author: FANNING, Justice.

text:
    Hoover DAY, Ralph H. Smith, Troy Simpkins and C. R. Cozart, Appellants, v. Lester CRUTCHFIELD, County Judge of Lamar County, Texas, and J. N. Thompson, County Attorney of Lamar County, Texas, Appellees.
    No. 7697.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 7, 1965.
    Rehearing Denied Dec. 28, 1965.

      Buster Cole, Cunningham, Cole & Southerland, Bonham, for appellants.
    Henry Braswell, McWhirter & Braswell, Paris, for appellees.
   FANNING, Justice.

This is an election contest brought by appellants against the designated statutory defendants challenging the declared results of an election held in the Reno Common School District in Lamar County on September 26, 1964, which election so held was on the question of whether the Powderly Rural High School District and the Reno Common District were to become consolidated. Appellants, residents of the Reno district, timely gave notice under the statute, and filed suit to have the election held void, and/or for a judgment declaring that the true results could not be ascertained and as a result the election be declared void. Issues were joined by amendments of the parties and the case proceeded to trial on appellants’ amended petition, appel-lees’ amended reply and answer, and appellants’ trial amendment; this after the trial court had sustained numerous exceptions to appellants’ amended pleadings. The appeal is on a limited statement of facts, and appellants have designated the points to be relied upon on appeal. Trial was to the court without a jury and resulted in a judgment denying the contest and sustaining the declared results of the election. Exception to the judgment was taken, notice of appeal was given to this court and the appeal was perfected. Appellants’ amended motion for new trial was overruled by operation of law, and the case is now before this court for its review upon the limited appeal under proper designations of evidence made by the parties.

Appellants’ first point of error is- as follows: “The trial court abused his discretion in this case by refusing to open the ballot box, then before the court, and ascertain for himself the true results of the election being contested, where the evidence clearly established that the election judge had certified to and returned a tally list showing the election lost, especially was such refusal abuse of discretion where the evidence showed a wide variance in the votes as counted by her and her certification of the results made by her, and where she used only one election box and all discarded, unused, unvoted and voted ballots were mixed in the one box.”

The Commissioners’ Court of Lamar County, Texas, canvassed the election returns in the Reno District and declared the results to be 124 votes for consolidation and 116 against consolidation. The following documents were before the canvassing authority when it certified the results of the election and were in evidence in this cause before the trial judge:

1.The returns certificate, whereby the election judge, Mrs. Deweese, certified the total number of votes cast as being 242, the total vote for consolidation as being 124 and the total of the votes against consolidation as being 116. Mrs. Deweese testified that two votes were ruled void and not counted, thus making the total number counted 240.

2. A tally sheet signed by Mrs. De-weese, certifying the total votes “for” as being 124 and the total votes “against” as being 116, but on which the number of marks on the line for “for” votes totals 93 when each vote is counted and the number of marks on the against line totals 111 when each mark is counted.

3. A tally sheet signed by Mrs. Mowrey as a clerk keeping the tally list and certifying the total vote “for” as being 124 and the total vote “against” as being 116 and on which the number of marks agree with the totals.

4. A poll list, which lists 242 persons as having voted.

As above stated, Mrs. Deweese testified that two votes were ruled void and not counted, thus making the total number counted 240.

Mrs. Deweese testified to the effect that in putting her marks on her tally sheet, she simply inadvertently failed to put down as many marks as there were votes for consolidation and that the numerical sum of 124 votes for consolidation, the total stated on her tally sheet, was correct. Mrs. De-weese further testified to the effect that the tally sheet kept by Mrs. Mowrey showing 124 marks and votes “for” and 116 marks and votes “against” was correct.

Mrs. Rice, another election official, testified, and her testimony confirms what Mrs. Deweese testified about the tally sheets and returns. Mrs. Rice testified that she counted the ballots at least three times and to the effect that the tally list signed by Mrs. Mowrey in showing 124 votes “for” and 116 “against” reflected the actual vote. She further testified to the effect that the 93 marks on the “for” line in Mrs. Deweese’s tally list was not a correct tally of the votes but that the total figure of 124 “for” on Mrs. Deweese’s tally list was in accordance with the count made by Mrs. Rice and the other election, officials and to the effect that all of the election officials were in agreement when the polls closed that 124 votes had been cast “for” and 116 votes had been cast “against” consolidation.

The trial judge was the judge of the credibility of the witnesses and of the weight to be given their testimony and it was within his province to reconcile any inconsistencies, if any, in the evidence adduced.

The discrepancy in the marks shown on Mrs. Deweese’s taliy sheet was explained by her. The trial judge also had the other tally sheet before him, the poll list, and he also heard the testimony of Mrs. Deweese and Mrs. Rice. Apparently the discrepancy in the marks shown on Mrs. Deweese’s tally list, as compared to the total of 124 shown thereon, was satisfactorily explained to the trial court by the evidence adduced, both documentary and parol. We think the trial judge was well within the discretion lodged in him when he refused to open the ballot box by reason of the discrepancy in the tally list of Mrs. Deweese above referred to and no abuse of discretion on his part in refusing to open the ballot box for that reason, is shown under the record in this cause. In this connection see the following authorities: 21 Tex.Jur.2d 453; DeLa Garza v.Salinas, Tex.Civ.App., 255 S.W.2d 396, no writ (1953); Jordan v. Overstreet, Tex. Civ.App., 352 S.W.2d 296, error dism. (1961).

Appellants, under their statement and argument under their first point, also assert that there were many irregularities and violation of various articles of the election code in the conduct of said election and contend that by reason thereof the aggregate amounted to legal fraud and that the trial court abused its discretion in not opening the ballot box to ascertain the results of the election.

The burden was on the contestants to make allegations of fraud and support them by evidence of probative force showing that the ends of justice would be served before the trial court would be justified in opening the ballot box and conducting a recount. 21 Tex.Jur.2d 453; Sewell v. Chambers, Tex.Civ.App., 209 S.W.2d 363, no writ (1948); Jordan v. Overstreet, Tex.Civ.App., 352 S.W.2d 296, error dism. (1961). We quote from Jordan v. Overstreet, supra, as follows :•

“Appellants’ first point asserts that the trial court should have ruled that the election had failed to carry for consolidation, because the order of the Commissioners Court declaring the result of the election held in the Batson district, and other evidence, established the proposition did not receive a majority of the valid votes cast. The returns of the election from the Bat-son voting place made by its officials certified that there were cast 365 votes of which 138 votes were ‘for’ consolidation and 128 votes ‘against’ consolidation. The Commissioners Court on January 9, 1961, canvassed these returns and its order declaring the result of the election in the Batson district stated ‘there were cast at said election 365 valid and legal votes of which number there were cast for consolidation 138 votes and against consolidation 128 votes.’ The order then declared a majority of the qualified voters of said district voted for consolidation. Appellants attack the order of the Commissioners Court declaring this result of the election, asserting that on its face it was shown that a majority did not vote ‘for’ consolidation and that the proposition for consolidation should be declared lost in the Batson district. It is apparent that an error was made either in the figure 365 showing the total number of votes cast or in the number for or against consolidation. The returns of the election are in evidence. The poll list which was made listing each voter’s name revealed that 265 votes were cast in the election. At the trial it was also shown that a Mrs. Walter B. Johnson voted just before the polls closed, and her name was inadvertently left off the list, thus indicating there were actually 266 votes cast. The tally list of the election officials also was in evidence and reflected 138 votes for consolidation and 128 against consolidation. Ordinarily the order declaring the result of an election by the Commissioners Court is conclusive of the number of votes cast. But it appears the order here involved so declaring is self-contradictory. The returns prepared and delivered by the election officials to the Commissioners Court, we think, clearly show that the election officials made a mistake in the total number of votes cast, and the Commissioners Court carried forward the same mistake. The present is a situation comparable to that of a judgment of a trial court. If the judgment is ambiguous, the judgment roll may be examined to relieve the ambiguity. Permian Oil Co. v. Smith, 129 Tex. 413, 73 S.W.2d 490, 107 S.W.2d 564, 567, 111 A.L.R. 1152. The trial court examined the ‘judgment roll’, the various returns of the election officials, to eliminate the ambiguity in the order of the Commissioners Court, and we think he did so properly.
“The 2nd, 3rd, 4th, and 5th points urge that the trial court erred in refusing to grant appellees’ request to open the ballot box because of errors and irregularities apparent. Much stress is laid upon the fact that there were 99 ‘valid and legal votes’ which were cast and unaccounted for. We are not persuaded this is true. The detailed records of the election officials as pointed out next above clearly reflected that 266 votes were cast. It is easily seen that an error in failing to put one voter’s name on the poll list may take place where polls are open from 7 o’clock a. m. until 7 p. m., and the election officials become weary at the close of the long day. Under such circumstances one person’s name could be omitted from the list. In connection with these points, as well as point one, appellants press upon us the case of Sewell v. Chambers, Tex.Civ. App., 209 S.W.2d 363. We have studied that case carefully but we do not believe it controls the present situation. . The last paragraph of the Sewell-Chambers case on p. 366 sums up most of the errors there shown to have taken place, but in addition — we think an important addition —votes were recorded and counted as cast by four persons who had not voted at all and the election officials had counted eleven votes of eleven unknown persons. This we think is undoubtedly ‘some evidence’ of fraud under Art. 3130, and this together with the many other irregularities justified the opening and examination of the ballots in the ballot box. While there were, undoubtedly, some irregularities in the election now involved, as will be set out hereinafter, we believe they are not of such character as to compel the action sought by appellants. Unless there is substantial evidence of wrongdoing or fraud we think the discretion of the trial court as to whether the ballot box is opened is one that should control. De La Garza v. Salinas, Tex.Civ.App., 255 S.W. 2d 396.” (Emphasis added).

