author: MASSEY, Chief Justice.

text:
    R. L. LEATHERWOOD, Appellant, v. Maxine HOLLAND et vir, Appellee.
    No. 16481.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 24, 1964.
    Rehearing Denied Feb. 28, 1964.

      Wade, Davis, Callaway & Marshall, and Clyde M. Marshall, Jr., Fort Worth, for appellant.
    Clyde & Hines and A1 Clyde, Fort Worth, for appellee.
   MASSEY, Chief Justice.

R. L. Leatherwood brought suit against Maxine Holland and her husband, alleging that from January 10, 1958, to April 16, 1960, Mrs. Holland was his employee and that she converted money belonging to him to the use and benefit of herself and her husband, all of which her husband knew or, in the exercise of ordinary care, should have known.

On the last day of September, 1960, a default judgment was rendered in behalf of the plaintiff and against the defendants. This judgment was set aside on motion for new trial.

In November, 1962, the cause came on for trial before a jury. After four or five days the case was submitted on special issues. In answer the jury found that Mrs. Holland had made false entries on the business records of plaintiff during the period of her employment, and that the plaintiff had instructed her to change the bank deposit records. The jury, by a “no” answer to an issue, refused to find that Mrs. Holland wrongfully appropriated to her own use any of plaintiff’s funds. Having so refused, the jury did not answer the issue inquiring as to the amount appropriated, if any.

A take nothing judgment was rendered. From this judgment, as against Mrs. Holland, plaintiff Leatherwood appealed.

Judgment affirmed.

By his first point the plaintiff complains because the trial court set aside the default judgment rendered on September 30, 1960. Premise of plaintiff’s complaint is his contention that said judgment should have been treated as valid and persisting because, according to him, the court purportedly set the same aside at a time when it had lost jurisdiction and lacked authority so to do. We believe that the point is subject to construction as a contention that the trial court did not have jurisdiction.

When the defendants filed their motion for new trial and to set aside the default judgment of September 30, 1960, a hearing thereon was set for Monday, October 31, 1960. It is readily observed that this date would be that proper to be treated as the 30th day following entry of the judgment, and the last day on which the trial court had authority to grant a new trial on this character of motion. Texas Rule of Civil Procedure 4, “Computation (time)”. The plaintiff did not cause a copy of the court’s docket to be made a part of the record on appeal. Only the order granting the new trial appears in the transcript. It recites : “On this 31st day of October, 1960 came on to be heard the motion of the defendants to set aside the default judgment * * * ”, etc., and concludes with decree that a new trial is granted. Thereafter, and immediately above the signature of the court, is recited: “Signed this 14 day of November, 1960.”

Certainly the trial court did not have jurisdiction to set aside the prior default judgment, under authority of the motion for new trial, if it is a fact that the trial court did not vacate the default judgment until a date after October 31, 1960. But the matter of the time when the court acted is not established through the same means by which a litigant shows that a party attempting to perfect an appeal has lost his right to do so because some act made a prerequisite had not occurred ira. time. It is well known that the date of signature upon a judgment decree is to be treated as the date thereof ’for purposes o£ the “time-table for appeal”, under provisions of T.R.C.P. 306a, “Date of Judgment, Etc.”. This rule is without application when no appeal is taken.

Disregarding Rule 306a, inapplicable herein, any order setting aside, a judgment, which but for such order would have become final, would be subject to the same rules applicable to judgments. A judgment, on its rendition, even without any entry, is final, valid and enforceable between the parties. The oral official pronouncement by the court of its conclusions and decision upon the matter submitted to it for adjudication may be said to be the rendition of its judgment. The writing out of the judgment in the form of a judgment on file, to be recorded, is a matter of subsequent clerical action. See Texas State Board of Examiners in Optometry v. Lane, 1960 (Tex.Civ.App., Fort Worth), 337 S.W.2d 801, error refused. The same rules of law would have application to an order which purported to set aside a judgment.

The plaintiff has not shown that the default judgment of September 30, 1960, was not validly set aside. The fact that the order purporting to set it aside, after having been reduced to writing, was signed on a date after the expiration of 30 days following its entry does not show such fact. Therefore plaintiff’s point of error is overruled.

During the course of the voir dire examination of the jury panel the attorney for the defendants made the statement that the evidence would show that no criminal case was pending against his clients. The attorney for the plaintiff decided to make a motion in limine before the first witness was called. He moved that the defendants, their counsel, and witnesses be instructed to refrain from offering any evidence or asking any questions intended to elicit evidence to show the pendency or non-pend-ency of any criminal proceedings against the defendants in connection with matters involved in the case, or to show the action or failure to act in respect thereto on the part of any law enforcement agency, prosecuting office, or other body.

The attorney for the defendants made strenuous objection to the motion for he had already informed the jury that the proof would show the fact. The court stated that he would sustain the motion.

The theory under which the, plaintiff brought his suit was that Mrs. Holland had taken cash out of many of the deposit envelopes containing the profits received, had changed the bank deposit slips delivered to the bank, and had deposited therein only a part of the cash which should have been deposited. The theory under which the suit was defended admitted that the original deposit slips (prepared by the route men) had been changed by Mrs. Holland, with a reduced amount deposited, but that in each instance it had been plaintiff Leatherwood who had opened the deposit envelopes, removed the cash, and instructed Mrs. Holland to change the slips to show a reduced total for deposit. In other words the plaintiff was accusing Mrs. Holland of embezzlement, and she, in turn, was accusing the plaintiff of having taken cash in such manner as to show a reduced amount of income from his business in a manner, the purpose of which was not understood by her at the time, but ultimately believed to have been to fraudulently reduce the amount of plaintiff’s income taxes.

During cross-examination counsel for the defendants elicited testimony from the plaintiff that he had given certain information concerning Mrs. Holland, reflecting unfavorably upon her employment record prior to the time she went to work for him, to the Internal Revenue Service. He was asked further if he had given the same information to the Tarrant County Grand Jury. He stated that he had not. He was then asked if he had testified before the Grand Jury. He stated that he had done so. He was then asked, “Was there any Bill of Indictment returned by that Grand Jury that you testified to — Against this lady or against her husband?” Plaintiff’s attorney objected, pointing out that the question invaded the instructions of the court previously given to defendants’ counsel. The court sustained the objection and instructed the jury that the question was withdrawn from its consideration and that the members of the jury were not to consider it for any purpose.

At an earlier time defendants’ counsel, in his cross-examination of the plaintiff, had framed questions in such manner as to show that the defense theory was that it was plaintiff who was taking the cash and withholding it from deposit in the bank and from record as part of the profits received from business operations. He was asked if he did not seize the opportunity to explain a discrepancy in the actual and book amounts of business profits by leveling an accusation against Mrs. Holland. He stated that he had not done so. Then he stated that he had notified the Internal Revenue Department. The attorney then asked: “Yes, sir. You did just exactly that, you said that, ‘Now I know why my Income Tax Returns were not correct, because I had an employee out here that was stealing’, isn’t that what you told them?” The witness replied in the affirmative. Counsel then asked, “Yes, sir. And they don’t believe it yet, do they?” An objection was taken and the court sustained it. There was no request therefor and no instruction to the jury to disregard the question.

The point of error predicated upon the above was that the trial court erred in refusing to grant a new trial because of the misconduct of defendants’ counsel by repeatedly calling the jury’s attention to the actions or inactions of government agencies, in positive violation of the court’s preliminary instruction, resulting in prejudice to the plaintiff and his case that could not be removed by sustaining his objections nor by instructions given the jury to disregard the matter complained of.

It is our opinion that the point of error must be overruled. Of course, we can appreciate the fact that plaintiff feels abused under the circumstances since he timely made his motion and did everything possible to be done in advance of the trial to prevent the defendants from showing that they had not been charged with any criminal offense in the premises or pointing to circumstances indicating that some other person or department disbelieved the plaintiff’s contentions. While the defendants’ attorney, through the action complained of, perhaps exposed the case of his clients to an order of mistrial, or increased the likelihood that the trial court would grant his clients’ adversary a new trial, it is to be reasonably inferred that after careful consideration such court concluded that proper action required the entry of a judgment on the verdict, and the overruling of the motion for new trial which followed. That being true, it appears to us that we are presented with the case on appeal in a state not to be distinguished from one where there had been no motion in limine, and under circumstances where we are obliged to conclude that the error, if any, is to be tested as to whether it was curable by an instruction to the jury to disregard the matter of which plaintiff complains and not to consider it as any part of the evidence upon which the jury was to decide the case. Montgomery v. Vinzant, 1956 (Tex.Civ.App., Fort Worth), 297 S.W.2d 350. When so tested we have no doubt that the error was of the curable type. Therefore it was either cured by the court’s instruction or could have and would have been had plaintiff requested such an instruction.

By several points of error the plaintiff complains of the manner in which the court conducted the trial. He says that such conduct was erroneous and improper and constituted and amounted to a comment by the court on the weight of the evidence and on the credibility of witnesses. Obviously, plaintiff infers that the court believed the defendants’ theory and witnesses and disbelieved the plaintiff’s theory and witnesses, and that such fact was made known to the jury, thus influencing them to return a defendants’ verdict. The contention is that the court unduly limited the plaintiff’s attorney in his cross-examination of the defendants and their witnesses, while allowing unreasonable latitude to defendants’ attorney in the cross-examination of plaintiff and his witnesses, — repeatedly sustained objection to plaintiff’s admissible evidence, while repeatedly ruling out evidence offered by the plaintiff on the court’s own motion without necessity of objection from counsel for defendants, — and on one occasion refusing to rule on an objection made by the plaintiff.

