author: TIREY, Justice.

text:
    Curtis Nell GEORGE, Appellant, v. J. E. (Ted) BURD, dba Burd’s Superette Market, Appellee.
    No. 4240.
    Court of Civil Appeals of Texas. Waco.
    June 4, 1964.
    Lyne, Blanchette, Smith & Shelton, Dallas, for appellant.
    Anderson & Anderson, Cleburne, for ap-pellee.
   TIREY, Justice.

Mrs. Curtis Nell George has appealed' from an order overruling her plea of privilege to be sued in Dallas County, the County of her residence. Plaintiff brought the action to recover on a promissory note secured by specific items of personal property, such note being payable to the City National Bank of Cleburne, at Cleburne, Texas, dated March 10, 1962, such note being in the amount of $1,181.70. (This is an explanatory statement. It is true that plaintiff sued on a note which he alleged was payable to him, but tendered in evidence a note payable to the City National Bank of Cleburne at Cleburne, Texas. There is no allegation in his pleading explaining as to how he acquired the ownership of this note. On trial he testified to the effect that the note was just a form note of the bank that he used, and that at times he would endorse the notes and give them to the bank and that it would carry them for him. However, he testified further that the note was given to him at the time it was executed and delivered, and that it had always been in his possession, and that he was the owner of the note and mortgage securing it, and that the bank had no interest therein. We realize that the foregoing explanation has no effect on the plea of privilege, and we have made it only for the purpose of clarity). The note was executed by A. E. Bruner, now deceased, and delivered by him to J. E. Burd. Plaintiff alleged that Bruner, prior to his death, transferred to Mrs. George, his sister, a certain group life insurance policy on his life in the amount of $4,000.00, with instructions that she pay said note from the proceeds of the policy. Mrs. George filed her plea of privilege and asserted that under the allegations no exception existed whereby plaintiff was authorized to bring the suit against her in Johnson County, and she asked that her plea of privilege be sustained and the cause transferred to the county of her residence. Plaintiff filed his controverting affidavit in which he alleged that venue of the suit was properly laid in Johnson County under the provisions of Section 5, of Article 1995, Vernon’s Ann.Tex.St. The court, after hearing the plea of privilege without the aid of a jury, overruled the plea of privilege and defendant perfected her appeal to this court. There was no request for findings of fact and conclusions of law, and none filed.

The judgment is assailed on two points. They are substantially to the effect: (1) That the court erred in overruling the plea of privilege because Mrs. George did not execute the promissory note upon which plaintiff’s suit is based and, therefore, she did not contract in writing to pay the note in Johnson County as required by Section 5, aforesaid. (2) Because there is no evidence that Mrs. George had contracted in writing to perform any obligation in Johnson County, Texas, and, therefore, Section 5, aforesaid, has no application. We sustain each of these contentions for reasons which we shall hereinafter briefly state.

Section 5, of Art. 1995, V.A.T.S., provides :

“5. Contract in writing. — If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his d&micile.” As amended Art. 1995, 44th Leg., p. 503, ch. 213, Sec. 1.

The foregoing exception has been passed upon by our Supreme Court many times. In Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825, we find the following statement:

“It clearly appears that the predominant purpose of our venue statutes is to give a person who has been sued the right to defend such suit in the county of his residence, except under well-defined exceptions. This rule has prevailed in this State since the early case of Pool v. Pickett, 8 Tex. 122. This Court has also established the rule that, to deprive a defendant of the right of trial in the county of his domicile, the case filed against him must clearly come within one of the exceptions found in the statutes, and the burden rests upon the plaintiff to allege and prove that the case comes within the exception.” See points (1, 2.)

It is obvious that plaintiff’s pleading does not bring him within the provisions of exception 5 under the foregoing pronouncement of our Supreme Court. There is neither allegation nor proof that Mrs. George executed the note, nor is there any allegation or proof that she executed any instrument in writing wherein she obligated herself to pay this note in Johnson County, Texas, or otherwise. In Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, we find this statement:

“In Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, it is held that the venue facts, which a plaintiff desiring to sue a defendant outside the county of his domicile must allege and prove, if the defendant asserts his privilege, are those stated in the particular exception that is applicable or appropriate to the character of suit alleged in the plaintiff’s petition.”

Our Supreme Court has never departed from the application of the foregoing rule to Sec. 5, aforesaid. Since plaintiff failed by allegation and proof to bring his cause of action within the foregoing provisions of Sec. 5, it is obvious that he cannot maintain his asserted cause of action against Mrs. George in Johnson County, Texas.

Accordingly, the order entered by the District Court of Johnson County overruling the plea of privilege is hereby set aside and held for naught, and the cause is hereby transferred to one of the District Courts of Dallas County, Dallas, Texas, and the costs incurred prior to the time the papers in this cause are filed with the District Clerk of Dallas County, Texas, are taxed against plaintiff. The Clerk of the District Court of Johnson County is directed to make a transcript of all the orders in this cause and certify thereto officially under the seal of the court and send together with all the original papers to the District Clerk of Dallas County, at Dallas, Texas. As per rule 89, Texas Rules of Civil Procedure.


source: Caselaw Access Project

author: ' TIREY, Justice.

license: Public Domain

text:
    H. G. HICKS et al., Appellants, v. CONTINENTAL CARBON PAPER MANUFACTURING COMPANY OF DALLAS, Appellee.
    No. 4210.
    Court of Civil Appeals of Texas. Waco.
    June 18, 1964.
    Rehearing Denied July 9, 1964.

      Crocker & McDonald, Ft. Worth, for appellants.
    James & Ingram, Dallas, for appellee.
   ' TIREY, Justice.

This action (non jury) was brought by appellee against Rotary Business Forms Company of Texas, Inc, and Harvey M. Harrison, Toy A. Crocker, Harry G. Hicks, and D. W. Tackett, Jr, individually, and doing business as Rotary Business Forms Company of Texas, Inc. At the conclusion of the evidence the court rendered. judgment in favor of plaintiff against defendants, Harvey M. Harrison, Toy A. Crocker and Harry G. Hicks, jointly and severally, for the sum of $4,000.00, with interest at the rate of 6% per annum from November 25, 1962, and for reasonable attorneys’ fees in the sum of $890.00, and all costs. The court further decreed that plaintiff take nothing against defendant, D. W. Tackett, Jr, and that part of the decree is not challenged. Only Crocker and Hicks have appealed. The cause is here on transfer. We affirm the judgment of the trial court.

Defendants, Crocker and Hicks, have ■filed their request for findings of fact and conclusions of law. We quote the pertinent parts:

“FINDINGS OF FACT
“1. Rotary Business Forms Co. of Texas, Inc. was duly incorporated under the laws of the State of Texas on the 4th day of September, 1958. The right of the corporation to do business was forfeited on July 16, 1960, for nonpayment of franchise taxes, pursuant to Art. 12.14 V.A. T.S, this after due notice of the delinquency to the corporation pursuant to the terms of the above article. Some seven months later, to wit on March 29, 1961, no attempt having been made to revive the right of the corporation to do business, the charter of the corporation was actually forfeited by determination on the part of the Secretary of State, who stamped the charter ‘Charter forfeited,’ pursuant to terms of Art. 12.17 V.A.T.S.
“2. Subsequently and between the dates August 2, 1962, and October 24, 1962, plaintiff sold merchandise to defendant, on which there is a present’ balance due of $4,000.00. It is noted that this indebtedness accrued some year and a half after actual forfeiture of the charter.
“3. All of the defendants in this case at one time were both officers and directors of the corporation. Defendant D. W. Tackett, Jr., was not a director at the time the account in question accrued and no knowledge of accrual of such debt can be charged to him.
“4. With reference to the other three officers and directors, Harvey M. Harrison, Toy A. Crocker, and Harry G. Hicks, each was an officer and director at the time the account accrued and the weight of the evidence shows that each had actual knowledge of and approved of and consented to the creation of the debt.
“5. This suit was filed on November 28, 1962, and, in the suit, personal liability was sought to be fixed against the officers and directors of the defendant pursuant to the provisions of Art. 12.14 V.A.T.S. Therefore, on December 6, 1962, the defendants in this cause caused to be filed in the District Court of Travis County its so-called Bill of Review seeking to set aside the suspension of the corporation’s right to do business and the forfeiture of its charter, and obtained an agreed judgment on December 19, 1962, providing that the forfeiture of the charter ‘be and the same is hereby set aside, vacated, and held for naught’ and that the charter should be reinstated and revived.
“CONCLUSIONS OF LAW
“1. The right of the corporation to do business was legally forfeited on July 16, 1960, for non-payment of franchise taxes pursuant to Art. 12.14 V.A.T.S.
“2. The charter of the corporation was legally forfeited by the Secretary of State with the concurrence of the Attorney General of Texas in accordance with Art. 12.17 V.A.T.S. on the 29th day of March, 1961, by entering upon the charter of such corporation filed in the office of the Secretary of State the words ‘Charter forfeited.’
“3. The remedies provided under Art. 12.14 V.A.T.S. for reinstatement of the right to do business are no longer available after the charter has been forfeited under the provisions of Art. 12.17 V.A.T.S., Isbell v. Gulf Union Oil Co. [147 Tex. 6], 209 S.W.2d 762, Supreme Court (Rehearing denied).
“4. Art. 12.15 provides that a corporation whose right to do business has been forfeited may be relieved from such forfeiture by paying to the Secretary of State ‘at any time prior to the forfeiture of the charter’ the full amount of the franchise tax, penalties and interest. No provision is made under the provisions of Title 122A Taxation-General for the revival of a corporate charter once forfeited.
“5. Art. 12.14 V.A.T.S. creates in favor of creditors of the de facto corporation a cause of action against directors and officers of the corporation where those directors and officers have knowledge of and consent and approve the creation of the creditor’s account:
“ ‘Each director and officer of any corporation whose right to do business within this state shall be so forfeited shall, as to any and all debts of such corporation * * * which shall become due and payable subsequent to the date of such forfeiture, and which may be created or incurred, with his knowledge, approval and consent * * * and before the revival of the right of such corporation to do business, be deemed and held liable thereon in the same manner and to the same extent as if such directors' and officers of such corporations were partners.’
“6. Defendants Harvey M. Harrison, Toy A. Crocker, and Harry G. Hicks having been officers and directors of the de facto corporation and having had actual knowledge of plaintiff’s debt and having consented to and approved of its creation are personally liable to the plaintiff to the same legal extent as if they were partners as is provided under the provisions of Art. 12.14 V.A.T.S.
“7. Defendant D. W. Tackett, Jr., not being a director or officer at the time the debt claimed by the plaintiff was created, no liability can be charged to him.
“8. A cause of action having been once created in favor of the creditor, against the officers and directors, as provided in Art. 12.14, it could not be taken away from the creditor by a revival of the corporate charter some two and a half years after the right of the corporation to do business had been forfeited. No such relief is afforded by the terms of Art. 12.17, and to hold that a cause of action once created could be taken away by revival of the corporate charter two and a half years later, would be to give retroactive effect to the judgment in the Bill of Review, if it can be said that such judgment did in fact revive the charter of the corporation.
“9. The plaintiff therefore should recover its debts in the amount of $4,-000.00 from the defendants Harvey M. Harrison, Toy A. Crocker, and and Harry G. Hicks who are jointly and severally liable therefor.”

