author: CLAYTON, Justice.

text:
    William P. HOLBROOK, an Ind., d/b/a Metropolitan Ambulance Service, Appellant, v. The CITY OF EL PASO, Texas, et al., Appellees.
    No. 5685.
    Court of Civil Appeals of Texas. El Paso.
    March 25, 1964.
    Rehearing Denied April 15, 1964.

      Albert Armendariz, El Paso, for appellant.
    Travis White, City Atty., Robert J. Gal-van and Dan Garbern, Asst. City Attys., Pearson & Speer, El Paso, for appellees.
   CLAYTON, Justice.

This is an appeal from an order of the Thirty-fourth District Court of El Paso County, Texas, denying an application for a temporary injunction.

By Ordinance No. 2919, effective July 1, 1963, the appellee City of El Paso passed an ordinance prohibiting engaging in the business of furnishing ambulance service without a franchise. By Ordinance No. 2973, approved August 29, 1963, franchises were granted to El Paso Ambulance Service, Inc., an appellee herein, and William Holbrook, doing business as Metropolitan Ambulance Service, appellant herein. This ordinance regulated the operation of ambulances by the franchise grantees thereunder, which franchises were to last for a period of one year unless sooner terminated in the manner and for the reasons stated in the ordinance. The ordinance recites:

“* * .-The franchise herein granted is distinct and separate as to each of the grantees, the rights and obligations of one being in no wise dependent upon the rights and obligations of the other, the intent being to grant a separate franchise in identical terms to each grantee and the franchises being embodied in one instrument for convenience only.”

It further recites:

“If the call for transportation of any person who is ill or injured is made by * * * the Police Department or Fire Department, the service will be furnished regardless of whether the ill or injured person is able to pay, and regardless of whether anyone will stand good for the charge. However, the requirement for service regardless of ability to pay shall not apply to the Grantee if the City makes a separate contract with some other franchised ■ service to answer such calls, except when all available ambulances of the company which has the contract are already in use and it is necessary to call additional ambulances to take care of emergency calls.”

On October 23, 1963, the City of El Paso entered in a contract with El Paso Ambulance Service wherein the City agreed to give to the service all ambulance calls made by the City Police or Fire Department, for the duration and subject to the terms of the ambulance franchise held by the service, but with the right of either party to the contract to terminate the same upon sixty days’ written notice, unless the City should sooner terminate the same for failure of substantial compliance by the service.

Appellant Holbrook then filed this suit for a declaratory judgment holding such contract to be null and void, and for temporary and permanent injunction against the appellees City of El Paso and the El Paso Ambulance Service from operating under such contract. This appeal resulted from the interlocutory order of the trial court denying the requested temporary injunction.

The scope of inquiry of an appellate court in reviewing matters involving the granting or refusal of a temporary injunction has been fully delineated by Texas authorities. To cite but one authority where the rules governing such review are set out, Southwestern Associated Tel. Co. v. City of Dalhart, 254 S.W.2d 819 (Civ.App., Ref., N.R.E.) recites the following:

* * * The sole question to be here determined is whether or not the trial court abused its discretion in refusing the temporary injunction. City of Farmersville v. Texas-Louisiana Power Co., Tex.Civ.App., 33 S.W.2d 272. In considering this matter, we must view all the evidence in a light most favorable to the trial court’s judgment. District Trustees of Dist. No. 46 and Freestone County v. County Trustees of Freestone County, Tex.Civ.App., 197 S.W.2d 579. The granting or refusing of a temporary injunction is within the sound discretion of the trial court and its action will not be disturbed on appeal unless it clearly appears from the record that there has been an abuse of discretion. Harding v. W. L. Pearson & Co., Tex.Com. App., 48 S.W.2d 964. * * * It is likewise a well settled rule of law that an appellate court will sustain the judgment of a trial court if it is correct on any theory of law applicable to the record, regardless of whether or not the trial court gives the correct legal reason for its judgment or whether or not any reason at all is given. Construction & General Labor Union, Local No. 688 v. Stephenson, 148 Tex. 434, 225 S.W.2d 958; Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73.”

To the foregoing the following is added by the Supreme Court in the case of Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549:

“In a hearing on an application for a temporary injunction the only question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits.”

And even:

“ * * * Where the pleadings and the evidence present a case of probable right and probable injury, the trial court is clothed with broad discretion in determining whether - to issue the writ and its order will be reversed only on a showing of a clear abuse of discretion.”

In the instant case the trial court found “that Plaintiff has shown no probable right to relief”, and his application for temporary injunction was denied.

Appellant’s brief sets out as the findings of the trial court in its order denying the temporary injunction prayed for, the following:

(a) The ordinance forbidding the operation of ambulances without a franchise is valid.
(b) The franchises granted are valid.
(c) The subsequent contract between appellee City of El Paso and ap-pellee El Paso Ambulance Service, Inc. is valid.
(d) Appellant has shown no probable right to relief and is not entitled to a temporary injunction.

Appellant then recites: “It is to the latter two findings that this appeal is directed * * *” Thus, whether findings of the trial court (a) and (b) are right, wrong or unnecessary, their correctness may be taken as admitted for the purposes of this appeal. The appellant’s five points of error, then, must be directed to findings (c) and (d). These five points are: The trial court erred in entering judgment and refusing to grant a temporary injunction for the reasons:

(1) That the contract between ap-pellees is invalid because it violates provisions of the City Charter relative to franchises;
(2) That appellant has shown probable right to relief;
(3) That the contract between ap-pellees is invalid because it creates an illegal monopoly;
(4) That the contract violates the contractual rights of appellant through appellant’s franchise with the City; and
(5) That the contract is invalid as being an unreasonable, arbitrary and discriminatory exercise of governmental powers.

On the basis of the authorities heretofore cited and quoted from in this opinion, we take the position that only the second and fourth points of error listed above require discussion, since they alone bear on appellant’s “probable right” to relief. The question of validity or invalidity of the contract referred to we consider to be immaterial to this appeal. This question could only be a matter for determination, if at all, on a final hearing on the merits, since even if such contract were here determined to be invalid, it is not seen how this holding alone would entitle appellant to a temporary injunction in the absence of a showing that appellant had a present “probable right” to relief. As we see it, appellant’s position is that he, a stranger to the contract between the City and the El Paso Ambulance Service, had some probable right which existed before the execution of the contract, which right was violated to his probable injury by such contract (even though invalid) ; and that under such circumstances he was entitled to a temporary injunction to preserve the “status quo” which existed before the execution of the contract, until final determination of the rights of the parties in a trial on the merits. This we think he undertakes to assert in Points of Error (2) and (4) above: that he has shown a “probable right to relief”, because the contract “violates the contractual rights of appellant through appellant’s franchise with the City.” (Emphasis supplied). Apparently following this line of argument, appellant then quotes in his brief from sections of Ordinance No. 2973 granting the franchises, as follows:

“Under Sec. 1, ‘ * * * the intent being to grant a separate franchise in idential (sic) terms to each grantee, and the franchise being embodied in one instrument for convenience only.’
“Under Sec. 2, ‘ * * * however, the requirement for service, regardless of ability to pay shall not apply to the grantee if the City makes a separate contract with some other franchised service to answer such calls.’ ” (Emphasis as supplied in brief.)

From the quoted and italicized portions of the City’s ordinance the appellant draws the following conclusions:

“ * * * The only reference to the possibility of someone getting the calls from the city refers to some other service and certainly cannot apply or mean to one or the other of the recipients of the franchise.”

We place a different construction on the quoted wording of the ordinance. Since both ambulance services have separate but identical franchises, the phrase “some other franchised service” in one franchise means either the other then-franchised service or any service subsequently franchised. A careful reading of the franchise ordinance fails to reveal any language which could be interpreted as giving to appellant a contractual right to Police and Fire Department calls, these being “such calls” as are referred to in the quoted portion of the franchise. On the contrary, the very franchise granted to appellant by

the City and which appellant accepted and under which he is operating puts the appellant on notice that the City may enter into a contract with another ambulance service to answer “such calls”.

Finding nothing in this record that substantiates appellant’s' claim in his point of error designated as (4) above that the disputed contract violates the contractual rights of appellant “through” or arising from his franchise with the City, we are constrained to overrule this point.

Again referring to the limited scope of inquiry in which this court may properly indulge in reviewing a matter of this sort, and after a careful examination of this record, we hold that the trial court acted within its discretion in finding that appellant had shown no probable right to relief and was therefore not entitled to a temporary injunction.

Appellant’s points of error are accordingly overruled and the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    Ramon HOUSTON, Administrator, et al., Appellants, v. Billy Roy HARBERGER et al., Appellees.
    No. 16494.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 21, 1964.
    Rehearing Denied April 17, 1964.

      DeVore, Ashworth & McGahey, Arlington, Pannell, Dean, Pannell & Kerry, Fort Worth, Grindstaff, Zellers & Hutcheson, Weatherford, and Turner & Seaberry, and Virgil T. Seaberry, Eastland, for appellants.
    Borden & Hand, and I. B. Hand, Weath-erford, for appellee Billy Roy Harberger.
    V. P. Craven and Ben Hagman, Weather-ford, for appellee Roy Harberger.
   MASSEY, Chief Justice.

Walter R. Woodhouse made his will in 1921. He died in 1921. His wife, Mary E. Woodhouse, made her will in 1922. She died in 1930. These wills, in all respects material to our decision upon the matter of their proper construction, are identical. Through trial and error we have concluded that this opinion will be more readily understood if the two wills be treated as one, with provisions of both treated (for purposes of the opinion) as though they were in a single will, which we will hereinafter term the Woodhouse will.

