text:
    Samuel S. HARDIN, Appellant, v. The STATE of Texas, Appellee.
    No. 37646.
    Court of Criminal Appeals of Texas.
    Jan. 27, 1965.
    Rehearing Denied March 10, 1965.
    John Cutler, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Sidney L. Farmer, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the possession of marijuana; the punishment, five years.

Police Officer Fincher testified that in answer to a disturbance call he went to the Teagarden Beer Tavern at 5:15 on the afternoon of July 4. After entering, the employees informed him that they had not reported a disturbance, and he had started to leave the establishment when he observed appellant seated at a table alone. He stated that appellant was “slumped over the table. * * * He appeared to be asleep or intoxicated. * * * He had his head down. * * * He was kind of drooping across the table. In other words he was. sitting down — he was almost with his head on the table.” He stated that he arrested' appellant when he concluded that he was intoxicated, asked him to stand up, and when appellant was unable to do so unaided, he and his fellow officer took hold of his arms and assisted him in getting out of the chair and the establishment. At the patrol car, some 20 feet from the place of business where the arrest had been made, Officer Fincher searched the person of appellant and found a cigarette and loose particles which were later shown by the testimony of the chemist to be marijuana.

Appellant called the two waitresses employed at the Teagarden. Corinne Kelley testified that appellant “looked up when they (the officers) came into the door.” She testified further as follows:

“Q, Do you know whether or not his head was on the table?
“A. No sir, it wasn’t.
“Q. Do you know how far it was from the table?
“A. He was sitting up. He wasn’t slumped over.”

Later she testified that * * * he looked like he might have been drinking but not drunk.”, and stated that the officers did not assist him in getting up or leaving the tavern.

Lillian Giles testified that appellant had a “couple of beers” and that “He kind of had his head down when the officers walked in”, but stated that appellant was not intoxicated.

Appellant, testifying in his own behalf, stated that he was “Just sitting there. * * * Like this (indicating)” when the officers told him to come with them; that he had never seen the cigarette or the napkin containing the marijuana particles before the trial; that he did not have any marijuana in his possession at the time of his arrest and that he was not drunk on that occasion.

The jury resolved this conflict in the evidence against appellant, and we find the evidence sufficient to sustain the conviction. '■

Appellant’s principal complaint related to the introduction of the cigarette and the particles into evidence over his objection that the officers did not have probable cause authorizing them to arrest appellant. He contends, and we agree, that the officers could not rely upon appellant’s inability to rise from his chair or walk unaided because Fincher testified that appellant was placed under arrest when he told him to stand up. There can be no question of the authority of the officers to arrest appellant in a public place if they had reasonable grounds to believe that he was drunk. Cook v. State, 155 Tex.Cr.R. 580, 238 S.W.2d 200, and King v. State, 166 Tex.Cr.R. 231, 312 S.W.2d 501. Officer Fincher was not certain as to the presence of beer bottles on the table at which appellant was seated, but thought he remembered that there were two such bottles. We have concluded that appellant’s appearance and posture as set forth above were sufficient to lead the officers to believe that he was intoxicated in a public place and authorize the arrest. We have examined the cases cited by appellant with care but are convinced that this case is controlled by our prior opinions in Fletcher v. State, 164 Tex.Cr.R. 321, 298 S.W.2d 581; Morgan v. State, 159 Tex.Cr.R. 231, 262 S.W.2d 713; and Rent v. State, 160 Tex.Cr.R. 326, 268 S.W.2d 674.

Appellant next complains of the failure of the court to submit to the jury the issue of probable cause authorizing the search of his person. We do not have here a case of a search upon probable cause, but: a search of appellant’s person which was incident to a lawful arrest. Officer Fincher was authorized, and it was his duty to arrest appellant when it appeared to him that appellant was drunk in a public place. Fletcher v. State, supra. The arrest being lawful, the incident search of his person was authorized. Aaron v. State, 163 Tex.Cr.R. 635, 296 S.W.2d 264; Mays v. State, 165 Tex.Cr.R. 123, 304 S.W.2d 118; and King v. State, 166 Tex.Cr.R. 231, 312 S.W.2d 501.

Appellant’s last complaint is that the court failed to charge the jury to acquit if they found that appellant had the marijuana on his person but did not know such fact. Such an issue is not raised by the evidence, as appellant denied that any marijuana was found on his person and stated that he had seen the State’s exhibits for the first time at the trial.

No reversible error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: BELCHER, Commissioner.

license: Public Domain

text:
    Carl Allen ROBINS, Appellant, v. The STATE of Texas, Appellee.
    No. 37596.
    Court of Criminal Appeals of Texas.
    Jan. 27, 1965.
    Rehearing Denied March 10, 1965.

      Louis S. Aselin, Houston, Will Gray, Houston (On Appeal Only) for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and J. R. Mussle-white, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the possession of narcotics with two prior convictions less than capital alleged for enchancement; the punishment, life.

Aline Toman testified that on July 11, 1963, she was employed by Jones Apothecary No. S in Houston. While testifying, she identified the appellant as the same person who entered the pharmacy and asked for nose drops and stated that as she, the pharmacist, and the appellant stood within three or four feet of the narcotics cabinet, the appellant exhibited a pistol, ordered them to be quiet, and told the pharmacist that he wanted the “hard” narcotics; that as the pharmacist opened the narcotics cabinet the appellant told him “not to be a hero or anything like that because he would kill him” and began naming the drugs that he wanted and examined them as they were removed from the cabinet, and after he got the narcotics he wanted, the appellant tied them up, ripped the telephones off the walls, took the box containing the narcotics, and walked out the front door.

Officer Hightower testified that when he and several other officers arrived at the appellant’s apartment he (appellant) was told that they had an arrest warrant for him for robbery with firearms of the Jones Apothecary and handed him the warrant. After the appellant looked at the warrant, Officer Hightower told him that “we want the narcotics that you got out of the Jones Apothecary.” In answering the appellant said, “O.K., I will get them for you” and then led the officers to the front porch to a large cardboard box containing toys. From among the toys he took a teddy bear, a dog and a small rubber ball, and as he handed them to the officers he said that the narcotics were inside these items. After returning inside the apartment, they removed the contents of the teddy bear, the dog and the ball, which consisted of “bottles; some were loose in the ball; and they were in different containers”, and all were placed in an envelope which was marked State’s Exhibit No. 4. While Officer Hightower was testifying, some of the items in Exhibit No. 4 were removed and placed in an envelope which was marked State’s Exhibit No. 5. Officer Hightower further testified that the appellant got a pair of grey slacks from a small room in the apartment and removed a white powder from inside the waistband, which powder was placed inside an envelope marked Exhibit No. 4 which he identified and it was then marked State’s Exhibit No. 6. On cross-examination Officer High-tower testified that: “First of all, I didn’t search in the toy box or the waistband of his trousers. The defendant recovered these articles from the toy box and the trousers and turned them over to us.”

Raymond Giovannini testified that he was manager and pharmacist of Jones Apothecary No. 5 on July 4 and 11, 1963, and that there were narcotics in the store at that time. After examining State’s Exhibit No. S, he testified that the bottles bore the cost markings which he had put on them when placed in the narcotics cabinet,

Chemist McDonald, while testifying, identified State’s Exhibit No. S, which was an envelope containing several bottles and vials, and stated that he personally made a chemical analysis of their contents which revealed that they contained morphine and dilaudid and that his analysis of State’s Exhibit No. 6 revealed a content of four grains of morphine powder. He further testified that morphine and dilaudid were-narcotics.

Proof was offered of the prior convictions of burglary and forgery as alleged and that appellant was the same person so convicted. This proof was made in accordance with that approved by this court in Broussard v. State, Tex.Cr.App., 363 S.W.2d 143.