The judgment is assailed on what appellants designate as six points. They are to the effect that the court erred in holding that:

1. The remedies provided under Art. 12.15 V.A.T.S., Tax-Gen. for reinstatement and revival of right to do business and charter are no longer available after the charter has been forfeited under provisions of Art. 12.17;
2. A corporation charter once forfeited under provisions of Art. 12.17 without judicial ascertainment cannot be revived and reinstated;
3. A cause of action vested in favor of the appellee under Art. 12.14;
4. The officers and directors of the corporation were personally liable for debts created or incurred while the corporation charter was forfeited even though the charter and right to do business was thereafter revived and reinstated;
5. The appellant officers and directors of the corporation had actual knowledge of the debt and that they consented to and approved of its creation;
6. The appellant officers and directors of the corporation had actual knowledge, consented to and approved the debt because there was insufficient evidence to warrant such holding.

We have examined this record very carefully and we are of the view that the evidence is ample to support each and every finding made by the trial court. In fact, we are of the view that the findings of fact are supported by the great weight and preponderance of the testimony tendered, and that the conclusions of law made by the trial court are correct, and that they were correctly applied to the factual situation shown by findings of fact.

Accordingly, each of appellants’ points is overruled and the judgment of the trial court is in all things affirmed.


author: RENFRO, Justice.

text:
    NIAGARA FIRE INSURANCE COMPANY, Appellant, v. B. W. REEVES et al., Appellees.
    No. 16551.
    Court of Civil Appeals of Texas. Fort Worth.
    June 12, 1964.
    Brown, Day & Craig, and Sam Day, Fort Worth, for appellant.
    Stark & Davey, and Ken R. Davey, Gainesville, for appellees.
   RENFRO, Justice.

This is a venue case.

Plaintiffs, B. W., B. J., and Anna Reeves, sued the defendant, Niagara Fire Insurance Company, in Cooke County, to recover the amount of a final default judgment in favor of plaintiffs against Marvin R. Hammons in Cooke County.

Defendant, a foreign corporation, filed a plea of privilege to remove the case to Dallas County, where it maintained its principal office and place of business in Texas.

The plea of privilege was overruled.

Defendant contends the court erred in overruling the plea of privilege because the plaintiffs wholly failed to prove any venue facts which would bring the case within the pleaded exception, sub. 27 of Art. 1995, Vernon’s Rev.Civ.St.

Plaintiffs, by petition and controverting affidavit, plead that on the 25th day of March, 1962, defendant issued to J. S. Wilson a standard Texas form policy which provided under “persons insured: The following are insureds under part one: a (with respect to the owned automobile) 2. Any other person using such automobile, provided the actual use thereof is with the permission of the named insured”; that Hammons, while the policy was in force, was in a collision with plaintiffs on the road between Aubrey and Denton in Denton County; the automobile driven by Ham-mons was owned by Wilson and at the time of the accident Hammons was in the course of his employment with Wilson, or that he was driving the automobile (pickup truck) with the permission, express or implied, of Wilson.

Subdivision 27 provides in part: “Foreign corporations * * * may be sued in any county where the cause of action or a part thereof accrued.”

Defendant concedes the pleadings were sufficient to state a cause of action, but denies that plaintiffs proved the allegations.

Defendant takes the position the “cause of action” plead by the plaintiffs stands or falls upon the question of whether or not Hammons had the permission of Wilson to use the pickup on the occasion of the collision.

Plaintiffs state the issues are whether or not there is evidence to support the trial court’s implied findings that Hammons had permission, express or implied, or was in the course of employment for Wilson.

Hammons testified: he lived on Wilson’s place five miles west of Pilot Point in Den-ton County; had worked for Wilson IS years, mostly feeding cattle; part of his job was to feed cattle at Tioga; he had an accident -With one of Wilson’s pickup trucks about two weeks before the collision in question; Wilson then turned the pickup in question over to him, told him “just to do the feeding” with the truck; he fed the cattle “out there at Tioga” and east of Pilot Point and went to Wilson’s two places every day; the day in question was a Sunday and he had gone as usual to feed the cattle at the above named places; after feeding the cattle he had visited his brother’s home at Aubrey to pick up some personal belongings, and was going home when the accident occurred; his brother lived 5 miles east of Aubrey and 16 miles from the place where he worked for Mr. Wilson; he knew he was violating Wilson’s instructions; Wilson never deprived him of the right to pick up groceries or go to the laundry in the pickup; the truck was in Hammons’ possession 24 hours per day, he kept it at his house; witness could “go get a bale of hay, take it in to the gas station * * * or take it in for repairs”; he had stopped in Pilot Point to buy groceries with approval and permission of Wilson; he had permission “to stop on personal missions” on his way back and forth; at the time of the accident he was on the way home.

Wilson testified: when he delivered the truck to Hammons he told him to use it for farm work only, mostly cattle feeding, and not for personal use; Hammons’ route in doing his regular work would not “come anywhere near” the point of the accident in'question; he turned the truck over to Hammons with full time possession for farm work; it stayed at Hammons’ home all the time when not in use; Hammons could take it in or out any time of the day on farm work; Hammons was on farm work the day of the accident when he went to Tioga and east of Pilot Point to feed the cattle; he knew Hammons had -no car of his own; he had told Ham-mons he could stop and get groceries; on the night of the accident he gave one of plaintiffs the name of his insurance agent; he did not tell said plaintiff Hammons was using the truck without permission.

In our opinion the evidence will not support an implied finding that Hammons was in the course of his employment or that he had permissive use as contemplated by the terms of the policy.

The plaintiffs failed to prove venue under subdivision 27, or any other subdivision of Art. 1995.

The judgment of the trial court is reversed and the case ordered transferred to a district court in Dallas County.

Reversed and rendered.


author: WILSON, Justice.

text:
    Edward SCHRONK et al., Appellants, v. Homer GILLIAM et al., Appellees.
    No. 4195.
    Court of Civil Appeals of Texas. Waco.
    March 26, 1964.
    Rehearing Denied May 7, 1964.
    Wm. B. Martin, Tom Beard, Hillsboro, for appellants.
    R. A. Kilpatrick, Cleburne, for appellees.
   WILSON, Justice.

Appellees sued appellants for damage to their lands caused by poison dropped from an aircraft.

The only question in this case is whether it was necessary for plaintiffs to establish negligence as a basis for their recovery of damages to realty. There is no pleading of negligence. No question as to nuisance is presented. The case is not governed by statutes relating to aerial spraying. Texas has not adopted any uniform act governing aeronautics. Stated otherwise, the question is whether defendant is liable for trespass. No complaint was presented in the trial court, and no question is raised here as to sufficiency of plaintiffs’ pleading. The •only pertinent objections to the charge were that no issues as to negligence were submitted. The question thus narrows to whether the evidence shows an actionable trespass, the jury having made findings on elements of that independent ground of recovery.

All parties concede on argument, and the record reflects that appellants’ aircraft was flown over appellees’ land. The evidence establishes that the damage was caused when the aircraft deposited a desiccant, poison or other deleterious substance, intended to be used for the spraying of cotton on other lands, on plaintiffs’ crops and pasture while it was in flight in air superadjacent to their land. The record is silent as to the transvection altitude.

The history of the abandonment or modification of Coke’s ad coelum doctrine is traced in Hotchkiss, Law of Aviation, 2d ed., ch. 3; Fixel, Law of Aviation, 3d ed., ch. IV.; Jaffe, 9 Tex.L.Rev. 240; Anderson, Airspace Trespass, 27 Journal Air Law (1960) 341. Whether upon concepts of a public right of freedom of transit through the air, an exercise of national sovereignty to make airspace common domain, an appropriation, a privilege, an easement or some other notion, the early English doctrine that airspace was an appurtenance to land giving an absolute and exclusive proprietary right to the owner “to the highest heavens” has been repudiated. That exclusive dominion has been qualified to make airspace a public highway. United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206.

The common right to that use of airspace is restricted, or the horizontal surface owner’s dominion is protected, however, at least to the extent that there is a limit to minimum altitude of flight. Absent legislation, the aeronaut’s rights generally terminate at, and the landowner’s exclusive dominion extends at least to the altitude of the owner’s existing and effective reasonable use of the land. Hotchkiss, Aviation Law, Sec. 22; American Law Inst, Restatement, Torts, Secs. 159, 194; United States v. Causby, above; 2 C.J.S. Aerial Navigation § 5, p. 903 ; 8 Am.Jur.2d Sec. 5, p. 621. See generally, 99 A.L.R. 176 and supp.; 3 Journal Air Law, 329, 531; Wherry & Condon, 6 Air Law Rev. 113; Anderson, Airspace Trespass, 27 Journal Air Law 341 (1960); Harper, Torts, Sec. 37, p. 74; Prosser, Torts (1955) Sec. 13, p. 60; Harper & James, Torts, Sec. 1.15; 78 Pa.L.Rev. 902 ; 6 Cornell L. Q. 271; Calkins, Landowner and Aircraft, 25 Journal Air Law 373 (1958).

Under this record it may not be said that there is a showing appellants’ mere initial entry into the superincumbent atmosphere over appellees’ land at an unknown altitude constituted in itself an actionable trespass. Invasion of an interest in the exclusive possession of appellees is not thus shown. If it be assumed that the aircraft, as such, was operated under an abstract privilege or other right to transverse the airspace over appellees’ land, that isolated circumstance does not require a holding that the manner in which the present flight was conducted is immune under trespass law.