Among appellants’ complaints was that there was “used only one election box and all discarded, unused, unvoted and voted ballots were mixed in one box.”

In C.J.S., 29 C.J.S. Elections, § 194, p. 548, it is stated:

“Number of boxes. It has generally been held that failure to comply with provisions with respect to the number of ballot boxes is no cause for rejecting the return unless the result has been affected thereby.”

In Texas it is the rule that irregularities in the conduct of an election which cannot be shown to have materially affected the results of the election are immaterial. Roberts v. Hall, Tex.Civ.App., 167 S.W.2d 621, no writ (1943); 21 Tex.Jur. 446, Elections, Sec. 179.

This rule was applied in Fowler v. State, 68 Tex. 30, 3 S.W. 255 (1887) where the box was claimed to be of an improper kind. In Vicars v. Stokely, Tex.Civ.App., 296 S.W.2d 599, wr. ref., n. r. e. (1945) it was held that provisions regarding delivery of ballot boxes are directory only.

In Lightner v. McCord, 151 S.W. 2d 362 (Civ.App.1941) a school consolidation election was contested on the ground, among others, that separate ballot boxes were not used in the elections as required by law but all of the ballots were deposited in the same box. We quote from the court’s opinion as follows:

“It has long been the established rule in this state that statutes regulating the manner of holding elections are merely directory and that a departure from their provisions will not invalidate an election unless such departure or irregularity has affected or changed the result of the election. While appellants exhibit an imposing list of irregularities in the manner in which the election officials conducted these elections, it is not shown nor even contended by appellants that any of them had the effect of falsifying the result of either of the two elections that were held. It has many times been said by our courts that the object of every popular election is to ascertain the will of the qualified electors in the area to be affected thereby upon the issue or issues submitted to them. Mere informalities that afford no just grounds for the conclusion that the will of the qualified electors has been in any manner thwarted, diverted or suppressed will not be considered of sufficient importance to render an election void.” (Emphasis added).

Appellants also complain and contend that Art. 8.15, Texas Election Code, V.A.T.S., which provides how the stub box will be handled and Art. 8.19, Texas Election Code, which controls as to how the ballots are to -be deposited and counted, were not observed. In Baker v. Scranton Independent School District, Tex.Civ.App., 287 S.W.2d 210, no writ (1956), it was held that the provisions of Articles 5.04, 8.07, 8.15 and 8.19, of the Texas Election Code, are directory, and that a failure to comply therewith would not invalidate school bond election, in absence of showing that fraud or misconduct existed or that the irregularities affected the result of the election.

With respect to appellants’ contention to the effect that the ballot was confusing and called for an interpretation by the election officials we do not think the matter is properly raised for appellate review because it does not appear to be specifically assigned as a ground of error in appellants’ statement of points relied on or by reference to appellants’ amended motion for new trial. However, we have examined the record concerning said contention and find it to be without merit under the record in this case.

With respect to appellants’ complaint as to the polls opening ten or eleven minutes before 8:00 A.M. instead of the statutory time of 7:00 A.M., it is our view that this irregularity does not compel the calling of a new election or require the opening of the ballot box under the record in this case. The evidence in the case does not disclose that any voter was disfranchised by the polls not being opened at the proper time. Appellants did not prove that any person appeared to vote between 7:00 A.M. and the time the polls opened, about 10 or 11 minutes before 8:00 A.M., who did not later vote in the day, nor was there any proof that any disqualified person voted by virtue of the time voting commenced. In this connection see Roberts v. Hall, Tex. Civ.App., 167 S.W.2d 621, no writ (1943).

The above referred to matters, and the other irregularities complained of by apel-lants, we think are all within the purview of the rule that irregularities in the conduct of an election which cannot be shown to have materially affected the result are not sufficient grounds to set aside an election or require the trial court to open an election box.

In the case at bar the record amply supports implied findings of the trial court to the effect that appellants showed no fraud and that the claimed irregularities did not materially affect the result of the election.

We hold that under the record in this cause it is not shown that the trial court abused its discretion in not opening the ballot box to ascertain the results of the election. Appellants’ first point is overruled.

Appellants by their second point contend to the effect that the trial court erred in rendering judgment for the contestees because the evidence conclusively established that there was no provision for absentee voting as provided by law. Appellees by their second counterpoint reply to the effect that the trial court did not err in finding that the manner in which absentee voting was conducted did not require a judgment setting aside the election or going into the ballot box to conduct a recount.

• The consolidation election was a special election called by the county judge. See Art. 2806, Vernon’s Ann.Civ.St. The election was not held at the expense of the county, according to the testimony of the county judge. Art. 5.05, Sec. la, Texas Election Code, requires the county clerk to conduct absentee voting in the case of special elections where they are held at the expense of the county. In this connection, see Art. 5.05, Sec. la, Texas Election Code, found below, which makes special provisions for the appointment of a clerk for absentee voting in school district elections not held at the expense of the county.

Notice was given of the appointment of an absentee judge, and an absentee clerk, place of absentee voting and the days for absentee voting. Two persons voted absentee with Mr. Proffit, the absentee judge. Mr. Prof-fit testified that he was notified of his appointment about the time notice was posted, that he kept the absentee voting place 8 hours per day beginning approximately 20 days before the election. There was also an absentee clerk appointed who was there every day during the entire 20 day period. As to absentee voting by mail, there was no evidence adduced that the absentee judge or the absentee clerk, were not ready, willing and able to handle absentee voting by mail, and there was no evidence adduced that anyone contacted the absentee judge or the absentee clerk and requested to vote absentee by mail. Contestants produced one witness, Mr. Harvill, who testified to the effect that he went to the office of the County Clerk to get absentee ballots for himself and for his wife and daughter but the county clerk told him that his office was not furnishing absentee ballots. There was no evidence that Mr. Harvill, his wife or his daughter sought to vote absentee with the absentee judge, or with the absentee clerk. We are of the view that the absentee judge, or the absentee clerk, rather than the county clerk, was the proper authority for Mr. Harvill, his wife and daughter to apply to vote absentee with. However, if we should be mistaken, and if the county clerk was the proper officer, and if it be assumed without deciding that Mr. Harvill, his wife and daughter were actually qualified to vote absentee by mail and if they all three had voted absentee against consolidation, such three votes would not have changed the results of the election, as there was an eight vote majority for consolidation.

Contestants in their initial pleadings plead to the effect that 8 or more persons, constituting a class, were excluded from absentee voting. Special exceptions of con-testees to such pleadings were sustained and the trial court required the naming of the parties who were alleged to have been excluded from absentee voting. In subsequent pleadings contestants named some 58 persons. However, only one of the parties named, J. B. Harvill, was called as a witness and he testified as hereinbefore related with reference to himself and his wife and daughter. None of the other 58 alleged disfranchised voters were called to testify and they consequently did not testify that they were qualified voters or that they desired to vote absentee and that they were refused or prevented in any way from voting absentee. Contestants did not elect to produce testimony from any of the other 58 alleged disfranchised voters but merely questioned the election officials about them and they did not by such questioning establish that such persons were qualified voters in the district eligible to vote absentee, who desired to vote absentee and were prevented from voting absentee. As we view it, contestants simply failed to prove what they alleged, with respect to 8 or more qualified electors being prevented from voting absentee.

Appellants’ second point is overruled.

Appellants’ 3rd, 4th, 5th, 6th, 7th, 8th and 12th points complain of various rulings of the trial court in sustaining special exceptions to contestants’ amended petition. We have carefully examined these contentions and the authorities cited by appellants and appellees and we conclude that none of these points present reversible error under the record in this cause. Appellants’ points 3, 4, 5, 6, 7, 8 and 12 are overruled.

Appellants’ 9th, 10th and 11th points complain of the admission of certain testimony given by Mrs. Deweese and Mrs. Rice. Since the trial was before the court without the aid of a jury, it is presumed that any of such testimony which may have been inadmissible, was not considered by the trial court, as there was other ample evidence of probative force to support the implied findings of the trial court in upholding the validity of the election in question and in refusing to open the ballot box and conduct a recount. Appellants’ 9th, 10th and 11th points are deemed as not presenting reversible error under the record in this cause and are overruled. Rule 434, Texas Rules of Civil Procedure.

Appellants, by their 13th point, contend to the effect that the trial court erred in striking paragraph 22 from contestants’ original contest and refusing to permit a showing that the two districts involved in the election contest were not contiguous.

The question of contiguity of school districts does not properly arise in an election contest and such is not a proper ground for contesting an election. Such allegations or attacks on the formation of school districts should be stricken from an election contest petition and the trial court’s rulings on the matters complained of were correct. In this connection, see the following authorities: Harrison et al. v. Jay, 153 Tex. 460, 271 S.W.2d 388 (1954); Warren v. Robinson, Tex.Civ.App., 32 S.W.2d 871 (1930) ; Trimmier v. Carlton, Tex.Civ.App., 264 S.W. 253 (1924); Bassell v. Shanklin, Tex.Civ.App., 183 S.W. 105 (1916). Appellants’ 13th point is overruled.

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

Affirmed.

      . “Subdivision la. Elections to which applicable; officer to conduct absentee voting. The provisions of this section shall apply to all elections, general, special, or primary. In general and special elections held at the expense of the county, and in primary elections held by political parties for nominating candidates to be voted on at general and special elections held at the expense of the county, the absentee voting shall be conducted by the county cleric. In municipal elections, the absentee voting shall be conducted by the city secretary or city clerk.