Mrs. Martha Edna Martin, now deceased, was one of four children of Walter R. and Mary E. Woodhouse. She had two brothers, Lawrence Woodhouse and B. F. Wood-house, and one sister, a Mrs. Lula Martin, all now deceased. Martha Edna Martin died in 19S2 without a surviving child, and she never had a child born to her. She did leave a will. By this will she attempted to deal with certain realty in the City of Weatherford, Texas as though she owned a fee simple estate. This property, “All that certain lot, tract or parcel of land lying and being situated in Weatherford, Parker County, Texas, and being the North part of Lot No. 6 in Block No. 12, Original Town of Weatherford, and being a 25 foot lot”, was received by her under paragraph No. 4 of the Woodhouse will. It will be referred to hereinafter as the “Ella Gibson property”.

Under Mrs. Martin’s will Billy Roy Har-berger purportedly received the Ella Gibson property. If such property could be given to him thereby it would be by reason of title which vested in Martha Edna Martin under paragraph seven (No. 7) of the Woodhouse will, either upon the death of her parents or upon the death of Ella Gibson, both events having occurred at a time when Mrs. Martin was alive. It is our holding that Mrs. Martin received no devisable interest therein under the Woodhouse will and Billy Roy Harberger received no interest in the property under the Martin will, but that said property passed to other persons under the provisions of paragraph four (No. 4) of the Woodhouse will.

Provisions of the Woodhouse will, paraphrased, provided: Paragraph three: “* * * I give and devise to my son, Lawrence Woodhouse * * * (property here described). * * * To have and to hold the same for and during his natural life, with contingent remainder to his children, in case he shall have any children born to him, — but in the event he should die without issue the remainder shall descend and vest in my grandchildren per capita, share and share alike, to be held by them without partition, alienation or incum-brance, until the youngest shall become twenty-one years of age.”

Paragraph four: “ * * * j gjve and ¿e_ vise to my daughter, Martha Edna Martin * * * (property here described, other than the Ella Gibson property) * * * also * * * lots * * * six (6) in Block twelve (12) in Weatherford, Texas, (the Ella Gibson property) * * * excepting the life estate (therein) bequeathed to Ella Gibson. * * * To have and to hold all the said property for and during her natural life, with contingent remainder to her children in case she shall leave any children surviving her, but in the event said Martha Edna Martin shall die without issue the remainder of the estate shall descend and vest in my grandchildren per capita, share and share alike, to be held by them in common without partition, alienation or incumbrance, until the youngest of said grandchildren shall become twenty-one years of age.”

' Paragraph seven: “In appreciation of the services rendered and to be rendered * * by Miss Ella Gibson, I give, devise and bequeath to her, the said Ella Gibson, the use, rents and revenues of * * * (the Ella Gibson property) * * * for and during her natural life, with remainder to my daughter, Martha Edna Martin, the life estate of said Ella Gibson in said property * * * shall end at the death of said Ella Gibson * * * and the said property at the death of the said Ella Gibson shall revert to my daughter, Martha Edna Martin. * * * ” (Emphasis added.)

Five grandchildren of Walter R. Wood-house and Mary E. Woodhouse were alive at the times both died. They were (1) Jack Martin, (2) Don Martin, (3) Mrs. Cliffie Allen, (4) Mrs. Elizabeth Shade, and (5) Mrs. (Roy) Patty Harberger. Mrs. Harberger died in 1938, before the time Martha Edna Martin died in 1952, and the time Lawrence Woodhouse died in 1954. The other four of the grandchildren were alive after 1954.

We will first consider the question of whether Martha Edna Martin received any devisable estate in the Ella Gibson property under paragraph seven (No. 7) of the Woodhouse will, or whether it was only the life estate therein which she received under the provisions of paragraph four (No. 4) of the same will.

We are of the opinion the effect of the two paragraphs was to give Mrs. Martin a life estate in the property, burdened by the prior life estate given to Ella Gibson, and which life estate she began to enjoy upon the death of Miss Gibson. As of the time of Mrs. Martin’s death she held no part of the fee interest in said property, but a life estate only. It was not within her power to make a devise of the property by her will, hence the Martin will did not operate to devise the same to Billy Roy Har-berger. He received no interest in the Ella Gibson property by reason of the provisions of the Martin will purporting to devise it. Title thereto descended and vested under paragraph four (No. 4) of the Woodhouse will.

While the greatest estate under a will should be conferred on a devisee that the terms of the devise will permit, and while it is proper to say that fee passes when an estate is given in one part of a will in clear and decisive terms it is not cut down and reduced to a lesser estate by subsequent terms not equally clear and decisive, yet do we believe that the principles stated have no application here. Paragraph No. 7 of the Woodhouse will was not specific in respect to any fee devised to Martha Edna Martin, and the fact that she might have thought she received the fee is of no moment. Our holding is that where one part of a will speaks of a particular property and states that a life estate therein is to be received by a named devisee, subject to a life estate bequeathed to another devisee, the fact that the paragraph which purports to deal with the life estate given to such other devisee contains as part of its provisions the statement that at the end of the life estate of such other devisee the described property “shall revert to” the devisee first named,— or that said first named devisee shall, upon the termination of the other devisee’s life estate, have the “remainder”, — docs not contradict that part of the will wherein the first is given a life estate, nor may it he construed to enlarge the estate to which the first named devisee will succeed.

The primary rule is that all parts of a will shall be harmonized if possible. Calvery v. Calvery, 1932, 122 Tex. 204, 55 S.W.2d 527. Here the rule has ready application in harmony with our holding. Where it is practicable, a latter clause in a will must be deemed to affirm, not to contradict, an earlier clause in the same will. Jones’ Unknown Heirs v. Dorchester, 1920 (Tex.Civ.App., Amarillo), 224 S.W. 596, 601, writ dism. See also Burney v. Burney, 1946, 145 Tex. 311, 197 S.W.2d 334, 336.

Having determined that no interest in the property devised by paragraph No. 4 of the Woodhouse will was ever received by Billy Roy Harberger (through the will of Mrs. Martha Edna Martin), we proceed to the question of a proper determination of when the property devised and bequeathed by both paragraphs Nos. 3 and 4 of the said will vested in the “class” created thereby, to-wit: the “grandchildren”.

The names of the five grandchildren alive when the Woodhouse will was made have already been given. It has been stated that only four of them were alive in 1952 and 1954, Mrs. Patty Harberger having died in the interim period, leaving her husband, Roy Harberger, and one child, Billy Roy Harberger. Our conclusion with reference to the individuals who received the bounties provided in said paragraphs Nos. 3 and 4, as members of the “class” to receive the same, did not include Mrs. Patty Har-berger, but only the other four of the Wood-house grandchildren. Basis of our holding lies in the times at which the fee in devised property vested, in part in 1952 when Martha Edna Martin died, and in part in 1954 when. Lawrence Woodhouse died.

In view of our conclusion that Mrs. Patty Harberger never received anything under the foregoing paragraphs of the Woodhouse will, neither Roy Harberger, her surviving husband, nor Billy Roy Harberger, her surviving son, became heir to any part thereof by and through her. It is of interest to note that Billy Roy Harberger did become vested with an interest in the same property in 1958, by reason of the death of his aunt, Mrs. Cliffie Allen, intestate. He was one of a number of persons who inherited a share of Mrs. Allen’s estate. This fact, however, is of no moment for the controlling question for our determination may be considered as determined at any time after the date of Lawrence Woodhouse’s death in 1954, as to the whole of the property under consideration, whether devised under paragraph No. 3 or paragraph No. 4 of the Woodhouse will.

Construction of paragraphs three and four of the Woodhouse will, if we are correct, provides a basis in law for any necessary adjudication of title as to any of the property therein devised, and which is now vested. As heretofore indicated, we hold that an undivided one-quarter interest in all of the property became vested in Jack Martin, Don Martin, Mrs. Elizabeth Shade, and in Mrs. Cliffie Allen before she died.

Our problem of construction may be simplified by treating the language to be construed as reading: “I give and devise this property to my son and daughter, Lawrence Woodhouse and Martha Edna Martin, to have and to hold for their natural lives, with contingent remainder to their children in case they or either of them shall leave one or more surviving, but in the event they both should die without issue the remainder shall descend and vest in my grandchildren per capita, share and share alike, to be held by them without partition, alienation or incumbrance, until the youngest shall become twenty-one years of age.”

The parties to the controversy upon the matter of construction are in accord that the devise was to a “class” of persons, individuals comprising the same to take the fee at some particular time, but disagree upon the matter of whether Mrs. Patty Harberger was one of the individuals holding membership in the “class” at the time of the vesting of the fee interest.