Comment (f), Sec. 159, Restatement, Torts, as it existed before the Causby decision, read: “A temporary invasion of air space b\ aircraft, for the purpose of travel through it or other legitimate purpose, if done in a reasonable manner and at such height as * * * does not interfere unreasonably with the possessor’s enjoyment of the surface of the earth and the air space above it, is privileged.” Comment (e), however, is: “An unprivileged intrusion in the space above the surface of the earth, at whatever height above the surface, is a trespass.” Sec. 194 also stated similar conditions under which flight could be made without liability for unprivileged entry. Comment (f) thereunder is: “A flight, although for a legitimate purpose, at a proper height and in accordance with all applicable local regulations, in order to be privileged, must be conducted in a reasonable manner. Therefore, a flight at an otherwise permissible height above the surface conducted in such manner as to he dangerous to the land, or to persons or things thereon is not privileged.” Comment (h) under Sec. 158 relating to liability for intentional intrusion on land, concerns invasion by propelling or throwing a thing through the airspace above the land as constituting an actionable trespass.

In 1958, after the Causby decision, subd. 2 of section 159 of the Restatement was tentatively re-drafted to read: “Flight by aircraft in the air space above the land of another is a trespass, if, but only if, (a) it enters into the immediate reaches of the air space next to the land, and (b) it interferes unreasonably with the other’s use and enjoyment of his land.” Tent. Draft No. 9, April 26, 1963.

In our opinion, the flight conducted by appellants was not privileged under the existing or re-draft Restatement views; it was not conducted in a reasonable manner ; it did unreasonably interfere with appellees’ enjoyment of the surface. Under the Causby decision the flight was conducted in such manner as to at least invade the “immediate reaches” of the adjacent atmosphere enveloping plaintiffs’ land, in which appellants had no dominant estate or privilege. Whether the situation is viewed as a wrongful act after rightful entry, or as a trespass ab initio, is not important. The entry of the fuselage, at even a privileged altitude, was accompanied by active and continuous spraying of the poisonous substance which constituted as much a part of the flight as if appellants’ aircraft had been dragging a great scythe across the land below it. In our opinion an actionable trespass was established, and no allegation of negligence was required.

We distinguish such cases as Vrazel v. Bieri, Tex.Civ.App., 294 S.W.2d 148, writ ref. n. r. e., holding negligence must be shown, at least on the ground that in them the spray drifted great distances, being carried by air currents; the aircraft did not enter the air space over plaintiffs’ land; and the issue of trespass was not presented.

Affirmed.

On Motion for Rehearing

Appellants now contend that in the absence of a finding that they “entered the air space above the land of the appellees either wilfully or intentionally” a judgment based on trespass is unauthorized. We did not rest liability on the Restatement principle that aeronautics is an extra-hazardous activity. We rested it upon the undisputed fact of an unprivileged entry upon land in exclusive possession, recognizing that in the absence of proof of altitude it could not be said that mere entry across the vertical plane, or boundary of appellees’ land by the aircraft alone was an intrusion upon exclusive dominion.

The circumstances in the record make uncontroverted the fact that it was intended the aircraft be flown in the atmosphere over appellees’ lands. The evidence shows it was not intended, however, that the foreign substance should be dropped on their lands. This, we assume, is the basis of appellants’ stated contention. We have not considered it lightly. It raises a question as to whether there may be an actionable trespass where there is an unintentional and non-negligent entry under the Restatement view. The intention involved in appellants’ contention, however, relates not to a purpose to cause damage, hut to make the entry.

Prosser, Torts, 78, says of appellants’ contention : “The most significant recent development is the position taken by Restatement of Torts which finds liability for trespass only in the case of intentional intrusions or negligence or some ‘extrahazardous activity on the part of defendant.’ It is probable that this position will be adopted in time by the courts.” In the second edition, p. 75, Prosser traces changes in trespass concepts, and says, “The most important of the trespass rules to survive was that which imposed liability for invasions of property which were neither intended nor negligent.” See Harper and James, Torts (1956) Sec. 1.16, p. 46. The Restatement position is now itself in a restless state. See Tentative Re-draft No. 10, Sec. 520a, April 20, 1964. Texas has not yet adopted the original Restatement view.

In Mountain States Tel. & Tel. Co. v. Vowell Const. Co., 161 Tex. 432, 341 S.W.2d 148, the excavating contractor intended to enter the land above which plaintiff’s cable was lawfully buried in the driveway under a possessory right which excluded the contractor. The contractor “knew that a cable had been laid” in the driveway, but apparently did not know its depth. An engineer staked the driveway to require a cut of 2.4 feet, but the contractor cut the cable upon reaching a preliminary depth of only 2.2 feet. The Court of Civil Appeals held, 335 S.W.2d 804, that since plaintiff had waived any claim of negligence, recovery could not be based on trespass because the plaintiff “did not plead, prove, or submit issues as to willful or intentional trespass”, and that because of failure to “plead and prove a willful or intentional trespass” the judgment was without support.

The Supreme Court pointed'to that language, saying the intermediate court seemed “to have taken the position that for the severing act to constitute a trespass Vowell must have actually intended to cut the cable.” After stating the “trespass” of common law forms of action based on willful and deliberate acts or negligence was not the “trespass” involved, the Supreme Court held that “[t]he important thing is that a property right was violated” : the molesting or severing of the cable, “which gave rise to a cause of action regardless of negligence”. The present case is undistinguishable on principle. In neither case did the defendant willfully, deliberately or intentionally invade a property right in the exclusive dominion and possession of the plaintiff. In neither case did the defendant actually intend to inflict the damage. In one case the “scraper was deliberately and intentionally used” in making a cut not intended to invade the property right of plaintiff ; in the other an aircraft was intentionally and deliberately used in traversing airspace not intended to violate appellees’ surface property rights.

“A trespasser on land” has been defined “as one who, not having title thereto, without consent of the true owner [thereof], makes entry thereon.” It is said also that “every unauthorized entry upon land of another is a trespass” and “the intent or motive prompting the trespass is immaterial”. McDaniel Bros. v. Wilson, Tex.Civ.App., 70 S.W.2d 618, 621, writ ref. See 21 Tex.L.Rev. 78. Appellants’ motion for rehearing is overruled.

      . It may be that a more accurate and consistent characterization of the basis of liability would be that appellees failed to discharge a duty imposed on one who by flying across land makes an extraordinary use thereof, as in the Pioneer Natural Gas Co. v. K. & M. Paving Co., Tex.Sup., 374 S.W.2d 214, 218-219; or that in the exercise of a non-consensual privilege the actor has conducted the flight in an unreasonable manner and interfered unreasonably with the possessor’s enjoyment of the surface, as in existing Restatement, Sec. 194. See Tentative Redraft No. 10, April 20, 1964.


author: BATEMAN, Justice.

text:
    A. M. SERVICING CORP. OF DALLAS et al., Appellants, v. The STATE of Texas, Appellee.
    No. 16381.
    Court of Civil Appeals of Texas. Dallas.
    June 5, 1964.
    Bloch & Walton, Corpus Christi, Johnson, Guthrie, White & Stanfield and Robert M. Greenberg, Dallas, for appellants.
    Henry Wade, Dist. Atty., A. D. Jim Bowie, Ted Z. Robertson and James M. Williamson, Asst. Dist. Attys., Dallas, for appellee.
   BATEMAN, Justice.

This is an appeal from an order of the district court granting the State of Texas a temporary injunction against A. M. Servicing Corporation of Dallas and others, enjoining them, in specific terms as hereinafter set forth, from violating Art. 286a, yernon’s Ann.Penal Code, known as the Sunday Closing Law.

Section 1 of that statute prohibits the sale or offering for sale, on both the two consecutive days of Saturday and Sunday, of certain specified items of merchandise.

Section 4a of that Act is as follows:

“When a purchaser will certify in writing that a purchase of an item of personal property is needed as an emergency for the welfare, health or safety of human or animal life and such purchase is an emergency purchase to protect the health, welfare or safety of human or animal life, then this Act shall not apply; provided such certification signed by the purchaser is retained by the merchant for proper inspection for a period of one (1) year.”

There is no statement of facts in the record presented in this court. The transcript contains the original petition for injunction, wherein it is alleged that the defendants have offered for sale and sold on both of two consecutive days of Saturday and Sunday certain of the items of merchandise listed in Section 1 of the statute, and have indicated that they will continue to do so; also the answer wherein the defendants allege compliance with the Act by requiring of each purchaser of the prohibited items a certificate in writing that the purchase is needed as an emergency for the health, welfare or safety of human or animal life.

The order granting the temporary injunction contains findings that the defendants have offered for sale and sold on both the two consecutive days of Saturday and Sunday items of merchandise listed in Section 1 of the Act in question, that they have sold and offered for sale such merchandise in violation of the statute in such manner as to constitute such operation a public nuisance, and that they have not exempted themselves under Section 4a of the Act, “because purchasers did not certify in writing, as to articles purchased on the Sunday following the sales of such articles on Saturday as required by Section 4a, the Court interpreting and finding as a matter of law that as used in the context of Article 286a, Penal Code, ‘will certify in writing’ means the purchaser must verify or attest under oath that the articles of personal property are needed as an emergency for the welfare, health, or safety, of human or animal life.”

That part of the order actually granting the injunction is as follows:

“THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the Clerk of this Court shall issue a Writ of Injunction to Defendants, A. jVI. Servicing Corporation of Dallas, Robert Smith and R. J. DeFusco, enjoining, prohibiting, and restraining said Defendants, their agents, servants and employees, pending final hearing and determination of this cause, from, on both the two consecutive days of Saturday and Sunday, selling, or offering for sale, any of the items of merchandise listed in Section 1 of Article 286a of the Penal Code of the State of Texas, unless under such circumstances that the sale, or offering of such sale, is exempted by virtue of other provisions of said Article 286a, Penal Code, or if under Section 4a of Article 286a of the Penal Code, the purchaser will verify or attest under oath that the article or articles of personal property are needed as an emergency for the welfare, health or safety of human or animal life.”

By their first two points of error on appeal the appellants complain that the trial court engrafted on the provisions of Section 4a of the statute the requirement that the purchaser must verify or attest under oath that the articles of personal property are needed as an emergency for the welfare, health or safety of human or animal life. These points are clearly well taken. The trial court of course had authority and the duty to construe an ambiguous statute and, if necessary in order to ascertain the intention of the Legislature, even to add words to the language of the statute. Sweeny Hospital District v. Carr, (1964) 7 Tex.Sup.Ct.J. 372, 378 S.W.2d 40; State of Texas v. Shoppers World, Inc., (1964) 7 Tex.Sup.Ct.J. 436, 380 S.W.2d 107. However, courts may not, under the guise of construction, amend a statute by adding provisions thereto, no matter how desirable such additions might seem to the judge. 39 Tex.Jur. Statutes, § 89. We find nothing in the statute or the decisions to authorize the court to add this requirement of attestation under oath in connection with the certificate required by Section 4a. The phrase “will certify in writing” is unambiguous and not subject to construction. Board of Insurance Comm’rs of Texas v. Guardian Life Ins. Co., 142 Tex. 630, 180 S.W.2d 906.