Many references are made to the statement of facts in connection with these points of error. We have examined each part of the statement of facts to which we have been referred. We could write at length but have concluded to dispose of the points by an abbreviated statement. We have reviewed the entire record with the plaintiff’s complaints at all times borne in mind. In so doing we have been impressed by the evident and obvious fairness and impartiality of the trial judge in his conduct of the trial. We see no evidence or even indication of any bias or prejudice on his part, in things done or left undone, in statements made or withheld, or in any other manner which amounted to a comment by him on the weight of the evidence or on the credibility of any witness. We do not say that the conduct of the trial was perfect for there were imperfections. But imperfection is not error. No trial of appreciable length is perfect. This one required four or five days. Toward the end of the trial the judge did attempt to expedite matters and oni repetitious testimony from the same witnesses did bring up the fact without haying-been prodded by objections.

Every trial is intended to give the parties a fair hearing according to the facts and circumstances properly before the court and jury, a right which should not be infringed by harsh and technical rulings. But in its conduct large discretion is vested in the trial court and its rulings will not be disturbed by a reviewing court except for a manifest abuse of discretion. On appeal the presumptions are in favor of the regularity of trial proceedings. The result of our test of the conduct of the trial has been a conclusion that there was no abuse of discretion in any of the respects presented by the points of error. They are overruled.

By two points of error complaint is made of the special issue in answer to which the jury found that Mrs. Holland had made false entries on the business records of plaintiff during the period of her employment, and of the special issue in answer to which the jury found that the plaintiff had instructed her to change the bank deposit records. Of the first the complaint is that the issue should not have been submitted as it was undisputed, and therefore amounted to a comment on the evidence. On the latter the contention is that it was not an ultimate issue and its submission amounted to a comment on the weight of the evidence.

By T.R.C.P. 272, “(Charge to the Jury) Requisites”, it is provided that all objections not made and presented to the court complaining of the charge to be given the jury shall be considered as waived. The trial court was never given an opportunity to correct any errors in the charge prior to its submission to the jury, a right to which the court is entitled if any subsequent complaint thereof is to be treated as properly made. Objections to the charge cannot be raised for the first time on appeal. Wilson v. King, 1958 (Tex.Civ.App., Austin), 311 S.W.2d 957, error refused. Plaintiff made •no objections to the charge at the proper time and manner. Therefore he waived •right of complaint on appeal. The points are overruled.

Fmally, plaintiff contends that the cumulative effect of all the errors, if not to be accorded the dignity of reversible error when individually considered, did amount to reversible error when considered in the aggregate. We have considered the complaint. It is overruled.

Judgment is affirmed.


source: Caselaw Access Project

author: LANGDON, Justice.

license: Public Domain

text:
    Marvin CALVERT et al., Appellants, v. CITY OF DENTON, Texas, Appellee.
    No. 16477.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 7, 1964.
    Rehearing Denied Feb. 28, 1964.

      William Petty and DeWitt O. Dunaway, Dallas, for appellants.
    Lee E. Holt, Denton, for appellee..
   LANGDON, Justice.

A condemnation suit was instituted by the City of Denton to condemn a ten foot by seventy foot strip out of one lot for an easement in the construction and maintenance of electric power pole guy wires and anchors. Appellants are the owners of the lot upon which the easement lies and four additional lots all of which are contiguous and adjoining. The trial court limited the appellants’ recovery to the value of the strip condemned plus damages to the remainder of the single lot upon which the easement lies.

The principal issue before this Court concerns the right of appellants to recover damages to the remainder of all five lots as a single tract of land rather than to be limited to the remainder of the single lot. The case is submitted upon an agreed statement as follows: The appellants are the owners of the five adjoining and contiguous lots which are nominally divided by lot lines appearing on maps or plats. There are no physical divisions. Driveways lead from the street to the garage or parking area of each lot. Each lot was acquired by a separate transaction at a different time from a different vendor and is rendered separately for taxation. A single family dwelling house, rented and occupied by separate tenants and used as a single family home, is located on each of four of the lots. The fifth lot is devoted to a business use by one of the appellants.

The parties further agree that: The highest and best use of the property would involve the use of all five lots as a single tract and that the appellants have sustained damages to the remainder of the property considered as a single tract additional to the damages to the remainder of the single lot. Reversed and remanded.

Article 3265 (subd. 3), Revised Statutes of Texas, relating to the measure of damages to be awarded the owner when only a part of a tract of land is condemned requires that the owner be paid as compensation the value of the land actually taken, plus any consequential damages to the remaining portion of the tract, including any diminution in the value thereof.

The appellants allege that over a period of time they acquired the property in question for business and other purposes and ultimately for development of a shopping center. The trial court held in effect that such intended future use was too speculative and that proffered testimony in support of such future use was inadmissible. The appellee contends that the lots are each used for a separate and independent purpose rather than as a combined unit for a common or unified purpose and therefore the damages to the “remaining portion”, referred to in Article 3265, supra, must be confined to the single lot.

The primary question before this court and the basic one in all cases involving severance damages is what constitutes a single tract of land as distinguished from separate ones. Under the authorities the answer does not depend upon artificial boundaries between tracts as may be reflected in the owner’s chain of title or as may appear upon maps or plats. It would not in our opinion depend upon whether the owner acquired the tract under consideration in one or several transactions or rendered and paid taxes on them as single tracts or as a unit. Nor in our opinion would the determination of the question necessarily depend upon the uses to which the property was being devoted at the time.

The words, “the remaining portion”, contained in Article 3265, suprá, imply that the land condemned is coterminous with other land of the same owner used by him for a common purpose and that the remaining portion of the land will be either increased or decreased in value because of the public use of the part condemned. If the remaining portion is contiguous it is immaterial that the whole tract is not enclosed by a fence or otherwise so as to place it all in the same enclosure. 22 Tex.Jur.2d § 252. See also Rayburn, Texas Law of Condemnation, § 160(1), pp. 455-460, p. 458 and cases cited.

The question of what constitutes a “single” tract is not wholly dependent upon whether the tracts under consideration are physically contiguous. Such tracts may be separate ones if used separately. On the other hand tracts which may be physically separated from one another by railroads, highways, land or other barriers may constitute a single tract if devoted to an integrated unitary use or if the possibility of their being so combined for a unified use in the reasonably near future is such as to affect market value.

In the case of McLennan County v. Stanford, Tex.Civ.App., 350 S.W.2d 208, the general rule was stated as follows: “Where separate, but contiguous tracts are integral parts of an entity under common ownership in such physical and functional relationship that they are joined by unity of use by the same proprietor into a single property, they will be treated as a whole in assessing damages to the remainder in the taking of a part.” (See authorities cited.)

Texas Jurisprudence in its section under Eminent Domain states in effect that the value of land is to be confined to the actual use to which it is put by the owner only in those cases where there is an absence of any evidence showing its adaptability for another use will give it a greater value. 22 Tex.Jur.2d 274, § 173 and continuing in the same text, “Not only the actual use made of the property, but also any use to which the property is adapted and might be put, should be taken into account in estimating its market value. In general, the best or most valuable use to which condemned property is adapted is to be considered in fixing its value, and not the condition in which the owner has maintained the property or the use to which it may be applied at the time; this rule is applicable not only to the property taken but also to any remaining portion thereof.” 22 Tex.Jur.2d 277, 278, § 174 and authorities cited. See also 29 C.J.S. Eminent Domain § 160, p. 1024; 18 Am.Jur. 878, 879.

Stated another way, value may reflect not only the use to which the property is presently devoted but also to that use to which it may readily be converted.

The record in this case reflects no legal impediments which would prevent the appellants from removing the tenant houses and other buildings from the property to other locations or else to raze them and thereby clear the property for conversion to use as a shopping center or other business purpose. Appellants were and are likewise free to convey the lots as a single tract. Under the contentions advanced by appellee if the appellants had cleared the property and deeded same as a single tract the grantee in the deed would be entitled to damages to the remainder of the whole tract whereas the appellants are limited to the single lot hecause the lots were purchased one at a time and are taxed and used as single units.

Contiguous parcels of land (or lots) with common ownership which are capable of common or integrated use at the will of the owner are not to be considered as separate and independent parcels merely because they were acquired in different transactions from different vendors and are separated by imaginary lines.

In Continental Pipe Line Co. v. Kiel, Tex.Civ.App., 227 S.W.2d 825, 828, it was held: “The test seems to be that the owner may show uses his land was suitable for or adaptable to affecting its value under the facts and circumstances existing at the time condemnor’s acts occurred. This is true whether the owner had chosen to avail himself of the situation or not. If the value existed it belonged to him and the con-demnor could not take it from him without just compensation.”

The Supreme Court in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, stated that: “Generally, it may be said that it is proper as touching the matter of the value and depreciation in value to admit evidence upon all such matters as suitability and adaptability, surroundings, conditions before and after, and all circumstances which tend to increase or diminish the present market value.” See also 18 Am.Jur., p. 991, § 347.

In City of Tyler v. Ginn, Tex.Civ.App., 225 S.W.2d 997, 998, the court held: “There seems to be no question but that appellees are entitled to the highest value for which the property is adaptable.”

It is a general rule that the value of land condemned is not to be estimated simply with reference to the condition in which the owner has maintained it or for the use to which it is at the time applied, but with reference to any use to which it is reasonably adapted. 29 C.J.S. Eminent Domain § 160, p. 1024.

Where the tracts or lots are contiguous and the issue of “separateness” is raised, the inquiry is whether they are of such dissimilar character as to require valuation, if at all, for entirely different uses and therefore as distinct or separate parcels, in which event they will not be treated as a single tract.

Admittedly the divisions between the five lots is merely nominal. The mere adaptability of parts to different uses and their devotion to such uses under the circumstances would not negative their character as a single parcel. When a parcel of land consisting of contiguous and adjoining tracts shown on official maps or plats as lots constitute an entire parcel used for one general purpose by the owner a condemnation proceeding should embrace all injuries caused to the entire tract. The uses to which the lots in question were devoted are not so divergent as to negative treatment as a single tract.

It would appear illogical to say that because four of the lots are occupied by single family houses rented to separate tenants and the fifth lot is devoted to a business use that they should not be treated as a single unit. Such a holding would be in violent conflict with the general rule that compensation to the owner is to be estimated by reference to its highest and best use and not necessarily to its use at the time of condemnation.