The appellant did not testify but called two witnesses from the jail who testified that they were there when the appellant was placed in jail for the primary offense charged herein, that they observed his physical condition at the time he entered, and that he had bruises, and red and yellow marks on his stomach, ribs and on his back over his kidneys.

It is insisted that the trial court erred in admitting evidence of extraneous offenses, and also in admitting the fruits of a search as the result of an arrest upon a warrant for a separate and distinct offense, and in permitting the display before the jury of narcotics other than morphine and dilaudid.

The evidence reveals that at the time of appellant’s arrest for robbery the arresting officer asked appellant for the narcotics he took during the robbery of Jones Apothecary, that appellant took the teddy bear, dog, and ball from the cardboard box on the porch and, as he handed them to the officers, he stated that the narcotics were in them. This evidence was admissible to show appellant’s possession of narcotics, as charged, even though it developed facts other than the possession of morphine and dilaudid, and also another offense (robbery). McCoy v. State, 144 Tex.Cr.R. 309, 162 S.W.2d 976.

It is contended that the trial court erred in refusing to grant appellant’s motion for mistrial when the state’s attorney asked Officer Hightower if the appellant was under the influence of narcotics at the time he entered the apartment.

The question was not answered and was withdrawn by the state, and the court instructed the jury not to consider it for any purpose. No error appears in refusing the motion for mistrial.

Appellant contends that the trial court “erred in permitting the State to delve into the details of a prior conviction, showing the indictment and a copy of the physical evidence therein, and improperly eliciting testimony from a witness in that prior conviction, over timely objection.”

The original indictment charging the offense of forgery in the prior conviction as alleged for enhancement was sufficiently identified to authorize its admission in evidence. In offering proof of the date of the commission of the offense of forgery, the state exhibited the indictment to the witness whose name was allegedly forged to the check, and asked him to examine it and “a copy of an alleged check that is attached to that indictment.” The testimony of said witness reveals that the offense of forgery was committed in September, 1957.

Appellant renewed his objection to the indictment, and also objected to the admission of the copy of the check on the ground that the state was delving into the details of the prior conviction which was beyond the scope of this trial and was trying him for the alleged prior conviction.

It was incumbent upon the state to prove the prior conviction, and the indictment was admissible as a part of such proof. Nabors v. State, 137 Tex.Cr.R. 465, 131 S.W.2d 962; McGowen v. State, 163 Tex.Cr.R. 587, 290 S.W.2d 521; Johnson v. State, 167 Tex.Cr.R. 598, 322 S.W.2d 540.

It is evident from the record and the original indictment of forgery alleging the prior conviction that the check set out in said indictment and the copy are of the same check.

The information contained in the copy of the check complained of' was properly before the jury m the indictment. Therefore no reversible error is shown.

The other contentions urged have been examined and they do not show error.

The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Leo GATSON, Appellant, v. The STATE of Texas, Appellee.
    No. 37714.
    Court of Criminal Appeals of Texas.
    Feb. 24, 1965.
    Phillip Bordages, S. L. Greenberg, Beaumont, for appellant.
    W. C. Lindsey, Dist. Atty., Jim Vollers, Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; the punishment, twenty years.

Appellant challenges the sufficiency of the evidence to support the conviction.

The evidence reveals that the appellant and the deceased had been living together since 1961. After an absence of about ten days the deceased, in good health, returned to appellant’s house on Wednesday, August 21, 1963. The appellant and the deceased were seen at home Thursday. The deceased had a bruised eye and cuts on her arms and legs when seen about 10 A.M., Thursday, and the deceased was heard “moaning” that evening.

A neighbor testified as follows: that on Thursday night she heard persons talking at appellant’s house, and then heard a woman saying, “What you hitting me for ? Are you crazy?” and she next heard persons arguing; that about 7 A.M., Friday morning, she (the neighbor) heard a woman saying “Lord, have mercy. Somebody please help me.” She went to appellant’s house, knocked on the door, and, after being asked, entered the house, where she found that the deceased “was bruised and cut all over her body as far as I could see, her arms and things, her legs until way up here (indicating). * * * Well, her left eye was all black and it was swelled up until it was closed and her right eye was' the same way but it wasn’t closed. She had bruises all in her face.” An ambulance was called and it left the house before 8 A.M., taking the deceased to the hospital.

Officer Lawhon testified that after receiving a radio report at 7:45 A.M., he immediately went to the hospital, where he saw the deceased on a stretcher; that she was semi-conscious and had been severely and brutally beaten; that he immediately went to appellant’s house, where he found spots of blood on the bed linens and on the floor; that one piece of a broken mop handle was found in the kitchen and the other piece was under the bed in the bedroom, and a one-half inch pipe with, blood on it in two places was found on the premises.

A chemist testified that he found bloodstain on the pipe and the mop handle, and that the h'lood on the linen was of human origin. He further testified that an analysis of the blood specimen from the body of the deceased revealed no alcoholic content. .

The physician who performed the autopsy testified that a cerebral concussion and sub-dural hemorrhage in the head caused the death of the deceased. He expressed the opinion that such injuries could have been caused by the use of a mop handle, but that it was more consistent that they were caused by the use of the iron pipe.

The written statement of the appellant made to Officer Linder, which the appellant signed, was shown to have been voluntarily made and was introduced in evidence without objection. The statement reads in part, as follows:

“On Wednesday August 21, 1963 I. got home around 4:30 P.M. from work. When I arrived at the house my wife (Betty Gean) was there. We had been separated for the past 2 weeks and I had talked to her and she returned to the house to live with me. * * * I was talking to Betty about the reason that she left me and why she did not come back to me as she had . told me she would at the first time I talked and ask_her to a couple of days before she did returned. Betty called me some names and I called her some. I slapped her then. She run into me. I then picked up a stick and I hit her on her legs, arms, and my fist in the face. I hit her on the head with the stick also. * * * The fight was in the bedroom.
“On Thursday August 22, 1963 * * She complained with her head and legs most of the day. * * * The stick that I hit Betty with was a Mop Handle that we had in the house. I broke the mop off the handle. I broke the mop handle into a number of pieces.”

The cross-examination of the appellant was, in part, as follows:

“A. Well, I hit her once on the face with it (mop' handle) and once or twice on the face with it.
“Q. Well, which way did you swing .it?
“A. Well, I swung this a-way once or twice and then I went to hitting her across the body part here.
“Q. You hit her on the body?
“A. Yes, sir.
“Q. How many times did you hit her ?
“A. Well, I broke the stick in about two or three places on her.
* ^ * * # *
“Q Now, when you hit her with it and it broke, when did it break the first lick you hit her with it?
“A. Not the first lick I hit her but about two or three licks after I hit her with it, it broke.
“Q. Well, how many times did you hit her after that ?
“A. I couldn’t hit her any more, I had done broke it all to pieces.
“Q. Broke it in two or three piec.es ?
"A. Yes, sir.
“Q. You hit her that hard?
“A. Yes, sir.
“Q. You hit her pretty hard with that mop handle, didn’t you?
“A. Yes, sir.
“Q. You were holding it in which hand, your right hand?
“A. My right hand, yes, sir.
“Q. And you say you hit her once on ; each side of the head?
“A. Yes, sir.
******
■“Q. What did you do with that bar then?
"'‘A. Well, I hit her — I struck her with it about once or twice on the head with it and she fell.
“Q. Hit her once or twice. Whereabouts on the head did you hit her?
"A. Well, I don’t remember about where I hit her at but I must have struck her, you know, somewhere about along in here, up aside here (indicating), somewhere on her face.
“Q. You think you might have hit her behind the head?
■“A. Might have did. She fell, you see.
■“Q. How did she fall?
“A. She fell when I hit her with that thing.
"Q. Hit her up there on the right side of her head?
“A. Yes, sir.
"Q. How many times did you hit her in the head?
“A. I hit her up aside the head with it about twice.
******
“Q. Did you hit her pretty hard with it?
“A. Well, yes, sir, I am pretty sure I did.
“Q. Hit her pretty hard.
“A. Yes, sir.
“Q. You were pretty mad, weren’t you?
• “A. Well, yes, sir.
“Q. You got mad at her?
“A. Yes, sir.”