        “In elections held by school districts, conservation districts, and other defined districts and political subdivisions authorized to hold elections in this state, the absentee voting shall be conducted by a cleric for absentee voting, to be appointed by the governing board of this subdivision, which may also appoint such number of deputy clerks as it deems necessary to assist in the conduct of the absentee voting. Each clerk and deputy clerk shall be a qualified voter in the subdivision. Persons in the employment of the board shall be eligible for appointment, if otherwise qualified. The board shall designate the place at which the absentee voting shall be conducted, which shall be at the office of the board or at some other public place within the boundaries of the subdivision. The board shall designate the hours during which the clerk shall keep the office open, which for the purposes of this section shall constitute the clerk’s regular working hours, and shall require that the office remain open for at least eight hours on each day for absentee voting which is not a Saturday, a Sunday, or an official state holiday. The place and hours for absentee voting shall be stated in the order calling the election and in the election notice. The compensation of the clerk and deputy clerks shall be fixed by the board and shall be paid out of the same fund that other expenses of the election are paid. Employees of the board who are designated as clerks or deputy clerks for absentee voting may be required to perform these duties without additional compensation.
      “In every election, the absentee voting shall be conducted under the same rules and in the same manner provided in this section for absentee voting conducted by the county clerk, and all references to the county cleric shall be deemed to mean the appropriate officer for eon-ducting the absentee voting in that election unless the context clearly requires a different construction. Acts 1963, 58th Leg., p. 1017, ch. 424, § 14.” (Emphasis added.)


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    E. J. BURKE, Appellant, v. John Linn SCOTT, Appellee.
    No. 11364.
    Court of Civil Appeals of Texas. Austin.
    Feb. 23, 1966.
    Rehearing Denied March 16, 1966.
    John Peace, J. B. Langham, San Antonio, for appellant.

      Cofer, Cofer & Hearne, Hume Cofer, Austin, for appellee.
   HUGHES, Justice.

This is a venue case in which the trial court overruled the plea of privilege of appellant, E. J. Burke, to be sued in Webb County. John Linn Scott sued appellant to recover the sum of $68,000.00, with interest. The nature of the suit, as disclosed by the pleadings, is:

Appellee is a licensed professional architect. In April 1963, appellee and appellant entered into a contract and agreement by the terms of which appellee was employed as an architect for and in connection with the construction of a nursing home in San Antonio, Texas, by and for appellant. As compensation for such services, appellant agreed to pay appellee in cash 4% of the construction costs of the nursing home, but such fee not to exceed forty thousand dollars, and in addition appellee was to receive “20% of the stock in the ownership corporation without further assessment” to appellee.

Appellee alleged that he had performed under the contract all services required of him which could be performed prior to actual construction of the nursing home and that while he was obligated to supervise its construction he was prevented from performing this service because appellant “failed and refused to begin construction” and “abandoned said project and thereby breached” the contract with appellee.

Appellee alleged that the reasonable value of the services rendered by him to appellant was $65,000.00; that he had been paid $12,000.00 in cash and appellant had executed and delivered to him a note for $2,-000.00, dated December 16, 1963, payable in sixty days after date in Austin, Texas, in lieu of cash, on the contractual obligation to pay not to exceed $40,000.00 in cash.

Appellee prayed for recovery on the note, for the value of his services less the $12,-000.00 cash payment and the amount of the note, for $15,000.00 attorney’s fees, interest and costs.

At the venue hearing, evidence was introduced to support the above allegations. It was also proved that bids for construction of the nursing home were taken and each was in excess of $1,000,000.00, so that 4% of such cost would have exceeded the $40,000.00 cash agreed to be paid to appellee.

Appellant has one point of error which is that the trial court erred in overruling his plea of privilege for the reason that venue of this suit is not controlled by Sub. 5 of Art. 1995, Vernon’s Ann.Tex.Civ.St.

Appellant prays that this suit be transferred in its entirety to Webb County or, in the alternative, that all of the suit except the declaration on the promissory note be transferred to Webb County.

Appellant’s right to have the entire suit transferred to Webb County is based upon his .contention that the suit on the note was but an incident of the main suit to enforce appellee’s other rights under the contract. Appellant cites the following authorities to sustain this contention: Biggers v. Evans, Tex.Civ.App., 8 S.W.2d 557, Austin, n. w. h.; McKinney v. Moon, Tex.Civ.App., 173 S.W.2d 217, Eastland, n. w. h.; Southwestern Peanut Growers Association v. Kendrick, Tex.Civ.App., 183 S.W.2d 1019, Eastland, writ dismissed; Ammann v. The Daniel Oil Company, Tex.Civ.App., 220 S. W.2d 181, Austin, n. w. h.; Timlin v. Cloud, Tex.Civ.App., 229 S.W.2d 402, Austin, n. w. h.; Slagle v. Clark, Tex.Civ.App., 237 S. W.2d 430, Amarillo, n. w. h., and Seale v. Langston, Tex.Civ.App., 259 S.W.2d 639, Beaumont.

We will discuss these authorities in reverse order.

Langston is a suit brought in Hardin County to recover damages caused by drilling an oil well in Hardin County under a written contract to pay such damages but not fixing the place of payment. Even though the damages could have been sustained only in Hardin County, the court held defendant’s plea of privilege should have been sustained.

Slagle was a suit to recover for an alleged shortage in a land sale. The suit was brought in Dallam County where the land lay. The Court held that defendant’s plea of privilege should have been sustained because there was no contract in writing that such damages were payable in Dallam County.

Timlin was a suit brought in Bexar County by the purchaser against the seller to compel specific performance of a contract to sell an oil and gas lease land in Scurry County. It was held that defendant’s plea of privilege should have been sustained notwithstanding the contract provided that seller should deliver the abstracts of title to buyer in Bexar County, the Court holding that failure to perform acts which are incidental to performance of the principal obligation are not determinative of venue. The suit in Timlin was not to compel delivery of abstracts. It was to compel performance of the contract to sell.

Ammann, so far as pertinent here, merely holds that it is the particular provision in a written contract which is sued upon which determines venue of the suit.

Peanut holds that it is immaterial that plaintiff’s obligation is to perform services in the county of suit where defendant’s obligation, the one sued on, to pay for such services is not performable in a particular county named in the contract. Defendant’s plea of privilege was sustained.

Moon merely reaffirms the doctrine that it is the obligation in suit which controls venue.

Biggers, which appellant says is directly in point, is a justice court case and involves Sub. 4 of Art. 2390, R.C.S., 1925, which provided that suits to recover for labor actually performed might be brought where the labor was performed. The suit was to recover a commission for the sale of land and for labor performed in loading and packing merchandise which was given in part payment for the land. This labor was performed in the justice precinct where the suit was brought. The Court sustained defendant’s plea of privilege on two grounds, (1) that the packing etc. “was merely incidental to the sale of the land by the broker” and (2) the service which plaintiff was directed and obligated to perform was not “labor actually performed,” the Court construing the agreement as obligating plaintiff to “supervise” the packing etc. and not that he was obligated to perform any manual labor.

A case not cited by appellant is Auto Refinance Corporation v. Smith, Tex.Civ.App., 84 S.W.2d 296, Fort Worth, in which two corporations were sued in Wichita County to recover $40.00 being double the alleged amount of usurious interest paid them by plaintiff and for $3,750.00 damages, actual and exemplary, alleged to have been sustained as a result of the conversion of plaintiff’s car by defendants in Oklahoma. Venue of the whole case was based on the conceded venue in Wichita County of the suit for usury. The Court denied this contention and sustained defendants’ pleas of privilege, saying:

“It would be making mockery of the sacred right to be sued in the county of one’s residence to hold that a litigant may join a cause of action, over which the justice court has exclusive jurisdiction, with one or more other causes aggregating several thousands of dollars, for the purpose of maintaining venue.”

This case, in our opinion, comes within the exceptions, to the Middlebrook doctrine, later noticed. The Court holds that there was an improper joinder of the causes of action and, from its language, indicates that venue was sought to be fixed in Wichita County through means so unfair as to reflect lack of good faith.

Some of the authorities which, in our opinion, oppose the contention of appellant that the main purpose of the suit controls the venue will now be discussed.

In Shafer v. Brashear, Tex.Civ.App., 274 S.W. 229, Judge Fly for the San Antonio Court in considering a plea of privilege filed by a defendant who had been sued in Live Oak County for a balance of $33.21 due on a $9,000.00 written obligation payable in Live Oak County, and who also, in the same suit, was sued for $271.02 for extra work, held that the plea was improperly sustained, the Court saying:

“The suit was founded on a claim partly due on a claim payable on a written promise to pay in Live Oak county, and partly due on a verbal contract for extras. A suit for the balance due on the written contract would be properly brought in Live Oak county, and appellee could not successfully claim the right to be sued in Bowie county, where he resided. The law requiring suits, except under certain circumstances, to be instituted in the county of the defendant’s residence is done to prevent him from being forced into a court possibly inimical to him, and at least where there is no friendship or acquaintance existing, and the reason of the law fails where a part of a claim is due in another county than the residence of the defendant. He will be as much inconvenienced and handicapped on a part of the claim as on the whole, and a multiplicity of suits, which is discouraged in our practice, would be avoided. In the case of Middlebrook v. [David] Bradley Mfg. Co., 86 Tex. 706, 26 S.W. 935, a defendant had been sued in Jackson county on three notes, two of them payable in that county by their terms, but not the third, and the Supreme Court held:
‘Two of the notes being payable in the county in which action was brought, the suit was properly brought there, and in order to avoid multiplicity of suits it was proper to embrace in the same action the the other note.’ ”

In Wester v. Smith, Tex.Civ.App., 213 S.W .2d 550, Fort Worth, a defendant was sued, as the result of an automobile collision, for $75,000.00 claimed damages on the account of the death of one person and for $1,000.00 property damage. The evidence showed venue only as to the suit for property damage in the County of suit. Nevertheless, the Court overruled the plea of privilege basing its decision upon the Mid-dlebrook doctrine.