' In a .condemnation case, where the highest and best use of the property was prohibited by ordinance the Supreme Court of Texas speaking through Chief Justice Calvert stated, “In the willing seller-willing buyer test of market value it is frequently said that all factors should be considered which would reasonably be given weight in negotiations between a seller and a buyer. 29 C.J.S., Eminent Domain, § 1S9, page 1023. This would exclude consideration of purely speculative uses to which the property might be adaptable but wholly unavailable but would permit consideration of all uses to which the property was reasonably adaptable and for which it was, or in reasonable probability would become, available within a reasonable time. Orgel in his text on Valuation Under Eminent Domain, Vol. 1, § 30, p. 141, footnote 113, says: ‘The test is well phrased in United States v. 3969.59 Acres of Land (D.C.), 56 F.Supp. 831: “To warrant admission of testimony as to the value of land for purposes other than that to which it is being put at the time of the taking, it must first be shown: 1. That the property is adaptable to the other use. 2. That the other use is reasonably probable within the immediate future, or a reasonable time. • 3. That the market value of the land has been enhanced thereby.” ’ City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808, p. 814.

“In determining the amount of depreciation, if any, in the value of the remainder of a tract'before and after part of it has been taken under eminent domain, considerable latitude is allowed in introducing testimony. But evidence relating to remote, speculative, and conjectural uses, as' well as injuries, which are not reflected in present market value of the property is to be rejected.” 22 Tex.Jur.2d, p. 241, § 151.

Before determining what constitutes a single tract as distinguished from separate ones for the purpose of allowing damages for the remainder of the tract out of which a part is condemned, it is necessary to determine whether the tracts under consideration are physically contiguous as distinguished from tracts which are separated by some physical division. If the tracts are physically contiguous and separated by mere nominal divisions they constitute a single tract unless an issue of separateness is raised due to the divergent uses to which the parts are devoted, uses of such a dissimilar character as to preclude their consideration as a single parcel. To constitute a single tract is it not necessary that all the tracts be contained within a fence or other enclosure as in a compound.

If the tracts are not contiguous but are separated by some physical division, created by nature or man-made, then the rule of “unity of use” may be applied. Their devotion to a unity of use will combine- them so as to require their consideration as a single tract. The proximity and size of the separate tracts are considered in the application of this rule along with other factors.

It is frequently said that “unity of use”, or integrated use and not physical contiguity is the test hut that physical contiguity often has great hearing on the question of unity of use.

It is agreed that only hy treating, the five lots in question as a single tract can the property be devoted to its highest and best use and that treated as such it has sustained damages in addition to those allowed.

The only means by which any effect or meaning can be given to the rule of highest and most valuable use of one’s property and thus adequately compensate him for any damage to the remainder is to permit testimony as to uses to which the property might be adaptable and for which it is or in reasonable probability will be available within a reasonable time. All factors should be considered which in reason would be given weight in negotiations between a willing-seller and a willing-buyer and relating to market value. This would preclude speculative use or uses for which the property was not adaptable or available. Further to warrant admission of testimony as to value for uses of the land other than the present uses to which it is devoted it must be shown that the property is adapted to the other use, that such use is reasonably probable within the immediate future or a reasonable time and that the market value thereof has been enhanced thereby.

Based upon the conclusions recited herein we are of the opinion that the Court erred in limiting damages to the remainder of the single lot rather than permitting the consideration of damages to the remainder of the five lots considered as a single tract. In view of our holding we deem it unnecessary to discuss the alternative points. The judgment of the trial court is reversed and the cause remanded for a new trial.

Reversed and remanded.


author: COLLINGS, Justice.

text:
    Jim THOMAS, Appellant, v. OIL BELT SUPPLY COMPANY et al., Appellees.
    No. 3853.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 14, 1964.
    Roach & Robertson, Dallas, for appellant.
    Woodward & Johnson, Coleman, for ap-pellee.
   COLLINGS, Justice.

Oil Belt Supply Company and others brought suit in the District Court of Coleman County against Jim Thomas to recover the sum of $6,339.98, which plaintiffs alleged defendant was obligated to pay by virtue of a letter written by Thomas to the First Coleman National Bank, Coleman, Texas. Thomas filed a plea of privilege to be sued in Dallas County, the place of his residence. Plaintiffs filed a controverting plea claiming venue in Coleman County under the provisions of Subdivision 5, Article 1995, Vernon’s Ann.Tex.Civ.St.; that Thomas contracted and obligated himself in his letter to make payment of said $6,339.98 in Coleman County. After a hearing the plea of privilege was overruled and Thomas has appealed. At appellant’s request the trial court made and filed findings of fact and conclusions of law.

Appellant Thomas presents points urging that the court erred in overruling his plea of privilege, erred in holding that the letter he had written obligated him to pay the amount specified in Coleman County, in compliance with the provisions of Subdivision 5, of Article 1995. Subdivision 5 provides as follows:

“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 domicile.”

Appellant is entitled to have the case transferred to Dallas County unless appel-lees have shown their right to maintain the suit in Coleman County under the above or some other subdivision of the venue statute. Appellees rely upon Subdivision 5. The letter in question as shown by the findings of fact filed by the court reads as follows:

“JIM THOMAS
Box 10802
DALLAS 7, TEXAS
November 7, 1962
FIRST COLEMAN NATIONAL BANK
Coleman, Texas
ATTENTION: Mr. C. W. Hemphill, Jr.
Gentlemen:
Tri-M Drilling Company, Inc., drilled a well on the Wheeles No. 1, Runnels County, Texas, to a depth of 4127 feet and have invoiced us for same. Date of invoice is October 3, 1962. Amount of invoice is $20,073.24, of this amount $9,300.00 has been paid leaving a balance due in the amount of $10,773.24. Of the amount of $10,773.24, Tri-M Drilling Company’s 1/4 interest is $2,693.31 then leaving a balance of $8,079.93 of which there is an insurance claim to be deducted in the amount of $1,739.95 then leaving a net balance due from Jim Thomas, the below signed in the amount of $6,339.98//.
They, Tri-M Drilling Company, Inc., have requested us to withhold $6,339.98 from the above invoice and to pay this amount direct to First Coleman National Bank within 30 days from date of this letter with amount to be applied to Oil Belt Supply Company account. We agree to make this payment as requested by the Tri-M Drilling Company, Inc.
The above assignment is approved and agreed to by us:
TRI-M DRILLING COMPANY INC.,
By /s/ J. D. Frick
Yours very truly,
JIM THOMAS
/s/ Jim Thomas”

Appellees contend that appellant Thomas has by the letter obligated himself to make the payment therein specified at a definite place in Coleman County to-wit, at First Coleman National Bank in Coleman County. Appellees point out that the letter is addressed to “First Coleman National Bank, Coleman, Texas,” and urge that a definite place in Coleman County is thereby indicated in connection with the promise to pay. Appellees particularly urge the provision of the letter that appellant shall “pay this amount direct to First Coleman National Bank.” The trial court in its conclusions of law found:

“1. That the instrument executed by Defendant is a contract in writing as contemplated under subdivision 5 of Article 1995, Amended Acts 1935, 45th [44th] Leg., p. 503, Ch. 213, par. 1.

“2. This Court has construed the contract in its entirety. Considering in particular that the contract is addressed to the First Coleman National Bank, Coleman, Texas, and that same contains a provision requiring defendant to make payment ‘direct to’ First Coleman National Bank, the Court has taken these and all other provisions of the contract into consideration and considered them together in order to ascertain the meaning and effect of the contract. As a consequence, the construction this Court places upon said contract is that Defendant did obligate himself in writing to make payment in Coleman County, Texas, and to the First Coleman National Bank, a definite place in Coleman County, Texas, since it logically follows that payment made ‘to’ First Coleman National Bank in some place other than the place where said hank is located would be ‘indirectly to’, and the contract clearly states that payment is to be made 'directly to’.

“3. The Court construes the words 'direct to’ to indicate the place at which payment is to be made.

“4. Defendant’s plea of privilege should he overruled since an exception to the venue statute exists, and the suit is properly maintained in Coleman County, Texas.”

The letter shows an agreement by appellant to comply with the request of TriM Drilling Company, Inc., to pay the specified amount direct to First Coleman National Bank. The letter, however, does not satisfy the requirements of subdivision 5 of the venue statute in that it does not expressly name Coleman County or a definite place therein as the county or place at which the agreement to pay is to he performed. The fact that the letter was addressed to the First Coleman National Bank, Coleman, Texas, and provided that the payment should he made “direct to First Coleman National Bank” does not constitute a promise to make the payment in Coleman County or at a definite place therein. The meaning of the language was merely that appellant agreed to make the payment to the bank rather than to Tri-M Drilling Company, Inc. Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610; Watkins v. McCluskey, Tex.Civ.App., 284 S.W.2d 381; Tatum v. Home Improvement Loan Company, Tex.Civ.App., 300 S.W.2d 215; Southern Pine Lumber Co. v. King, Tex.Civ.App., 130 S.W.2d 942; Pack v. Dittlinger & Dare, Tex.Civ.App., 136 S.W.2d 636; Petroleum Engineering & Tool Co. v. Brandon Company, Tex.Civ.App., 232 S.W.2d 247.

In this connection the case of Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825, states as follows:

“The language of the statute is plain, and suit can only be brought against a defendant outside the county of his residence, when he has contracted in writing to perform an obligation ‘in a particular county, expressly naming such county, or a definite place therein, by such writing.’ (Emphasis ours) Venue may not be sustained by implication. Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610.”

For the reasons stated the order overruling appellant’s plea of privilege is reversed and it is ordered that the case be transferred to Dallas County, Texas.


author: MURRAY, Chief Justice.

text:
    Jackie Greer BYARS and wife, Helen C. Byars, Appellants, v. Delia SHIPMAN, Appellee.
    No. 14231.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 29, 1964.
    Rehearing Denied Feb. 26, 1964.

      Louis E. Marshall, San Antonio, for appellants.
    W. W. Palmer, Jewell D. Lemons, San Antonio, for appellee.
   MURRAY, Chief Justice.