Testifying in his own behalf, the appellant stated that the deceased returned to his home after an absence of about ten days; that about 10:30 P.M., the deceased accused him of having other women in the house while she was gone and began cursing him, and when she continued he slapped her and told her to hush. Then the deceased began striking him with a stick, which he took from her, struck her, and then threw it down. Next, she threw a bottle at him, which broke, scattering glass over the bed and floor. She went to the kitchen, soon returned, and. began hitting him with a heavy instrument and injured him. Appellant then took the instrument from her, hit her hard in the eye and face, and then struck her several times on the head with the heavy instrument. She fell to the floor, and he put her on the bed. He also testified that he offered to take her to the hospital but she declined; that he cared for her the best he could until he left for ' work' Friday morning; and that he never at any time intended to kill her. Before noon Friday he was informed by the officers that she had died.

The evidence is sufficient to warrant the conclusion that 'the appellant is guilty, as charged, and .supports the conviction.

Appellant contends that- the trial court erred in refusing to permit him to introduce certain testimony after the state’s witness Johnson, on cross-examination, testified as follows:

“Q. Are you receiving any State Welfare?
“A. No sir.”

The appellant sought to offer proof that the witness Johnson was then receiving state welfare, hut the court refused to admit such proof before the jury.

Appellant insists that the relationship of the witness Johnson with the state, in receiving welfare aid, would cause her to think that such aid would stop unless her testimony was favorable to the state, on the ground that the welfare funds came from the state and this case was being prosecuted in the name of the state by the district attorney.

In Preston v. State, 41 Tex.Cr.R. 300, 53 S.W. 127, this court held: “There was no error in the action of the court refusing to permit the defendant to show by the witness Burke, on cross-examination, that he (Burke) had made out and sworn to a false account against the state as a witness on the trial of the defendant in Atascosa county.”

1 Branch 2d 221, Sec. 220, reads as follows :

“When a witness is cross-examined on a matter collateral to the issue, his answer cannot be subsequently contradicted by the party putting the question. The test of whether a fact inquired of on cross-examination is collateral to the issue is this: would the cross-examining party be entitled to prove it as a part of his case tending to establish his plea ?” (Cases cited.)

The refusal of the proffered testimony presents no error.

The judgment is affirmed.

Opinion approved by the Court


author: PER CURIAM.

text:
    Kathryn DOWNS et vir, Appellants, v. CITY OF ABILENE et al., Appellees.
    No. 16602.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 22, 1965.
    Rehearing Denied Feb. 19, 1965.

      Schulz & Hanna, Yates & Yates and Edmund C. Yates, Abilene, for appellant.
    Les Cochran, Abilene, for appellee.
   PER CURIAM.

This case is companion to City of Abilene, Texas v. John F. Downs et al., Cause No. 16574, affirmed by this Court on January 15, 1965. In that case the court by its judgment condemned the fee simple title to land involved herein, vested title in the City of Abilene and awarded $77,325.00 to Downs as the value thereof. The City paid this amount into the registry of the Court on December 13, 1963. On January 3, 1964, the money was withdrawn by John F. Downs, record owner of such land. He did not appeal and has since had the use of the money.

On June 26, 1964, months after her husband John F. Downs had withdrawn the money from the registry of the Court, Kathryn Downs filed this suit in the 90th District Court of Shackelford County, Texas. By such suit she sought an immediate order restraining service of the writ of possession issued out of the companion case, a temporary injunction and a determination by the court of the boundaries of a 200 acre homestead out of the 400 acres her husband had received payment for, and issuance of a permanent injunction to protect against interference of her rights therein.

The trial judge granted the temporary restraining order and later amended same, making it returnable to the 90th District Court of Young County, where the companion case was tried. He later denied the temporary injunction.

Appellant appeals from the court’s order denying the temporary injunction and its action in amending the restraining order.

The appellee, City of Abilene, has presented a motion to dismiss the appeal, which we think should be sustained.

Kathryn Downs concluded she is entitled to file her suit because she was not made a party nor served with process in the condemnation suit and thus the judgment affecting her homestead rights is void as to her. We can find no basis or authority for such action and certainly no basis for an appeal from a suit she was without authority to file.

Kathryn Downs and her husband were married and residing together as man and wife at all times pertinent to this and the companion suit. The property involved is community.

During marriage the right to sue with reference to community property is vested in the husband and must ordinarily be asserted by him alone unless special circumstances, such as his abandonment or desertion of the wife is shown to exist. The court may in such circumstances authorize the wife to sue for the protection of the community property. No such special circumstances existed in this case and no authority was given Mrs. Downs by the Court. 30 Tex.Jur.2d, p. 256, § 163, and authorities cited.

“As a general rule the wife is not a necessary party to a suit involving the homestead property unless, by reason of her homestead rights, she has a defense capable of defeating the suit. In determining whether the wife’s homestead interest renders her a necessary party to an action affecting property impressed with the homestead exemption, the test is whether the plea of homestead would in itself be a defense to the suit.” 28 Tex.Jur.2d, pp. 472-473, § 81.

A plea of homestead on behalf of Mrs. Downs or her husband would not have constituted a defense to the City’s suit in condemnation.

• In the suit filed by her husband on behalf of the community, Kathryn Downs was personally present at the trial. She was called as a witness on three or more occasions. She did everything within her power to assist in the trial in so far as her interests were affected.

The court in Mims v. Hearon, 248 S.W.2d 754, 757 (Dallas Civ.App., 1952, no writ hist.), approved the holding in Perkins v. Terrell, 214 S.W. 551, syl. 5 (Amarillo Civ.App., 1919, writ ref.), which held: “‘If a necessary party, for whose use and benefit plaintiff assumed to sue, were personally present at trial of the suit, directing the suit as far as it affected his interests, judgment therein would bind him, * * *.’ ” See also 44 Tex.Jur.2d, pp. 229-231, § 81.

While we deem it unnecessary to discuss the question, we find that the premise upon which the appeal is based is now moot

In view of the authorities cited and for the reasons stated, we are of the opinion that the appeal herein should be and the same is hereby dismissed. All costs are to to be paid by the appellants.


author: HUGHES, Justice.

text:
    JACK RITTER INC. OIL COMPANY, Appellant, v. FRED BANDAS AND SONS, INC., Appellee.
    No. 11258.
    Court of Civil Appeals of Texas. Austin.
    Jan. 27, 1965.

      Coffee, Ritter & Goldston, Austin, for appellant.
   HUGHES, Justice.

Appellee, Fred Bandas and Sons, Inc., has filed no brief. We accept as correct, under the authority of Rule 419, Texas Rules of Civil Procedure, the statements made by appellant, Jack Ritter Inc. Oil Company, in its original brief as to the facts and the record.

Appellee sued appellant alleging performance of a paving contract between the parties whereby appellee agreed to furnish the base materials and pave with asphalt appellant’s service station at Sparks, Texas, for $1.25 per, square yard. Appellee alleged that it had paved 957 square yards under this contract and was entitled to be paid therefor the sum of $1196.25.

In addition, appellee alleged that appellant had, subsequent to the execution of the contract, authorized certain extra work to be done and material furnished by appellee, and for the performance of such work and furnishing of such materials appellee was entitled to receive the sum of $631.99 in addition to the sum due under the original contract. Demand and refusal to pay these two sums was alleged, and judgment for $1828.-24, interest, attorney’s fees and costs were sought.

Trial was to the court without a jury. Judgment was rendered for appellee for the sum of $1575.74, with interest from February 28, 1964, at 6%, the costs being apportioned three-fourths to appellant, one-fourth to appellee.