In Yates v. Grayburg Oil Co., 38 S.W.2d 414, this Court held that in a suit to recover oil payments for one month, which were payable in Tom Green County, the County of suit, venue properly lay in that County for forfeiture of the contract and the recovery of personal and the possession of real property in Pecos County even though defendant tendered payment of the delinquent payment, the Court saying:

“Appellee having failed to make the pay.ments as provided for in the contract, and further having failed to remove the personal property from the Pecos county land within the ten days provided, vested in appellant his right of forfeiture. This right of forfeiture was therefore inseparable from the obligation to pay in Tom Green county; and defendant cannot, by offering to comply with the part of its contract performable in Tom Green county, and which it admittedly breached, thereby compel the appellant to go elsewhere to try a portion of his lawsuit inseparably connected with and dependent upon that part of the contract performable there.
Clearly the appellant was entitled to litigate this portion of his cause of action in Tom Green county. If his action in trespass for possession of the lands in Pecos county is in fact severable, that matter can be determined upon proper plea made for that purpose.”

In Stevens v. Southern Ice & Utilities Co., Tex.Civ.App., 37 S.W.2d 240, the Tex-arkana Court applied the Middlebrook doctrine and held that venue of a suit on an open account for $503.16 was maintainable in a county where the defendant was sued on two notes each for $80.60 executed by him and payable in such County against his plea of privilege to be sued in the county where he lived.

In Tennessee Gas and Transmission Co. v. Heard, Tex.Civ.App., 190 S.W.2d 518, the San Antonio Court held that a suit filed in Refugio County for $200.00 for dámáges to land therein located and for $2,700.00 for damages to plaintiff’s cattle was riot removable to the county of defendant’s residence.

See also Warner v. Gohlman, Lester & Co. Inc., 117 Tex. 145, 298 S.W. 890.

These cases convince us that in applying the Middlebrook doctrine there is no valid distinction between the relative importance of the obligations involved, i. e., it makes no difference that the obligation fixing venue in the county of suit may be minor when compared with the other obligation sued on and held in the county of suit through application of the Middlebrook doctrine.

We distinguish Biggers, supra, on the ground that its decision may rest on the second ground stated by the Court in its opinion. We do not, however, agree that the first reason assigned by the Court for its decision in Biggers is valid. The other authorities cited by appellant are patently inapplicable. We, therefore, deny appellant’s contention that this cause should be transferred in its entirety to Webb County.

We also deny the prayer of appellant that this cause, except as to suit on the note, be transferred to Webb County. We do this because of our duty to follow the Middlebrook doctrine promulgated by the Supreme Court. This doctrine, accurately stated in Sec. 4.38, McDonald, Texas Civil Practice, from which we quote:

“A plaintiff who in good faith asserts joinable claims against the same defendant, both parties contesting the claims in the same capacity, usually can maintain venue upon all the claims in a county where venue is proper as to one.”

McDonald notes several exceptions to this doctrine such as its inapplicability where mandatory provisions of the venue law are involved, where there proper parties plaintiff are not before the Court, where there is fraud in asserting the claim on which venue is founded, or where this this claim becomes moot; and the text cites authorities pro and con, all noted herein, on the contention made here by appellant that the doctrine does not apply when the local claim is but an incident of the larger claim as to which venue would not otherwise lie in the county of suit.

The Middlebrook doctrine has been recently reaffirmed by the Supreme Court in Pecos Valley Southern Ry. Co. v. Parkhill Produce Co., 163 Tex. 88, 352 S.W.2d 723.

There could be no question here regarding the propriety of the joinder of the suit on the note and the suit on the main contract. The note was but an outgrowth of the contract. It is but a part of the total consideration for the contract. Appellant does not suggest that there is a misjoinder or any lack of good faith on the part of plaintiff in pleading both causes of action in the same suit.

The case of Southwestern Investment Co. v. Lanier, Tex.Civ.App., 372 S.W.2d 737, Amarillo, writ dismissed, w. o. j., is cited and relied upon by appellant as controlling disposition of this case insofar as transfer of suit on the main contract is concerned. We have read this case very carefully and studiously. In Lanier plaintiff sued defendant on four promissory notes, two payable in Potter County where the suit was filed, and two payable in Bexar County, where defendant lived. Each of the notes was secured by a lien on different property. The trial court severed the suit on the notes payable in Potter County from the suit on the notes payable in Bexar County and sustained defendant’s plea of privilege as to these notes.

This case is, of course, distinguishable from our case on the facts. The four notes sued on in Lanier did not arise from the same transaction, and there was a severance. Here there is but one transaction, out of which both claims sued on arose, and there was no severance.

Notwithstanding these factual differences, we are unable to distinguish Lanier on principle from the Middlebrook doctrine. Lanier literally follows the venue statutes. Middlebrook is a Court-made exception to the letter of these statutes. What our choice would be if we had a choice as to which rule we would follow, Middlebrook or Lanier, is unimportant. We have no choice. We are duty bound to follow the Supreme Court-made rule of Middlebrook. We, therefore, very respectfully decline to follow Lanier.

The judgment of the trial court is affirmed.

Affirmed.

      . Middlebrook v. David Bradley Mfg. Co., 86 Tex. 706, 26 S.W. 935.


author: PHILLIPS, Justice.

text:
    Maston DAVIS, Appellant, v. Antoinette C. BREITHAUPT et vir et al., Appellees.
    No. 11366.
    Court of Civil Appeals of Texas. Austin.
    Feb. 23, 1966.
    Rehearing Denied March 16, 1966.

      E. W. Patteson, Horace Duncan, Gonzales, Edwin P. Slater, Luling, for appellant.
    Clemens, Knight, Weiss & Spencer, Edward R. Finck, Jr., San Antonio, for appel-lees.
   PHILLIPS, Justice.

This case is before us on an instructed verdict.

The suit was in trespass to try title in which Antoinette C. Breithaupt and others, the record title holders to the land in question, were the plaintiffs below and Maston Davis, the adverse claimant to the land in question, was the defendant.

The land in controversy is the Frank Shannon Survey lying in Gonzales and Caldwell Counties, Texas, and is approximately 160 acres.

Davis, the appellant here, filed a general denial, a plea of not guilty and affirmatively plead the statute of limitations. Art. 5510, Vernon’s Ann.Civ.St.

Prior to the time that evidence was introduced appellant filed a motion to open and conclude.

In this motion appellant alleged that the property which is the subject of this controversy is “in the Frank Shannon 160 acre Pre-emption * * * and is the land surveyed by L. H. Burchard, appointed survey- or in the matter.” In this motion, appellant admitted that the plaintiffs, appellees here, were the record owners to the disputed land.

The motion to open and conclude was granted and after defendant had rested his case, the appellees made a motion for an instructed verdict for title and possession of the premises as described in their pleadings. The court granted the motion and judgment was entered in favor of appel-lees.

We reverse and remand this case for trial.

Appellant is before us on three points of error. These points, briefed together, are the error of the trial court in instructing the jury to return a verdict for ap-pellees because there was ample probative evidence of adverse possession on the part of the Davises to submit the case to the jury; the error of the trial court in instructing the jury to return a verdict for appellees because there was evidence of probative force that the Davises did claim the land in controversy as being their own ; the error of the trial court’s instructed ver-diet because appellant did present evidence of probative force sufficient to raise issues of fact for the determination of the jury.

Appellant’s evidence disclosed that J. E. J. Davis, the father of appellant, owned land and had his home adjacent to the land in controversy. There was a fence erected on three sides of the disputed land. The fourth side was open to a tract of Davis property which had a fence around it. This adjoining Davis tract had fences around three sides of it connecting onto the fences that surrounded the land in controversy on three sides. Consequently, both tracts were completely enclosed by one single and continuous expanse of fencing.

About sixty acres of the land in controversy was adapted to cultivation. The rest was used for grazing. Appellant’s father, J. E. J. Davis, was a farmer and rancher and there is evidence that he had used the land in controversy at various times for farming and grazing from 1906 until his death somewhere in the 1940’s.

Plaintiff contends that irrespective of whether his father had matured a limitation title to the property, he himself had secured title thereto through his adverse possession of the land since the death of his father. Appellant presented testimony as to the nature of his own possession and dominion of the land, however we do not deem it necessary to go into this evidence here for the hereinafter described reasons.

By partition deed dated April 29, 1946, appellant, his brother Jeff and other heirs of J. E. J. Davis divided the real property of J. E. J. Davis among them. This deed referred to all of the property of J. E. J. Davis. This deed does not convey the disputed tract. In describing the lands conveyed to the appellant certain boundaries of the disputed tract are referred to as being boundaries of the lands so conveyed. Under this deed, appellant received the Nelson Taylor Survey and the J. E. J. Davis Survey. These tracts are to the west and south of the land in controversy. Appellant, his brother, and others signed this deed.

Appellant testified that he thought the disputed tract was conveyed to him by this partition deed until the year 1962 when Mr. Burchard, a surveyor, came on the property.

Davis was asked the following questions concerning this land and his use thereof:

“Q Mr. Davis, you were not trying to take anyone else’s land were you?
A Just hold what I had.
THE COURT: Answer the question yes or no, Mr. Davis.
A Well, no, no.
Q So you didn’t intend to take any land that belonged to somebody else?
A I believe I said no.”