This is an action in the form of trespass to try title brought by Delia Shipman, a single woman, against Jackie Greer Byars, his wife, Helen C. Byars, and many others, seeking to recover title and possession of 17.59acres of land out of the John H, Lucas Survey No. 54, situated about eleven miles east of the Bexar County Courthouse in Bexar County, Texas, and fully described in the pleading. The trial began to a jury, but at the close of the evidence the trial court instructed a verdict in favor of Delia Shipman, and Jackie Greer Byars and wife, Helen C. Byars, have prosecuted this appeal.

On December 27,1956, Louis L. Schneider and wife, by warranty deed, conveyed the 17.59acres of land involved herein to ap-pellee, Delia Shipman. Thereafter, on May 8, 1957, appellee by warranty deed conveyed the 17.59 acres to Milton N. Sherman and wife, Josephine M. Sherman, and the Sher-mans on that same date executed and delivered to appellee their real estate note in the principal sum of $13,750.00, payable in San Antonio, Texas, in monthly installments of $110.00 each. The note was secured by a vendor’s lien and a deed of trust lien upon the above described 17.59 acres of land. Thereafter, the Shermans conveyed the 17.59acres to M. W. Massey and wife, and the Masseys assumed the payment of the $13,750.00 note. Thereafter, the Masseys conveyed the 17.59 acres to Richard H. Perez and wife, and the Perezes assumed the payment of the note. Thereafter, the Per-ezes conveyed the 17.59 acres to appellants, Jackie Greer Byars and Helen C. Byars, and they assumed the payment of the note. Thereafter, the appellants made default in payment, and Ottis A. West, Trustee under the Deed of Trust, sold the 17.59 acres at a public trustee’s sale to appellee.

Appellants contend that even if the trustee’s sale was valid, nevertheless, the judgment should.be reversed and judgment here rendered for appellants, because ap-pellee failed to show that she was in possession of, or had a present legal right to immediate possession of the 17.59 acres. We do not agree. It was agreed by the parties that Louis L. Schneider was the common source of title. Appellee acquired title to the 17.59 acres from that source. Appellants contend that appellee had contracted to sell the land to the nominee of Richard Koehler; that Texas Bond and Mortgage Company was the nominee of Koehler; that appellee had placed the Texas Bond and Mortgage Company, Noble L. Roberts, President, and Carl Anderson Bland and wife in possession of the land by virtue of this contract of sale executed by appellee, and therefore appellee was not entitled to the immediate possession of the land and could not maintain this trespass to try title suit. We overrule this contention. The trial court held this contract of sale to be void, and the parties affected by this part of the judgment have not appealed. Appellants herein are not in a position to complain about this part of the judgment. Their claim to the 17.59 acres is under the title held by appellee, and their title is in no way affected by this sales contract.

The undisputed evidence shows, as a matter of law, that appellee has superior title to the 17.59 acres, from the agreed common source, and has the right to possession thereof. 40-A Tex.Jur., § 19, p. 532. All of the parties to this suit are claiming title through appellee. Appellee had the right of possession of the 17.59 acres of land at a time antedating the possession of all of the defendants below including appellants. Under such circumstances appellee was entitled to judgment for the title and possession of the land as a matter of law.

Appellants are the subvendees of appellee and are in no position to dispute her title so long as the vendor’s lien and deed of trust note remains unpaid. Amos v. Adams, Tex.Civ.App., 352 S.W.2d 540; Pullin v. Funderberg, Tex.Civ.App., 342 S.W.2d 63.

Appellants contended that appellee had agreed to reduce the monthly payments until appellants could adjust their living conditions. Such a claimed reduction of payments was oral and without consideration, and therefore void. Wehmeyer v. Domingues, Tex.Civ.App., 286 S.W.2d 194.

In this case the common source of title was agreed. The evidence shows that appellee held title directly from that common source, therefore, the burden of proof shifted to appellants under their plea of not guilty, to show a superior title under the common source, or to show that they held a superior title not connected with the common source, or to show that the true title is outstanding. Krasa v. Derrico, Tex.Civ.App., 193 S.W.2d 891.

Appellants contend that the trustee’s sale, conducted under the power of sale contained in the deed of trust, was void. We do not agree. It is undisputed and uncon-tradicted that appellants were in arrears to some extent with their installment payments on the note, that they had failed to pay taxes in the sum of $486.25, and that the premises had teen left vacant for more than thirty days. All of these delinquencies were in violation of the provisions of the deed of trust and authorized appellee to accelerate the maturity dates of the installments and to declare all of the unpaid balance of the principal, interest and attorney’s fees provided for in the note to be due and payable, and to call upon the trustee to sell the land under the power of sale provided for in the deed of trust.

Appellee turned the note over to her lawyer, Golder H. Russell, Esq., who wrote a letter to appellants, who at the time were living in Washington, D. C., to the effect that unless these delinquencies were taken care of during the month of October, 1961, there would be a foreclosure under the power of sale. The delinquencies were not taken care of and the sale by the trustee followed.

Appellants make many other contentions as to why the trustee’s sale was not legal, and as to why the trial court should not have instructed a verdict against them. We do not agree with any of these contentions. Appellants say that the sale should be set aside because the note was not presented to them for payment before the maturity date was accelerated. The note was payable in San Antonio, Texas. Appellants had moved out of the state and were living in Washington, D. C. Appellants assumed the note and were therefore primarily liable on the note. They knew of the delinquencies, they had been notified by appellee’s lawyer that unless the delinquencies were taken care of there would be a trustee’s sale under the power of sale contained in the deed of trust. Appellants do not even contend that they were ready, able and willing to pay all delinquencies, and would have done so if the note had been presented to them in Washington, D. C. They did not even tender the amount due at the trial. Under all of the circumstances, no presentment of the note to appellants in Washington, D. C. was required.

Appellants complain that the land was sold for more than the amount due on the note, and that no accounting was made to them for this excess. This does not affect the validity of the sale. 39 Tex.Jur.2d p. 221, § 161; Jenkins v. Abilene Bldg. & Loan Ass’n., Tex.Civ.App., 98 S.W.2d 228.

The fact that after the trustee’s sale appellee asked appellants to execute a quitclaim deed to the property did not in any way affect the validity of the sale. Hughes Oil Co. v. Mayflower Inv. Co., Tex.Civ.App., 193 S.W.2d 971.

The appellee herein is in the position of a mortgagee in possession of the 17.59 acres, and is entitled to keep such possession, unless and until appellants tender the amount due under the note and deed of trust. 39 Tex.Jur.2d, § 164.

The remaining contentions presented by appellants are without merit and are all overruled.

The judgment is affirmed.


author: ARCHER, Chief Justice.

text:
    John W. POGUE, Appellant, v. ALLRIGHT, INC., Appellee.
    No. 11142.
    Court of Civil Appeals of Texas. Austin.
    Feb. 5, 1964.
    Rehearing Denied Feb. 26, 1964.
    Carl Waldman, Sample & Walker, Beaumont, for appellant.
    Baker, Botts, Shepherd & Coates, Robert A. Hall, Houston, for appellee.
   ARCHER, Chief Justice.

This is an appeal from a judgment of the Court in favor of defendant, appellee herein, on motion of defendant notwithstanding the verdict, and to disregard certain findings of the jury in a personal injury suit filed by plaintiff, appellant herein, and tried' with the aid of a jury which in response to issues had answered certain issues favorable to plaintiff and fixing the damages at $35,000.00.

Appellant alleged negligence of appellee in failing to properly warn plaintiff of the presence of a man lift hole, through which he fell to a concrete floor below and suffered the serious and permanent injuries complained of.

The defendant answered that plaintiff was walking in an area not open to the general public and without using ordinary care for his own safety fell down the man lift hole and was not using that degree of care that would have been used by a person of ordinary prudence under the same or similar circumstances; that such failure proximately caused the matters complained of by plaintiff; that in going onto the area of the premises plaintiff was either a trespasser or a mere licensee and was not an invitee; that the conditions that existed were open and obvious; that by walking into that area not open to the general public, the plaintiff assumed the risk of such conditions and that the accident was an unavoidable one.

The appeal is’ founded on eleven points assigned as error and are to the effect that the Court erred in overruling plaintiff’s motion to disregard issues Nos. 7 and 8 and' for judgment, because such issues were evi-dentiary only and did not establish any controlling issue of fact as a defense to the primary negligence findings on issues Nos. 3 and 4; are defensive issues to issues Nos. 5 and 6; in overruling plaintiff’s objection to issues Nos. 7 and 8, because there were no pleadings substantiating the submission of this issue and such issue failed to contain the element as to whether or not plain-' tiff realized, or should have realized and appreciated the full extent of the “Danger or Risk,” or whether plaintiff voluntarily put himself in the way of the particular risk, as a result of an intelligent choice; in overruling plaintiff’s objection No. 2(j), because issue No. 8 did not inquire whether plaintiff voluntarily exposed himself to the risk in question as the result of an intelligent choice, because there was no evidence, or that the evidence is insufficient to support a finding that plaintiff knew of the man lift hole, or appreciated the danger of falling into such hole.

The plaintiff in his petition alleged three dangerous features of the premises where he was injured:

“(1) An ‘opening which was unguarded and was being used for a continuous elevator;’ otherwise referred to as an ‘opening’ and said ‘opening’ referred to in the testimony of the witnesses as a ‘manlift hole’;
(2) An inadequate guard;
(3) Inadequate lighting.”

The case was submitted to the jury on 15 special issues.

In reply to Special Issue No. 1, they answered that the defendant did not fail to light the parking lot area.

In response to issues Nos. 3, 4, 5 and 6 the jury found that the defendant failed to give plaintiff such warning of the presence of the man lift hole, as a person of ordinary prudence would have done, and that such failure was a proximate cause of the injuries sustained by plaintiff and that defendant failed to maintain such guard around the opening as a person of ordinary prudence would have done and that such failure was a proximate cause of the injuries.