We have carefully considered appellants’ third, fourth and fifth points of error, find them to be without merit and overrule them.

The judgment appealed from is accordingly reversed and the temporary injunction dissolved.

Reversed.


author: MURRAY, Chief Justice. BARROW, Justice.

text:
    Robert B. CRUZ, Jr., et al., Appellants, v. FIRST CREDIT CORPORATION, Appellee.
    No. 14237.
    Court of Civil Appeals of Texas. San Antonio.
    June 3, 1964.
    Rehearing Denied July 8, 1964.
    Porter, Madalinski & Mondin, William M. Porter, San Antonio, for appellants.
    Edward W. Halbardier, San Antonio, for appellee.
   MURRAY, Chief Justice.

This suit was instituted in the County Court of Bexar County by First Credit Corporation against Robert B. Cruz, Jr., and Robert B. Cruz, Sr., seeking to recover the balance due upon one certain promissory note, originally in the sum of $1,249.-20, and for the foreclosure of a chattel mortgage lien against a 1958 Chevrolet automobile. The trial was before the court and resulted in judgment in favor of plaintiff in the sum of $826.00, together with interest and attorney’s fees, and for foreclosure of the chattel mortgage lien on the 1958 Chevrolet automobile. Defendants have prosecuted this appeal. The appeal was taken upon the transcript alone, and no statement of facts or bills of exceptions were filed in this Court.

The trial court made the following findings of fact in its judgment:

“And it appearing and the Court finding, having read the pleadings and considered the facts, that the cause of action is liquidated, being based upon a note and chattel mortgage; and further that Defendants made, executed and delivered their note and chattel mortgage of which Plaintiff is owner and holder of, and that Plaintiff, FIRST CREDIT CORPORATION, is entitled to' recover of, from and against the Defendants, ROBERT B. CRUZ, JR, and ROBERT B. CRUZ, SR, jointly and severally, the sum of EIGHT HUNDRED TWENTY-SIX AND NO/100 ($826.00) DOLLARS, plus interest at the rate of ten (10%) per cent per annum from August 31, 1962 until paid, plus 15% of the principal and interest due when paid as attorney’s fees; and that Plaintiff is entitled to judgment on its pleadings as prayed for against the Defendants, ROBERT B. CRUZ, JR, and ROBERT B. CRUZ, SR, jointly and severally; and the Court further finds that said above note is secured by a chattel mortgage on the hereinafter described property and that Plaintiff is owner and holder of a first, prior and superior lien and mortgage on the hereinafter described property and is entitled to a foreclosure of its first, prior and superior mortgage lien on the following described property:
1 — 1958 Chevrolet 2-door Biscáyne, Motor No. D58S206705, 1961 License Number FA 3885, together with any and all equipment, attachments, accessories, repairs and additions thereon and thereto
as such mortgage existed on June 8, 1961.”
Appellants’ first point is as follows:
“The trial court erred in holding as a matter of law that plaintiff was entitled to recover upon a contract of sale without proving up same in the trial of the cause in the face of a sworn denial by defendants and the appearance in court of all the parties.”

In the absence of Bills of Exceptions and a Statement of Facts, this point cannot be considered. The findings of the trial court are sufficient to support the judgment rendered, and unless the record shows to the contrary, every reasonable presumption will be indulged in favor of the findings and the judgment of the trial court. In 4 Tex.Jur.2d 329, § 806, we find the following statement:

“Unless the record shows to the contrary, every reasonable presumption will be indulged in favor of the findings and judgment of the trial court, and no presumptions will be indulged against the validity of the judgment. The presumption in favor of the judgment has been applied where no findings of fact or conclusions of law have been filed, and where no statement of facts accompanies the record. Thus it will be presumed that the judgment was correct and based on a proper ground, and that it was warranted by the pleadings, and the evidence. Further, the findings of the trial court will be construed as a whole, and if they are ambiguous and susceptible of different constructions they will be construed, if possible, to support the judgment.”

In Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551, 554, the Court said:

“There being no statement of facts, we look, for the facts as to the child’s domicile, to the trial court’s findings of fact, which we must assume are supported by evidence.”

In Commercial Credit Corporation v. Smith, 143 Tex. 612, 187 S.W.2d 363, 365, Justice Simpson, speaking for the Supreme Court, said:

“The record shows that Smith’s motion to reopen was overruled by the trial court after it had ‘considered the pleadings, evidence and argument of counsel.’ What evidence the court heard does not appear since there is no statement of facts. Nor are there findings of fact or bills of exception. With the record in this attitude, Commercial Credit Corporation urges that the Court of Civil Appeals erred in reversing the judgment of the court below because all presumptions must be indulged in favor of that judgment, the case having been tried to the court without a jury, and particularly it must he presumed that the trial court found the facts to be such as would support the judgment, which ‘in the case at bar involved the finding that citation by publication was proper.’ This contention must be sustained. It is not open to question that in the absence of a statement of facts, every presumption must be indulged in favor of the trial court’s findings and judgment and where there are no findings and no statement of facts, such facts as are necessary to support the judgment must be presumed to have been found. McElyea v. Parker, 125 Tex. 225, 81 S.W.2d 649; Anchor v. Wichita County Water Improvement District No. 2, 129 Tex. 385, 103 S.W.2d 135, 112 A.L.R. 70; Home Owners Loan Corporation v. Cilley, Tex.Civ.App., 125 S.W.2d 313 (error refused) ; Uvalde Construction Co. v. Joiner, 132 Tex. 593, 126 S.W.2d 22; Valdez v. Rodriguez, Tex.Civ.App., 173 S.W.2d 514 (error refused) ; 3 Tex.Jur. 529 et seq. (§§ 373, 374, 378-382 inch); 3 Tex.Jur. 1062 et seq. (§§ 749, 750).”

In Hursey v. Thompson, 141 Tex. 519, 174 S.W.2d 317, 319, Justice Critz, speaking for the Supreme Court, said:

“When we come to examine the record in this case, we find that it is before us without a statement of facts. The trial court filed conclusions of fact. * * * There being no statement of facts, we must give verity to such findings. We must further indulge the presumption that the evidence in this case in the trial court supports the judgment of such court.”

In Harris v. Lebow, Tex.Civ.App., 363 S.W.2d 184, the Court said:

“By his second, third, fourth, fifth, sixth, seventh, ninth, tenth, twelfth and thirteenth points appellant contends that there was ‘no evidence’ or ‘insufficient evidence’ to support appellee’s recovery and that the amount of damages awarded appellee are manifestly too large. These points must be overruled. As revealed above the record does not contain a statement of facts but there are elaborate findings of fact and conclusions of law by the court. It is a familiar rule of law that in the absence of a statement of facts a reviewing court will presume that the evidence was sufficient to support the verdict and judgment. In such a case we are required to indulge every reasonable presumption consistent with the record in favor of correctness of the judgment of the trial court. Currie v. Hergotz, Tex.Civ.App., 250 S.W.2d 247; Smith v. Ansley, Tex.Civ.App., 257 S.W.2d 156; Consolidated Underwriters v. McCauley, Tex.Civ.App., 320 S.W.2d 60; Stovall v. Scofield, Tex.Civ.App., 325 S.W.2d 221; Sekaly v. Hilton Center, Inc., Tex.Civ.App., 340 S.W.2d 827.”

In Dutchover v. Dutchover, Tex.Civ.App., 334 S.W.2d 569, 571, the Court said:

“Since this appeal was not accompanied by a statement of facts, we are confined, in our review of this appeal, to the findings of fact and conclusions of law filed by the trial court and stated in its judgment, and we must assume that such findings of fact are supported by the evidence. In such case, only the correctness of the legal conclusions from the facts actually found may be reviewed by the appellate court.”

Appellants’ first point is overruled.

Appellants’ “POINT II” is as follows :

“The trial court erred 'in not Allowing the defendants to present the issue, duly raised by the pleadings, concerning a new agreement between the parties.”

We overrule this point. The court sustained exceptions to that part of appellants’ answer, and they are not here complaining that the exceptions were sustained. After the exceptions had been sustained and appellants had not asked leave to file an amended answer, there was no issue raised by the answer which could properly be submitted to the jury.

Appellants’ “POINT III” is as follows:

“The trial court erred in failing to summon a court reporter after due request by defendants.”

The mere fact that the court reporter was not present in the court, and that appellants requested his presence does not present any reversible error. Hall v. Kynerd, Tex.Civ.App., 97 S.W.2d 278.

Appellants’ “POINT IV”, their last, is as follows:

“The trial court abused its discretion in allowing the plaintiff to take judgment on its pleadings by wholly disregarding Rules 63, 90, and 248, T.R. C.P.”

The trial court did not abuse its discretion in rendering judgment under all the facts and circumstances herein, and in no way violated Rules Nos. 63, 90 and 248, Texas Rules Civil Procedure.

The judgment is affirmed.

BARROW, Justice.

I respectfully dissent.

The judgment shows that the trial court sustained appellee’s special exceptions and then sustained appellee’s motion for judgment on the pleadings. Since no evidence was introduced, there can be no statement of facts and there can be no presumption that the trial court found such facts as necessary to support the judgment. Box v. Bates, 162 Tex. 184, 346 S.W.2d 317.

The judgment provides in part:

“On this the 14th day of May, A.D., 1963, came on to be heard upon special setting, the above styled and numbered cause and came the Plaintiff and its attorney of record, and both the Defendants, and their attorney of record and each and all announced ready; and thereupon Plaintiff urged its special exceptions to the answer of the Defendants and each and all paragraphs thereof and motion for judgment and requested and was granted permission to make and file the same by trial amendment, and the Court proceeded to hear such special exceptions and the facts and the law applicable thereto is of the opinion and finds that such exceptions should each and all be granted, and said motion for judgment granted, and
“It is accordingly ORDERED, ADJUDGED AND DECREED that each and all the exceptions made and submitted by Plaintiff, be, and the same are hereby in all things sustained and said motion for judgment granted.”

There is no evidence upon which the trial court could base any findings of fact and it is seen that the trial court found “that Plaintiff is entitled to judgment on its pleadings * * Any ambiguity in this recitation of what transpired is made abundantly clear by appellee’s statement of the nature of the case. It is seen that appellee does not assert that any witness was heard or any evidence was presented other than “a discussion of the facts” by counsel in connection with the presentation of appel-lee’s exceptions. Appellee’s motion for judgment provides that appellants’ “answer should be stricken as a whole, and judgment rendered for Plaintiff and by it prayed for, there being no legal defense thereto presented by Defendants.”