The question is: “There having been a gift to a ‘class’, at what date did the gift take effect and who were the individuals who took the gift because of their membership in the ‘class’ at that material time P ”

Under general rules “remainders” given under wills to children of life tenants whose tenancy is provided by such wills ordinarily vest at once in the persons who, at the death of the testators fall within the general term of designation, subject only to opening to allow for the equal interests of children later born. Even prior to time of their enjoyment of possession their title is “vested” and alienable. Children of a life tenant are-of course a class of persons and a remainder to them is to a “class” in the colloquial sense. They are not, however, members of a “class” in the legal sense, for the legal concept of a class gift is that it is one to a body of persons, uncertain in number at the time of the gift and to be ascertained at a future time, and who consequently will take individually “contingent” upon their being in esse at that time. Under general rules “remainders” given under wills to a “class” (in the legal sense) vest in the individuals who are members thereof at the time the “remainder” vests in the “class”. 57 A.L.R.2d 103, 112, Annotation: “Character of remainder limited generally to the life tenant’s children” ; 75 A.L.R. 773, 807, Annotation: “When may gift by will or deed of trust be considered as one to a class”, — supplemented at 105 A.L.R. 1394. See also 33 A.L.R.2d 242, Annotation: “Time as of which members of class described as remainderman’s or life tenant’s ‘heirs,’ * * * or the like, substituted by will to take in place of deceased remainderman, are to be ascertained.” Informative, though not directly in point, is 6 A.L.R.2d 1342, Annotation: “Time of ascertainment of membership with respect to devise or bequest to a class which takes effect at testator’s death.”

Stated another way: A “contingent” estate is one the “vesting” of which is conditioned upon the person or persons who answer the description of taker or takers of the property cannot be ascertained until the termination of the precedent or particular estate, the right to take dependent or contingent upon the fact of his or their being alive or having survived until that time, or the right to take conditioned upon some other event the happening of which is uncertain. 32 Tex.Jur., p. 836, “Perpetuities and Restraints, Etc.”, § 10, “■ — Meaning of ‘Vested’ — Intention as Decisive Factor” ; 36 Tex.Jur., pp. 876, 877, “Remainders and Reversions”, § 6, “‘Vested’ Estates or Interests”, and § 7, “ ‘Contingent’ Estates”.

We find great caution required in arriving at our decision in this case, for we have little doubt but that both testator and testatrix probably desired, and would have in all likelihood provided that children of their deceased grandchildren stand in the place of their parents for purposes of receiving their gifts, had they thought of the contingency that one or more of their natural grandchildren might die before the bequest to “grandchildren” took effect, leaving child or children surviving. We may not so speculate, however, but must be bound by the ascertained provisions of the wills in respect to what testator and testatrix did therein provide; and if the intention of said persons be not clearly expressed by the particular language used, it may be found by looking to the provisions of the will as a whole and to the circumstances surrounding its execution. In paragraphs 3 and 4 of the Woodhouse will the testator and testatrix obviously chose to specify the fact that any vesting of the “remainder” in a surviving child or children of the son Lawrence Woodhouse and of the daughter Martha Edna Martin, if any, was “contingent” upon such child or children being alive at the date of death of his or their designated parent. Were this a matter for construction we would likewise be obliged to treat the devise as a “contingent remainder” (or as “contingent remainders”) under the case of Guilliams v. Koonsman, 19SS, 154 Tex. 401, 279 S.W.2d 579, 57 A.L.R.2d 97, and the other authorities therein cited.

The “contingent remainder” provides in the case of children born to Martha Edna Martin and/or Lawrence Woodhouse never became “vested” as an estate in any issue of their bodies for both died without any surviving child. The first stated “contingency”, upon which any “vesting” of such an estate should arise, never occurred. The “remainder” to “grandchildren” was secondarily dependent and “contingent” thereupon. It has been said that “There cannot be a vested remainder after a contingent remainder in fee simple.” Gray: The Rule Against Perpetuities (4th Ed.), p. 105, § 113.2 (Tex. to Footnote 1).

The “alternative contingent remainder”, or the remainder given the “grandchildren” upon the “contingency” that there be no children of Martha Edna Martin or Lawrence Woodhouse alive to take the bequest made to them as the first “contingent remaindermen” is somewhat difficult to define by name. Whatever be the proper nomenclature its operation was either predicated upon a contingency which never occurred (whereby the “vesting” of any estate in said “grandchildren” should itself properly be treated as “contingent” because ir was conditioned upon an antecedent contingency), — or it was independently “contingent”. Assuredly, it was furthermore requisite under the will, and under all recognized rules of construction, that at least one of the “class” termed “grandchildren” (in the legal sense) be alive to take the “alternative contingent remainder” provided thereunder at the termination of the life estate(s) of Martha Edna Martin and/or Lawrence Woodhouse. The application of the law in such a case would be no different from an application of the same law to the more common type of case where the vesting of an estate in children, if any, born or to be born to a life tenant, is conditioned upon their being alive to take at the time of the termination of the life tenant’s precedent or particular estate..

In addition to the authority already-cited, Guilliams v. Koonsman, supra, we desire to mention the case of Robertson v. Garrett, 1888, 72 Tex. 372, 10 S.W. 96, wherein Judge Stayton seems to have applied the rule here recognized although not stating it; the case of Chace v. Gregg, 1895, 88 Tex. 552, 32 S.W. 520, wherein Judge Brown termed an estate similar to that under consideration as “a contingent remainder, upon which was likewise limited the contingent remainder in favor of his (Gregg’s) nearest heirs” ; and the case of Spaight v. American National Bank, 1962 (Tex.Civ.App., Austin), 356 S.W.2d 490, error refused, wherein Judge Hughes, in considering the provisions of a will, which were no more definite than the provisions here under consideration, held that the language directing disposition of testatrix’ property was prospective in nature, not ascertainable at her death, but determinable as of the date of the death of the survivor of her daughters. The rule as stated in Walker v. Thornton, 1910 (C.C.A. of Texas), 124 S.W. 166, error refused, is stated thus: “The rule for determining whether a bequest or devise is a vested or contingent one is that, when the time of division is of the substance of the gift, it is contingent, but, when the time is mentioned only as a qualifying clause of payment or division, it is vested.”

Our conclusion is that the provisions of the pertinent paragraphs of the Woodhouse will gave named children each a life estate in property, with further provision for vesting of “remainders” as to the parcels to each, under two alternatives. Each of said alternatives could be correctly termed “alternative contingent remainders”, with the second of the alternatives to have force and effect only in the event the “remainder” could not vest under the first of the alternatives. In other words, the will provided that the children of Martha Edna Martin and/or Lawrence Woodhouse would receive the “remainder” through their respectively named parent or parents “contingent” upon their being alive to receive the same; — and if and in the event the contingency for which such provisions was made never occurred, then, and only in that event, the grandchildren alive at that time, if any, would take the “remainder” in their place and stead. The latter contingency was conditioned upon an event certain to occur, the deaths of Martha Edna Martin and Lawrence Woodhouse, — and upon events which were uncertain, i. e., that one or more of the “class” mentioned, the “grandchildren”, be alive at that time, and that no issue of said persons alive and in esse at the same time.

The circumstances, one certain and the other two uncertain, were made prerequisite to any entitlement of the “grandchildren” to a devise of the fee under paragraphs 3 and 4 of the Woodhouse will.

The property which vested in the “grandchildren” because of Martha Edna Martin’s death did so vest at the time of her death in 1952. Patty Harberger was dead at that time. Therefore she was not a member of the “class”, the individuals comprising which were made heirs to the Wood-house property upon the termination of Martha Edna Martin’s life estate. The property which vested in the “grandchildren” because of the death of Lawrence Woodhouse did so vest at time of his death in 1954. Patty Harberger was dead at that time. Therefore she was not a member of the “class”, the individuals comprising which were made heirs to the Woodhouse property upon the termination of Lawrence Woodhouse’s life estate. Since Patty Har-berger received nothing from the estate of testator and testatrix, at least under provisions of paragraphs 3 and 4 of their wills, Billy Roy Harberger received nothing by and through her or in her place and stead and her surviving husband, Roy Harberger, likewise received nothing. The court below fell into error in its contrary conclusion.

In a case where the situation was essentially identical to that in the case before us the Illinois Supreme Court made a holding which was in accord. Drury v. Drury, 1915, 271 Ill. 336, 111 N.E. 140.

Judgment rendered below is reversed. Judgment is here rendered in construction of the wills of Walter R. Woodhouse and Mary E. Woodhouse that paragraphs 3 and 4 thereof disposed of said deceased persons’ entire interests in the property therein described, and that under the provisions thereof, and in view of the events which have occurred since the deaths of Walter R. and Mary E. Woodhouse, title to said property in equal portions, undivided, became vested in Don Martin, Jack Martin, Mrs. Elizabeth Shade, and in Mrs. Cliffie Allen, deceased, or her estate, and in the individuals who are her (Mrs. Allen’s) heirs.


author: PHILLIPS, Justice.

text:
    George H. COVERT et al., Appellants, v. Lester S. READY, Jr., et al., Appellees.
    No. 11182.
    Court of Civil Appeals of Texas. Austin.
    March 25, 1964.

      Rogan B. Giles, Austin, for appellant.
    L. Alvis Vandygriff, Cofer, Cofer & Hearne, E. Eugene Palmer, Sam Perry, Sneed & Vine, Austin, for appellee.
   PHILLIPS, Justice.

Appellants, plaintiffs below, were judgment creditors of defendant below Bert Gardner and instituted this suit for foreclosure of their judgment lien against a tract of land in Austin, Texas, also joining as defendants the holders of a recorded warranty deed to such property, Lester S. Ready, Jr. and wife; a mortgagee of such property, First Federal Savings & Loan Association of Austin, and Bert Gardner who had owned a vendee’s interest in an executory contract of sale for such property.