Appellant Davis also gave the following testimony concerning this same matter:

“Q When you first learned about this land was when Mr. Burchard’s surveyor that the court finally appointed to make a survey of this land came on this land at my request, was’nt it?
A And I asked them to get out.
Q And that was in 1962?
A That is right.
Q And up to that time you thought that the property was in that deed, didn’t you?
A Well, what else should I?
Q So you were not trying to take somebody else’s land, were you?
A I want what is mine.
Q Mr. Davis, you didn’t intend to take anybody else’s property, did you?
A No.”

The question of whether Maston Davis secured a limitation title in himself is controlled by Orlando v. Moore, Tex.Civ.App., 274 S.W.2d 86, writ ref., n. r. e.

It is well settled that the intention of the possessor of land to claim it as his own is an essential element of adverse possession and in the absence of such intention the possessor cannot mature a limitation title to land belonging to another. See 2 Tex.Jur.2d, Sec. 89, and particularly cases cited in Note 18 thereof.

Orlando v. Moore was an action in trespass to try title brought by plaintiffs, record owners, to recover land. The defendant plead the Ten Year Statute of Limitations. The Court held that the evidence was sufficient to show possession for the statutory period in the defendant and Mrs. Lott, his predecessor in title. However, Mrs. Lott testified that during the time she had possession of the land it was never her intention to claim any land not actually belonging to her or gained by accretion to her land. She further testified that it had never been her desire or intention to claim adversely to any right or title to the land of plaintiff’s predecessor in title. The Court noted that all of her testimony as well as the written provisions in her deed of conveyance to the claimant-defendant was consistent with her clear statement that it was never her desire or intention to claim adversely to any right or title of the plaintiff’s predecessor. The Court of Civil Appeals reversed and rendered a judgment for the claimant-defendant based upon a jury verdict.

We quote the following from the Court’s opinion in this case:

“Many cases from Texas and other jurisdictions are cited in 97 A.L.R. pp. 21-27, in support of the following statement: ‘The great weight of authority is to the effect that, where one of two adjacent land owners extends his fence, through mere inadvertence or ignorance of the location of the true boundary line, so as to embrace within his enclosure lands belonging to his neighbor, with no intention of claiming such extended area, but with the intention of claiming adversely only to the true boundary line, wherever it may be, his possession of such extended area is not adverse or hostile to the true owner.’
Art. 5515 of Vernon’s Tex.Civ.Stats. defines adverse possession as ‘an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.’ Intention of the possessor of land to claim it as his or her own is an essential element of adverse possession and in the absence of such intention the possessor cannot mature a limitation title to land belonging to another. 2 Tex.Jur. p. 127, Sec. 67, and authorities. While intention to claim land may or may not be inferred from circumstances in most cases, we need not speculate or indulge in inferences in the case here under consideration as to what Mrs. Lott’s intention was with respect to any of the ‘made land’ because she testified without any dispute that she did not intend at any time to claim any land not actually belonging to her or gained by accretion to her land. Consequently, we hold that the evidence in this case did not raise defendant’s plea of limitation as a fact issue for the jury.”

We have a similar situation here. Appellant testified that he thought the disputed tract was in the partition deed. He also testified that it was never his intention to take anyone else’s land. We hold that appellant judicially admitted that he did not possess the intent necessary to ripen a limitation title during the time that he had the disputed property in his possession. See Griffin v. Superior Insurance Co., 161 Tex. 195, 338 S.W.2d 415, for the prerequisites of judicial admissions.

The partition deed, which appellant signed along with the other heirs of his deceased father, was, under appellant’s testimony, intended to cover all of the property of his deceased father. The disputed tract in question is not included in such deed as a part of any conveyance to him or to anyone else. To the contrary, the disputed land is mentioned several times in this deed as a boundary of certain of the lands that were conveyed to the appellant. Further, by appellant’s own testimony it is apparent that his possession of the land in dispute was due to the fact that he was under the impression that this land had been conveyed to him in the abovementioned partition deed. Thus appellant lacked the sufficient intent to hold the land in question “under a claim of right inconsistent with and hostile to the claim of another.” See Art. 5515, V.A.C.S. See Thompson v. Moor, Tex.Com.App., 14 S.W.2d 803.

As we point out later, there is a distinct possibility that J. E. J. Davis matured a limitation title to the land in question. Should this be the case, appellant would have inherited an interest in the land as a tenant in common with other heirs. There is no evidence here that he has been holding adversely to his co-tenant or co-tenants.

We deem it necessary to reverse and remand this case for trial for the reason that there is ample evidence that J. E. J. ■ Davis exerted a dominion over the land in question that could well have matured a limitation title in himself during the 35 or 40 years that he farmed the land, grazed it with his cattle, gathered fruit, cut timber, maintained the fences and ■ in general used the land openly and notoriously in such a manner as to demonstrate to anyone interested that he claimed it as his own. See 2 Tex.Jur.2d, Sec. 60, p. 127.

Should J. E. J. Davis have ripened a limitation title, there is no question but that this passed to his heirs. Salinas v. Gutierrez, Tex.Civ.App., 341 S.W.2d 558, writ ref., n. r. e. Such a title would have passed to his heirs irrespective of what the heirs thought they had inherited.

Appellees contend that appellant cannot claim to have inherited any title through his father as he has not proved the absence of a will, or, in other words, negated the possibility that his father left a will disposing of his property to someone other than appellant. We cannot agree with this contention. If there had been a will, the burden was on the appellees to prove this fact. The presumption is that J. E. J. Davis died intestate, 26A C.J.S. Descent and Distribution § 81 a, page 719.

Nor do we agree with appellee’s contention that appellant has failed to sufficiently describe the land that he claims through adverse possession. Appellees described the land by metes and bounds in their petition. In his answer, appellant stated that the land in question was the same land described by appellees in their petition. In appellant’s motion to open and close which was granted by the court, appellant described the land as being in the Frank Shannon 160 acre Pre-emption Abstract No. 508 situated in Gonzales and Caldwell Counties, Texas and containing 162.735 acres of land, more or less. The land in question is all of the Frank Shannon 160 Pre-emption which contains 162.735 acres of land, more or less. Under these circumstances, the fact that appellant used the word “in” the Frank Shannon Survey rather than “the” Frank Shannon Survey does not render the description inadequate. The acreage mentioned is specific. It is identical with the surveyed acreage of the Frank Shannon Survey, is identical with the amount of acreage described by the appellees, consequently could be located on the ground from appellant’s pleadings with no difficulty whatsoever.

The judgment of the trial court is reversed and this cause is remanded for trial.

Reversed and remanded.


author: WERLEIN, Justice.

text:
    Oscar GLENN, Jr., Appellant, v. I. F. NELIS, Appellee.
    No. 14746.
    Court of Civil Appeals of Texas. Houston.
    Feb. 24, 1966.
    Cattanach, Capps, Turner, Coe, Reardon, Chaney & Thorne, Glenn M. Chaney, Houston, for appellant.
    Franklin, Kelly, Graham & Laughter, R„ C. Stiles, Houston, for appellee.
   WERLEIN, Justice.

This is an appeal from a summary judgment entered August 13, 1965, in favor of appellee, I. F. Nelis, decreeing that he recover from appellant, Oscar Glenn, Jr., the sum of $4,000.00.

The suit was brought by appellant against Nelis, Motor Truck Sales, and Continental Bank and Trust Company of Houston to cancel and set aside all contracts, notes and chattel mortgages executed by appellant in connection with the purchase by him of certain described equipment, on the ground of want of consideration and misrepresentations made by the sellers as to the quality and condition of such equipment. Appel-lee filed a cross-action against appellant on the note he had executed, originally in the sum of $11,286.00 but reduced by credits to $8,150.79. While the suit was pending, appellant and appellee entered into a written contract which was filed with the papers in the case on September 16, 1963, and which reads as follows:

SETTLEMENT AGREEMENT

WHEREAS, OSCAR GLENN, JR. Plaintiff and Cross-Defendant and I. F. NELIS, one of the Defendants and Cross-Plaintiff in the above numbered and entitled cause, have this date compromised and settled all issues in controversy in said action upon the following terms and conditions :

I.

THE Defendants, CONTINENTAL BANK AND TRUST COMPANY and JESSIE W. WILLIFORD, D/B/A MOTOR TRUCK SALES, shall be immediately dismissed from the pending law suit..

II.

OSCAR GLENN, JR. shall pay to I. F. NELIS the sum of Thirty-five Hundred ($3,500.00) Dollars in full compromise settlement of amount owing on the note dated October 15, 1961 payable to CONTINENTAL BANK AND TRUST COMPANY, now owned and held by I. F. NELIS. Such payments shall be made as follows: One Thousand ($1,000.00) Dollars on January 15, 1964; One Thousand ($1,-000.00) Dollars on July 15, 1964; One Thousand ($1,000.00) Dollars on January 15, 1965 and Five Hundred ($500.00) Dollars on July 15, 1965.

III.

The above numbered and entitled cause shall remain pending on the docket of the Court and in the event any of the payments to I. F. NELIS, provided for in Paragraph II above, are not paid when due, it is hereby agreed that I. F. NELIS shall have judgment against OSCAR GLENN, JR. in the pending suit on his Cross-Action in the amount of Five Thousand ($5,000.00) Dollars and cost of Court less any payments which have been made on this settlement as above provided by OSCAR GLENN, JR., before such default.

When the sum of Three Thousand Five Hundred ($3,500.00) Dollars has been paid by OSCAR GLENN, JR., to I. F. NELIS, as hereinabove provided, the judgment shall be entered in the above numbered and entitled cause that all parties take nothing and all costs therein shall be adjudged against I. F. NELIS.