Appellants filed a sworn answer, in which they denied the allegations contained in paragraph 2 of appellee’s answer. This paragraph contains the appellee’s only allegations that appellants had executed and delivered the note sued on herein to appel-lee. Although this is not such a specific, categorical denial as contemplated by Rule 93(h), T.R.C.P., it is seen that appellee did not except to this conclusion. Any defects in the non est factum pleading were thereby waived. Hall v. Hall, Tex.Civ.App., 352 S.W.2d 765.

Irrespective of whether or not appellants’ pleadings raised the issue of non est factum, appellee was required to introduce the note in evidence. This point was squarely presented in Stanford, Inc., v. Franklin, Tex. Civ.App., 312 S.W.2d 703, which presents a case closely analogous to ours. The trial court there granted plaintiff’s motion for judgment on the pleadings, for the reason that defendant’s general denial was insufficient to raise a legal defense to plaintiff’s cause of action based upon notes. This was held to be error. The Court reversed and remanded the case and said: “Although a general denial does not put the plaintiff to proof of the execution of the instrument in suit, it requires him to produce the instrument and introduce it as evidence or show an excuse for not doing so.” See also Webb v. Reynolds, Tex.Comm.App., 207 S.W. 914; Hayward v. Duiker, Tex.Civ.App., 276 S.W.2d 320.

The appellant Robert B. Cruz, Sr., also pleaded that he entered into a new agreement with appellee after his son attained the age of twenty-one years, and this new agreement relieved Cruz, Sr., from future liability. A new agreement would be a valid defense. Commercial Credit Corp. v. Flores, Tex.Civ.App., 345 S.W.2d 432. Ap-pellee’s trial amendment, which was presented verbally and subsequently reduced to writing, excepted to this defense as being insufficient for failure of consideration. Ap-pellee urges that the trial court queried counsel for appellants as to what consideration he expected to prove, and found that same was insufficient. The only thing before the trial court at this time was the adequacy of appellants’ pleading and if it was inadequate, appellants should have been given the opportunity to amend.

Appellants’ general denial put in issue all matters pleaded by the appellee which were not required to be denied under oath. 9 Tex.Jur.2d 292. Appellee was required to prove that it is the owner or holder of the note. Jackson v. Means, Tex.Comm.App., 12 S.W.2d 167; Texas City Tire Shop, Inc. v. Alexander, Tex.Civ.App., 333 S.W.2d 690. Furthermore, appellee was required to show that the note is due and that it provides for attorney’s fees, which matters are not required to be denied under oath under the Negotiable Instruments Act, nor the Rules of Civil Procedure.

Therefore, it cannot be doubted that ap--pellee was required to introduce the note in evidence. A motion for judgment on the pleadings is a construction of the pleadings only. Stanford, Inc. v. Franklin, supra. A “discussion” of the probable evidence by counsel and even exhibition of the alleged note to the trial judge could not constitute a trial on the merits. Weems v. Henry, Tex.Civ.App., 375 S.W.2d 791. Appellee does not assert that this required proof was supplied by any discovery procedure.

The authorities cited by the majority relate solely to records which affirmatively show that evidence was heard and a review was sought of the findings, primarily formal findings of fact, made by the trial court. In none of them is it even asserted that evidence was not heard.

Appellants are entitled to their day in court. I would reverse and remand.

      . “On setting May 14, 1963, all parties appeared in Court, and announced ready, and a demand for jury was made by Appellants. Before announcing ready to proceed with trial, Appellee announced in open court that it had exceptions to urge before proceeding to trial and presented its exceptions to Paragraph 5 as set out in Appellants’ First Supplemental Petition, Transcript Page 8, as -well as obtained permission of the Court to present orally exceptions to the remaining paragraphs and Answer of the Defendants and Motion for judgment, with the right to later reduce same to writing, leave of which was granted, and such Second Trial Amendment to Paragraph 1 of Plaintiff’s Supplemental Petition was reduced to writing and filed May 17, 1963, Transcript Pages 12-14. The judgment of the Court, Transcript Page 15, sets out permission being granted to file such special exceptions and Motion for judgment.
      “The Court then heard and considered all such exceptions and reviewed the facts and the law with counsel for Appellants and counsel for Appellee, and counsel for Appellants was given opportunity to present and did present authority, and the Court having entertained a discussion of the facts and the law and cases and heard same found for Appellee, on its exceptions and the facts and in keeping with its note and chattel mortgage, marked ‘Plaintiff's Exhibit “1” CWG’ (Charles W. Grace, Judge Presiding), Transcript Pages 23-24, and rendered judgment for Appellee, Transcript Pages 15-17.”


author: BARROW, Justice.

text:
    Donald BIRGE, Appellant, v. COMMUNITY FINANCE CORPORATION, Appellee.
    No. 14258.
    Court of Civil Appeals of Texas. San Antonio.
    May 20, 1964.

      Hardy, Galindo & Sharpe, Brownsville, for appellant.
    George W. Storter, Garcia & Warburton, Brownsville, for appellee.
   BARROW, Justice.

Community Finance Corporation sued Donald Birge, who formerly did business in Duncan, Oklahoma, as Donald Birge Mobile Homes, on nine defaulted nonnegotiable conditional sales contracts which Birge had assigned to plaintiff. After a non-jury trial, judgment was rendered favorable to plaintiff on five of these contracts for a total sum of $10,657.59, and defendant has appealed.

Each contract involves the sale of a mobile trailer home on a conditional sales contract which was discounted by Birge with Community Finance Corporation under the following written assignment: “WITH RECOURSE — This contract is assigned to Community Finance Corporation and/or assigns subject to the warranties, and representations of ■ the General Assignment of this contract. Seller further agrees that if the Purchaser shall fail to pay any installment or payment promptly when due, or if Purchaser should in any way breach the provisions of this contract, Seller will repurchase this contract on demand and will pay forthwith all of the time balance remaining unpaid. No renewal, refinancing, extension of time or delay of enforcement against the Purchaser or the property shall release Seller from liability hereunder.”

The trial court made findings of fact and conclusions of law applicable to all five counts, substantially as follows: (a) Birge presented each of the contracts to appellee for discounting and each was accepted under the terms and conditions of the written assignment; (b) Birge received payment for each of the contracts assigned; (c) the purchaser of the property given as security failed or refused to pay in accordance with the terms of the contract; (d) Birge failed to give notice to appellee of his change of address and to keep appellee advised of his whereabouts; (e) there is no evidence that Birge authorized the post office to inform persons of his whereabouts; (f) after repossession and sale there remained unpaid the following amounts: Count V, $1,590.70; Count VI, $2,599.64; Count VIII, $2,154.-50; Count IX, $653.77.

Count I involved a contract dated September 29, 1956, on a trailer sold to Roscoe E. Walker. The trial court found: “In the process of delivery to the purchaser, the security for the contract, the house trailer, was destroyed. The sum of $3,372.98 is due Plaintiff under the terms of the contract after applying all offsets and credits. Plaintiff has not been reimbursed for the aforementioned sum from any source.” Count V involved a contract dated August 13,1956, on a home trailer sold to Walter Glen Scott. On August 19, 1958, Scott transferred his equity to Fred Foraker with the approval of appellee, but without the knowledge of Birge. Scott expressly guaranteed payment by Foraker. Count VI involved a contract dated October 31, 1956, on a house trailer sold to Herman Willingham. Count VIII involved a contract dated September 29, 1956, on a house trailer sold to Preston R. Smith. On April 4, 1957, Smith transferred his equity to Vernon F. Norton with the approval of appellee, but without the written approval of Birge. Smith expressly guaranteed payment by Norton. Count IX involved a contract dated July 13, 1956, on a house trailer sold to Willard Vaught. On June 19, 1957, Vaught transferred his equity to Max- L. Ladd, with the written approval of both appellee and Birge. Vaught expressly guaranteed payment by Ladd of the note.

Appellant urges as to all counts that he is not liable because appellee did not, as required by the "on demand” clause of the assignment, promptly make demand upon him upon default by the original purchasers. The trial court found as to Count I, that demand was made of appellant on February 4, 1958; as to Count V, demand was made of appellant on April 24, 1961; and that as to Counts V, VI, VIII and IX, appellant, Birge, was not given notice of the sale of the •security.

Notice to Birge of the sales of the security involved in those four counts was not required. Birge closed his business in Duncan, Oklahoma, in July or August, 1957, and moved to Cameron County, Texas, where he opened a motel. He testified that he left his forwarding address at the post office and that, in addition, his wife's parents continued to live in Duncan, and by inquiry appellee could have located him. Appellee’s president, who lived in Ardmore, Oklahoma, where appellee’s principal office was located, testified that appellee was unable to locate Birge after he left Duncan, and that Birge did not give them a change of address. The trial court found, as to each of the above four counts, that the sale of the security was necessary to mitigate the damages, and since appellee was not aware of Birge’s whereabouts, it acted with reasonable prudence in selling the security without waiting to locate Birge and give him notice of the sale.

Art. 571, Vernon’s Ann.Civ.Stats., provides that the assignee of a non-negotiable instrument shall be entitled to recover from any previous assignor thereof, but in order to hold the assignor or endorser as surety for the payment of the instrument, Art. 570, V.A.C.S., provides that the assignee shall use due diligence to collect the same from the maker. There is no question raised as to the diligence used by appellee on any of these counts, to collect from the purchaser, or as to the manner of conducting the sale of the security. In W. T. Burton Company v. Keown Construction Company, Tex.Civ.App., 353 S.W.2d 909, the Court held that the effect of these statutes is that any person making a written assignment of a nonnegotiable instrument becomes liable as surety for payment thereof, unless he qualifies his liability by the phrase “without recourse” or words of similar import. It was there said: “We think it follows from the statutes mentioned that ordinarily either the assignor or one who endorses a non-negotiable note in effect says ‘if the holder cannot, by using due diligence, obtain payment from the maker I will pay.’ ”

Appellant’s statutory guaranty was not changed by his written assignment to appellee. Each contract had forms for five types of assignment and the import of this one was clearly indicated by the capitalized words “WITH RECOURSE.” The effect of this assignment was to bind appellant to pay the note upon the sole contingency of default by the purchaser. Burton v. Keown, supra; Ray v. Spencer, Tex.Civ.App., 208 S.W.2d 103; Cullum v. Commercial Credit Co., Tex.Civ.App., 134 S.W.2d 822; Commerce Securities Corp. v. Congleton, Tex.Civ.App., 8 S.W.2d 803.