Defendant First Federal Savings & Loan Association answered and interpleaded additional parties, Roswell J. Waterman, who was the grantor of such property in the deed to Lester Ready and wife, and who also was the vendor in the executory contract of sale for such property to Bert Gardner; Rosalind Gardner, a sister of Bert Gardner, who was a co-vendee in the executory contract of sale to such property, and Douglass Hearne, attorney for Bert Gardner.

Each of the defendants and interpleaded parties answered and filed various cross-actions. Several motions for summary judgment were filed. First Federal Savings & Loan Association filed a motion for summary judgment which was granted after a hearing on May 2, 1963. This appeal is from the action of the Trial Court in granting the summary judgment of First Federal Savings & Loan Association.

The summary judgment appealed from disposes only of the rights of the appellants and the First Federal Savings & Loan Association. The rights of the other parties to the law suit have not been disposed of by this judgment; consequently, it is not a final judgment.

Rule 301, Texas Rules of Civil Procedure, provides that only one final judgment shall be rendered in any cause except where it is otherwise especially provided by law.

Art. 2249, Vernon’s Annotated Civil Statutes, authorizes an appeal to the Court of Civil Appeals from every final judgment of the District Court in civil cases.

Since the record discloses that there was no final judgment, this Court is without jurisdiction and it is our duty to dismiss the appeal on our own motion. Duke v. Gilbreath, Tex.Civ.App., 10 S.W.2d 412, writ ref., C. & L. Supply Co. v. Kennedy, Tex. Civ.App., 258 S.W.2d 102; Sisttie v. Holland, Tex.Civ.App., 374 S.W.2d 803.

This appeal is dismissed without prejudice to the parties entering a final judgment from which an appeal might be perfected.


author: GRISSOM, Chief Justice.

text:
    Sam WINDHAM et al., Appellants, v. Fred M. WINDHAM, Appellee.
    No. 3855.
    Court of Civil Appeals of Texas. Eastland.
    March 13, 1964.
    liehearing Denied April 3, 1964.

      Callaway & Harmon, F. G. Harmon, Brownwood, for appellant.
    Woodward & Johnson, Hal Woodward, Coleman, for appellee.
   GRISSOM, Chief Justice.

In T945, T. M. Windham and wife, Annie Windham, owned all the land involved in this suit between their children. In October 1945, they conveyed to their son, Sam Windham, a tract of land described as 197 .acres, being 69 acres out of the Tom J. Sweeney 'Survey 134 and “128 acres of the J. Farrout Survey No. 133”, in Brown County, reserving a life estate. At the same time they conveyed to another son, Fred Windham, a tract adjoining on the south the land conveyed to Sam, describing it as 135 acres out of said Farrout Survey and the E. M. Tanner Survey 132. Its beginning point was stated in the deed to be.at a stake “in the South line of a 128 acre tract -out of the J. Farrout Survey 133.” The parents reserved a life estate in this land also. In 1955, with the consent of Sam Windham, T. M. and Annie Wind-ham, conveyed to their daughter, Mary Montgomery, 12 acres off of the south end of said tract of land that they had conveyed to Sam in 1945.

In April 1960, T. M. Windham was dead. T. M. and Annie Windham owed a debt secured by a lien on all the land and their creditor was trying to collect it. For the purpose of doing away with the life estate of Annie Windham so that each grantee could obtain and pay his proportionate share of said debt the creditor’s attorney prepared and the parties executed the following instruments: (1) A quitclaim deed from Annie Windham, a widow, Mary Montgomery and her husband and James and Fred Windham to Sam Windham covering the same land conveyed to Sam by his parents in 1945, using the identical field notes and expressly reciting on the face thereof that it was the same land that has been conveyed to Sam by his parents in 1945; (2) Mrs. Annie Windham, Mary Montgomery and husband and James and Sam Windham executed a quitclaim deed to Fred Windham covering the same land conveyed to him by his parents in 1945, using the same field notes and expressly reciting that it was the same land that had been conveyed to Fred in 1945 by his parents; (3) at the same time, Sam Windham and Mary Montgomery and her husband executed a quitclaim deed to James Wind-ham covering the same 12 acres of land out of the south end of the tract that had been conveyed in 1945 by the parents to Sam and which in 1955, with Sam’s consent, had been conveyed by T. M. and Annie Wind-ham to Mary Montgomery. In November 1961, Cleatus Byrd purchased said 12 acres from James Windham.

Fred Windham brought this suit in trespass to try title to a 9.9 acre tract and a 7.8 acre tract shown on a map prepared by a surveyor appointed by the court to survey said lands, which map is known in the record as plaintiff’s exhibit one, and is as follows:

As to the 9.9 acres, the question is where :is the true boundary line between the tracts •of land so conveyed to Fred and Sam "Windham? Fred contends it is on the line from A to B as shown on said map. Sam and James Windham, Mary Montgomery and her husband and Cleatus Byrd say that it is to the South along the line C to D. A jury found (1) that the true north boundary line of the tract “deeded” to Fred by his parents in 1945 and by Sam et al in 1960, is located on the line between points A and B; (2) that the south boundary line of the tract of land “deeded” by the parents to Sam in 1945 and by Fred Windham et al in 1960 is located at the same place. In accord with these findings, the court awarded title and possession of the 9.9 acre tract to Fred Windham.

With reference to the 7.8 acre triangular tract, which joins the 9.9 acres on the north, a jury found (3) that the true east boundary line of the land deeded to Sam by his parents in 1945, and by Fred et al in 1960, is located on the line between points S and A, as shown on said map. It is agreed that said parents are the common source of title. The record shows that if the 7.8 acre tract was not conveyed to Sam that title thereto was still in the parents when they died. The jury found, in effect, {3) that the 7.8 acre tract was not conveyed to Sam. The court held that Fred had inherited a l/4th interest therein and gave him judgment therefor. The defendants have appealed.

Appellants’ point are in substance that Fred Windham failed to prove title to any part of the land awarded to him and that the court erred (1) in overruling their motion for an instructed verdict; (2) overruling defendants’ objections to the charge; (3) refusing to submit to the jury the question of an agreed partition by Sam, James and Fred; (4) refusing to submit a re-queste4 issue as to whether they erected a fence along an agreed line between Fred, Sam and James; (5) overruling defendants’ motion for judgment non obstante veredicto and in (6) awarding Fred Wind-ham a l/4th interest in the 7.8 acre tract.

We overrule appellants’ contentions that the court erred in overruling their motions for an instructed verdict and judgment non obstante veredicto because the evidence relative to the 9.9 acres was sufficient to authorize a finding that it was included in the field notes of the deeds to Fred Windham from his parents in 1945, and his brothers and sister in ■ 1960. Ownership of the 9.9 acres must be determined according to the true boundary line between the tracts deeded to Fred and Sam Windham. If the true boundary is along the line A to B, as the jury found, then the title to the 9.9 acres is vested in Fred Wind-ham by virtue of said deeds. It was stipulated that the parties, except Byrd, are the heirs of T. M. and Annie Windham, who formerly owned all the land and who are the common source of title. The field notes to the land conveyed to Fred and Sam by the parents in 1945, were identical with the field notes in the quitclaim deeds executed in 1960. A surveyor was appointed by the court to locate the boundary lines. His testimony was to the effect that he found the undisputed northeast corner of the Farrout Survey 133 at the point marked S on the map and then went south down the west line of the Tanner Survey the 1820 varas called for in the deeds to Sam Windham and then continued 23.3 varas further than Sam’s field notes called for to a fence. He located the boundaries of the tracts described in said deeds to Sam and showed them on said map in Orange. He, likewise, traced from the field notes and what he found on the ground, the land described in the deeds to Fred Windham. He testified in effect that the north line of the deeds to Fred was the same as the south line of the deeds to Sam. He began the field notes of the deeds to Fred in the south line of the 128 acre tract out of the Farrout survey conveyed to Sam as called for in the field notes in Fred’s said deeds. He found the south boundary of the tract conveyed to Sam lay along the line from point A to B and that the north line of the Fred Windham land was the same as Sam’s south line. The deeds to Fred called for his tract to begin in the south line of the Sam Windham tract. The evidence supports the conclusion that the 9.9 acre tract was included in said conveyances to Fred Windham and that his north boundary is located on the line from A to B, as found by the jury.

The 1960 quitclaim deed to Fred Wind-ham was signed by his brothers and his sister, that is, by all the appellants except Byrd, who had not then bought the 12 acres quitclaimed to James by Sam and Mary. The calls in the deeds support Fred Windham’s contention that the north line of the 9.9 acre tract is the true boundary line between the tracts conveyed to Sam and Fred Windham and that it is located along the line between points A and B. The call for the number of acres conveyed to Sam out of the Farrout survey shows he was to get 128 acres out of that survey but the court’s surveyor testified, from, among other things, his findings on the ground, that by fixing the north boundary line of Fred Windham’s tract at the place where the jury and the court fixed it that Sam Windham got 134.3 acres out of the Farrout survey which is 6.3 acres more than his deeds call for and, if his contention prevails as to the location of the boundary, Sam Windham will get an additional 9.9 acres, which would give him 16 plus acres more than is called for by his deeds. The deeds to Fred Windham call to begin at a stake in the south line of Sam Windham’s 128 acre tract out of the Far-rout survey, said stake being on the north bank of Pecan Bayou and on the east bank of a slough a large rock marked with a cross bears south 46 east 7.5 varas. Neither this marked rock nor the stake could be found. However, said surveyor did testify that the beginning corner of Fred’s land, according to his deeds and field notes, if placed on the line from point A to B, as shown on plaintiff’s exhibit one, would be on the north bank of the Bayou, but that if it were located as claimed by appellants it would be on the south side of the slough and the east bank of the Bayou, contrary to the controlling calls in all said deeds. Said surveyor found on the ground that the most northerly fence fitted the call in the deed to Sam for his beginning point and that the call for the number of acres out of the Farrout Survey deeded to Sam is more nearly correct by using the line A to B as Sam’s south boundary line. He further testified that by fixing the boundary line along the line from A to B, as it was fixed by the jury, that said line goes into the north bank of the Bayou, in accord with the calls in all the deeds, while if the line C to D, claimed by appellants, was used as the boundary line the line would come into the east, instead of the north bank, of the Bayou and be contrary to the calls for the north bank of the Bayou in all the deeds. We conclude that there was sufficient evidence to sustain the findings as to the true boundary line between the tracts of land “deeded” to Sam and Fred Windham and to support the judgment awarding the 9.9 acres to Fred Windham.