EXECUTED IN DUPLICATE ORIGINALS, this, the 6th day of September, 1963.

/s/ Oscar Glenn, Jr.

OSCAR GLENN, JR.

/s/ I. F. Nelis '

I. F. NELIS

On September 13, 1963, the defendants, Continental Bank and Trust Company and Motor Truck Sales, were dismissed from the suit with prejudice. Thereafter, on July 13, 1965, appellee, Nelis, without any further pleading by either party, filed his sworn motion for summary judgment, attaching thereto a copy of said settlement agreement. In such motion he stated that the first installment of $1,000.00 provided for in the agreement had been paid, but that appellant had defaulted in the other payments so that under the terms of such agreement he was entitled to a judgment against appellant in the sum of $4,000.00.

Appellant filed a sworn reply to such motion, in which he stated in substance that prior to July 15, 1964, the due date of the second payment, appellant and ap-pellee had entered into an oral agreement that appellant would not be held in default in his payments if he would tender to ap-pellee the full remaining amount in the sum of $2,500.00 on or before July 15, 1965, the due date of the last payment as provided in paragraph II of said agreement; that on June 1, 1965 he authorized appellee to draw on him for $2,500.00, but that appel-lee demanded $3,000.00, which appellant refused to pay because such amount was $500.00 in excess of the agreed amount; that appellant complied with the written agreement as modified by the oral agreement by tendering $2,500.00 to appellee prior to July 15, 1965, and that appellee by refusing to accept the same had defaulted. Appellant then prayed' that ap-pellee’s motion be denied because a material fact issue was raised, and further prayed that the case remain on .the docket of the court for a trial on the merits.

The trial court, in entering the summary judgment for $4,000.00, recited that:

“ * * * and the Court having heard the pleadings, evidence and argument of counsel, and being fully advised herein finds that the cause of action herein is liquidated and that the Cross-Plaintiff has been damaged by the Cross-Defendant in the sum of Four Thousand & No/100 ($4,000.00) Dollars and that there is no genuine issue as to any material fact and the Cross-Plaintiff is entitled to a judgment as a matter of law.” Appellant duly excepted to the judgment of the court and gave notice of appeal.

Neither appellee nor appellant filed an amended pleading setting out or even referring to the settlement agreement that was entered into. There is nothing concerning the same in appellee’s answer or cross-action or in appellant’s petition. The only averments with respect to such agreement are contained in appellee’s motion for summary judgment and appellant’s reply thereto. In Gaines v. Hamman, 1962, 163 Tex. 618, 358 S.W.2d 557, the Court said:

“The record of a summary judgment proceedings then consists of the pleading whose office it is to outline the claims and defenses of the respective parties, the depositions and admissions on file and affidavits submitted either in support of or opposing the motion. With the exception of the pleadings it is not essential that any or all of the other possible components of the summary judgment record be present.”

In the instant case, the record of the summary judgment proceedings does not contain any pleading upon which the summary judgment granted could properly be entered. The Supreme Court’s statement that “With the exception of the pleadings it is not essential that any or all of the other possible components of the summary judgment record be present” indicates that our Supreme Court is of the view that there must be a pleading outlining the claims and defenses of the respective parties. In the instant case, there is no such pleading by either appellant or appellee. The summary judgment was entered on the agreement aforesaid and not upon the pleadings in the case which allege a wholly different cause of action and defense.

It is clear that the judgment entered by the court was based entirely on the agreement of the parties executed on September 9, 1963 and which was attached to the motion for summary judgment, since there is nothing else in the record upon which such judgment could be based. The allegations in the motion for summary judgment are limited to the agreement and refer to nothing else. The judgment, therefore, was granted upon the stipulation of the parties, which was entered into some two years prior to entry of the judgment. Such judgment, therefore, is one generally known as a judgment by consent or stipulation. 33 Tex.Jur.2d 618, Judgments, Secs. 100-103.

In Burnaman v. Heaton, 1951, 150 Tex. 333, 240 S.W.2d 288, our Supreme Court, in speaking of consent judgments, said:

“A valid consent judgment cannot, be rendered by a court when consent of one of the parties thereto is wanting. It is not sufficient to support the judgment that a party’s consent thereto may at one time have been given; consent must exist at the very moment the court undertakes to make the agreement the judgment of the court. This fundamental principle was correctly announced and followed by the Supreme Court of North Carolina in the case of Rodriguez v. Rodriguez, 224 N.C. 275, 29 S.E.2d 901, 905. In that case it appeared that the defendant had consented to a particular judgment in a divorce proceeding and that both she and her attorney had signed and approved the proposed judgment, complete in all detail. On the day before the judge signed the same the attorney for defendant withdrew from the case and a new attorney of her selection withdrew consent. On appeal from the judgment, the court said:

“ ‘In many respects the judgment by consent is treated as a contract between the parties. (Cases cited.) The power to render such judgment depends upon the subsistence of the consent at the time the agreement receives the sanction of the court, or is rendered and promulgated as a judgment.’ ”

Appellant’s reply to appellee’s motion for summary judgment clearly shows that appellant was not consenting to entry of a judgment on the written agreement. He prayed that the motion for summary judgment be denied and that the suit remain on the docket of the court for trial on the merits. He further showed he was not consenting to the judgment by excepting thereto. It is thus apparent on the face of the record that appellant did not consent to the court’s judgment at the time the court entered its judgment based entirely upon the alleged agreement. Owen v. Finigan, Tex.Civ.App., 381 S.W.2d 578, writ ref., n. r. e.

In Rodriguez v. Rodriguez, referred to with approval by our Supreme Court in Burnaman v. Heaton, supra, the Court said:

“ ‘It is clear however, that this agreement was prospective and that at the time it was made no judgment had been rendered, nor was any judgment rendered until the day of signature — after the consent of the defendant had been withdrawn and after the court had notice of that fact. Without such consent the judgment is void.’ ”

In Burnaman v. Heaton, supra, the Court also said:

“When a trial court has knowledge that one of the parties to a suit does not consent to a judgment, agreed to by his attorney, the trial court should refuse to give the agreement the sanction of the court so as to make it the judgment of the court. Any judgment rendered on the agreement under such circumstances will be set aside. McMillan v. McMillan, Tex.Civ.App., 72 S.W. 2d 611, no writ history; Preston v. Hill, 50 Cal. 43.”

It is our opinion that it was error for the trial court to enter the summary judgment in question, and that the case should be remanded. It is not necessary, therefore, to discuss appellant’s other points of error which relate to his contentions that an oral agreement was entered into changing the terms of payment stipulated in the written agreement; that appellee through misrepresentations and fraud induced appellant to default on the written agreement and is therefore estopped from asserting such default; and that the additional $1,-500.00 provided for in the written agreement in the event of appellant’s default in making payment of the installments as stipulated in the written agreement is disproportionate to the amount of damages actually suffered by appellee, and is, therefore, a penalty. Neither party has any pleading with respect to such contentions. The record shows appellant is still suing on his original cause of action and appellee on his original cross-action rather than the written agreement which was entered into between the parties. It is probable that both parties will desire to file amended or supplemental pleadings.

Reversed and remanded.


author: COLEMAN, Justice.

text:
    Paul L. PELTON, Appellant, v. The FIRST NATIONAL BANK OF ANGLETON, Appellee.
    No. 14795.
    Court of Civil Appeals of Texas. Houston.
    Feb. 24, 1966.
    Rehearing Denied March 17, 1966.

      Jack Harrison, Alvin, Thomas & Bennett, Ballard Bennett, Angleton, for appellant.
    Evans & Gillies, Angleton, W. D. Evans, Angleton, of counsel, for appellee.
   COLEMAN, Justice.

This is an appeal from a judgment of the District Court, 23rd Judicial District of Texas, appointing a receiver to take charge of and manage appellant’s rice allotment and rice acreage history, with authority to rent, lease, or sell same, subject to the prior approval of the court.

This appeal involves (1) whether or not the trial court was authorized by Article 2293, R.C.S., to appoint a receiver absent pleading setting up a cause of action for other relief; (2) whether appellee has such an interest in the Pelton rice acreage history and rice allotment as to authorize the appointment of a receiver by the trial court under said Article 2293; and (3) whether the rice allotment and acreage history is a res subject to receivership.

At a date prior to the trial of this cause, appellee had secured judgment, not final at the time of this trial, in the same court, Cause No. 45,705, on certain promissory notes against appellant in the sum of $29,-292.99. These notes were secured by a lien on certain farming machinery used in rice farming. The judgment ordered the lien foreclosed. There is evidence that the machinery would bring about $2,000.00 at a sale. Appellant has been allowed a rice acreage allotment with related history by the United States Department of Agriculture, Agricultural Stabilization and Conservation Service, in the amount of 188 acres. Under the applicable Rules and Regulations of the United States Department of Agriculture the allotment and related history acreage may be transferred to certain designated relatives, either voluntarily or by reason of the death, and may be transferred to one other than a relative on securing approval of the proper governmental agencies provided that the transferee has had certain previous rice producing experience and he acquires trans-feror’s entire rice farming operation, except land, but including all production and harvesting equipment and irrigation equipment not permanently attached to the land. There is evidence that the current rice at-lotment and related acreage history could be sold for a sum in excess of the amount of the judgment. It is conceded that these regulations prohibit appellee from attaching, garnishing or reaching the rice allotment and acreage history of appellant. It is not contended that appellee owns any interest in the allotment and acreage history, or has any lien thereon unless such an interest results from its lien on the farm machinery and judgment foreclosing same.

The trial court found that appellee owns a probable interest in said property and that the appointment of a receiver is necessary to protect the rights of appellee in that appellant probably could not satisfy the judgment if the receivership should not be granted. The court further found that the allotment and acreage history constituted property, which was in danger of being lost, removed or materially injured, and that unless a receiver was appointed appellee would suffer an irreparable loss.