Findings of fact and conclusions of law by the trial court were requested by appellant. In compliance with this request, the court filed the following findings of fact:

“1. On February 15th, 1960, plaintiff and defendant entered into an agreement for the construction of an asphalt base paving on defendant’s property, a service station, in Sparks,, Bell County, Texas.
“2. That defendant agreed to pay plaintiff therefor the sum of $1.25 per , square yard of area covered by the asphalt.
“3. Upon completion of the work, ' plaintiff having substantially performed ■ , under the agreement, plaintiff demand- - ed payment therefor and defendant refused to pay.
“4. The amount due to plaintiff under the agreement is $1828.24 less ad- , justments for error in the number .of square yards completed and unproved , claims for certain gravel and repair totalling $252.50, leaving a balance due and owing plaintiff of $1575.24.”

The court concluded from these findings that the parties had entered into a binding agreement, that the work was properly performed according to such agreement, and that appellant owed appellee the sum of $1575.24.

Appellant admits liability under the express agreement for $1196.25. This sum represents the cost of 957 square yards of paving at $1.25 per yard. This accords with the undisputed evidence and the pleading of appellee.

Appellee does plead that it expended $1828.24 “in completing his agreed part of the contract” and that such expenditures, which are itemized, were reasonable in the community where the services were rendered and the materials furnished.

There are no findings of fact to support a recovery in excess of $1196.25, the amount admitted to be due under the specific contract alleged. Rulé 299, T.R.C.R., requires finding of fact upon all grounds of recovery in order to form the basis of a judgment. Such Rule also prohibits support of a judgment by implied findings where no element of the ground of recovery has been found by the trial court.

It is our opinion that the error in the judgment affects only a part of the matter in controversy and that we have authority, under Rule 434 T.R.C.P., to reform the judgment and to affirm it as to the claim under the agreement to pave the service station at Sparks for $1.25 per square yard under which $1196.25 is owing. See Waples-Platter Co. v. Commercial Standard Ins. Co., 156 Tex. 234, 294 S.W.2d 375.

Accordingly, we modify and affirm the judgment, in part, as above indicated. In all other respects this cause is reversed and remanded.

Costs of appeal are assessed against ap-pellee; costs of the trial court, to date, are adjudged two-thirds against appellee, the remaining trial court costs to abide the event.

Judgment modified and affirmed in part and in part reversed and remanded.


author: PRESLAR, Justice.

text:
    Larry BLACKMON, Appellant, v. Kenneth E. ESMOND, d/b/a Kenneth E. Esmond and Associates, Appellee.
    No. 5689.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 13, 1965.
    Rehearing Denied Feb. 17, 1965.

      Christopher & Bailey, and Sheridan E. Taylor, Fort Worth, for appellant.
    Deaderick, McMahon & McKim, and Robert B. Cox, Odessa, for appellee.
   PRESLAR, Justice.

This is an appeal from an order of the 161st District Court of Ector County overruling the plea of privilege of the defendant, Larry Blackmon, who is appellant here. The parties will be referred to as they were in the trial court. Plaintiff sued the defendant on an account in which he alleged that the defendant was a resident of Tarrant County. Service was had on defendant in Tarrant County at the specified address listed in plaintiff’s petition. Defendant first filed a plea of privilege in which he alleged that he was a resident of Parker County or, in the alternative, if he be mistaken, then his residence was Tarrant County; but this was later amended to set out Parker County, solely, as his residence. Plaintiff, in his controverting plea, repeated his claim that the defendant was a resident of Tarrant County, and in such plea plaintiff alleged no exception to the general venue statute, or any facts which would confer venue on the Ector County court. Thus the parties went to trial in Ector County with the defendant claiming residence in Parker County and the plaintiff maintaining that the defendant was a resident of Tarrant County.

At the hearing, the only evidence offered was on the issue as to whether defendant was a resident of Parker or Tarrant County. The order overruling the plea does not state any findings or conclusions, so the presumption of the parties (and ours) is that the court followed plaintiff’s theory of the case. That was, and is, that plaintiff is not required to plead and prove any particular exception to the general venue rule, but could defeat the plea of privilege by proving that the actual residence of the defendant was in a county other than the one claimed by him in his plea of privilege. Plaintiff maintains that Rule 86, Texas Rules of Civil Procedure, authorizes a defendant to file a plea of privilege to be sued in the county of his residence, and where the proof shows his residence to be some other county, the plea of privilege is defeated, for there is no authority for the court to transfer the case to a county where the defendant does not, in fact, reside. In essence this theory is: Suit in County A; defendant files plea that his residence is County B; proof shows actual residence to be County C. There is no authority to transfer to either B or C, so the suit remains where filed, in County A. This novel theory is bolstered by a correct statement of the law — that the defendant cannot arbitrarily choose one of 254 counties to be sued in — but we are of the opinion that the theory must fall before the provisions of Rule 86 and the decisions thereunder.

Rule 86 provides: “When a plea of privilege is filed in accordance with this rule, it shall.be prima facie proof of the defendant’s right to change of venue * ‡ 'phg ruje ajso pr0yj(jes that he shall state the county of his residence and that he must plead that “no exception to. exclusive venue in the county of one’s residence provided by law exists in said cause.” In construing the rule, our courts have repeatedly held that the statutory plea of privilege is more than a pleading, and amounts to prima facie proof of defendant’s right to have venue changed from the county in which suit was filed to the county named in the plea. Tempelmeyer v. Blackburn, 141 Tex. 600, 175 S.W.2d 222; Terrel v. Vandergriff, 351 S.W.2d 910 (Civ.App.,1961). The plea is held to have probative value which, unless successfully controverted, entitles defendant to a change of venue. Davis v. Battles, Tex.Civ.App., 185 S.W.2d 177, answering certified questions 143 Tex. 378, 186 S.W.2d 60. Thus, there is much more to the rule than the determination of the county of defendant’s residence, for the defendant is entitled by the rule to a change from the county of suit unless that be successfully controverted by plaintiff showing ground for conferring venue on the county of suit. The burden is on the plaintiff to establish venue in the county of suit; otherwise the defendant is entitled to his change from that forum. To which county it is changed is another element of the venue trial. The requirement of Rule 86 in this regard is: “If such adverse party desires to controvert the plea of privilege, he shall * * * file a controverting plea under oath, setting out specifically the grounds relied upon to confer venue of such cause on the court where the cause is pending.” (Emphasis ours). In the case before us, plaintiff did not allege or attempt to prove any ground to confer venue on the Ector County court where the suit was filed, so that we are of the opinion that the plea of privilege of the defendant .should have been sustained.

After the venue hearing, while the matter was under advisement by the court but before decision, plaintiff was permitted to file a “supplemental” controverting affidavit in which'he again adopted his pleading (that defendant’s residence was Tarrant County), but in which he alleged for the first time that defendant’s residence was xmknown within the meaning of subdivision ■3 of Article 1995, Vernon’s Annotated Texas Statutes. Without passing on the propriety of the court’s having permitted the late filing of such pleading, we are of the opinion that venue cannot be sustained in Ector County under it. Subdivision 3 provides: “Non-residents; residence unknown. — If one or all of several defendants reside without the State or if their residence is unknown, suit may be brought in the county in which the plaintiff resides.” Clearly, this subdivision has no application to the facts before us. Counsel for plaintiff had visited the defendant, prior to suit, at his place of business in Tarrant County, and had filed his petition alleging a Tarrant County address where service could .b.e had on the defendant, at which address service was had. In fact, the evidence was all very definite that the defendant had a residence in either Tarrant or Parker County, Texas. The only question was which county, for all proof showed one or the other, and there was no evidence to support an implied finding of “unknown” residence in the sense of the subdivision.

This disposition of the case makes it unnecessary to pass on other matters raised on appeal.