We shall now consider that part of the judgment awarding Fred Windham a one fourth interest in the 7.8 triangular tract. The juiy found in answer to issue 3 that the true east boundary line of the land conveyed to Sam was located on the line from S to A, as shown on said map. The evidence sustains that finding. It was undisputed that the 7.8 acre tract had been owned by T. M. and Annie Windham; that it had not been conveyed, unless it was conveyed to Sam, and the jury found that it had not been conveyed to Sam. Therefore, the judgment awarding Fred Wind-ham a one fourth interest in the 7.8 acre tract is correct.

Appellants requested the court to submit issues inquiring in substance whether, in 1960, the Windham children agreed on a partition of the land; whether Sam and Fred agreed on the location of the dividing line between their tracts, and whether, when Fred built a fence, the fence was erected on an agreed line at its present location. The court did not err in refusing to submit said issues because appellants testified that at said time there was not any dispute or uncertainty as to the true location of that boundary, which is prerequisite to fixing its location by a parol agreement. Davis v. Miers, Tex.Civ.App., 308 S.W.2d 277, 280, (Ref. N.R.E.); Gulf Oil Corporation v. Marathon Oil Co., 137 Tex. 59, 152 S.W.2d 711. We think the court did not err in refusing to submit an issue as to whether there was a partition among the children, etc. among other reasons, because appellants called as a witness the attorney who prepared the 1960 quitclaim deeds and he testified that the purpose of said deeds was to avoid the effect of the life estate then still existing in Annie Windham so the children could borrow money on their respective tracts and each pay off his share of said debt. He testified, and the record shows, that the 1960 quitclaim deeds used the identical field notes that were contained in the 1945 warranty deeds from the parents and, assuming there was a partition nevertheless, it was still necessary that the boundary line between Sam and Fred Windham be established.

There were no fact issues as to an agreement between Sam and Fred Wind-ham as to the true location of the boundary line between them or as to the erection of a fence on an agreed line. The appellants who testified, and the only ones who apparently knew anything about the matter, testified that there was then no uncertainty or dispute about the location of the boundary line. As to the erection of a fence on an agreed line, Sam Windham testified that he was not present when the fence was erected. The evidence was to the effect that Fred Windham having an immediate necessity for grass for his cattle, hurriedly put up a fence on the shortest line. Sam Windham answered the question as to-whether there was then a dispute about the boundary line, “Not a bit.” He further testified: “That south line was so plain, it has been there and we had known it so long, and Fred laid the line off himself. It was so plain there, you know, it wasn’t no necessity in discussing it. We all knew where it was; Fred knew where it was, the line between he and the 12 acres.” James Windham upon being questioned about a dispute as to the location of the line in 1960, answered, “I didn’t think there-was any dispute about it.” Appellee says that appellants’ contention in this respect is. actually that acquiescence of the parties, in placing the fence near the south line constituted an agreement, as a matter of law, that such was the true boundary line. If this is a correct interpretation of their contention, it cannot be sustained. It has. been decided that acquiescence in a line other than the true boundary line will not support a finding of a boundary agreement when there is a mistake in believing it was the true line. Great Plains Oil & Gas Company et al v. Foundation Oil Company et al, 137 Tex. 324, 153 S.W.2d 452. Furthermore, if the 1960 quitclaim deeds be claimed as fixing the location of the boundary line they do not have that effect because they contained the same field notes that were used in the 1945 deeds.

All of appellants’ points are overruled. The judgment is affirmed.


author: HIGHTOWER, Chief Justice.

text:
    Bernice Ann CAMMACK et al., Appellants, v. George S. GEORGE et al., Appellees.
    No. 6647.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 27, 1964.
    Rehearing Denied March 25, 1964.

      B. T. McWhorter, Port Arthur, for appellants.
    Jack R. King, Beaumont, Richard Owens, Ft. Worth, Hugh Freeland, Beaumont, for appellees.
   HIGHTOWER, Chief Justice.

The surviving children of Marcia L. George filed suit in District Court against their stepfather, George S. George, and certain of his grantees, under Article 2524— 1, Vernon’s Ann.Civ.St. (Declaratory Judgment Act), for the purpose of construing an instrument referred to as the “joint and mutual will” of Marcia George and the said George S. George, her surviving husband. Defendants answered and filed a cross-action in trespass to try title on behalf of the grantees of such real estate, moved to have the will construed as devising a fee simple estate to George -S. George and authorizing him to convey any and all said community estate. From a summary judgment granting defendants the relief prayed for and adjudging title and possession in the grantees of George S. George, plaintiffs have appealed.

The controversy involves the construction of the first and second paragraphs of said will, to-wit:

“FIRST: It is our will and desire that the survivor of us, George S. George or Marcia L. George, as the case may be, shall, with the rights and authority below given, have all the estate of every kind, character, and description, whether real, personal or mixed, which either or both of us may own, claim, or be interested in at the time of the death of the first of us, to be used, occupied, enjoyed, conveyed, managed, conserved, expended, and controlled by, and during the life of such survivor, as such survivor may desire, subject only to the conditions hereinafter contained relative to death and remarriage.
“SECOND: It is our will and desire that upon the death or remarriage of the survivor of us, George S. George or Marcia L. George, as the case may be, then the portion of said estate belonging to the decedent shall vest in fee simple in the children of the said Marcia L. George, to-wit: Bernice Ann Cammack, wife of Alton Cammack and Audrey Leta Brandt, wife of Jake Brandt, share and share alike.”

It was set out in the judgment of the trial court that by the will of Mrs. George, Mr. George was given an estate in fee simple in all the estate which Mrs. George owned or had claimed an interest in at the time of her death; plaintiffs took no vested interest in said property; the conveyance of said property defeated any interest of the plaintiffs in so much of said property as was conveyed prior to the occurrence of one of the aforementioned conditions; that George S. George inherited under such will only one-half of the community property of himself and Mrs. George, and was not forced to make an election thereunder.

Appellants have assigned three points of error attacking the judgment of the trial court. We treat them in reverse order. The last two points complain of the trial court’s adjudication that an estate in fee simple to Mrs. George’s property vested in Mr. George with power in him to convey the same.

Under these points appellants take the position that Mrs. George intended that her surviving husband take her one-half interest in the community estate, in trust for appellants, subject to his use and enjoyment thereof during his lifetime, or until such time as he should remarry; that such survivor would not have unrestricted power to convey and dissipate all said estate, thereby depriving appellants of their intended inheritance.

It is our opinion that by the first paragraph of this will each of the makers intended to devise to the other only such property as he or she should die seized and possessed. That is, each devised to the other only his own one-half interest in the whole of the community property. Each, of course, devised to the other all of his separate property. The survivor was not forced to make an election under the will. He simply took a life estate in all the property which his wife owned, or had an interest in, upon her death. That it created only a life estate, as distinguished from the facts which were held to have created fee simple estates in the cases of Harrell et al v. Hickman, 147 Tex. 396, 215 S.W.2d 876, and C. C. Young Memorial Home for Aged Women v. Nelms, Tex.Civ.App., 223 S.W.2d 302, is made clear by the express wording of the first paragraph of the will. No words are used in this paragraph which would evidence any intent to devise a fee simple title to the survivor, other than the two words “conveyed” and “expended”. All of the authority given to the survivor is limited by the provision “during the life of such survivor”. This is also borne out by the second paragraph of the will. In that paragraph the intendment of the makers is clearly expressed that the survivor is to take the property of which the first decedent was seized and possessed only until the remarriage or death of the survivor. After which “ * * * the portion of said estate belonging to the decedent shall vest in fee simple * * * ” to the named beneficiary-appellants.

But this life estate is coupled with the power in the survivor to dispose of the fee before his death or remarriage. The words “conveyed” and “expended” as used in the first paragraph of the will are subject to no other interpretation.