Article 2293, R.C.S., provides as follows:

“Receivers may be appointed by any judge of a court of competent jurisdiction of this State, in the following cases:

“1. In an action by a vendor to vacate a fraudulent purchase of property; or by a creditor to subject any property or fund to his claim; or between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff or any party whose right to or interest in the property or fund or the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured.

“4. In all other cases where receivers have heretofore been appointed by the usages of the court of equity.”

Appellee produced evidence that it had a lien on the rice farming machinery; that the machinery if sold would not bring a sum sufficient to discharge the indebtedness owed to the bank; that they knew of no property subject to execution owned by appellant other than the machinery, allotment and acreage history; that the machinery would sell for considerably more money if coupled with the allotment; that the allotment had a monetary value; that appellant had attempted to transfer the allotment and acreage history without the machinery.

The construction placed on the words “or by a creditor to subject any property or fund to his claim” by the Supreme Court in Carter v. Hightower, 1890, 79 Tex. 135, 15 S.W. 223, appears never to have been questioned. In that case the Court held that those words are to be limited to some particular fund or property belonging to a debtor upon which the creditor has a specific lien.

After a careful review of the decided cases, the authors of a comment in 40 Texas Law Review 649 (1962) concluded:

“Since the Carter Bros. v. Hightower decision, the cases all have been in accord that such a lien must be shown. The only breaches that have appeared in this judicial solidarity are two: (1) in the case of the death of a member of a partnership firm where a partnership general creditor alleges that the surviving members are wasting the firm’s assets; and (2) where general creditors of an insolvent corporation show that the affairs of a corporation have so deteriorated that the 'trust. fund doctrine’ applied.”

There is no evidence that the bank has in any fashion acquired an ownership in any degree in the allotment, if, indeed, this is possible under the rules and regulations of the Agriculture Department. Appellee had no express lien on the allotment and acreage history. The appointment of a receiver can be justified only on a showing that this is a case “where receivers have heretofore been appointed by the usages of the court of equity.” Article 2293, supra; Waples-Platter Co. v. Mitchell, 12 Tex.Civ. App. 90, 35 S.W. 200; Junkin v. Sterchi Furniture Co., Tex.Civ.App.1936, 92 S.W. 2d 1098.

In 75 C.J.S. Receivers § 11, p. 670, the general rule applicable is stated:

“A receiver may be appointed only when the party moving therefor has a legal or equitable right to apply for such relief, and such party must have an interest in the subject matter, that is, he must show that he has a clear right to the property itself that he has some lien on it, or that the property constitutes a special fund to which he has a right to resort for the satisfaction of his claim.”

It is clearly the rule in Texas that an action for the appointment of a receiver in cases not specifically authorized by Article 2293, supra, must be ancillary to an independent cause of action. Greenland v. Pryor, Tex.Civ.App.1962, 360 S.W.2d 423; Joy v. Joy, Tex.Civ.App.1941, 153 S.W.2d 180, writ dism.; Lauraine v. Ashe, 109 Tex. 69, 191 S.W. 563, 196 S.W. 501; Hodges Drilling Co. v. Tyler, Tex.Civ.App.1921, 233 S.W. 548; Phoenix Oil Co. v. McLarren, Tex.Civ.App.1922, 244 S.W. 830; United North and South Oil Co. v. Meredith, Tex.Civ.App.1924, 258 S.W. 550; First Nat’l Bank of Dallas v. Brown, 34 S.W.2d 142, error dism., 122 Tex. 168, 53 S.W.2d 604; Hunt v. Merchandise Mart, Inc., Tex. Civ.App.1965, 391 S.W.2d 141, error ref., n. r. e.; Fikes v. Ports, Tex.Civ.App.1964, 373 S.W.2d 806, error ref., n. r. e.

Appellee’s petition sets up no independent cause of action. While there is a prayer for judgment in the sum of $29,292.99, the petition alleges that appellant was indebted to the bank in that sum and that this indebtedness had been reduced to judgment in Cause No. 45,705. There are no pleadings on which a money judgment could be based, and appellee has made no contention to the contrary.

The object of this suit, as set out in the prayer to the bank’s petition, was to secure the appointment by the court of a “receiver of all property above named belonging to the defendant, Paul L. Pelton, with the power to protect, preserve, save and operate the same.” By its judgment the court appointed a receiver and authorized him, on prior approval of the court, to rent, lease or sell the allotment. Neither in this suit nor in Cause No. 45,705 has the bank alleged ownership of a specific interest in the allotment or of a lien thereon or sought to have an equitable interest finally adjudicated in it, or an equitable lien on the allotment foreclosed. Apparently ap-pellee seeks to have a receiver appointed to convert the allotment into cash. Conceding that this cash would be the property of appellant, appellee would expect to be able to satisfy its judgment in Cause No. 45,705 from the proceeds of the rental or sale and thereafter the receivership, presumably, would be terminated. In other words, it appears that the court has, by the appointment of a receiver, placed the effects of this debtor in the hands of the court for the satisfaction of his debt, when appellee has neither pled nor proved a lien thereon. This procedure was condemned by the Supreme Court of Texas in Carter v. Hightower, supra, in these words:

“It is true that, in a general sense, a creditor who brings an action at law to recover a debt seeks to subject all the defendant’s property to the payment of his claim. But he cannot obtain relief against any particular article or class of property, unless a lien be acquired upon it, by the levy of an attachment or the service of a writ of garnishment. Should the legislature see proper to pass an insolvent law, the act will doubtless provide for an equitable distribution of the debtor’s effects among all its creditors. We are of opinion it was not the intention, by the act under consideration, to enable a creditor, through the appointment of receiver, to place the effects of his debtor, because insolvent, in the hands of the court for the satisfaction of his debt, unless he have a lien upon it.” (emphasis added)

Since the sole object of this suit, and the only relief which the pleadings and evidence could support, is the appointment of a receiver, the judgment of the trial court is reversed and judgment is here rendered denying the application for the appointment of a receiver.

Reversed and rendered.


author: BELL, Chief Justice.

text:
    C. A. MOSHER, Appellant, v. Brady TUNNELL et al., Appellees.
    No. 14677.
    Court of Civil Appeals of Texas. Houston.
    Jan. 13, 1966.
    Rehearing Denied March 17, 1966.
    Oldham & Lorance, Arthur Stamm, Jr., Houston, for appellant.

      Foreman, Dyess, Prewett, Henderson & Cantey, Houston, H. H. Prewett, Hellmut A. Erwing, Houston, of counsel, for ap-pellees.
   BELL, Chief Justice.

This is an appeal from a judgment of the trial court dismissing appellant’s suit for failure to comply with the trial court’s order requiring that plaintiff give security for costs in the amount of $2,000.00.

On May 19, 1961, C. A. Mosher filed suit against Brady Tunnell and his daughter, Vivian Ruth Tunnell, to recover damages for personal injuries allegedly suffered by him when an automobile driven by the daughter collided with Mosher’s automobile. At the time of filing suit a deposit of $35.00 to cover costs was made with the Clerk. An answer was filed June 8, 1961.

On December 10, 1964, Mary G. Mosher filed a motion with the court reciting C. A. Mosher had been declared mentally incompetent by the County Court No. 2 of Galveston County, and that she had been appointed legal guardian of the person and estate of C. A. Mosher. She prayed that she, as guardian, be substituted as party plaintiff. An order substituting her as plaintiff in such capacity was entered December 14, 1964.

On January 15, 1965, Mary G. Mosher in her capacity as legal guardian of C. A. Mosher filed a first amended original petition. In it she alleged that Vivian Ruth Tunnell was a minor without a guardian, and asked that a guardian ad litem be appointed for her. On January 19, 1965, Mr. Charles Hancock was appointed her. guardian ad litem.

On February 2, 1965, the defendants, through counsel, moved that the “Plaintiff” be ruled to give security for costs. The motion affirmatively reflected that the plaintiff was “Mary G. Mosher, Legal Guardian for C. A. Mosher.”

Of course, a guardian appointed by a court cannot be required to give security for costs when suit is being maintained, as was this one, in her fiduciary capacity. Article 2072, Vernon’s Ann.Tex.Civ.St.

On February 8, 1965, Mary G. Mosher, as legal guardian, without raising the question that she could not be required to give security for costs, filed a pauper’s oath asserting she was, because of her poverty, unable to pay costs of suit or to give security therefor.

On March 12, 1965, the defendants filed a contest, asserting: “Plaintiff was fully able to make a deposit of court costs suitable under the circumstances.” (Emphasis ours.)

On March 18, 1965, Mary G. Mosher, individually and as community survivor and independent executrix and sole devisee under the will of Clarence A. Mosher, deceased, filed “Plaintiff’s Second Amended Original Petition” in which she made known that Clarence A. Mosher died February 23, 1965, and she in the capacities stated became plaintiff.

On April 9, 1965, .the court entered an order reciting that the “Plaintiff had had due notice of such motion” and decreeing that plaintiff was ruled to give security for costs as required by law in the amount of $2,000.00.

On May 3, 1965, the court entered its judgment dismissing the cause because the plaintiff had not given security for costs.