The case is reversed and remanded to the trial court with instructions to that court to enter its order transferring the case to the District Court of Parker County, Texas.


author: ARCHER, Chief Justice. HUGHES, Justice

text:
    HOUSE OF TOBACCO, INC., Appellant, v. Robert S. CALVERT, State Comptroller of Public Accounts, State of Texas, Appellee.
    No. 11307.
    Court of Civil Appeals of Texas. Austin.
    Feb. 10, 1965.
    Rehearing Denied Feb. 24, 1965.

      Bernard & Bernard, Houston, for appellant.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., Stanton Stone, Executive Asst. Atty. Gen., Howard M. Fender and Sam L. Kelley, Asst. Attys.-Gen., Austin, for appellee.
   ARCHER, Chief Justice.

This is an action filed by House of Tobacco, Inc., against Robert S. Calvert, State Comptroller of Public Accounts, State of Texas, seeking to enjoin the Comptroller from forfeiting Distributor Cigarette Permit No. 179198-7, also, seeking a mandatory injunction for the return of approximately $3,005.70 of cigarettes which were removed from plaintiff’s place of business on November 3, 1964, along with the books of the Corporation. Plaintiff was heretofore issued Distributor Cigarette Permit No. 179198-7 by the Comptroller of Public Accounts, State of Texas. By letter dated October 30, 1964, the Comptroller of Public Accounts notified plaintiff that in compliance with Article 7.21 of Chapter 7, Title 122-A, Taxation General, V.A.T.S., the Comptroller was forfeiting the subject cigarette permit to become effective five days from October 30, 1964. The reason given for the forfeiture was that plaintiff had been conducting a business of distributing and wholesaling cigarettes without the authorized cigarette meter impression thereon and which cigarettes were possessed with the intent to use, sell, circulate or pass such cigarettes in violation of the provision of the subject article. The notice was received on November 2, 1964, by plaintiff.

The appeal is founded on the assignment that the court erred in refusing a mandatory injunction requiring the return of cigarettes seized by the Comptroller, and in refusing to issue a temporary injunction prohibiting the Comptroller from forfeiting the cigarette permit, because such actions were without due process, as guaranteed by the Federal Constitution.

On November 4, 1964 appellant sought a temporary restraining order against appel-lee which was denied and a hearing on the application for a temporary injunction was set for November 12, 1964, at which time all parties at interest appeared and trial was had and evidence heard from the Comptroller and several of his employees all of whom were cross-examined by appellant, but appellant did not offer any testimony from its officers or employees.

There is no contention as to any abuse of discretion by the court, and believing that the evidence supports the action of the court, such is not restated herein.

It appears that the only questions are of a constitutional nature with regard to the Statutes.

Appellant says he has been deprived of property without due process of law and that no hearing- was held by the Comptroller in which appellant appeared.

Article 7.21, Ch. 7, Title 122-A, Taxation General, V.A.T.S. reads:

“If any distributor, wholesale dealer or retail dealer has violated any provision of this Act, or any rule and regulation promulgated hereunder, the Comp- . troller shall have the power and authority to forfeit or suspend the permit or. permits of said distributor, wholesale dealer or retail dealer by giving written notice stating the reason justifying such forfeiture or suspension and the same shall, be forfeited or suspended five (5) days from the date of said notice. Any notice required to be given by the Comptroller may be mailed to the distributor, wholesale dealer or the retail dealer, as the case may be, 'at any place designated as the place of business on the application for permit required ' herein.”

As is noted the Article provided for a five day period of delay before the action forfeiting the permit became final. Court action was instituted by appellant on the last day of the five day period.

- While the Statute does not within its wording provide for notice and hearing under the due process clauses of both the State and the United States Constitutions, appellant was entitled to a hearing and appeal as an inherent right.

Board of Firemen’s Relief and Retirement Fund Trustees’ of Texarkana, Texas v. Hamilton et al.,the Texas Supreme Court Journal, Vol. 8, No. IS, pages 198 and 199, January 30, 1965.

We believe that this right was afforded appellant by the five days notice and that appellant availed itself of a hearing by instituting the court action, and in participating in the court hearings.

We were informed on the submission of this case that the books and records of the company had been returned and that the cigarettes would be returned upon the payment of taxes and penalties as provided by the cigarette law.

The judgment of the trial court is affirmed.

HUGHES, Justice

(dissenting).

On October 30, 1964, the State Comptroller sent the House of Tobacco, appellant, a letter from which I quote:

“This is to notify you that in compliance with Article 7.21 of Chapter 7, Title 122-A, Taxation General, V.A. T.S., distributor cigarette permit #179198-7 heretofore issued to you is hereby forfeited, to become effective five (5) days from October 30, 1964.
“The reason for forfeiting this permit is that you have been conducting a business of distributing and wholesaling cigarettes without the authorized cigarette meter impression thereon, and which cigarettes were possessed with the intent to use, sell, circulate or pass such cigarettes in violation of the provision of Chapter 7, Title 122-A, Taxation General, V.A.T.S.”

In sending such notice, the Comptroller was acting in compliance with the Statute referred to and which is copied in the majority opinion.

It is my opinion that the procedure authorized by this Statute and followed by the ■Comptroller does not comply with the due process provisions of the Federal Constitution.

It is fundamental that notice and hearing are essential to administrative due process. This notice and hearing must precede the final administrative order. This is the holding in Ewing v. Mytinger & Casselberry, 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088, from which I quote:

“The administrative finding of probable cause required by § 304(a) is merely the statutory prerequisite to the bringing of the lawsuit. When the libels are filed the owner has an opportunity to appear as a claimant and to have a full hearing before the court. This hearing, we conclude, satisfies the requirements of due process.
“At times a preliminary decision by .an agency is a step in an administrative proceeding. We have repeatedly held that no hearing at the preliminary stage is required by due process so long as the requisite hearing is held before the final .administrative order becomes effective. See Lichter v. United States, 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694; Inland Empire [Dist] Council v. Millis, 325 U.S. 697, 65 S.Ct. 1316, 89 L.Ed. 1877; Opp Cotton Mills v. Administrator of Wage & Hour Division of Dept. of Labor, 312 U.S. 126, 61 S.Ct. 524, 85 L.Ed. 624.
“But this case does not go as far. Here an administrative agency is merely determining whether a judicial proceeding should be instituted. Moreover, its finding of probable cause, while a necessary prerequisite to multiple seizures, has no effect in and of itself.”

See also concurring opinion of Associate Justice Griffin in L & G Oil Company, Texas Sup. Court, 368 S.W.2d 187 and authorities therein cited. Also City of Houston v. Glen Oaks Utilities, Inc., Tex.Civ.App., 360 S.W.2d 549, Houston C.C.A., writ. ref. n. r. e.

In this latter case it is said, “It follows that if a suit for injunction is a substitute for notice and opportunity to be heard by the rate-making body, then the requirement of procedural due process is meaningless.”

The Comptroller testified that the Tobacco House was “out of business on November 4th,” this being the fifth day after mailing the notice of forfeiture.

It is plain that the Statute does not provide for a hearing before a forfeiture is declared and does not, of course, provide for notice of such hearing. This does not, however, condemn the Statute as unconstitutional under the cases now to be cited which hold that these provisions may be incorporated in the Statute by implication unless the Statute expressly provides otherwise. I do not construe this Statute to so provide. Industrial Accident Board v. O’Dowd, 157 Tex. 432, 303 S.W.2d 763, Cunningham v. State, Tex.Civ.App., 353 S.W.2d 514, Dallas C.C.A., writ ref., n. r. e.