The will in question is quite similar to that construed by the Supreme Court in Edds v. Mitchell, 143 Tex. 307, 184 S.W.2d 823, 158 A.L.R. 470. It was there said, regarding a life estate coupled with a power to dispose:

“The power of disposition is not an estate. It is merely authority derived from the will to dispose of the fee. Gildersleeve v. Lee, 100 Or. 578, 198 P. 246, 36 A.L.R. 1166, 1169. It is not inconsistent with or repugnant to the estate for life. 33 Am.Jur. pp. 484, 485, Sec. 21. It is not repugnant to the remainder, but when exercised, it defeats the remainder in the property sold or conveyed. Caples v. Ward, 107 Tex. 341, 346, 179 S.W. 856. As said in Grace v. Perry, 197 Mo. 550, 562, 95 S.W. 875, 878, 7 Ann.Cas. 948, 951:
“ ‘It must be remembered that the devise is express for life with power to dispose of the fee, and it is a well settled principle of law that a power of disposition added to the life estate is not repugnant to the life estate or to the remainder over. If not exercised, it leaves both estates unaffected by it. If exercised, it defeats the remainder in the property disposed of; the remainder being subject to such defeat, as in this case.’
“A power that is not an estate but is merely authority to dispose of the fee, that is repugnant neither to the life estate nor to the remainder, and that does not in the addition of it to the life estate raise that estate to a fee, should not, in the mere exercising of it, enlarge the life tenant’s estate. But that effect would be given to it, if it were held that the exercise of the power by the life tenant operated to divest the remaindermen of all title or right to the proceeds of the sale.”

This power to “convey”'effectively relegated the named beneficiaries, appellants, to the position of contingent remaindermen, having no justiciable interest in or to the property passing under Mrs. George’s will until the remarriage or death of George S. George. As being appropriate to the facts we adopt the language of the Supreme Court in Harrell v. Hickman, supra:

“In the instant case the testators in language free of ambiguity have clothed the survivor with the unqualified right to convey the property during his or her lifetime and have limited the rights of the remaindermen to whatever estate remained in the survivor at his or her death, and we are not authorized to impose a limitation upon that right or by implication to grant any right to the remaindermen other than to acquire that which might remain after the death [or remarriage] of the survivor.”

Lastly, we consider appellants’ point of error to the effect that the trial court erred in granting appellants’ motion for summary judgment because the same contained no allegations of fact, was not verified, and there were no depositions, admissions, affidavits or other supporting data attached to or filed with such motion. Therefore, they say there was no proper evidence upon which the summary judgment could have been predicated.

The omissions referred to in appellants’ point of error do not necessarily preclude the granting of a motion for summary judgment. Womble v. Atkins, Tex.Civ.App., 314 S.W.2d 160, affirmed 160 Tex. 363, 331 S.W.2d 294; Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274, Sup.Ct. However, under this point of error appellants specifically urge error of the court in decreeing, as a part of said judgment, title and possession in the grantees of appellee George on their cross-action of trespass to try title. Appellants refer to Rule 798, V.A. C.S., providing for a plaintiff to make proof of a common source of title by filing and serving certified copies of deeds under which the parties claim. They urge, citing the Gardner Case, supra, that the motion for summary judgment was erroneously granted—absent certified copies of the deeds under which appellee George’s grantees claimed attached to their cross-action aforesaid. Such omissions, they say, do not fulfill the requirements of Rule 166-A, V.A.C.S., relating to summary judgments.

Actually the deeds, omission of which are complained of, were not even introduced in evidence. This, we think, under the circumstances is immaterial. In their first amended original petition plaintiffs set forth the controversial paragraphs of the will as hereinabove set out. They alleged that a bonafide controversy concerning the construction of said will had arisen between the parties to the lawsuit which necessitated specific relief and judgment. This petition embodied specific admissions of appellants that appellee George had sold and conveyed the whole fee simple title of certain real properties to the appel-lee-grantees herein. These admissions were followed by allegations that said deeds had been duly executed, acknowledged and delivered, and reference was made therein to the volume and page number of the Deed Records of Jefferson County, Texas. This petition, which was sworn to, closed with the prayer that “ * * * plaintiffs pray for a declaration and judgment as to the construction of the will of the said Marcia Leta George, Deceased, and for a judicial determination of the controversy and for a removal of all the uncertainties as to the interest of the plaintiffs and the interest of these defendants in and to the property, real and personal, * * * Attached thereto and incorporated therein was a photostat of the will in question together with the order of the county court probating the same and appointing appellee George independent executor thereof.

This first amended original petition of appellants, containing the admissions therein aforesaid, together with appellees’ motion for summary judgment, bare of facts and other accessories though it was, presented the pure question of law to the trial court of the correct construction of the parties’ will. It affirmatively appeared that there remained no material issue of fact upon which the outcome of the litigation depended. When the trial court correctly found that appellee George had the power under the will to sell and convey the fee simple title to real property, it was its duty to deny appellants any relief on their prayer to set aside such conveyances and deny them ownership in the property. The fact that he did so hy granting affirmative relief for title instead of a take nothing judgment was not improper. Forest Park Properties of Arlington, Inc. v. Padgett, Tex.Civ.App., 323 S.W.2d 320 (ref. n. r. e.).

By reason of our conclusions as to the quantum of the estate received by appellee George S. George under the will of Marcia L. George, the judgment of the trial court is accordingly reformed, and as reformed, it is affirmed.

Affirmed.


text:
    The SUPERIOR OIL COMPANY, Appellant, v. EL PASO NATURAL GAS COMPANY, Appellee.
    No. 5592.
    Court of Civil Appeals of Texas. El Paso.
    March 18, 1964.
    Rehearing Denied April 15, 1964.
    Stubbeman, McRae, Sealy & Laughlin, W. B. Browder, Jr., Midland, H. W. Varner, Roland B. Voight, Houston, for appellant.
    A. R. Grambling, Hardie, Grambling, Sims & Galatzan, El Paso, George D. Horning, Jr., Hogan & Hartson, Washington, D. C., for appellee.
   CLAYTON, Justice.

This is a suit for declaratory judgment filed by appellant, Superior Oil Company (Superior) against appellee, El Paso Natural Gas Company (El Paso), seeking the construction and interpretation of two gas sales contracts entered into between the parties which involved the sale of gas in interstate commerce. The first contract (dated April 13, 1953), involved the sale hy Superior and the purchase by El Paso of casinghead gas produced in certain counties within the Permian Basin area of Texas. This contract, known as the “Spra-berry” contract, contains a so-called “favored nation” clause providing as follows:

“If, at any time during the term of this agreement there shall be in effect any agreement between Buyer and any other party or parties providing for the purchase of Residue Gas by Buyer at a point located within the Permian Basin area at a price per one thousand (1,000) cubic feet higher than the price at the same time payable by Buyer to Seller for Residue Gas hereunder, Buyer shall forthwith notify Seller of such fact and of the amount of such higher price, and thereupon the price at the time payable to Seller for Residue Gas hereunder shall be immediately increased so that it will equal the highest price payable at the same time under any such other agreement, and such higher price hereunder shall continue in effect so long as, but only so long as, any such higher price is payable for Residue Gas by Buyer under any such other agreement. In determining whether the price payable under any such other agreement is higher than the price payable to Seller hereunder, due consideration shall be given to the provisions of this agreement as to quantity and quality of Residue Gas, delivery pressure, gathering and compressing arrangements, provisions, regarding measurement of gas, including deviation from Boyle’s law, taxes payable on or in respect of the Residue Gas delivered, and all other pertinent factors(Emphasis supplied).

The Federal Power Commission, in an opinion hereinafter referred to, describes the “favored nation” clauses, such as the foregoing, in the following language:

“Typically, as here, a most-favored-nation contract clause provides that if a purchaser of gas from a certain producer pays another producer in the same area a higher rate, the first producer may raise or escalate his rate to that purchaser correspondingly. The clause is said to be activated or 'triggered’ by the purchaser’s paying the other producer a higher rate. But in order for ‘triggering’ to occur, where (as here) the contract so provides, the producer filing the most-favored-nation rate increase must show that the other producer is the type of seller contemplated and produces in the area indicated in the contract, that the gas being purchased from the other producer is comparable gas, and that the rate being paid for it is ‘higher’ in fact as well as in appearance.”

Superior claims that El Paso had a residue gas contract with Shell Oil Company (Shell), dated May 21, 1948, with delivery within the Permian Basin area, under which, on and after October 9, 1959, El Paso was paying Shell 16 cents (plus tax reimbursement) per Mcf for gas at the same time El Paso was paying Superior only 12.712 cents (plus tax reimbursement) for such gas. Superior claimed that a controversy had arisen between the latter parties as to the meaning, effect and interpretation of the favored nation clause in the “Spraberry” contract between Superior and El Paso; that Superior maintains that El Paso was under obligation to take the gas from Superior at the higher 16-cent price, while (according to Superior) El Paso “maintains that notwithstanding said facts and particularly the contract between the parties”, Superior was not entitled to the higher price or to receive any amount greater than was at that time actually being paid to Superior.

The latter claims that a further controversy existed between the parties to the suit: that under date of March 8, 1955 the parties entered into a contract whereby El Paso was to purchase from Superior gas produced from the Eumont field in Lea County, New Mexico. This contract, known as the “Eumont” contract, also contained a favored nation clause, somewhat differently worded than the clause set out above:

“Section 5. If at any time or times after the date of this agreement Buyer shall purchase from any other seller gas from dry gas or gas-distillate wells within Lea or Eddy Counties, New Mexico, or Cochran, Hockley, Yoakum, Gaines, Andrews, Ector, Winkler, Crane or Ward Counties, Texas, at a price per one thousand (1,000) cubic feet higher than the price at the time payable hereunder, the price payable to Seller for gas hereunder shall be immediately increased to equal such higher price paid to such other seller, and such higher price hereunder shall continue in effect so long as, hut only so long as, any such higher price is paid to such other seller. In determining whether the price payable under such other contract or agreement is ‘higher’ than the price payable for gas under this agreement, due consideration shall be given to the provisions of this agreement as compared with such other contract or agreement as to quantity and quality of gas, delivery pressures, gathering and compressing arrangements, provisions regarding measurement of . gas, taxes payable on or with respect to such gas, and all other pertinent factors.” (Emphasis supplied).