Conditioned on affirmative answers to is-, sues Nos. 1, 2 and 5 or either of them, the Court submitted issues Nos. 7 and 8 and each was answered in the affirmative by the jury, and read:

“7. Do you find from a preponderance of the evidence that the plaintiff, John W. Pogue, voluntarily exposed himself to such risks as existed at the time and on the occasion in question ?
“8. Was the condition of the wire guard surrounding the elevator shaft open and obvious to the plaintiff, John W. Pogue, just prior to the time he fell?
“If you find from a preponderance of the evidence that the condition was not open and obvious to the plaintiff, John W. Pogue, answer: ‘NO, it was not open and obvious.’
“If you find from a preponderance of the evidence that the condition was open and obvious to the plaintiff, John W. Pogue, answer: ‘YES, it was open and obvious.’
“A condition is open and obvious to a person if such person knows or in the exercise of ordinary care should know of it, and if such person also appreciates or in the exercise of ordinary prudence should appreciate the full extent of the danger involved in its use.”

As may be observed, appellant’s points of error are directed principally to the action of the Court in overruling his motion for judgment and objections to Special Issues Nos. 7 and 8.

We believe that the Court was justified in entering the judgment for defendant, based on the answers of the jury to Special Issues Nos. 7 and 8 and that such issues are not evidentiary but furnished a ■complete defense to the defendant as •against the primary negligence charged in Special Issues Nos. 3, 4, 5 and 6.

Issue No. 8 in inquiring as to the condition of the wire guard surrounding the •elevator shaft, must have had reference to and inquired as to the presence of the elevator shaft or man lift hole.

■ The wire guard was less than 25 inches from the shaft itself There could be no danger in connection with the wire guard, per se, the only danger which could exist arises from the shaft surrounded by the wire guard.

By its answer to Special Issue No. 7 the jury found that the plaintiff voluntarily exposed himself to such risks as existed at the time and on the occasion in question.

Appellant objected to the submission of Special Issue No. 8, because there was no evidence or the evidence was insufficient to support such issue; that an affirmative answer would be so against the great weight and preponderance of the evidence as to require the Court to set the same aside; that such issue is evidentiary and does not inquire as to an ultimate issue of fact and a comment upon the weight of the evidence; that the instructions given by the Court defining an open and obvious condition fails to include the elements that plaintiff voluntarily exposed himself to such risks and as the result of an intelligent choice.

The Court overruled this objection and properly so. Personal Injuries Resulting from Open and Obvious Conditions — Special Issue Submission in Texas, an article by W. Page Keeton, 33 Tex.Law Rev. 1.

Objections were made to the submission of Special Issue No. 7 in much the same manner and content as that to Special Issue No. 8, and overruled by the Court and properly so.

We have hereinabove discussed Issues Nos. 7 and 8 and the manner of such submission and do not elaborate further thereon.

In answer to Special Issue No. 1 the jury found that the defendant did not fail to light the parking lot in the vicinity of the opening in question.

By review plaintiff’s Exhibit 1 and defendant’s Exhibits 1-4 show the location and condition of the area and the first floor of the parking garage were open and obvious and obvious as a matter of fact and of law, and this would include the elevator shaft, the wire guard surrounding the shaft and the hole through which the elevator shaft went. Missouri Pacific Railroad Company v. Owen, 306 F.2d 887 (C.A. Sth, 1962)

The plaintiff had purchased a racoon.

The colored parking attendant S. L. Patton testified in part:

“Q. Now in your own words, I want you to turn to these folks here and tell them what you saw and what you heard from the time Mr. Pogue walked in that entrance until the time he had his accident.
“A. Well, on the night while I was on duty this fellow, another man and Mr. Pogue came into the building, I was on my way to the man lift or elevator and as he got close to me he pulled the coon and said ‘Come here, boy, I’m going to make this coon bite you.’ I saw him come in and I kept on doing what I was doing. He kept coming and I got up on the man lift. He kept coming and stumbled over the cement block. I reached and tried to catch him but he fell off in the hole. * * ijc 33

and further testified:

“Q. What did you think or feel when he came forward toward you and said, ‘Here, boy, come here, I’m going to make this coon bite you.’ Were you afraid?
“A. Yes, sir, I was sort of afraid because I didn’t want that coon to bite me because I’d heard about coons, that they are kind of vicious at times.”

The plaintiff testified in part:

“Q. Now, you have heard the statement here that the gentlemen here made about your trying to scare some colored man with the coon or trying to make him bite him. Is that true or not?
“A. No, sir, I didn’t.”

On cross examination plaintiff testified:

“Q. But at any rate, it is your testimony that this colored boy was walking alongside of you and you all were chatting about the racoon, is that right?
“A. Yes, sir.
“Q. Having a friendly little conversation ?
“A. Just talking, yes, sir.”

In answer to issue No. 9, the jury replied that plaintiff advanced toward S. L. Patton with a racoon extended toward Patton.

In reply to Issue No. 10 the jury found that the act of plaintiff in advancing toward Patton was not negligence.

The answer of the jury to issue No. 10, in view of the evidence, a portion of which we have inserted hereinabove, is so against the great weight and overwhelming preponderance of the evidence as to be clearly wrong, and such conduct did constitute negligence and proximate cause as a matter of law.

In going into the area not designed for use on the premises by the public the plaintiff became a licensee as a matter of law, and the defendant only owed the duty to refrain from willfully, wantonly or through gross negligence injuring the plaintiff, and there is no pleading or evidence that the defendant injured the plaintiff, willfully, wantonly or through gross negligence. Johnson v. Macias, 193 F.2d 475 (C.A. 5th, 1952); Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073, 1941.

The plaintiff contended in his petition that he was an invitee. The defendant in its answer alleged that plaintiff was a trespasser or licensee. The status of the plaintiff was in issue and the burden of establishing his status was on plaintiff. No issue was requested concerning his status and no objection was made as to the absence of such issue from the charge. The plaintiff waived a jury determination of his status and it is deemed that the Trial Court found, in support of the judgment, that plaintiff was a licensee. Rule 279, Texas Rules of Civil Procedure.

In Burton Construction & Ship Building Company v. Broussard, 154 Tex. 50, 273 S.W.2d 598, no writ history, it was held that:

“ «* * * Where a person while lawfully on the property of another or on public property as an invitee leaves that portion of the property on which he has been invited, or uses the property on a venture in his own interests and not within the scope of his invitation or purpose for which the property was reasonably intended, he loses his status as an invitee and becomes a trespasser or mere licensee, * * *. When a person becomes a trespasser, he remains such until he has acquired a different status.’ ”

Witness Arthur Smith testified as follows:

“Q. Mr. Smith back in November of 1957 was it the practice of the Allright Parking Garage to allow their customers to ride this one man lift between floors?
“A. No sir.
“Q. Have you ever known of any instance of a customer riding one of those lifts in a garage of yours ?
■“A. No sir no instance.
“Q. Directing your attention to this area inside this wire enclosure where the man lift is shown in defendant’s Exhibit No. 1. Would you tell the jury for whose use that area is maintained.
“A. For the employees only.
“Q. Had you ever known of a customer entering into that area enclosed by the wire.
“A. No sir, I hadn’t.”

Witness William D. Daniel testified:

“Q. Now I show you a picture marked defendant’s Exhibit No. 4 which purports to be a picture looking from the Fannin Street side of the layout of the garage there. Was there an area there on the night of November 8, 1957, that was available for customers to stand and wait for their cars?
“A. Plenty of room, all this room here in front.
“Q. Now when this man came in carrying the coon on the night of November 8, 1957, did he walk over to you and hand you his ticket and ask you to stamp it?
“A. No sir.
“Q. Was it your practice to allow customers to ride that man lift there in that garage?
“A. No sir. I asked them not to ride it and they didn’t ride it.
“Q. Did you allow customers to go inside that little wire area that surrounds that man lift?
“A. No sir.”

It appears from the evidence and from the jury’s answer to Special Issue No. 9 that the plaintiff was using the defendant’s premises on a venture in his own interest and not in the scope of his invitation, in view of his conduct in threatening the defendant’s young employee with a racoon, and was guilty "of contributory negligence as a matter of fact and of law.

We insert herein certain pictures of the premises which must have been considered in light of the jury’s answer to Special Issue No. 1, which said that the lighting in the garage was adequate to show that all conditions on'the floor.of flic garage about which plaintiff "complains were 'open and obvious.

The judgment of the Trial Court is affirmed.

Affirmed


author: WALTER, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Robert Lee BAILEY, Appellee.
    No. 3797.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 31, 1964.
    Rehearing Denied Feb. 21, 1964.
    Thompson, Knight, Wright & Simmons, Dallas, for appellant.
    Fulmer, Fairchild & Badders, Nacog-doches, for appellee.
   WALTER, Justice.

All dates herein refer to 1963 unless otherwise stated. On May 3rd, we affirmed a judgment awarding appellee total and permanent disability benefits under the Workmen’s Compensation Act for an injury sustained by him on or about November 15, 1960. The Travelers Insurance Company v. Robert Lee Bailey, Tex.Civ.App., 368 S.W.2d 60. On May 7th, appellee died. Appellee does not contend that Bailey’s death is related to his compensable injury. On May 24th we overruled appellant’s motion for a rehearing. Appellant’s application for writ of error to the Supreme Court of Texas was refused N.R.E. on July 31st. Appellant discovered that appellee had died after the mandate was issued.

Appellant has filed a motion to modify and correct the judgment, contending that the appellee was entitled to compensation for his general injury only so long as he lived. Appellant contends its position is-supported by Texas Employers Insurance Association v. Phillips, 130 Tex. 182, 107 S.W.2d 991 and Estate of Burris v. Associated Employers Insurance Company, Tex., 374 S.W.2d 223.

Appellee contends that the judgment of the trial court established in Bailey a vested right to recover the amount decreed. Appellee also contends, “The failure of Appellant to preserve for review any contention that the judgment of the trial court was erroneous because it unconditionally decreed recovery of unmatured installments of compensation without making provision for the possible death of Bailey precludes consideration of its Motion to Modify and Correct the Judgment.” Ap-pellee’s contentions cannot be sustained because Bailey’s judgment was not final at the time of his death.