In order that this opinion may be complete on its face I quote the following from O’Dowd, supra:

“Obviously if the explicit provisions of a statute direct an administrative board to proceed without notice in contravention of the constitutional due process requirements (as in the Francisco case [Francisco v. Board of Dental Examiners, Tex.Civ.App., 149 S.W.2d 619] ) there would be no room for a presumption that the Legislature intended that a notice be given. However, on the other hand, we must assume that the Legislature intended to enact a valid law, and in the absence of express language to the contrary, intended that the administrative board should proceed in accordance with constitutional requirements. The Board here construed the statute as requiring notice and notice was actually given. Under these circumstances the following language from American Power & Light Co. v. Securities and Exchange Commission, 329 U.S. 90, 67 S.Ct. 133, 143, 91 L.Ed. 103, seems applicable:
“ ‘That the statute does not expressly insist upon what in fact has been given the security holders is without constitutional relevance under these circumstances. Wherever possible, statutes must be interpreted in accordance with constitutional principles. Here, in the absence of definite contrary indications, it is fair to assume that Congress desired that § 11(b) (2) [15 U.S.C.A. § 79k (b) (2) ] be lawfully executed by giving appropriate notice and opportunity for hearing to all those constitutionally entitled thereto. And when that assumption is added to the provisions of § 19 [15 U.S.C.A. § 79s], it becomes quite evident that the Commission is bound under the statute to give notice and opportunity for hearing to consumers, investors and other persons whenever constitutionally necessary. See The Japanese Immigrant Case [Yamataya v. Fisher] 189 U.S. 86, 100, 101, 23 S.Ct. 611, 614, 47 L.Ed. 721 [725, 726].’
“[5] Another statement of the prevailing rule upon the subject is found in Caughman v. Columbia, Newberry & Laurens Ry. Co., 82 S.C. 418, 64 S.E. 240, 242, viz.:
“ ‘A statute is invalid which requires something to be done which is forbidden by the Constitution, but it cannot be essential to the validity of a statute that it should enjoin obedience to the Constitution. The great weight of authority is to the effect that while notice of a special burden or duty which a .board such as this proposes to impose must be extended, and an opportunity to be heard on the rightfulness of the exactions must be-given, it is not necessary that the statute under which the board acts should expressly provide notice.’:
“Likewise in McManus v. Industrial Commission, 53 Ariz. 22, 85 P.2d 54, 56, the Supreme Court of Arizona said:
“ ‘It is, * * * true that notice and opportunity to defend must be a matter of right and not a matter of grace, but we think that such right may be implied from the terms of a statute without being expressly and explicitly set forth in detail therein. * * * We think that when the word “hearing” is used in a statute which attempts to confer jurisdiction to determine whether the property of one person shall be taken and given-to another, it necessarily implies, as a matter of law, that the hearing shall be one of which reasonable notice is given to the parties and at which they have an opportunity to appear and present any defense which they may have against such taking, and that any proceeding which does not comply with these two conditions is not a “hearing” within the meaning of the law, and any order made in pursuance of such proceeding is void for lack of jurisdiction. This general principle of implied notice has been upheld in a number of cases where the statute was not as explicit in regard to the necessity of a hearing of some kind as is the law under consideration at the present time.’ ”

Since appellant, has not been afforded a hearing upon proper notice prior to the forfeiture of his Permit to engage in the lawful business of distributing and wholesaling cigarettes, I would render judgment enjoining the Comptroller from enforcing the forfeiture of such Permit until the trial court has determined that a hearing after due notice has been afforded the House of Tobacco, upon which the injunction should be dissolved.

For the reasons stated, I respectfully dis- _ sent from the majority opinion.


author: 'WILLIAMS, Justice.

text:
    WISEMAN HARDWARE COMPANY, Appellant, v. R. L. KING CONSTRUCTION CO., Inc., et al., Appellees.
    No. 16464.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 5, 1965.
    J. M. Deavenport and Joe Loving, Jr., Dallas, for appellant.
    Bailey & Williams, James A. Williams, Dallas, for appellees.
   'WILLIAMS, Justice.

James O. Wiseman, d/b/a Wiseman Hardware Company, brought this action against R. L. King Construction Company and the First Baptist Church of Lancaster, Texas, seeking to recover a money judgment against the defendants and to establish and foreclose a materialman’s lien upon property owned by the defendant church. Judgment was rendered against R. L. King Construction Company for the amount of the indebtedness. The church filed a motion for summary judgment which was sustained and it is from this order that Wise-man appeals.

The facts are undisputed. Appellee church, prior to April 1961, entered into a contract with R. L. King Construction Company, as general contractor, to do certain construction work on its property in Lancaster, Texas. Between the dates of January 4, 1962 and February 22, 1962 appellant Wiseman sold certain materials to R. L. King Construction Company which was incorporated into the construction work performed by the general contractor on the property of appellee church. The value of such materials, $1,377.70, remains unpaid. On March 23, 1962 Wiseman filed with the County Clerk of Dallas County what was alleged to be a verified account for the purpose of affixing a lien against the property of appellee church. In this affidavit Wiseman alleged that the account was just and reasonable and unpaid but did not allege same to be true'-“after allowing all just and .lawful, offsets, payments and credits known to affiant.” The only itemization of materials alleged to have been supplied was “paint, painting supplies, and miscellaneous hardware supplies.” The affidavit failed to reveal the dates of delivery or the amount due and owing and did not reveal the quantity or amount delivered on any given date. Thereafter, on September 6, 1962 appellant filed another verified account for the purpose of affixing a lien against the property of appellee church. In this affidavit there was an itemization of the claim together with the statement that the amount of such claim is just, reasonable and unpaid, and all credits and allowances have been made. After appellant furnished the materials ap-pellee church, speaking through its pastor and agent, advised appellant that there was money in the contract which was adequate to cover appellant’s claim. Thereafter, the general .contractor defaulted on the contract and the appellee church called upon the surety company to complete the job or employ another contractor. Another contractor was hired to finish the job but such completion required more money than was left in the contract at the time of default by the original contractor. It was after- default by the'general contractor that appellee church received, by certified mail, an itemized account of the materials furnished.

Under these undisputed facts appellant contends (a) that both the original and supplemental lien affidavits filed by it were valid and therefore the court should have found that appellant had a statutory mate-rialman’s lien under Articles 5452 and 5453, Vernon’s Ann.Civ.St; and (b) that the court should have found that appellant had a constitutional lien under Article XVI, Section 37 of the Texas Constitution, Vernon’s Ann.St. We cannot agree with appellant. When we apply the law to these undisputed facts it is clearly apparent that appellant had neither a statutory nor constitutional lien against appellee church and therefore the summary judgment was correctly sustained.

We consider first the question of constitutional lien. Art. 16, § 37, Constitution of Texas provides:

“Mechanics, artisans and material men, of every class, shall have a lien upon the buildings and articles made or repaired by them for the value of their labor done thereon, or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens.”

Thus if one contracts with a person to-furnish labor and material to improve his-property and does not pay for it, then the laborer or materialman is entitled to assert his right against the property which he improved by his efforts or materials. Had the materials in this case been sold by appellant directly to the church no question against a constitutional lien could have been raised. But here the materials were not supplied to the owner of the property but to a general contractor.

In First Baptist Church of Tyler v. Carlton Lumber Co., Tex.Civ.App., wr. ref., 173 S.W. 1179, the materials were furnished to a general contractor, and not the owner, and the court in denying claim of constitutional lien said:

“Under the facts appellee was not itself the contractor with the owner of the building, but merely furnished to the contractor, under a contract separately and distinctly with the contractor so to do, the lumber and material for which the lien is claimed. The owner was no party to the contract of appellee with such contractor. The pertinent provision of the Constitution reads: (Art. 16, § 37 copied).
“It is concluded that the terms of the constitutional provision may fix and establish a lien on the property in favor of the principal contractor himself for the value of the material put in the building ‘by him,’ but does not extend and give to other persons between whom and the owner there is no privity of contract a lien upon the property for the value of the material furnished by them to the principal contractor. Shields v. Morrow, 51 Tex. 393; Horan v. Frank, 51 Tex. 401.”