Appellant complains of the judgment on Count I for the additional reasons that under the contract appellee had the duty to see that the property was adequately insured and that there was a settlement, payment and release of the insurance coverage of the loss in question, which discharged appellant. The trailer sold under this contract was wrecked and destroyed on Oct. 5, 1956. The contract shows various insurance ravages, including vendor’s single interest coverage, which protected appellee as assignee of the contract from any loss thereon.

Birge testified that he advised Mr. Moore, who managed appellee’s Duncan office, of the wreck and Moore said he would file an insurance claim. About ten days later, Birge went to appellee’s Duncan office, endorsed a check in the amount of $4,122.00, and was advised by Moore that this closed the matter. Appellee filed a proof of loss with the insurer on June 10, 1957, asserting claim for $5,000.00. Ap-pellee’s president testified that the claim was rejected because the trailer was still in the custody of appellant when wrecked and therefore the coverage was not in effect. The trial court found that appellee had never received payment for this loss and rendered judgment against appellant. We cannot say that this finding has no support in the evidence. Neither can we say that the written terms of the conditional sales contract require a different conclusion as a matter of law.

As to Counts V and VIII, appellant asserts that he is not liable on his assignment because there was a novation when appellee entered into an agreement with the original purchaser and a third party, for the third party to assume the original contract, and appellant did not consent to or join in this new agreement.

In Chastain v. Cooper & Reed, 152 Tex. 322, 257 S.W.2d 422, the Supreme Court stated the rule as follows:

“ * * * a second contract will operate as a novation of a first contract only when the parties to both contracts intend and agree that the obligations of the second shall be substituted for and operate as a discharge of the obligations of the first. * * * In keeping with this general rule it is held that to effect a novation by the substitution of one debtor for another thereby releasing the first, there must be agreement to that effect between all three parties, and a presumption of an intention to release the first debtor will not arise from the mere taking of the second.”

That case recognized that ordinarily this intention is a fact issue. See also, Schwab v. Schlumberger Well Surveying Corp., 145 Tex. 379, 198 S.W.2d 79.

The trial court by its judgment has found that there was no novation of either of these contracts and it is our opinion that there is evidence to support these findings. In each instance, the original purchaser expressly guaranteed payment of the debt by the third party. Birge testified that he personally handled the sale of Smith’s equity to Norton. At the time of Scott’s transfer to Foraker, Birge had left Duncan, Oklahoma, and the trial court found that his whereabouts were unknown to ap-pellee. There is no complaint of lack of diligence by appellee in attempting to collect the debt on either count from the third party or the original purchaser. The assignment from appellant to appellee authorized appellee to renew or refinance the contract without a release of appellant. Appellant’s points that, as a matter of law, there was a novation as to Counts V and VIII are overruled.

Appellant also complains of the award of interest in the amount of $286.00 on Count V, since there is no finding of fact or conclusion of law to support such amount. The contract provides for interest on delinquent payments at the highest legal rate. This provision authorized the award of interest and there is no contention that the amount awarded was excessive.

The judgment is affirmed as to all counts.


author: POPE, Justice.

text:
    SHELL OIL COMPANY, Appellant, v. Max GREENBURG, Appellee.
    No. 14263.
    Court of Civil Appeals of Texas. San Antonio.
    June 3, 1964.
    Rehearing Denied July 8, 1964.
    Lloyd, Lloyd, Dean & Ellzey, Alice, and Abraham Kazen, Jr., Laredo, for appellant.
    Fansler & Fansler, Laredo, for appellee.
   POPE, Justice.

This case arises under Section 4, Article 1995, Vernon’s Ann.Civ.St. Max Greenburg filed suit in Webb County against Tide Products, Inc., of Hidalgo County; Farmer’s Fertilizers & Insecticides Supply, Inc., of Webb County; and Shell Oil Company of Harris County. The first two defendants filed no pleas of privilege. Shell is a resident of Harris County and it has appealed from an order overruling its plea to be sued there. Plaintiff proved all venue facts, including a bona fide claim, against the resident defendant. To hold Shell, the non-resident, plaintiff then relied upon his pleadings alone to show that the action was a joint one or that it was intimately connected with the action against Shell. The issue is whether under Section 4, Art. 1995, it takes evidence or merely pleadings to tie the non-resident to the resident against whom an action is proved. We hold that the trial court properly looked to the pleadings.

Greenburg proved that the resident defendant supplied him with some Shell DD Soil Fumigant, but he lost his crops because it failed to rid his land of an infestation of nematodes. Shell argues that plaintiff failed to prove by evidence that Shell delivered the fumigant, made any agreements about it, was paid anything for it, or had anything to do with it. It reasons that the proof shows a claim solely against the •resident defendant, and that the proof negatives an action against Shell. In our opinion, Shell contends for more than the rules require. Evidence is not necessary at all with respect to the claim alleged against the non-resident. Once there is evidence of a claim against the ■ resident, resort is then made to the pleadings to see if the action is joint, or is intimately connected, with that alleged against the non-resident.

In Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, the Commission of Appeals considered three certified questions. The third one asked whether a non-resident’s plea of privilege should be overruled even though the evidence of the action against the resident disclosed that the plaintiff had no cause of action at all against the non-resident. The case stated some simple rules: A cause must be proved against the resident defendant by evidence, but evidence is irrelevant as a venue fact with respect to the non-resident. 1 McDonald, § 4.11, p. 344. One examines the pleading to see if the non-resident may be held. The non-resident may be held if there is a joint cause alleged or if the cause against the resident grows out of the same transaction and is so intimately connected with the cause of action against the non-resident that the two should be joined under the rules intended to avoid a multiplicity of suits.

The pleadings assert that Shell is the manufacturer of the product, and that defendants impliedly covenanted that the product when properly applied would rid the land of the nematode infestation. Since the plaintiff proved a cause against the resident dealer and the pleadings assert an intimately connected cause against Shell, the manufacturer. Shell’s plea of privilege was properly overruled. International Milling Co. v. Jernigan, Tex.Civ.App., 191 S.W.2d 526; Griggs Canning Co. v. Josey, Tex.Civ.App., 165 S.W.2d 201.

The judgment is affirmed.


text:
    TRINITY UNIVERSAL INSURANCE COMPANY, Appellant, v. U. Q. WINEINGER, Appellee.
    No. 4213.
    Court of Civil Appeals of Texas. Waco.
    June 25, 1964.
    Rehearing Denied July 9, 1964.

      Strasburger, Price, Kelton, Miller & Martin, Dallas, Jones, Fillmore, Robinson & Lambert, Wichita Falls, for appellant.
    Peery & Wilson, Wichita Falls, for ap-pellee.
   WILSON, Justice.

In a workmen’s compensation case the court granted claimant’s motion in limine to instruct the carrier’s counsel to make no reference to, or offer evidence concerning beneficial effects of surgery. Three of the appealing carrier’s points complain of this action. The points are overruled, among other reasons, because (a) the carrier’s demand for surgery under Art. 8306, Sec. 12e, Vernon’s Ann.Civ.Stat., qualified its assumption of responsibility by a restriction to surgery to be administered by “a physician of the carrier’s choice”; and (b) the physician’s medical report submitted by the carrier to the Industrial Accident Board in connection with the demand stated the doctor had examined claimant and he did “not feel that he is a candidate for any surgical procedure.” Hardware Mutual Cas. Co. v. Courtney, Tex.Sup., 363 S.W.2d 427, 431.

Complaint is made that after claimant had testified that he had voluntarily submitted to all treatment ordered or recommended by the doctors who examined or treated him, the court refused to permit the carrier to show that claimant “had vigorously opposed before the Industrial Accident Board the plaintiff being required to submit to surgery.”

The proposed showing referred to, which was tendered and excluded, consisted of a letter from claimant’s counsel to the Board which pointed out that the examination report of the doctor appointed by the Board was not unequivocal, and contained no statement surgery would benefit claimant, and the report of another physician addressed to the carrier stated claimant’s problem was “an instability rather than a ruptured disc.” The attorney’s letter concluded, “I respectfully submit that an order for surgery under these circumstances is not called for.” The carrier’s demand for surgery was denied by the Board.

There was no showing before the Board that an operation would “effect a cure” of claimant or would “materially and beneficially improve his condition,” as provided in Art. 8306, Sec. 12e. There was no showing before the Board that any doctor had recommended or ordered surgery. One doctor had reported “This patient probably does need surgery,” but he qualified his opinion by saying the case was “difficult to diagnose” and “Before making this advice final, I would suggest that he have a second myelogram.”

That claimant’s attorney noted the facts and protested an order for surgery under these circumstances was not a refutation or rebuttal of the employee’s testimony that he had submitted to all treatment ordered or recommended by treating or examining doctors. The point does not reflect reversible error.

Affirmed.


author: SELLERS, Justice.

text:
    David JONES et ux., Appellants, v. CITY OF HOUSTON, Appellee.
    No. 56.
    Court of Civil Appeals of Texas. Tyler.
    June 11, 1964.
    Rehearing Denied July 9, 1964.
    Walter C. Clemons, Houston, for appellants.
    John Wildenthal, Jr., City Atty., Joseph G. Rollins, Senior Asst. City Atty., Houston, for appellee.
   SELLERS, Justice.

This is an appeal from a judgment condemning a piece of property belonging to appellants consisting of 6,997 sq. ft. of land in the City of Houston, with an 8-unit apartment house thereon. The case was submitted to a jury on special issues. The jury found the value of the condemned property to be $41,500.00 and judgment was entered in favor of appellants for said amount. From this judgment the appellants have duly prosecuted this appeal.

We take the following statement from appellants’ brief:

“After the jury had been selected, and before any evidence had been offered by either side, and before the Court Reporter started taking notes on the proceedings of the trial, the Trial Court began making a lengthy oral charge to the jury about their demeanor as jurors. After, he had talked for some time, he told the jury in effect that they should listen to the testimony because he was npt going to call the Court Reporter back to reread the testimony of any witness just becaitse the jury had failed to listen to or had forgotten such testimony. At this stage of the proceedings counsel for appellants then and there attempted to make an objection to the Court’s action but the Trial Court ordered him to ‘sit down and be quiet until the Court had finished his remarks — that counsel could have his full bill.’ When given an opportunity to speak, appellants’ counsel told the jury that ‘the Court’s remarks were erroneous and that it was not only the jury’s right but their duty to have the testimony reread to them whenever they so desired, regardless of the Court’s remarks to the contrary.’
“After this situation, appellants, who had waived all objections to the proceedings except the issue of damages, called City Commissioner Johnny Goyen as an adverse party witness, under Rule 182. While the witness Goyen was on the stand, appellants offered in evidence two letters on City of Houston stationary to appellants. One of said letters was dated February 11, 1959, and signed by Travis L. Smith, III, Director of Public Works, and the other from M. H. Westerman, City Secretary. Both of said letters recited, among other things, ‘As you can. see the property which would have to be acquired will be extremely expensive and the project is not included in this year’s budget.’ The witness Goyen had identified the signatures of Mr. Smith and Mrs. Westerman, and had been a city commissioner for over eight years. The Trial Court refused to' allow the letters to be introduced and, therefore, appellants could not cross examine the adverse party witness about the contents thereof.”