In Texas Employers Insurance Association v. Phillips, Tex.Civ.App., 62 S.W.2d 313, a judgment in favor of Phillips for total and permanent disability benefits under the Workmen’s Compensation Act, payable in a lump sum, was reversed and remanded. Phillips died, from causes in no way connected with the injuries upon which he predicated his claim for compensation, while his case was on appeal. His widow and children were substituted as plaintiffs and they recovered a judgment for total and permanent disability benefits payable in a lump sum. The insurance company appealed. It contended: “Plaintiff in error contended in the lower court, and that contention is renewed here, that, since Jim Phillips died of a cause independent of and in no way connected with the injuries suffered by him in the course of his employment with Garrison Brick & Tile Company, the cause of action for total and permanent disability, set out in his petition, did not survive to defendants in error as his heirs and legal representatives.” The Court of Civil Appeals certified the following questions to the Supreme Court:

“Question No. 1
“Did the claim of Jim Phillips for compensation survive to his widow and two minor children (a) as his heirs at law or (b) as his legal beneficiaries under the provisions of our Workmen’s Compensation Act?
“Question No. 2
“If the cause of action did not survive for the full compensation period, did it survive for the amount that accrued from the date of his injury to the date of his death?”

The Commission of Appeals in an opinion adopted by the Supreme Court in Texas Employers Insurance Association v. Phillips, 107 S.W.2d 991, answered as follows: “We answer questions Nos. 1 and 2 that the claim of Jim Phillips for compensation and any cause of action therefor, survived his death only for the amount of same accruing and unpaid from the date of his injury to the date of his death. All un-accrued and unmatured portions of said claim are extinguished at his death, so that liability exists only for the portion of same matured and unpaid at the time of his death, and hence only this portion passes to his heirs.”

In the recent case of Estate of Burris v. Associated Employers Insurance Company, Tex., 374 S.W.2d 223, Burris recovered a judgment against Associated Employers Insurance Company at the rate of $24.00 per week for 401 weeks. That judgment was affirmed in Associated Employers Insurance Company v. Burris, Tex.Civ.App., 321 S.W.2d 112, (Writ Ref. N.R.E.). The insurance company paid weekly installments under the judgment until Burris died intestate on November 29, 1961. One hundred seventy-six installments were unaccrued and unpaid at the time of his death. The insurance company refused to make further payments. The administrator of Gus Burr*s, deceased, filed suit to mature the judgment. The judgment that the administrator take nothing was affirmed by the Court of Civil Appeals, 366 S.W.2d 683. The Supreme Court said:

“The principal question to be decided in this case is whether a final judgment awarding weekly workmen’s compensation benefits for a general injury survives to the estate of the injured workman.”
“When the judgment in favor of Burris became final, he had a vested right to a liquidated sum payable in weekly installments as therein provided. His situation was then substantially the same as that of a workman who has received a specific injury, and it is our opinion that the right to demand and receive unaccrued installments on the judgment survived to and may be asserted by his heirs or personal representative.”
“The following excerpt from the opinion in Lahoma Oil Co. v. State Industrial Commission, 71 Okl. 160, 175 P. 836, 15 A.L.R. 817, was quoted in the Phillips case as illustrative of the reasoning of the courts on the subject:
“ ‘The act makes no reference to the payment of the unpaid installments of the award, in the event of death of the employee, to dependents or next of kin. It, in effect, provides that the employee, if accidentally injured, shall receive in lieu of his wages the amount fixed by the terms of the act. The average weekly wage of the employee is taken as a basis upon which to compute the compensation. Had there been no injury, the payment of wages would cease on the termination of the relation of master and servant. When the relation is terminated by death of the employé, the occasion for making compensation in lieu of wages comes to an end.’
“This reasoning applies with equal force to unaccrued weekly installments payable under the terms of a judgment, but a final judgment of a court of competent jurisdiction is quite different from a mere claim or even an award of the Industrial Accident Board.”

The present case may be distinguished from the Burris case in that the judgment had become final before Burris died whereas the judgment in the present case was not final at the time of Bailey’s death.

Appellant’s motion to modify and correct the judgment is granted. Said judgment is modified so as to award the heirs and representatives of Robert Lee Bailey compensation at the rate of $35.00 per week from November 12, 1960 until May 7, 1963 plus interest at the rate of four percent per annum, plus hospital and medical expenses in the amount of $675.00, plus costs of court. Said sum to be payable one-third to appellee’s attorneys of record and two-thirds to the heirs and representatives of Robert Lee Bailey, deceased.


text:
    GAS BUTANO, S. A., and Banco Nacional de Transportes, S. A., Appellants, v. Amelia RODRIGUEZ et vir, Appellees.
    No. 14224.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 29, 1964.

      Tom N. Goodwin, Laredo, for appellants.
    Hall, Hall & Juarez, Laredo, for appel-lees.
   MURRAY, Chief Justice.

This suit was instituted in the District Court of Webb County, Texas, by appellee, Amelia Rodriguez, joined pro forma by her husband, Ernesto Rodriguez, against Gas Butano, S. A., a Mexican corporation having its office and principal place of business in Nuevo Laredo, Tamaulipas, Mexico, seeking the amount of principal, interest and attorney’s fees due upon a certain promissory note, dated August 29, 1960, payable at the residence of appellee in Laredo, Webb County, Texas, in the principal sum of $6,-800.00, bearing interest at the rate of 10% per annum, and providing for 10% attorney’s fees. The note was signed Gas Bu-tano, S. A., by Zaragoza Castaño Guajardo, and became due and payable on September 30, 1962.

Appellant Gas Butano, S. A., answered, (1) that the trial court, in the exercise of sound discretion, should decline to take jurisdiction of the subject matter because it was and had been in receivership under an order of the 12th Judicial District Court of the Republic of Mexico since October 30, 1959, and that the note made the basis of plaintiff’s suit was in renewal of a previous indebtedness, and was made payable in Laredo, Webb County, Texas, in an attempt to give the court jurisdiction to the end that appellee would not have to wait her turn for payment if she filed her claim in the Mexican Court; that defendant was a Mexican Corporation, engaged in the sale of butane gas to consumers throughout the Republic of Mexico, and the extent of its business in the State of Texas was loading its tanks at the plant of the seller in Laredo, Texas, and returning the same day to Nuevo Laredo, Mexico, via the International Bridge; (2) that there was no consideration for the renewal of the note.

Before trial, Banco Nacional de Trans-portes, S. A., a Mexican corporation, intervened in the cause alleging that it had a judgment against Gas Butano, S. A., and sought a judgment by the trial court on said Mexico judgment.

The trial court granted judgment in ap-pellees’ favor in the sum of $9,469.88 against Gas Butano, S. A., and decreed that intervener Banco Nacional de Transportes, S. A., take nothing, and both have prosecuted this appeal.

Gas Butano’s first contention is that the trial court erred in overruling its motion to decline jurisdiction of the subject matter, because the greater weight of credible testimony shows that said court was a forum non conveniens to determine the rights of the parties relative to the subject matter here involved.

We overrule this contention. The payee of the note was an American citizen residing at Laredo, Texas, and the note was payable at her residence in Laredo. The maker of the note was a Mexican Corporation with its office and principal place of business in Nuevo Laredo, Mexico, just across the Rio Grande River from Laredo, Texas. Under such circumstances we see no reason why the trial court should not have retained jurisdiction of this cause. It is true that in October, 1959, a Mexican tribunal rendered judgment against Gas Butano in favor of Banco Nacional de Transportes, S. A., in the sum of $831,-070.30 (Mexican currency) and all of the assets of Gas Butano were attached and a trustee appointed for the benefit of creditors, however, this would constitute no reason why the Laredo Court should refuse the jurisdiction of this suit based upon a promissory note payable to a United States citizen at her residence in Laredo, Texas.

Appellant cites a number of cases in which courts have declined to take jurisdiction under the doctrine of “forum non con-veniens” but none of them are similar to the case at bar. The question here is whether this suit, based upon a promissory note payable in Laredo, Texas, can be more conveniently tried on the south side of the Rio Grande than on the north side. Apparently there is no defense to the obligation contained in the note, on either side of the river.

The fact that after the judgment was rendered appellees caused an execution to issue, and the Sheriff of Webb County levied upon a trailer of Gas Butano in Laredo, while it was being loaded to return to Nue-vo Laredo, Mexico, does not demonstrate that the trial court abused its discretion in taking jurisdiction of this suit based upon a promissory note payable to a United States citizen in Laredo, Texas.

There was a valid consideration for the note, as the money was loaned to the corporation and the note was signed in the name of the corporation by the president, owner, and then acting trustee in receivership of appellant Gas Butano, S. A.

The trial court did not err in failing to render judgment in favor of intervener, Banco Nacional de Transportes, S. A., on its purported judgment of the Mexican Court, for the reason that there were no pleadings or evidence to support such a judgment. Appellee was not shown to be a party to the suit in which the Mexico judgment was rendered, nor was the amount presently due on the note shown.

The judgment of the trial court is affirmed.


author: SELLERS, Justice.

text:
    Vernon T. ADLER et al., Appellants, v. Pierce P. BROOKS et al., Appellees.
    No. 27.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 23, 1964.
    Rehearing Denied Feb. 20, 1964.

      Floyd McGown, Jr., Frank M. Rosson, San Antonio, R. L. Dillard, Jr., Curtis White, Dallas, for appellants.
    O. A. Fountain, Daniel T. Collins, John A. Pace, Dallas, for appellees.
   SELLERS, Justice.

On July 11, 1958, Vernon T. Adler, individually and as executor of the estate of H. O. Adler, deceased, and Dorothy Virginia Helm and husband, Floyd H. Helm, Jr., filed this suit in the District Court of Kendall County, Texas. The case was subsequently transferred to Dallas County on plea of privilege. The defendants in the suit were Pierce P. Brooks and National Bankers Life Insurance Company, and service was completed on both parties.

