings recited and therefore appellants’ points are overruled.

We think that the essence of this appeal is contained in appellants’ second point. Appellants having based their entire case upon a demand for specific performance of the memorandum agreement of December 1, 1965, they must stand or fall on such agreement. If such instrument signed by the parties is not, as found by the court, a binding contract, but nothing more than a memorandum of an agreement to make an agreement, then admittedly there can be no specific performance and appellants’ case collapses. When the entire record is read in the light of controlling rules the conclusion is inescapable that the memorandum signed by the parties on December 1, 1965 is not a valid completed contract that possesses the essentials of a binding and legal obligation but is nothing more than an agreement to thereafter enter into a contract. Appellants in oral argument before this court agree that if the instrument signed by the parties on December 1, 1965 is nothing more than an agreement to make an agreement then same is not subject to specific performance. As stated by our Supreme Court in Stekoll Petroleum Co. v. Hamilton, 152 Tex. 182, 255 S.W.2d 187:

“ * * * if the contract meant that it would be nothing more than an agreement to make a contract in the future and such an agreement, there being no specification of the terms and details of the contract to be made is not enforceable.”

Again our Supreme Court in Moore v. Dilworth, 142 Tex. 538, 179 S.W.2d 940, said :

“It is essential to the validity of a contract that it be sufficiently certain to define the nature and extent of its obligations. If an agreement is so indefinite as to make it impossible for a court to fix the legal liability of the parties thereto, it cannot constitute an enforceable contract.”

A review of the record in this case clearly indicates many differences and variances between the original agreement of December 1, 1965 and the proposed contract contained in the three instruments submitted by appellants to appellees on December 8, 1965. It would unduly lengthen this opinion for us to recite the many areas of differences between the two agreements. Appellants candidly admit that the proposed final contract, never entered into between the parties, contains many material provisions not previously agreed to between the parties on December 1, 1965 or contained in that memorandum. We find ample evidence to support the trial court’s finding that the December 1, 1965 memorandum was not such a contract that a court of equity could order specifically performed.

As to appellants’ fourth point relating to the uncertainty of the memorandum agreement the evidence is abundant to support the trial court’s finding relating to the applicability of Articles 1288 and 3995, V.A.C.S. The December 1st memorandum relates to “building is to be deeded as requested” and there is evidence that the building is located on a tract of land larger than the building. The December 1st memorandum itself is insufficient to properly describe the real estate involved and does not contain within itself sufficient data by which the particular land to be conveyed may be identified with reasonable certainty. Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150; Osborne v. Moore, 112 Tex. 361, 247 S.W.2d 498.

In their fifth point of error appellants contend that the trial court’s finding of fact that there was no meeting of the minds of the parties with reference to the subject matter of the December 1, 1965 memorandum of agreement is contrary to all of the evidence before the court. This point is wholly lacking in merit for the reasons heretofore discussed. The statement of facts is replete with evidence demonstrating that appellees J. V. and W. E. Conatser were laboring under one impression concerning the proposed sale while appellants were obviously relying upon different conceptions of the transactions. No useful purpose could be served by summarizing all of this testimony which is clearly conflicting and justifies the trial court to conclude,, as he did, that there is no meeting of the minds of the parties concerning the material matters involved in the December R 1965 transaction.

The trial court’s finding and conclusion that it would be inequitable and impossible to grant specific performance in this instance in the light of the various-deeds and conveyances executed and monies invested subsequent to the date of the December 1, 1965 contract are justified by the evidence and by the law applicable thereto. At the time this suit was instituted title to the real property in controversy wa's not held by J. V. and W. E. Conatser but was. owned by a corporation not a party to the original agreement and a mortgage covering said real estate had been pledged to a bank, not a party to this suit, for the security of a loan made for the specific-purpose of enabling the insurance agency to better its financial position. Such facts, reveal a posture of the parties and subject matter which rendered specific performance-impossible.

The trial court found that the-real property involved was a part of the homestead of the wives of J. V. and W. E. Conatser at the time they declined to convey it to appellants and that such property did not lose its homestead character while-owned by said husbands and wives. This finding is clearly supported by the record, and is not contested by appellants. However, it is quite clear from the record that when the real property was conveyed to-Conatser Properties, Inc. it lost its homestead character. It is the law of this state-that when, as in this case, a business homestead is conveyed to a corporation, the stock of which is owned by the grantors, these results follow, viz.: (a) the property is no longer the homestead of the grantors, even though they may continue to occupy it; (b) valid title is vested in the corporation; and (c) the property is subject to the debts of the corporation. Nowlin v. Wm. Cameron & Co., Inc., Tex.Civ.App., 54 S.W.2d 1035, writ ref.; Mayfield v. First State Bank, Tex.Civ.App., 19 S.W.2d 454. Accordingly, under such circumstances, the shares of stock of the corporation would be subject to the debts of the owners thereof. However, the issue of homestead claim becomes of no materiality in the light of the fact that there is a finding, supported by the record, that the alleged agreement of December 1, 1965 is of no force and effect and not subject to specific performance. Appellants’ eighth point is overruled.

By their ninth point appellants assail the court’s finding that appellants have not suffered compensable damages. As has been heretofore held, the contract relied upon is not susceptible to the remedy of specific performance. Furthermore, the trial court has found, and supported by the evidence, that there was no valid and binding contract between the parties. Therefore, it necessarily follows that there can be no recovery of damages.

“If the contract is insufficient it not only precludes recovery for specific performance but also for damages for the breach thereof. This is true because an ‘action for damages for the breach of a contract is, in effect, an action for its enforcement, and the statute, in denying an action for its enforcement, likewise denies an action for damages for its breach.’ Alworth v. Ellison, Tex.Civ.App., 27 S.W.2d 639, 640, writ refused.” Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150.

Even if the law did not clearly preclude appellants from recovering damages for the alleged breach of an alleged contract appellants would still not be entitled to recover damages in this case because there is no evidence, or the evidence is wholly insufficient, to justify the rendition of damages. We find that the trial court’s findings and conclusions that no compensable damages were established by the evidence are supported by the record.

While not determinative of the appeal nor controlling the result thereof we agree with appellants’ seventh point of error wherein it is contended that there is no basis for the trial court’s finding that the agreement of December 1, 1965 was entered into as a result of fraudulent or false representations. Our review of the record indicates that there is no evidence of probative force to justify the court’s finding on the issue of fraud or false representation. True, the record reveals a confused state of facts but not such as to constitute legal fraud.

A careful analysis of the entire record in this case impels the belief that the trial judge exercised sound judicial discretion in denying the equitable relief of specific performance and that he was perfectly right in denying damages for the alleged breach of an agreement demonstrated not to be a binding, legal obligation.

Affirmed.