Superior alleged that El Paso had a gas purchase contract with West Texas Gathering Company (West Texas) covering gas produced from dry gas and gas-distillate wells produced and delivered to El Paso within Winkler County, Texas, and that on and after May 27, 1959 El Paso was paying 18 cents per Mcf to West Texas for such gas, while at the same time El Paso was paying only 10.5 cents per Mcf for the gas well gas under its “Eumont” contract with Superior.

The further controversy arose, Superior alleges, over the validity, meaning, effect and interpretation of the latter contract between the parties, Superior claiming that El Paso is under obligation to take said gas under all provisions of said contract, while El Paso maintains that notwithstanding the facts and contract, Superior was not entitled to receive a higher price by reason of the fact that El Paso was paying West Texas 18 cents per Mcf because (1) West Texas was not a “seller” within the meaning of the language of the favored nation clause, and (2) the price of 18 cents per Mcf was not higher than the 10.5 cents then being paid to Superior by El Paso.

The prayer of Superior’s petition asked that the trial court construe the contracts with El Paso and declare that the quoted provisions of said contracts are plain, unambiguous, valid, legal and binding and that the rights of the parties are fixed and governed by the express terms and provisions of the contracts as written and as they may be affected by written agreements as exist between El Paso and any other party or parties providing for the purchase of residue gas or gas from dry gas or gas-distillate wells, as the case may be. El Paso filed special exceptions to the petition, and Superior filed a motion for summary judgment. On February 27, 1962 the trial court entered a judgment denying the motion for summary judgment, sustaining El Paso’s special exceptions and dismissing the suit “for the reason that this court does not have jurisdiction to entertain this suit or to enter any judgment herein except to dismiss this suit from the docket of this court.” From such judgment Superior brought this appeal based upon the sole point of error that the trial court had erred in dismissing the cause of action for want of jurisdiction. El Paso brought forward in three counter-points the exceptions directed to the petition of Superior and asserted that the trial court’s ruling dismissing the suit was not error because (1) primary jurisdiction over the matters involved rested with the Federal Power Commission (F.P.C.) ; (2) Superior had failed to exhaust its administrative remedies; and (3) Superior’s petition failed to state a claim cognizable under the Declaratory Judgment Act of Texas.

There seems to be no dispute here that the two gas sales contracts of Superior involved in this cause embody the sale in interstate commerce of gas for resale, that Superior is a “natural gas company” within the meaning of that term in the Natural Gas Act and as interpreted by the United States Supreme Court in the case of Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035, and that therefore such sales are subject to the jurisdiction of and regulation by the Federal Power Commission. The primary point of contention here seems to be, 'from the standpoint of Superior, not whether the Commission may properly construe gas contracts such as these to determine as a matter of law the prices authorized therein, hut whether state courts may construe such contracts in order to determine their meaning and declare the rights of the parties thereto; and from the standpoint of El Paso, whether the state courts have any inherent power to pass upon the matter in controversy, since the same is essentially one of determining and fixing rates to he paid under said contracts for gas sold in interstate commerce for resale — a matter exclusively within the jurisdiction of the F.P.C., subject only to review by the courts.

El Paso contends that Superior recognized the primary exclusive jurisdiction of the F.P.C. over the two contracts here in question by its action with regard to the contracts before the F.P.C. On November 29, 1954 Superior filed with the F.P.C. its “Spraberry” contract with El Paso, which, together with all supplements thereto, was embodied in Superior’s F.P.C. Gas Rate Schedule No. 30. On April 4, 1955 Superior filed with the F.P.C. its “Eumont” contract with El Paso, which, together with supplements thereto, was embodied in Superior’s F.P.C. Gas Rate Schedule No. 44. The two other contracts which Superior mentions in its pleadings between El Paso and Shell, and El Paso and West Texas, were also filed with the F.P.C., the Shell contract being a part of Shell’s F.P.C. Gas Rate Schedule No. 20, and the West Texas contract being part of West Texas’ F.P.C. Gas Rate Schedule No. 1. Under this latter contract, the price payable by El Paso to West Texas during the year 1959 was apparently 18 cents per Mcf to be adjusted to West Texas’ actual cost-of-service as computed for the year 1959 after the conclusion of that year. On March 23, 1959, Shell, taking the position that the purchases by El Paso from West Texas at the rate above referred to, “triggered” the favored nation clause of Shell’s contract with El Paso as embodied in Shell’s F.P.C. Gas Rate Schedule No. 20, filed with F.P.C. an increase in rates under said schedule for gas sold to El Paso from 10.80548 cents, to 16.0 cents. This increase in rates was. suspended by F.P.C. and thereafter was made effective, subject to refund. On May 27, 1959, Superior in turn filed with F.P.C. an increase in rates from 10.5 cents to 15.2 for gas it sold to El Paso under Superior’s Schedule No. 44 (the “Eumont”' contract), on the contention that the price-being paid to West Texas by El Paso under the former’s Schedule No. 1 triggered the-favored nation clause of Superior’s Schedule No. 44. This proposed increase was. also suspended by F.P.C., but was subsequently also made effective, subject to refund. On October 12, 1959, Superior similarly filed with F.P.C. an increase in rates, from 12.712 cents to 16.0 cents for gas it sold to El Paso under Superior’s Gas Rate Schedule No. 30 (the “Spraberry” contract), this increase being also based upon-the favored nation clause in the contract with El Paso under Schedule No. 30, predicated upon the price being then paid by El Paso to Shell under the latter’s Rate-Schedule No. 20. This proposed rate increase was similarly suspended by F.P.C. and thereafter was made effective and was collected by Superior, subject to refund by Superior upon further order of the F.P.C.

On June 26, 1961 the F.P.C. issued an “Order to Show Cause” in proceedings captioned Shell Oil Company, et al., Docket No. R161-515, and among the several Respondents in said proceedings were Shell and Superior. On July 21, 1961 the F.P.C. permitted El Paso to intervene in said proceedings under Docket No. R161-515, and El Paso actively participated therein. Various hearings under said docket number were held from time to time before the F.P.C., during the course of which hearings the present suit was filed by Superior against El Paso on August 28, 1961. On March 15, 1963, in Opinion No. 382, the Commission issued its “Memorandum Opinion and Order Rejecting Proposed Rate Increase Filings, Disallowing Proposed Increases in Rates and Ordering Refunds”. In its opinion the Commission recited that there were two principal issues involved in the proceedings :

“(1) Were the ‘favored-nation’ escalation clauses contained in the contracts which the 15 respondents herein executed before April 3, 1961, ‘triggered’ by El Paso Natural Gas Company’s purchase at a ‘higher price’ of gas from the West Texas Gathering Company? If they were, then the ‘contractual support’ or consent of El Paso that must exist before the respondents’ increased rates may be accepted for filing has been provided. Although El Paso paid West Texas a number of cents more per Mcf than the contracts between El Paso and the respondents herein called for, this would not constitute a ‘higher price’ if the latter contracts are interpreted to take account of evidence which shows that the West Texas gas was of higher quality and usefulness to El Paso than respondents’ gas.
“(2) Are favored-nation or other ‘artificial’ escalation clauses to he construed as being triggered by a rate increase that this Commission has rejected ? This issue is implicit in Superior’s contention that its rate increases, with one exception, were not based on the subject West Texas purchase, hut on El Paso’s purchases from Hunt Oil Company and Shell at increased rates that allegedly were triggered by the subject West Texas purchase. (In fact, Shell’s proposed increases were based upon other increased rates of Shell itself that were allegedly triggered by the subject west Texas sale.)”

In disposing of this second issue, the F.P.C. held:

“Triggering of Artificial Escalation Clauses by Disapproved Rates:
“Although the examiner found that Superior’s contract clauses, like those of the other respondents, were not triggered by the El Paso purchase from West Texas — a finding we approve— Superior contends that the legality of its filings is not affected by that finding, because its increases were based on increased rates that El Paso paid to Hunt and Shell. But those increases, all of which were suspended and are subject to refund, were themselves based on the West Texas sale.
“We have already found that those increases were not authorized by the contracts between El Paso, Shell, and Hunt. For that reason, we think that Superior was not entitled to collect higher rates under its contracts with El Paso.
“Superior’s contracts provide that in the event El Paso agrees to purchase gas from another seller at a price higher than the price provided in Superior’s contract, ‘the price * * * payable to [Superior] * * * shall be immediately increased so that it will equal the price payable at the same time under such other contract, and such higher price shall continue in effect so long as, but only so long as, any such higher price is payable for gas by Buyer under any such other agreement.’ (Emphasis supplied). It seems plain that since El Paso was not obliged to pay higher prices under its contracts with Shell and Hunt — as we found above — - Superior could not claim an increased price under its contract. Accordingly, Superior’s rate increase must also be rejected. United Gas Pipe Line Co. v. Mobile Gas Service Co., 350 U.S. 332 [76 S.Ct. 373, 100 L.Ed. 373] (1956).”