The suit is a stockholders derivative class suit under Rule 42, Texas Rules of Civil Procedure. Plaintiffs, as minority stockholders of National Bankers Life Insurance Company sued Pierce P. Brooks for the benefit of the company and on behalf of all minority stockholders of the company.

Plaintiffs’ petition alleges in itemized detail actions of violation by Pierce P. Brooks against the company and claim is made against Brooks for the benefit of the company and all minority stockholders for the sum of $3,000,000.00. At the time the suit was filed, Brooks was a majority stockholder of the company and an officer and director of the company, and controlled the company.

On July 1, 1958, the Commissioner of Insurance of the State of Texas filed a Show Cause Order against National Bankers Life Insurance Company and its officers in which it set up most all of the mismanagement by the officers of the company set out in the petition of the minority stockholders. The Show Cause Order fixed a date for the company to appear and show cause why its charter to do business in Texas should not be canceled; and on July 24, 1958, the Insurance Commissioner entered an order finding in effect that in spite of mismanagement the company remained solvent and approved the continuation of its certificate of authority to do business in the state; and in connection with said order, held

“The Commissioner hereby directs the new Board of Directors and Officers of National Bankers Life Insurance Company to immediately take such steps as may be necessary to investigate thoroughly the matters set out in the association examination report, and following a thorough study of such transactions, to take any action indicated to be proper and necessary to recover on behalf of National Bankers any expenditure of funds which was made for illegal or unauthorized investments, overvalued investments, or which operated to the detriment of National Bankers as a result of ‘self dealing’ or ‘conflict of interest.’ ”

Pierce P. Brooks sold his majority stock in the National Bankers Life to R. L. Huffines, Jr., and Victor Muscat, under a-contract dated August 11, 1958. Subsequently, most of the directors who were favorable to him or controlled by him resigned. A new Board of Directors and new officers were elected, including Huffines as President, and Muscat as Chairman of the Board of Directors. This new management took over National Bankers Life Insurance Company.

On December 17, 1958, while the plaintiffs’ lawsuit was pending, the new management of the company, Huffines and Muscat, entered into a written contract of settlement with Brooks in New Orleans, Louisiana. This settlement agreement called for Brooks to pay $1,025,000.00 to the company. After the settlement agreement with Brooks was made by the new management, the plaintiffs asked the Court for a hearing on the same in accordance with Rule 42 T.R.C.P.

Although requested and urged by plaintiffs, no hearing of any kind has ever been held in the trial court on the merits of the compromise agreement with Brooks under Rule 42 or on plaintiffs’ request for reimbursement for expenses and attorney’s fees.

On the second day of December, 1962, a motion for summary judgment filed by National Bankers Life Insurance Company, with all parties before the Court, was granted and the cause of action of the plaintiffs was dismissed at the plaintiffs’ costs, from this judgment the plaintiffs have appealed.

Appellees seek to sustain the trial court’s dismissal of the suit on two grounds:

“The District Court correctly granted Appellee’s, National Bankers Life Insurance Company’s, motion for summary judgment on the stockholders derivative action for the reason that the Insurance Commissioner had taken primary jurisdiction of the affairs of National Bankers Life Insurance Company by issuing his Show Cause Order on July 1, 1958.
“If the Insurance Commissioner had acquired primary jurisdiction of the affairs of National Bankers Life Insurance Company, the District Court never acquired jurisdiction of the stockholders derivative action; and therefore, the approval of the Court to the compromise settlement agreement was not necessary, and the provision of TRCP 42, requiring approval by the Court, did not prevent the granting of the summary judgment.”

It has been held that the Act of 1957 was intended as a comprehensive statute setting up a new administrative structure applicable to all forms of insurance and re-' pealing all existing laws in conflict therewith. State Board of Insurance, et al. v. June Lee Adams, Tex.Civ.App., 316 S.W.2d 773.

In Article 1.19 of the Insurance Code, section 3, V.A.T.S., among other matters, has this language:

“No action shall be brought or maintained by any person other than the Board for closing up the affairs or to enjoin, restrain or interfere with the prosecution of the business of any such insurance company organized under the laws of this State. Acts 1951, 52nd Leg., ch. 491; Acts 1955, 54th Leg., p. 826, ch. 307, § 7.”

Similar language to that above quoted was before the court in the case of Hand et al. v. State of Texas, 335 S.W.2d 410, Tex.Civ.App., and it was there held:

“In article of Insurance Code providing that no action shall be brought or maintained by any person other than board of insurance commissioners for enjoining, restraining or interfering with prosecution of ‘business’ of crim-pany/the word ‘business’ has reference to business company is chartered to perform. V. LT.S. Insurance Code, art. 3.63.”

The prayer of the appellants in their suit is as follows:

“WHEREFORE, plaintiffs pray that each of the defendants be cited to appear and answer herein, and that final judgment herein be rendered as follows :
“(1) That National Bankers Life Insurance Company recover judgment against the defendant Pierce P. Brooks ⅜ * * for the sum 0f $3,000,000.00, together with interest;
“(2) That the plaintiffs recover from National Bankers Life Insurance Company their expenses and attorney’s fees incurred in bringing this suit in such reasonable amount as may be set and determined by the Court; * * * ”

When you look at the relief sought by the appellants in their suit it does not infringe upon any duty of the Insurance Company governed by Insurance Board or' its officers, but seeks to recover from fraudulent officers for the benefit of the company money which the Insurance Commissioner was not authorized to sue for; and at the time the suit was brought, there were no officers of the company to whom the stockholders could turn to prevent this great loss to them.

It is the opinion of this Court that appellants were not barred from the prosecution of their suit by the filing of the Show Cause Order of July 1, 1958, for the reason that the Insurance Commissioner did not have the power to secure the rélief sought in their suit.

We think the rule in Texas covering the right of a minority stockholder suit under Rule 42 authorizes recovery of expenses and attorney’s fees to the extent that the suit aided the company in its recovery of the $1,025,000.00 which it recovered from Brooks. Modern Optics, Inc., Appellant, v. Jesse Buck, Appellee, and authorities therein cited. Tex.Civ.App., 336 S.W.2d 857. The letters, depositions, and statements in this record certainly make an issue of fact for the trial court as to the extent, if any, such suit aided the company in its recovery.

We do not feel that there was error on the part of the company or its officers in not submitting the settlement with Brooks to the Court in the appellants’ suit for confirmation under Rule 42. This rule has application where compromise is made in such a suit by the minority stockholders and not where a dismissal is entered by the Court on the merits. Pelalas v. Caterpillar Motor Co., 7 Cir., 113 F.2d 629.

Since there is an issue of fact presented by this record, the judgment of the trial court granting a summary judgment and dismissing the appellants’ case, is reversed and the cause remanded to the trial court.


author: GREEN, Chief Justice.

text:
    APPELL PETROLEUM CORPORATION, Appellant, v. G. W. TOWNSEND LEASE SERVICE, Appellee.
    No. 32.
    Court of Civil Appeals of Texas. Corpus Christi.
    Feb. 6, 1964.

      Lawrence H. Warburton, Jr. (of Perkins, Floyd, Davis & Oden), Alice, for appellant.
    Austen H. Furse (of Bell, Camp, Gwin & Furse), Bay City, for appellee.
   GREEN, Chief Justice.

Appell Petroleum Corporation, hereinafter styled Appell,. appeals from'an order of the trial court overruling its plea of privilege to be sued in Jim Wells County, where its principal office is located. Appel-lee G. W. Townsend Lease Service, a partnership, hereinafter. called Townsend, to support the venue in Matagorda County, relies upon that portion of Subd. 23, Article 1995, Vernon’s Ann. Tex. St., reading as follows:

“Suits against a private corporation ■* * * may be brought * * * in the county in which the cause of action or part thereof arose.”

The venue facts necessary to be plead and proved in order for Townsend to be entitled to maintain his suit against Appell in Matagorda County are (1) that Ap-pell is a private corporation; (2) that Townsend has a cause of action against Appell; (3) that said cause of action, or a part thereof, arose in Matagorda County, Texas.

There being no findings of fact or conclusions of law in the record, it is presumed that the trial court found all fact issues raised by the evidence in favor of the judgment. It is our duty to examine the testimony in the light most favorable to appellee and to indulge every reasonable inference in support of the judgment. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97; Lambert Corporation v. Martin, Tex.Civ.App., 369 S.W.2d 703, writ dism.

That appellant is a private corporation is an admitted fact and hence not in issue.

Townsend’s suit, based on a sworn account, is to recover from Appell and other defendants, including one L. W. Dennis, Jr., Trustee, for work done, materials furnished and for rental and maintenance of a board road on a mineral lease in Mata-gorda County constructed by Townsend in May, 1961, for defendant Bauman and put to use by defendants Dennis and Appell during the drilling operations on the lease from June to and including September, 1961. Appell and Dennis, who by assignments owned the working interests in the lease, entered into a written contract on June 9, 1961, by the terms of which Appell became obligated to drill a well on the lease, “and to furnish and to pay for the complete drilling rig, all of the necessary tools, appliances, materials, equipment and other items and labor (including the water well heretofore drilled and pits heretofore dug on the leased premises, but excluding the cost and expense of the construction of the board road heretofore laid to the well site) for drilling, completing and equipping said well and that same shall be the exclusive responsibility of Appell until said well is so drilled, completed and equipped without further cost, expense or obligation of or against the said L. W. Dennis, Jr., Trustee, his heirs, successors or assigns.”

The contract further provided that, commencing at the casing point of the completion of the well, the two parties were to share all future expenses of their operations on the leased premises in proportion to their respective interests.

Townsend concedes that Appell is -not liable for the expenses incurred in the construction of the board road. The only claim that appellee now asserts against Appell is for rental use of this board road from August 27, 1961, to September 27, 1961. It appears from the testimony that the well was completed prior to August 27 and that the drilling rig was taken out; however, work was still going on with a work-over rig operated by appellant in September, and appellant’s employees in actual charge of the operations on the lease had asked that appel-lee maintain said road on the premises during such period.