Rule 287, Texas Rules of Civil Procedure, provides:

“If the jury disagree as to the statement of any witness, they may, upon applying to the court, have read to them from the court reporter’s notes that part of such witness’ testimony on the point in dispute; * * * ”.

The record shows that the jurors did not request the court to have any of the witnesses’ evidence reproduced for them. The court permitted appellants’ counsel to tell the jurors that the court was in error in his instructions to them, and that they had the legal right to have the evidence of any witness re-read to them whenever they so desired regardless of the court’s remarks to the contrary.

In view of these proceedings, we do not believe that the court’s instructions constitute reversible error; nor do we think there was reversible error in the ruling of the court denying the admission in evidence of the two letters complained of, especially due to the fact that such letters were later introduced in evidence and since the only issue tried before the court was the market value of the property condemned; and on this issue there was a great deal of other evidence offered by appellants. We fail to see the materiality of why appellant did not keep his property in repair. The city, when it condemned the property, was under duty to the appellants to pay appellants the market value whether repaired or unrepaired.

This court cannot sustain appellants’ third assignment of error to the effect that the jury’s verdict is against the great weight and preponderance of the evidence. The evidence of appellants and their witnesses place the value of the property considerably above the amount allowed by the jury, and appellee’s witness, duly qualified, placed the value below the amount allowed by the jury. This same contention was before the court in the case of Housing Authority of City of Dallas v. Shambry et ux., Tex.Civ.App., 252 S.W.2d 963, and it was there held that the court was not authorized to disturb the jury’s verdict.

Appellants complain of the admission in evidence of sales of other property by the witness Charles L. Osenbaugh, admitted for the purpose of aiding him in arriving at the market value of the property condemned. This witness, qualified as an expert, testified:

“Appellee’s first valution witness, Mr. Charles L. Osenbaugh, who is in the real estate business, appraisal business, and also the mortgage loan business, who had been in the real estate business for approximately 14 years and, among his other qualifications, was a member of the Houston Board of Realtors, Texas National Association of Real Estate Boards, a member of the Society of Residential Appraisers, and American Institute of Real Estate Appraisers and who teaches real estate appraisal at the University of Houston, testified that he appraised the subject property, and that there are ‘generally recognized — I would say universally recognized in appraisal technology, three approaches to value: The cost approach, the cost of reproduction, the market which is evaluated by the public, where you study various sales; and an income approach whereby at various capitalization methods you arrive at an estimated value by the income that the property would give to the owner of the property.’ Mr. Osen-baugh testified that he appraised the subject property by the three methods, and, that in appraising same by the market approach T ordered the records run by a title company in Houston, and I had them give me a list of all transactions that they could find within a four-year period within an immediate area of the subject property, roughly that covered by the map; and then I took from those sales the properties ■ that were more comparable, and from the records then went out and looked at each of the properties and talked with either the buyer or seller, confirmed what was bought or paid for the property and made investigations as to what improvements and to what size land was involved.
“ ‘From this study I arrived at estimates of value which were the most comparable properties.’ Mr. Osen-baugh was then asked to give the details of the sales which he considered most comparable in aiding him at arriving at an opinion of market value through the market data approach and counsel for Appellee stated to the Court: ‘If the Court please, at this time we would like to offer these sales not for the purpose of showing the actual sales themselves, but to show the basis or part of the basis upon which the witness arrived at his opinion today.’ Mr. Osenbaugh then proceeded to give the details of sales of other’properties he considered comparable enough to aid him in arriving at his opinion of market value.”

We find no error in the ruling of the trial court in admitting this evidence for the purpose of aiding the witness in arriving at the market value of the property in dispute. Hays et ux. v. State of Texas et al., Tex.Civ.App., 342 S.W.2d 167.

The appellants objected to the court’s charge and the court’s refusal to give their requested definition of market value. The court gave the following charge:

“You are instructed that by the term ‘market value’ as used in this Charge, is meant the price which the property will bring when it is offered for sale by one who desires to sell but is not obligated to sell and is bought by one who desires to buy, but is under no necessity of buying.”

This charge is the approved charge of the Supreme Court in the case of State v. Carpenter et al., 126 Tex. 604, 89 S.W.2d 979, and we find nothing in the record rendering this definition inapplicable to the facts in this case.

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


text:
    Francis P. MAHER, Trustee, Appellant, v. Enrique GONZALEZ, Appellee.
    No. 14265.
    Court of Civil Appeals of Texas. San Antonio.
    June 3, 1964.
    Rehearing Denied July 8, 1964.

      William C. Wright, John E. Fitzgibbon, Laredo, for appellant.
    Hall, Hall & Juarez, Philip A. Kazen, Abraham Kazen, Jr., Laredo, for appellee.
   BARROW, Justice.

This suit was filed by Francis P. Maher, Trustee of the Estate of the Bank of Zapata, Uninc., which was adjudicated bankrupt on August 14, 1961, to recover from Enrique Gonzalez the sum of $5,881.-03, being principal, interest and attorney’s fees due on five notes executed by appellee to the Bank. The trial court sustained ap-pellee’s special exception that all five notes were barred by the four-year statute of limitation, and dismissed the suit.

Appellant’s petition affirmatively shows that each of the notes sued on accrued more than four years prior to the filing of the petition in bankruptcy. Appellee excepted to this petition for this reason and also affirmatively pleaded the four-year statute of limitation. There is no allegation which would toll the statute and appellant declined to amend his petition.

Under this record the trial court properly sustained the exception and dismissed the suit at appellant’s cost. It is well settled that the statute of limitation may be raised by special exception when the pleading affirmatively alleges facts which demonstrate that the suit is barred. Mueller v. Banks, Tex.Civ.App., 317 S.W.2d 254; Armstrong v. Snapp, Tex.Civ.App., 186 S.W.2d 380; 37 Tex.Jur.2d, Limitation of Actions, § 197.

Appellee also urged in the trial court, that since the petition showed that the notes were barred by limitation, the Trustee did not have authority under Title 11, § 29, sub. e, U.S.C.A., to bring said cause of action on behalf of the bankrupt estate. This section provides in part: “A receiver or trustee may, * * * institute proceedings in behalf of the estate upon any claim against which the period of limitation fixed by Federal or State law had not expired at the time of the filing of the petition in bankruptcy.”

It is our opinion that this provision does not affect the authority of the trustee to bring the suit, although the claim as alleged may be barred on its face under the Texas four-year statute of limitation. It has been held that the proper interpretation to be given this section of the Bankruptcy Act is that the State statutes of limitation must be applied as interpreted by the State courts. Austrian v. Williams, 2 Cir., 198 F.2d 697; Banister v. Solomon, 2 Cir., 126 F.2d 740; Remington on Bankruptcy, § 2347.

The Texas statutes of limitation are special defenses which must be pleaded and, if not affirmatively pleaded, they may be waived. Rule 94, Texas Rules of Civil Procedure; Aetna Cas. & Surety Co. v. Moss, Tex.Civ.App., 336 S.W.2d 748; Duckworth v. Dallas Co. Levee Imp. Dist. No. 6, Tex.Civ.App., 11 S.W.2d 263; Thompson v. Austin, Tex.Civ.App., 291 S.W. 276; 37 Tex.Jur.2d, Limitation of Actions, § 200. It follows that the Texas statute does not bar the assertion of the claim but, where applicable, denies recovery.

The trial court erroneously concluded that the Trustee had no authority under this provision of Title 11, § 29, sub. e, supra, to assert these claims, and that the court acquired no jurisdiction over same. It is well settled, however, that an appellate court will sustain the judgment 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. Construction & General Labor Union 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. The petition shows that it is barred by the four-year statute of limitation and the trial court .properly sustained this exception.

The judgment is affirmed.


author: 'WILSON, Justice.

text:
    The RIDGLEAWOOD, INC., Appellant, v. Joy Walker WHITE, Appellee.
    No. 4211.
    Court of Civil Appeals of Texas. Waco.
    June 18, 1964.
    Spaffdrd, Freedman, Hamlin, Gay & Whitham, Richard S. Geiger, Dallas, for appellant.
    Seth W. Barwise, Ft. Worth, for ap-pellee.
   'WILSON, Justice.

Summary judgment was rendered for defendant, Mrs. White, in appellant landlord’s suit for damages to an apartment originally leased to Mrs. White. We affirm.

The petition alleged the terms of a written lease agreement by which appellant rented to Mrs. White its apartment number 9 for a year at a rental of $199 per month. It' contained an express covenant that the tenant should “take good care of the premises and suffer no waste,” and should reimburse the landlord for damages to the premises. The pleading itemized damages to the apartment existing at the end of the tenancy. Mrs. White’s pleading admitted execution of the lease, but averred that the landlord had by another similar agreement contemporaneously leased its apartment number 7 to another tenant, Allan, for $225 per month; that the rental on number 9 was cheaper; that by agreement with the landlord Mrs. White and Allan exchanged apartments; that she never occupied or paid rent on apartment number 9, but at all times occupied and paid rent on number 7. It was alleged that the landlord accepted, acquiesced in and consented to the exchange, and the damage to number 9 was caused by its occupant, Allan; not by ap-pellee. Appellee’s affidavit embodied the same matters.

Mrs. White paid the rental on apartment 7 by checks which bore notations that they were for occupancy of that apartment, showing that Allan occupied apartment 9. These checks were accepted and cashed by the landlord. It was admitted by appellant that the damage to apartment 9 was caused by Allan, and not by Mrs. White. Appellant made written demands on Allan for reimbursement; it made no demand on Mrs. White, whose first information of the claim was the institution of suit.