See also First Nat’l Bank v. Lyon-Gray Lumber Co., Tex.Civ.App., 194 S.W. 1146, affirmed Supreme Court, 110 Tex. 162, 217 S.W. 133; Huddleston v. Nislar, Tex.Civ.App., 72 S.W.2d 959; which deny the applicability of the constitutional lien in non-privity cases. Accordingly, we hold that appellant has not brought himself within the provisions of the Constitution relied upon and such claim of constitutional lien is denied.

The remaining question is whether appellant successfully affixed a statutory lien to appellee’s property. Before entering into a discussion of the applicability of Arts. 5452 and 5453, V.A.C.S., it must be observed that we consider these statutes prior to their amendment, effective September 1, 1961. The contract in question was in effect prior to the amendment of the statutes and therefore we view these statutes as enacted in 1929.

Art. 5452, V.A.C.S. grants to suppliers of material and labor a statutory lien where such material or labor is supplied to general contractors. Art. 5453, V.A.C.S, § 3, provides for the affixing of such lien within ninety days after such indebtedness accrues. It is undisputed that appellant supplied the last material to the general contractor on February 22, 1962. Therefore, appellant would have had ninety days, or until May 23,1962, to affix a lien to the property by filing a proper affidavit in accordance with Art. 5453, V.A.C.S. The attempted filing of the lien on March 23, 1962 wherein as stated above, there is no itemization nor dates given, fails to meet the requirements of the law. The law requires that the affidavit to be filed with the county clerk shall contain a sworn, itemized account. The account so filed by appellant does not attempt to itemize the claim in any particular. In Aetna Casualty & Surety Co. v. Hawn Lumber Co., Sup.Ct., 128 Tex. 296, 97 S.W.2d 460, the court said:

“The purpose of itemization is to enable all parties dealing with the contractor to determine from time to time as the work progresses ‘for what the lien is claimed, whether for work and labor, and if so the nature of it, when performed, and at what price; or materials, and if so, the kind, quality, and price and when furnished or delivered; or both labor and materials, and if so the kind, quality, the price of each and when performed or furnished.’ ”

See also Capitol Steel & Iron Co. v. Standard Accident Ins. Co., Tex.Civ.App., 299 S.W.2d 738; Meyers v. Wood, S.Ct., 95 Tex. 67, 65 S.W. 174; and Ball v. Davis, S.Ct., 118 Tex. 534, 18 S.W.2d 1063.

Cases relied upon by appellant such as Pool v. Wedemeyer & Schulte, S.Ct., 56 Tex. 287; Hemphill v. Gleason, Tex.Civ.App., 272 S.W. 275; and Royal Indemnity Co. v. American Dist. Steam Co., Tex.Civ.App., 88 S.W.2d 1091, are distinguishable in that those cases dealt with a contract for a “turn key” job or a contract for a specific type of work,- unlike the contract here which involved an open account for various items supplied from time to time to a general contractor. We therefore hold that appellant’s effort, to affix his lien by filing the notice on March 23, 1962 was ineffective.

Appellant acknowledged the possibility of the ineffective notice and claim filed on March 23, 1962, within the ninety-day period as provided by the statute, by again filing a second lien affidavit on September 9, 1962, more than the ninety-day period provided by law. The Supreme Court of Texas in Quinn v. Logan, 67 Tex. 600, 4 S.W. 247, and Cameron v. Marshall, 65 Tex. 7, answered the question presented contrary to appellant’s contention. In those cases the court held that the making of a record of the contract within the time prescribed by the statute was essential to securing a lien and further held that the time limit was not flexible. See also Denny v. White House Lumber Co., Tex.Civ.App., 40 S.W.2d 250, modified on other grounds by the Supreme Court, 54 S.W.2d 86; Foust v. Smith & Helms, Tex.Civ.App., 246 S.W. 106; Kellam v. Hardin, Tex.Com.App., 285 S.W. 611; and Ball v. Davis, S.Ct., 118 Tex. 534, 18 S.W.2d 1063.

Appellant relies upon such cases as Seeling v. Alamo Iron Works, Tex.Civ.App., 173 S.W. 520; and Beilharz v. Illingsworth, Tex.Civ.App., 132 S.W. 106. In both of these cases it was undisputed that funds were held by the owner, owed to the contractor, and did not involve the situation as in this case where there was no money left in the hands of the owner belonging to the general contractor, but instead there had to be applied additional funds in order to complete the building. We do not have here a situation, as in Seeling and Beilharz, supra, where there was ample money to be distributed ■ out of the contract price over and above the cost of completion. In such cases a late filing was held to be sufficient so that the claimant could participate in the distribution of the remaining funds. It is without dispute in this case that there were not sufficient funds to complete the job and to pay all claimants. Accordingly, the late filing of the second lien affidavit was a futile thing.

The judgment of the trial court is affirmed.

Affirmed.


author: BARROW, Justice.

text:
    Evelyn L. HUVAR, Individually and as Next Friend of Sharon Huvar, Appellant, v. REX CORPORATION OF SAN ANTONIO, Appellee.
    No. 14343.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 3, 1965.

      Park Street, Patrick J. Pape, San Antonio, for appellant.
    House, Mercer, House & Brock, San Antonio, for appellee.
   BARROW, Justice.

This is an appeal from a summary judgment granted the defendant in a slip and fall case. Appellant, Evelyn L. Huvar, brought this suit to recover individually and as next friend of her minor daughter, Sharon Huvar, for damages sustained when Sharon fell on the premises of the Rex Apartments, which were owned and operated by appellee.

Appellee pleaded only a general denial and no affirmative defenses are involved on this appeal. Rule 94, Texas Rules of Civil Procedure. Appellee urges that the deposition of Sharon shows that, as a matter of law, it breached “no duty” to her, in that the condition of the floor where Sharon fell was open and obvious. The trial court sustained appellee’s motion for summary judgment which was based solely upon this deposition and entered a take-nothing judgment in the case.

Mrs. Huvar and her fifteen-year-old daughter, Sharon, were tenants of the Rex Apartments for several months prior to Sharon’s fall. On this occasion, Sharon had gone to another tenant’s apartment which, although a part of the Rex Apartments, was located on the second floor of another building than that occupied by the Huvars. Sharon was leaving that building after her visit when she slipped and fell. It has been held in a case squarely in point, that Sharon occupied the status of an invitee at the time of her fall and appellee occupied the same status as that of a landowner. Genell, Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543 (1962).

Although the occupier of land or premises is required to keep his land or premises in a reasonably safe condition for his invitees, the holdings of the Supreme Court are that ordinarily a plaintiff invitee cannot recover if he knows of the condition, realizes and appreciates the danger, or is charged in law with such knowledge, realization and appreciation. Wesson v. Gillespie, Tex.Sup.Ct., Oct. 7, 1964, 382 S.W.2d 921; Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963); McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954); Houston Nat. Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374 (1948); Justice Joe Greenhill, Assumption of Risk, VoL XVI, Baylor Law Review 111.

Sharon described the accident in her deposition as follows: “Well, I had gone up to the apartment, to the upstairs to get some sheet music, and it had been raining that day, and it had stopped. As I walked into' the foyer, I noticed — I had mentioned to somebody that was walking behind me how wet everything was, and there' was a lot of mud and leaves on the foyer and the steps. So I got the sheet music, ánd I came back down the steps. I wasn’t'walk-ing very fast. I don’t know exactly how it happened, it happened so fast, but I noticed that as I went over the last step, I slid, and I hit the window.” Sharon also testified that this was the first time she had been to this apartment and that she stayed there about ten to fifteen minutes.

The question of when an invitee is charged in law with knowledge, realization and appreciation of a dangerous condition was considered by the Supreme Court recently in Wesson v. Gillespie, supra. The Court expressly approved the holding in Triangle Motors v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953), that one exposure to a dangerous condition may not relieve the owner of his duty to eliminate the danger to warn the invitee.