W. H. Appell, president and principal stockholder of appellant corporation, testified that his company actually made use of the board road from the time they moved on the lease through September- — that they had to use such road until a permanent shell road was built there. He subsequently, on cross-examination by his counsel, changed his testimony about the necessity for the board road being on the lease in September and also denied that any one connected with his company with proper authority agreed to bind the company for the continued use of the road, but this was a matter for the trial court to pass on.

Appellant insists that since appel-lee placed the witness W. H. Appell on the stand without calling the court’s attention to his being an adverse witness, appellee is bound by his testimony that none of the officers or authorized agents of his company contracted for the services which are the basis of appellee’s claim. The evidence was hearsay and not binding on appellee or the court. Wood v. Self, Tex.Civ.App., 362 S.W.2d 188, n. w. h; McCormick & Ray, Texas Law of Evidence, Vol. 1, § 31. W. H. Appell was president and the majority stockholder of appellant company, and it was not necessary in order to avoid being bound by his testimony that appellee inform the court that he was placed on the stand as an adverse witness. Rule 182, Texas Rules of Civil Procedure; McCormick & Ray, Texas Law of Evidence, Vol. 1, § 485. 'There is testimony from plaintiff J. S. Williams, a partner in the Townsend firm, that the employees of Appell in charge of the operations on the lease had requested that the board road be maintained on the lease for Appell’s use during the period in question.

The verified petition, made a part of appellee’s controverting affidavit by proper reference, was in evidence. The invoice covering the period from August 27 to September 27, 1961, details the account for which Townsend seeks to hold Appell responsible. . Appell having gone to .trial on its plea of privilege without filing any special exceptions to the petition or controverting affidavit, each will be liberally construed in the pleader’s favor. Lanark Corporation v. Conover, Tex.Civ.App., 321 S.W.2d 930, writ dism. In the absence of any special exceptions, we find Townsend’s pleadings sufficient to allege a cause of action against appellee.

J. S. Williams testified as a witness for appellee. We find the testimony sufficient to raise fact issues that during the month of September, 1961, Appell was operating a rig on the lease, that due to the soft condition of the ground it was necessary to keep the board road until Appell got all of his equipment out, that the employees of Appell in immediate charge of the lease had asked that the road be left on the lease for their use, that Appell, in connection with its operations on the lease during such period, did make use of the board road, and that such road was necessary for its purposes until a permanent shell road was constructed to the well, that the leased property, including the board road, was located in Matagorda County, Texas, and that the rental charge was not unreasonable. The shell road was not constructed until after September 27, 1961. We hold the evidence sufficient to create an issue as to Appell’s liability for the maintenance and rental on such board road as sued for.

The trial court having found that the pleadings and evidence were sufficient to show a prima facie cause of action against appellant corporation arising in Matagorda County, we do not believe his judgment should be disturbed.

Affirmed.


author: SHARPE, Justice.

text:
    A. F. DREXLER, d/b/a Drexler Construction Company, Appellant, v. ARCHITECTURAL & COMMERCIAL SALES, a division of Bryan Building Products Company, Appellee.
    No. 39.
    Court of Civil Appeals of Texas. Corpus Christi.
    Feb. 6, 1964.

      James R. Harris, of Fischer, Wood, Bur-ney & Nesbitt, Corpus Christi, for appellant.
    W. C. Davis, Bryan, for appellee.
   SHARPE, Justice.

This is an appeal from an order of the district court of Calhoun County, Texas, sustaining the plea of privilege filed by ap-pellee and transferring the case to Brazos County, Texas.

Appellant sued appellee for alleged breach of contract and for damages in the amount of $7,382.00. Appellee filed a plea of privilege which was duly controverted by appellant who relied upon Subdivisions 5 and 23 of Article 1995, Vernon’s Ann.Tex.St. Trial was to the court without a jury.

Appellant relies upon a written proposal executed by appellee on March 28, 1963, to furnish certain materials, equipment and labor for the Harrison Elementary School Addition in Port Lavaca, Texas, for the amount of $1,526.00. Appellant alleges that he used the said proposal of appellee in becoming the successful general contract bidder on such school job; that he accepted the same; that a binding contract was thus created, which has been breached by appel-lee ; and that appellant was required to substitute another supplier of such materials at a cost of $7,382.00 in excess of the amount bid by appellee. Appellant contends that he has established his right to maintain venue in Calhoun County under both of Subdivisions 5 and 23 of Article 1995.

Appellee contends that the trial court correctly sustained its plea of privilege because appellant wholly failed to show a contract in writing performable in Calhoun County, and failed to show that any cause of action arose, in whole or in part, in sáid County.

We have concluded that the judgment of the trial court should be affirmed.

On the hearing of the plea of privilege the only two witnesses who testified were A. F. Drexler, the appellant, and Ralph Lee Schneider, sales representative of ap-pellee Architectural & Commercial Sales, a division of Bryan Building Products Company, a corporation with its domicile in the City of Bryan, Brazos County, Texas, hereinafter ARCO.

The evidence established that on March 28, 1963, Schneider executed on behalf of ARCO a written proposal to furnish certain materials, equipment and labor for the Harrison Elementary School Addition in Port Lavaca, Texas, for the amount of $1,526.00. The principal question in this case is whether the said proposal was accepted so that it ripened into a binding contract.

The said written proposal of ARCO was addressed to “Bidding Contractors” and was furnished to several other contractors who were interested in the said school project.

One printed provision of said proposal reads as follows:

“We propose to furnish items as described, at prices stated; and, unless otherwise specified by us, under our regular conditions and terms of acceptance, which are given on the reverse . side of this quotation.”

On the reverse side of the proposal form under “CONDITIONS AND TERMS” the following provisions appear:

ACCEPTANCE
“All quotations are subject to prompt acceptance and transmittal of order. Prices are subject to change without notice.”
* * * * * *
TERMS OF SALE
“All items subject to the approval of our credit department. This and all subsequent purchases payable in Bryan, Brazos County, Texas.”

The proposal form also contained the printed words “The above proposal is accepted” and lines and spaces appear thereunder for signatures and the date. It is undisputed that appellant did not sign such acceptance or return the proposal form or a copy of it to appellee.

Appellant testified, among other things, that on March 29, 1963, the day after the said proposal was made, Schneider and another man representing a glass company assured him that they were prepared to furnish this material and labor and were given the plans and specifications after they stated that the shop drawings would be promptly furnished. Appellant said that Schneider had orally accepted the order and that appellant had written a letter confirming the order in the instant case, but the same was not offered in evidence. Appellant further testified that he had done business with ARCO on other occasions and had received quotations from it similar to the one in question; that on such occasions he submitted a purchase order on his own form. At one point appellant testified he had ordered some window units by telephone from appellee for use on a Highway Department job, but later said that there had been a purchase order contract signed by Bryan Building Products Company pursuant to a proposal similar to the one involved in this case. Appellant conceded that he had received two bids from ARCO on the same date, one on the Harrison School and the other on the Roosevelt School, and that at a later date he discovered that the figures on such bids had been reversed. Appellee wrote appellant and his attorney a letter on April 11, 1963, in which it was pointed out that the figure on the Harrison project should have been $10,228.00 instead of $1,-526.00, and the said offer was rescinded.

Schneider testified, among other things, that he had gone to appellant’s office on March 29, 1963, and picked up a set of the plans and specifications on the proposal on which he assumed that he had an agreement. He said on each occasion when Drexler made a quotation which was later accepted that Drexler gave them a purchase order which his company was required to accept; and that in this case no such purchase order was furnished.

The evidence did not show as a matter of law either that Drexler had accepted the written proposal of ARCO dated March 28, 1963, or that ARCO had accepted the order of Drexler allegedly given on the day following the said written proposal.

Findings of fact and conclusions of law were not requested or filed. We are required, therefore, to review the judgment under well settled rules, which will briefly be stated. We must assume that the trial court found every issuable fact in support of the judgment. In determining the sufficiency of the evidence to support the implied findings of the trial court we must apply the rule that if, discarding all adverse evidence, and giving credit to ■ all evidence favorable to the successful party, and indulging every legitimate conclusion favorable to him which might have been drawn from the facts proved, the trier of the facts might have found in his favor, then it is to be concluded that there is evidence to support the finding. Every reasonable intendment must be resolved in favor of the judgment and it should be affirmed if there is any evidence to support it upon any theory authorized by law. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953); James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959).

Under Subdivision 5 of Article 1995, it is necessary for a plaintiff to establish that the suit was based upon (1) an obligation in writing, (2) executed by the defendant, and performable in the county where the suit is brought, in this case, Calhoun County. Hess v. Young, 160 S.W.2d 574 (Tex.Civ.App., 1942 n. w. h.).

Under Subdivision 23 of Article 1995, it is necessary for a plaintiff to allege and prove a cause of action against the defendant which arose in whole or in part in the county where the suit was filed. This subdivision of the venue statute does not require the contract to be in writing. The cause of action, in this case, consists of (1) the contract, (2) its breach, and (3) the right and injury thereto. Wood Motor Company v. Hawkins, 226 S.W.2d 487 (Tex.Civ.App., 1949, n. w. h.).

The evidence adduced on the hearing of the plea of privilege is sufficient to support implied findings of the trial court that there was no acceptance by appellant of the written proposal made by appellee and also that there was no acceptance by Arco of any subsequent order by appellant. Under such implied findings there would be no obligation or contract. Camp v. Screen Broadcasts, Inc., 118 S.W.2d 398 (Tex.Civ.App.1938, n. w. h.); Fields-Shepherd v. Armitage, 159 S.W.2d 985 (Tex.Civ.App., 1942, n. w. h.) ; Garrett v. International Milling Co., 223 S.W.2d 67 (Tex.Civ.App., 1949, n. w. h.). Such findings would defeat venue in Calhoun County under both Subdivisions 5 and 23 of the venue statute.

The judgment of the trial court sustaining appellee’s plea of privilege is affirmed.