Appellant’s manager testified by deposition that the damage to apartment 9 was done by Allan, and “I told the Allans that by the lease they were supposed to replace the carpeting,” which was damaged, and “the company expected them to replace the carpet according to the lease”; that the apartment exchange was reported in writing to appellant owner by the manager; that Mrs. White wanted the more expensive apartment, and Allans the less costly; that the rental on apartment 9 was made “cheaper because they were renting two apartments” ; that Allan “took over” apartment 9; that appellant “definitely knew” the Al-lans were occupying it. The manager testified that “when I rent out an apartment I make out three leases, one for the lessor, one for the lessee and I have one”; that after the exchange “no new lease was made out for them on the other apartment”, but “I called the owner and told him they had changed apartments and what would he want to do about the leases, and I assumed he took care of it”; and “I called his office and told him that they had exchanged apartments, and I thought he would want to change the records or do whatever necessary.” This “part owner” thereafter wrote the apartment manager that “apparently the electric service has not been changed to Mr. Douglas Allan’s name. Please ask him to change the billing into his name as of the date he moved in.”

Appellant says the summary judgment was erroneous because there is a question of fact, which is “whether plaintiff waived all of its rights under the lease agreement.” It emphasizes a lease provision that Mrs. White could not assign or sublet without the landlord’s written consent, and insists that the liability of Mrs. White is measured by the status of Allan as an assignee or subtenant. It relies on the rule that mere acceptance of rent from an assignee by the landlord does not release the original tenant from the obligations of the lease. That rule is inapplicable to the present facts.

In our opinion the summary judgment was correct because reasonable minds cannot differ as to existence of the essential elements of a novation by virtue of which appellee’s liability for the claimed damage was discharged. A requisite of novation is that parties to the previous contract and the new one agree that the obligations of the new be substituted for and operate as a discharge of the obligations of the first. Chastain v. Cooper & Reed, 152 Tex. 322, 257 S.W.2d 422, 424; Money v. Dameron, 70 S.W.2d 291, 293, writ refused; Cooper Grocery Co. v. Strange, Tex.Com.App., 18 S.W.2d 609. We recognize that the obli-gee’s mere acceptance of the obligation of a third person, without more, is insufficient. Western Brokerage & Supply Co. v. Reclamation Co., 127 Tex. 386, 93 S.W.2d 393; 6 Corbin, Contracts (1962) Sec. 1293; 2 Williston, Contracts (Jaeger, 1963), Sec. 353, p. 816; 61 A.L.R.2d 761; 32 Am.Jur., Sec. 360, p. 314; 52 C.J.S. Landlord and Tenant § 500, p. 283.

The facts before the trial court, however, established an agreement that the reciprocal rights and duties between Allan and the landlord should be substituted for those previously existing between Mrs. White and the landlord. This is what the American Law Institute characterizes as a •compound novation of cross rights and ■duties. Restatement, Contracts, Sec. 430. The landlord intended, under the undisputed facts, to relinquish its rights under the written lease with Mrs. White, and thereby ■discharge her duties and liabilities thereunder. At the same time Allan both obtained the discharge of his existing obligations under his original written agreement and subjected himself to new ones. All parties acquired new rights, relinquished previous Tights, and assumed new duties in satisfaction of and exchange for those which previously existed.

We find nothing in the record which could reasonably form the basis of a conclusion that the landlord did not intend to accept the •obligation of Allan as a substitute for that •of Mrs. White and to thereby release her from the liability sought to be imposed under the terms of the lease, and we think the facts establish beyond issue that such was the intention of all three parties.

It was not essential, under the evidence, that this agreement be in writing or in express words. Chastain v. Cooper & Reed, 152 Tex. 322, 257 S.W.2d 422, 424; Morrison v. Ins. Co., 69 Tex. 353, 6 S.W. 605, 609; Gulf Production Co. v. Continental Oil Co., 139 Tex. 183, 132 S.W.2d 553, 164 S.W.2d 488, 491; Adams v. Candee Oil Corp., Tex.Civ.App., 357 S.W.2d 808, writ ref. n. r. e.; 6 Corbin, Contracts (1962) Sec. 1294, p. 201; 2 Williston, Contracts (Jaeger 1963) Sec. 353, p. 817. Affirmed.


author: COLLINGS, Justice.

text:
    Jesse W. WILSON, Appellant, v. CLARKE FLOOR MACHINE COMPANY, Appellee.
    No. 3877.
    Court of Civil Appeals of Texas. Eastland.
    June 12, 1964.

      Alvin Boyd, Dallas, for appellant.
    Ungerman, Hill, Ungerman & Angrist, Stanford M. Dolginoff, Dallas, for appellee.
   COLLINGS, Justice.

Clarke Floor Machine Company, a corporation brought this suit against Jesse W. Wilson, alleged to be doing business as Wilson Oak Flooring Company, upon a verified account. The defendant answered under oath generally denying all the allegations of plaintiff’s petition and particularly denied that he was indebted to plaintiff in any amount. Upon a trial before the court without a jury it was found that plaintiff’s claim was liquidated and proved by a duly verified account, and judgment was granted for plaintiff for the amount of the account and attorney’s fees. Wilson has appealed.

Appellant presents points urging that the court erred in admitting in evidence certain copies of invoices, ledger sheets and testimony concerning the reasonable value of the merchandise involved. Appellant further urges that the evidence was insufficient to establish the account sued upon and that the judgment is contrary to the great weight of the evidence; that even if it should be inferred that appellant Wilson personally agreed to pay the account in question that such agreement was unenforceable under the statute of fraud and that the court erred in overruling appellant’s exceptions to appellee’s petition.

There is no showing in the record that appellant’s exceptions were ever called to the attention of the court and overruled. They are therefore not properly before this court. Appellant’s exceptions, even if it be assumed that they are properly before this court, are not well taken. Appellant excepted to appellee’s petition on the ground that it was insufficient to apprise appellant of the materials which appellant was supposed to hav.e purchased. The exhibit attached to appellee’s sworn petition purporting to set out copies of invoices of materials alleged to have been sold to appellant, described the material, gave the date on which they were sold and the amount due on each item. It is not shown that the description of the material was such that it could not be understood in the business or trade. The point is overruled. Hulme v. Levis-Zuloski Mercantile Co., Tex.Civ.App., 149 S.W. 781.

Appellant’s points complaining of the admission of evidence are, likewise, not well taken. But, regardless of points concerning the alleged errors in the introduction of evidence the trial court properly rendered judgment against appellant. Appellee brought this suit against appellant upon a duly verified account as provided under Rule 185, Vernon’s Texas Rules of Civil Procedure, supported by invoices, statement and a proper affidavit. Appellant answered, under oath, denying “each and every, all and singular the allegations in plaintiff’s petition contained”, and specifically denied that he was “indebted to plaintiff in any amount whatsoever.” This verified answer by appellant constitutes only a general denial. ' It did not state that the account was unjust and set out the items and particulars which are unjust as required by Rule 93, V.T.R.C.P. It has been repeatedly held in this State that a verified answer to a suit upon a verified account is not sufficient to comply with the statute if it amounts to “only a general denial.” Kost Furniture Co. v. Radio Equipment Co., Tex.Civ.App., 100 S.W.2d 162; Sessions Company v. W. A. Sheaffer Pen Company, Tex.Civ.App., 344 S.W.2d 180, (Ref. N.R.E.).

Even if it should be held that appellant’s sworn denial was in compliance with Rules 185 and 93, supra, still no error is shown. It must be assumed that the court found every disputed fact in such a way as -to support the judgment. Construction & General Labor Union, Local No. 688 v. Stephenson, 148 Tex. 434, 225 S.W.2d 958. It is held that a suit upon an open account may be proved by an admission on the part of the defendant that the account is due and owing and that a debt- or’s express or implied assent to the correctness of an account as submitted is sufficient to constitute a stated account. Peurifoy v. Hood Rubber Products Co., Tex.Civ.App., 59 S.W.2d 428; Davis v. Gilmore, Tex.Civ.App., 244 S.W.2d 671, (Writ Ref.). In the instant case it is undisputed that the material was furnished to Mountain Home contractors, a subcontractor on the job at Mountain Home Air Force Base, Mountain Home, Idaho. It also appears that there was evidence to the effect, and appellant admits, that he paid three prior small invoices on material furnished to Mountain Home contractors on the same job. Although appellant denies that he bought or agreed to pay for the material covered by the invoices sued upon the evidence shows that letters had been written to appellant demanding payment- of the account, and that appellant on July 27, 1962, replied to such demand by a letter directed to appellee as follows:

Gentlemen:—
Attention of Mr. D. Towner.
In connection with your letter of July 25, 1962, regarding account on material shipped to Mountain Home Air Force Base, Mountain Home, Idaho, please be advised that we have not received any funds from the prime general contractor there for our progress performed during May 15th to June 15th. The Trustee for these people in Beverly Hills, California, informed me some weeks ago, that the money would be paid us on the 15th of July, but after waiting so long with no funds from them, we called again yesterday and was informed that we would get our funds around the 10th of August.
We have notified them if we do not get them, we intend to file under the Miller Act, notifying the commanding Procurement officer and also their Bonding Company. They owe us a considerable sum of money and we have been put out no little for this unreasonable delay.
We shall let you hear from us as soon as we get our funds or we hear from them as to their further definite intentions.
Yours very truly,
WILSON OAK FLOORING COMPANY
(Signed by J. W. Wilson).”

It is undisputed that on August 29, 1962, Mr. Towner wrote a letter to appellant reminding him of his letter on July 27, 1962, in which appellant had stated that he should be receiving a check in full covering the work done at the Mountain Home Air Force Base in Mountain Home, Idaho, by August 10. Mr. Towner suggested that two additional weeks had expired and that appellant’s check had still not been received and requested immediate payment of the sum of $990.65 as shown by the invoices. Appellant admitted receipt of this letter and stated that he sent it to California, (the location of Mountain Home contractors). But, appellant did not reply to appellee’s letter. On October 19, 1962, the matter had apparently been turned over to American Credit Indemnity Company of Chicago because the record shows that on that date that company wrote a letter to appellant stating, in effect, that his account with Clarke Floor Machine Company was covered by their policy of credit insurance, and inquired if the account as stated was incorrect or if there was any reason why it should not be paid and suggested the willingness of the writer to attempt an amicable adjustment of the matter. Appellant admits that he did not reply to this letter.

In our opinion the prior dealing between the parties, the conduct of appellant and the above letter which he sent to appellee constitutes an implied admission on the part of appellant of the correctness of the account sued upon and of his obligation to pay same. Appellant’s contention that the evidence is insufficient to support the judgment is not well taken. We also hold, after an examination of the entire record, that the judgment is not against the great weight and preponderance of the evidence. Appellant’s points are all overruled.

The judgment is affirmed.