The appeal is here on transcript only. The transcript contains certificates by the Clerk, whose duty it is to keep a record of costs and the deposits made for costs. These certificates reflect that the amount of costs taxed against appellant on dismissal on May 3, 1965, was $109.01. The certificate shows, however, that of this amount $6.75 was for preparing a transcript on appeal, so that the costs accrued at the time of dismissal amounted to $102.26. Another certificate by the Clerk shows that plaintiff made a deposit of $35.00 when suit was filed. The result is that at the time of dismissal accrued costs unpaid amounted to $67.26. On June 2, 1965, appellant deposited $72.26 as a cost deposit in lieu of an appeal bond. The result is that as of June 2 there was on deposit in cash an amount sufficient to cover accrued costs. Later in June a supplemental transcript was ordered which cost $11.00 and $9.25 was paid on June 15. Another transcript of June 30 was $4.75, and it was not paid for except as the cash deposit in lieu of an appeal bond would be liable for it. The net result is that as of June 2, if the cash bond in lieu of an appeal bond is considered, there was enough cash on hand to cover accrued costs as of May 3, the date of the order of dismissal. As of the date of submission here there would, because of the cost of supplemental transcripts, be a deficiency of $1.50. Appellant offered in oral argument to tender this amount.

For reversal, appellant relies on the following three points of error:

1. The action of the trial court in ruling appellant for costs in the amount of $2,000.00 and in dismissing the case was a gross and clear abuse of discretion.

2. The court in ruling appellant for costs not yet accrued was in violation of Rules 143 and 146, T.R.C.P. in that a rule for costs lies for accrued costs only.

3. The basis of the court’s ruling appellant for costs in the amount of $2,000.00 was the anticipated compensation of a fee for the guardian ad litem for the minor and the former minor is now an adult so the reason for fixing a larger amount no longer exists.

Rule 143 provides that the plaintiff may be ruled to give security for costs upon motion of the defendant or any officer of the court interested in the costs accruing. Rule 144 provides that “all bonds given as security for costs shall authorize judgment against all the obligors in such bond for said costs, to be entered in the final judgment of the cause.” Rule 145 provides for the filing of an affidavit by one who is required to give security for costs of court and to give security therefor. It also provides that a party to the suit, clerk or justice of the peace may contest the affidavit. Rule 146 provides that in lieu of a bond for costs, the party required to give same may deposit with the clerk or justice of the peace such sum as the court or justice from time to time designate as sufficient to pay accrued costs.

We are of the view that Rule 143 provides for a bond conditioned that the principal and the sureties will pay all costs as may be adjudged against the principal in trial of the case. It is in effect an open bond to secure payment of whatever costs might accrue. It does not authorize the court to fix a specific amount of the bond. We think this construction is supported by the language that a party interested in costs accruing may file a motion to rule the plaintiff for costs. Too, Rule 144 provides the bond shall authorize judgment against the obligors for said costs. This means such costs as shall be adjudged against the principal whatever be the amount. If a bond in a fixed amount were contemplated the rule would provide in substance for liability for costs to the extent of the amount of the bond.

Too, we are of the view that the form of the contest of the affidavit is such that the defendants were not contesting the inability of plaintiff to give security for costs but limited their contest to the asserted inability to pay costs because the contest stated: “Plaintiff was fully able to make a deposit of court costs suitable under the circumstances.”

The deposit of court costs, as distinguished from a bond as security for costs, is provided for by Rule 146 and clearly contemplates a deposit only for accrued costs. The accrued costs were in the small amount shown above by the Clerk’s certificates. The effect of the court’s fixing an amount of $2,000.00 was, therefore, contrary to Rule 146, and in amount certainly amounts to an abuse of discretion. The amount fixed being thus unauthorized, it was error for the court to dismiss the suit when it was not paid.

The judgment of the trial court is reversed and remanded, with instructions to set aside the judgment of dismissal and reinstate the cause. Of course, on such reinstatement the parties may proceed with regard to costs in a manner prescribed by the rules.

Reversed and remanded with instructions.


author: BARROW, Justice.

text:
    BARLITE, INC., d/b/a Barrett Industries, Appellant, v. TRINITY UNIVERSAL INSURANCE COMPANY, Appellee.
    No. 14446.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 2, 1966.
    Rehearing Denied March 9, 1966.

      Moursund, Ball & Young, San Antonio, for appellant.
    Dayton G. Wiley, Lewin Plunkett, San Antonio, for appellee.
   BARROW, Justice.

This is an appeal from a take-nothing summary judgment. Appellant, Barlite, Inc., d/b/a Barrett Industries, brought suit against appellee, Trinity Universal Insurance Company, and Alvin Frieden on an account to recover for concrete which went into the construction of the Tradewinds Apartment project. Frieden, as contractor, entered into a written contract with F. B. & D., Inc., a Texas corporation of which Frieden was president, to construct this project for the sum of one million dollars pursuant to certain plans and specifications. Trinity executed a statutory payment bond on behalf of Frieden in the penal sum of one million dollars for the stated purpose of the owner complying with Art. 5472d, Vernon’s Ann.Civ.St.

Appellant’s claim against Frieden was severed. Appellant and appellee each filed motions for summary judgment and, after hearing same, the trial court entered judgment that appellant recover nothing from appellee on this payment bond.

The contract and bond were executed on August 15, 1962. On August 29, 1962, the concrete was ordered from appellant by a letter signed by Frieden as president of F. B. & D., Inc., and by Joe P. Martinez, Inc., stating in. part: “Our firm has contracted with Joe P. Martinez, Inc., for certain foundation work on an apartment house commonly known as Tradewinds Apartments, * * *. Because of banking and bonding requirements it has become necessary that our firm buy and be billed for, directly, any concrete to be used in these foundations.”

It was stipulated that the concrete involved herein was used in the construction of the Tradewinds Apartment project. No issue was raised concerning the notice of claim given by appellant. The question presented is whether appellee, as surety on this statutory bond, is liable for the concrete which was supplied direct to the owner and not to the original contractor.

This question involves a construction of “The Hardeman Act,” Arts. 5452-5472d, Vernon’s Ann.Civ.St., which was enacted by the 57th Legislature effective August 28, 1961. This act made a major revision of the private lien laws and attempts to provide simple procedures for protecting the owner of the project and those who labor or furnish materials used in construction of the project. See Baker, “The New Mechanics and Materialmen’s Lien Law,” 26 Tex.B.J. 1009; Alvis & Carssow, “Supplementary Commentary — Mechanic’s Liens in Texas,” 16 Vernon’s Ann.Civ.Stats., 1965 P.P. 3.

Under the terms of Art. 5472d, when a bond with corporate surety is furnished by an original contractor in a penal sum of not less than the contract amount, it constitutes claimant’s only statutory security — -replacing the lien claim on the property. The owner is required to give written approval of the bond and to file same, together with written contract with the County Clerk of the county where the property is located. This was done in this case.

Art. 5452, subd. 2(e) of this act defines an “original contractor” as one contracting with an owner, directly or through his agent. The definition specifically recognizes that there may be one or more original contractors on a project. The only reasonable interpretation of this act is that in such instances each “original contractor” would be required to furnish a statutory bond covering his contract, in order to protect the owner for work performed or materials furnished under this particular contract. The statute clearly ties the bond to the contract and requires both to be filed of record. It thus would not protect those laborers and/or material-men performing services or furnishing material under the contract of another original contractor.

This construction is consistent with the definition of “subcontractor” set forth in Art. 5452, subd. 2(f) as any person who has furnished labor or materials to fulfill an obligation to an original contractor or to a subcontractor to perform all or part of the work required by an original contract.

This construction is also consistent with the plain language of appellee’s bond. The bond is conditioned that there is no obligation on the part of the surety if the principal shall promptly pay the designated claimants for “materials performed or furnished under or by virtue of said contract.”

We have found no Texas case construing the statutory payment bond. Appellee cites the Kansas case of Murphree v. Trinity Universal Ins. Co., 176 Kan. 290, 269 P.2d 1025 (1954), where recovery was denied to three claimants who sought to recover on a bond authorized by Kansas law. This statute protected only subcontractors, and the trial court found that these claimants were relying on a contract made with the owner and not the contractor as required by law. (Another Kansas statute, which was not urged by the claimants, protects persons who contract with the owner.) The appeal was from a trial on the merits and the Supreme Court observed that there was nothing in the record to indicate that the owner was acting as the agent of the contractor. Further, there was no showing that the. work performed was an obligation of the contractor.

We conclude that appellee is liable under its statutory payment bond, only to claimants who have given proper notice, for all labor, subcontracts, materials and specially fabricated materials performed or furnished in carrying out Frieden’s contract. This being a summary judgment proceeding, the burden was upon appellee to establish by uncontradicted evidence that appellant’s concrete was not so furnished, and there are no presumptions in favor of the validity of this take-nothing summary judgment. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1962); Box v. Bates, 162 Tex. 184, 346 S.W.2d 317 (1961) ; Gul-benkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952).

The plans and specifications which were made a part of Frieden’s contract were not introduced in evidence. Appellee had this duty in the summary judgment proceeding. In any event, a fact issue was raised as to whether the concrete furnished by appellant was furnished to fulfill Frie-den’s obligation under the contract. There is no evidence to show the relationship between Frieden, Joe P. Martinez, Inc., and F. B. & D., insofar as the foundation work was concerned. There is no evidence as to what “banking and bonding requirements” caused F. B. & D. to contract directly for this work. There is no evidence which would establish that in doing so F. B. & D. was not acting for Frieden. The close relationship between Frieden individually and as president of the corporation certainly raises such an inference. Further, a letter of September 3, 1963, to the company handling this project, which recognized this indebtedness, shows the signature of Alvin Frieden between the typed name of the corporation and his own name, without designating him as president.

Appellee did not establish conclusively that the concrete sued on herein was not furnished to fulfill an obligation of Frieden under the contract which was made a part of appellee’s bond. These fact issues must be resolved by a trial on the merits.

The judgment is reversed and the cause remanded.