On the first issue set out above, the F.P.C. held that the El Paso purchase from West Texas did not serve to trigger any of the favored nation clauses before it and recited:

“ * * * This exact issue has for all practical purposes been previously litigated in the Pure Oil case, Opinion No. 341, 25 FPC 383, aff’d (7 Cir. 1962) 299 F.2d 370. In fact, the increase sought here is based on the same El Paso purchase from West Texas that was held not to trigger similar escalation clauses in the Pure Oil case.
“Our decision in Pure Oil, which we here reaffirm, is adequate authority to dispose of this issue. As is discussed below, the examiner properly held that Pure Oil is controlling, and that respondents fail to demonstrate that their gas is comparable to the West Texas gas, or that their favored-nation clauses have been triggered. He therefore concluded that respondents lack the 'contractual support’ necessary to permit their proposed increases to be filed.”

The order of the F.P.C. in Opinion No. 341, 25 FPC 383, referred to above, was reviewed by the United States Court of Appeals, Seventh Circuit, in an opinion dated February 26, 1962 (one day prior to the judgment of the trial court in the case before us on February 27, 1962) in Pure Oil Company v. Federal Power Commission, 299 F.2d 370. The following is quoted from the opinion of the Circuit Court which affirmed the order of the F.P.C.:

“Pure is an independent producer of natural gas subject to jurisdiction of the Commission. Pure has three contracts with El Paso for the sale of natural gas from the area in western Texas and southeastern New Mexico known as the Permian Basin. * * * Pursuant to regulations promulgated by the Commission under the Natural Gas Act, copies of these contracts were filed and became rate schedules. Each of the contracts * * * contains what is known as a two-party favored-nation clause providing, in effect, that if at any time the buyer, El Paso, should purchase from another seller any gas within a specified geographic area at a price ‘higher’ than that being paid Pure under the contract, El Paso, should immediately begin paying the same higher price to Pure. Each contract defines the term ‘higher price’ as used in the favored-nation clause. * * * »

Then follows a recitation of the contract provisions regarding “higher price”, which provisions are practically identical with those contained in the two favored nation clauses of the contracts under examination in the instant case, as embodied in the favored nation clauses of those contracts. Pure had contended before the F.P.C. and before the Circuit Court that the increase in rates sought was predicated upon the ground that the West Texas purchases by El Paso served to trigger the favored nation clauses of the Pure-El Paso contracts and entitle Pure to a 16 cents per Mcf rate on each of those contracts. This, as we understand it, is essentially the contention of Superior here, and was the contention of Superior and the other Respondents before the F.P.C. in Docket No. R161-515 from which Opinion No. 382 emanated: “They argued that these favored-nation clauses are valid and unambiguous, and that extrinsic evidence therefore may not be used to determine whether the price of gas sold under the West Texas contract is higher than the price of gas sold under respondents’ contracts.” . On the other hand, El Paso protested such increased rates in the Pure case (as here) on the basis that the West Texas sales were not comparable to the Pure sales (or Superior’s sales here) and that, accordingly the favored nation clauses had not been triggered. The F.P.C. upheld El Paso’s contention, denied the proposed increase in rates as not contractually authorized, and ordered Pure to make refunds to El Paso (as it ordered respondents to do in Opinion No. 382). In arriving at this decision on the basis of the comparability of the sales of the two respective companies, the F.P.C. was upheld by the Circuit Court, which held:

“The West Texas contract made available to El Paso gas from two newly developed Permian Basin fields, Emperor Field and South Kermit Field. The record contains evidence that the reserves of these fields are quite substantial; that the fields possess the exceptional quality of gas flow at an extremely high pressure with a consequent delivery potential which makes the gas exceptionally useful for peaking purposes; and the Commission, in agreement with the Examiner, found this quality to be a pertinent factor under the 'higher price’ provisions of the Pure contracts which, given due consideration, sufficiently distinguishes the gas purchases from West Texas from those under the Pure contracts to preclude the payment to West Texas from being regarded ‘higher’ than Pure’s prices.
“The comparability provisions of the favored-nation clauses govern determination of whether a dollar and cents price, greater on its face, is actually higher when pertinent factors of the two transactions are compared. The clauses expressly enumerate certain of the contractual provisions or features which are to be considered in making such comparison. Pure contends the determination of 'higher price’ is limited to a comparison of these specified elements and such other pertinent factors as appear from the face of the contracts, and that the 'all other pertinent factors’ provision of the clauses does not extend to a factor such as peaking quality or capacity, a quality not an express subject of some provision or term of the contracts." (Emphasis supplied).

This appears to be the contention of Superior in the instant case, as reflected by the prayer in Superior’s petition, which requests the trial court to:

“ * * * decree and declare (a) that each of the above quoted provisions of said contracts are plain, unambiguous, valid, legal and binding, (b) that the rights of the parties are fixed and governed by the express terms and provisions of said contracts as written and as some may be affected by written agreements as exist between defendant and any other party or parties providing for the purchase of residue gas or gas from dry gas or gas-distillate wells, as the case may be; * * * ”

As regards this contention of Pure (and of Superior here), the Circuit Court continues :

“We agree with Pure that resolution of this issue of contract construction does not involve a matter which falls within the purview of Commission expertise but we are not persuaded by any of the arguments advanced by Pure that the record evinces an intention of the parties to limit the ordinary import and breadth of scope of the language ‘all other pertinent factors’ in the manner contended for by Pure. And, inasmuch as it is the actual comparative values which must determine the true relationship of prices as being higher, equal or lower, we perceive no error in the legal conclusion, inherent in the Commission’s determination, that the comparability clauses require consideration and comparison of all factors, whether or not the express subject of contract provision, which are pertinent to arriving at the value of the gas as delivered. Such factors, while not embracing purely subjective elements which may represent value to the particular purchaser only, do include those attributes and characteristics which serve to measure the value for pipe line distribution purposes of the gas contracted to be delivered.” (Emphasis supplied).

The Circuit Court then concludes, in affirming the opinion of the F.P.C.:

“Although the issue with reference to the scope of the comparability clauses is a matter of contract construction which does not here involve a subject within the Commission’s special competence (Cf. Texas Gas Transmission Corp. v. Shell Oil Co., 363 U.S. 263, 80 S.Ct 1122, 4 L.Ed.2d 1208; Warren Petroleum Corp. v. Federal Power Commission, 10 Cir., 282 F.2d 312) the remaining issue as to whether the gas purchased from West Texas possessed exceptional qualities for peaking purposes which enhance its value to the extent that its 16 Mcf price is not higher on a comparative basis than the prices of the gas furnished under Pure’s contracts is, in our opinion, a matter subject to the application of the Commission’s expert knowledge and judgment in a technical field. And, so viewed, we are required to accept the Commission’s findings and conclusions if they have warrant in the record and a reasonable basis in law. Cf. United Gas Pipe Line Co. v. Memphis Light, Gas and Water Division, 358 U.S. 103, 79 S.Ct. 194, 3 L.Ed. 2d 153; Unemployment Compensation Commission v. Aragon, 329 U.S. 143, 153-154, 67 S.Ct. 245, 91 L.Ed. 136.
“The record supports the Commission’s conclusions regarding the exceptional physical characteristics of the West Texas gas supply. And, although the factor of location alone does not remove it from application of the favored-nation clauses, the desirable de-liverability characteristics due to the extremely high pressure of the wells reasonably warrants the Commission’s findings distinguishing the West Texas supply from Pure’s gas and that its usefulness and exceptional value for peaking purposes required a conclusion that its price was not actually higher than Pure’s on a comparative basis.” (Emphasis supplied).

We feel that the foregoing quotations from the opinion of the Circuit Court in the Pure Oil case effectively dispose of the contention of Superior in the case before us. In its brief, Superior states that it “prayed that the (trial) court construe the contracts and the mentioned (favored-nation) clauses to be plain, unambiguous, valid, legal and binding and declare the rights of the parties thereunder in the light of the existing facts as alleged. It appears to us that the underscored portion of the prayer of Superior makes the instant case fall precisely within that technical field which calls for the application of the Federal Power Commission’s expert knowledge and judgment, as spoken of in the opinion by the Circuit Court. The two cases referred to by the court as involving a subject of contract construction not within the Commission’s special competence are not in disharmony with the decision we have reached in this case. In the Texas Gas Transmission case the Supreme Court held that the F.P.C., in interpreting a “favored nation” clause, had treated the matter as one to be determined simply by the application of ordinary rules of contract construction, and had not arrived at its interpretation of the clause on the basis of specialized knowledge gained from experience in regulation of the natural gas business. The court in the Warren Petroleum case similarly held that “It is quite apparent that the Commission’s refusal to accept the rate filing was based upon its construction of the contract provisions and the application of ordinary principles of contract law, and not upon its experiences in the administration of the Natural Gas Act.” In the Pure Oil case the court held that, as pointed out, the determination of the “rights of the parties”, (a determination prayed for by Superior here) involved the application of the F.P.C.’s expert knowledge and judgment in a technical field.

We are of the opinion and find that, in so far as this case is concerned, this field was preempted, and properly so, by the F.P.C. in the instant case, and that the trial court here, confronted by that fact and the decision of the Circuit Court on February 26, 1962 confirming the findings and order of the Commission, properly held on February 27, 1962 that Superior’s suit be dismissed for lack of jurisdiction.

We have tried to analyze the numerous authorities cited or quoted from by both parties to this cause in their various and exhaustive briefs, and find no authority fundamentally at variance with our conclusion here expressed.

However, we are of the further opinion and find that the trial court, being without jurisdiction in the cause, improvidently passed on and by its order denied plaintiff’s motion for summary judgment, and the judgment of the trial court must be, and is, modified to the extent of deleting such order. In all other respects the judgment of the trial court is affirmed.