There was no evidence that Sharon had any difficulty with the floor or stairway on her way to the apartment or any evidence which would show that she realized and appreciated that the mud and leaves created a dangerous condition. We cannot say that Sharon is charged, as a matter of law, by her one walk through the foyer a few minutes before her fall, with the knowledge, realization and appreciation of the dangerous condition created by the leaves and mud in the foyer of the apartment building.

The judgment is reversed and the'cause remanded.


author: LANGDON, Justice.

text:
    The MORRIS PLAN LIFE INSURANCE COMPANY, Appellant, v. Joe E. WELLS, Appellee.
    No. 16593.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 5, 1965.

      Kelly, Morris, Walker & Maynard, and Jearl Walker, Fort Worth, for appellant.
    Jimmy Castledine, Wichita Falls, for ap-pellee.
   LANGDON, Justice.

The appellee, Joe E. Wells, purchased a $1,000.00 debenture bond on August 24, 1953, from Old Line Life Insurance Company, hereinafter referred to as Old Line, bearing interest at seven per cent. Thereafter the appellant, The Morris Plan Life Insurance Company, hereinafter referred to as The Morris Company, under authority of Articles 21.25 and 21.26 of the Insurance Code, Vol. 14A, V.A.T.S., merged with Old Line.

Before the merger the appellee was paid regularly on the due date of the debenture bond interest coupons as they were detached and sent in to Old Line. After merger the appellant refused to pay and notified appellee it would not pay on the coupons or the debenture bond itself.

.Appellee sued for the past, due coupons and for declaratory judgment, defining the future rights of the parties including the payment of unaccrued coupons on their due date and payment-of the bond due in 1968.

The case was tried to the court without a jury. On May 20, 1964, judgment was entered ordering payment by The Morris Company of twenty (20) interest coupons on due dates upon presentation, accrued interest and payment of the debenture bond in the sum of $1,000.00 upon its presentation in 1968. Findings of fact- and conclusions of law were filed by the court and judgment based upon such findings was entered.

By seven assignments the appellant contends the court erred in basing its judgment upon findings that (1) The Morris Company assumed liability on the debenture bond; (2) payment thereof was not limited to Section 4 of such bond; (3) Section 6 of the bond pledged the general credit of Old Line because as to each there was no evidence or insufficient evidence to support such findings. The seventh point questions jurisdiction of the court because the amount involved less than $500. We affirm.

The appeal involves primarily the interpretation of Sections 4 and 6 of the debenture bond which are:

“4. THIS ISSUE of debenture bonds is secured by a pledge of twenty-five (25%) per cent of the earned surplus of the Company at the end of each calendar year hereafter, as a sinking fund toward the retirement of the principal sum balance and interest of this issue.
* * *
“6. THE COMPANY pledges its full faith and credit to all agreements herein, provided that prior to maturity these bonds shall not otherwise be construed as a liability of the Old Line Life Insurance Company.”

Under the merger agreement dated August 22, 1958, The Morris Company was to issue its stock in exchange for Old Line stock in the proportion that the value of the former bears to the entire value of the latter. Under this formula The Morris Company would issue one share of its stock for each two (2) shares of Old Line and it would not issue more than 40,877 shares of its stock.

In exchange for the stock to be issued by it The Morris Company was to receive all of the assets of Old Line including all of its. business in force, reserves, cash, mortgage loans, stock, bonds, automobiles, fixtures,, equipment and all other items of value.

The merger agreement recited that Old' Line had a premium income of approximately $49,000.00 per year and earned surplus debentures . presently outstanding of' approximately $26,000.00 payable out of the profits of the Company under certain specified terms and conditions. Other current obligations totalling about $9,000.00 plus, were listed. The non admitted assets consisting of fixtures and equipment were valued at $10,000.00.

The findings of the trial court reflect that in 1961 The Morris Company had a special surplus fund of $66,620.25 and had' a capital and unassigned surplus of $184,-402.54. Its net value was $500,000.00 according to the merger agreement.

The appellant contends that, under the provisions of § 4, supra, of the Bond, payment under its provisions is limited to available money in the sinking fund and that according to an audit of the State Insurance Department, as of April 30, 1958, Old Line was hopelessly insolvent, bankrupt and impaired and thus there is no money in the-sinking fund with which to pay the bond.

This contention is in direct contradiction-to recitations contained in the merger-agreement signed by Mr. Morris in his capacity as President for and on behalf of Old Line and as President of The Morris-Company.

We are in accord with the trial court that ■ the purpose of Section 4 is to provide additional security and that in event Section four (4) of the bond is held to limit the payment thereof out of money in the designated fund that such section is in conflict with Section 6 of the bond pledging the general credit of Old Line thus creating an ambiguity to he resolved in favor of the bond holder. To hold otherwise would seriously jeopardize the integrity of all notes whether designated as debenture bonds or otherwise.

Section 1, Art. 21.25 of the Insurance Code, supra, one of the sections under which the merger was accomplished, provides that the procedure for, the effect of, and the rights and duties of creditors shall be governed by applicable provisions of The Business Corporation Act.

Article 5.06 of the Business Corporation Act, Vol. 3A, V.A.T.S., Section A(3) provides that upon merger the surviving corporation shall be subject to all the duties and liabilities of a corporation organized under the Act. Section A (5) provides that the surviving corporation shall be responsible for all liabilities and obligations of each of the corporations so merged or consolidated. Any claim may be prosecuted as if such merger had not occurred. Neither the rights of creditors nor any lien shall be impaired by such merger. See cases cited under these provisions of the statute. See also 33 Tex.Jur.2d 44-45, § 601, “Consolidation”, to the effect that consolidation does not effect the right of any creditor of the absorbed company. See also 14 Tex.Jur.2d 605, § 509, and authorities cited under each.

In deciding the no evidence points this court is required to view the evidence in its most favorable light in support of the trial court’s findings, considering only the evidence and the inferences which support the findings and rejecting the evidence and the inferences which are contrary to such findings.

From our application of this rule we are of the opinion that there is ample evidence to support the court’s findings and its judgment. Based upon our review of the record as a whole we find the great weight and preponderance of the evidence supports the findings and judgment of the trial court.

The form of the debenture bond in question has been uniformly construed to be a promissory note. The'term debenture bond ordinarily means a note or series of notes issued by a corporation on authority of its Board of Directors. It constitutes a written unconditional promise to repay money loaned to the corporation. Payment is required in the manner stipulated and no provision should qualify this promise to pay unless a contrary intent is clearly expressed by other promises. No such contrary intent was so expressed by any of the provisions of the bond in question. The appellee was entitled to rely upon the promises contained in the bond.

An unqualified promise to pay is unconditional although coupled with the designation of a particular fund out of which payment is to be made. Vol. 16B, Art. 5932, Section 3(1), Vernon’s Ann.Tex. Civ.St. (Negotiable Instruments Act).

A provision designating a particular fund out of which payment is to be made is liberally construed in favor of the payee. He is not required to be satisfied from the security only. 9 Tex.Jur.2d 249, § 228.

The amount in controversy exceeds $1,700.00. It is comprised of $397.00 now due, some $290.00 due to be paid on the coupons, and the sum of $1,000 due July 1, 1968. The appellants have denied that any amount is due or will be due in the future. This controversy requires a declaration and interpretation of the debenture bond and for a money judgment in excess of $1,700.00. The court had jurisdiction.

All points of error are overruled and the judgment of-the trial court is affirmed.


text:
    Henry Trevino CARRERA, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 14358.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 27, 1965.
    Henry Beltran, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., San Antonio, for appellee.
   BARROW, Justice.

This is an appeal by Henry Trevino Car-rera from an order of the County Court at Law No. 1 of Bexar County, Texas, dismissing, for want of jurisdiction, his suit to stay an order of suspension issued by appellee, Texas Department of Public Safety, pursuant to Art. 670lh, Vernon’s Ann.Civ.Stats.

Appellee has not filed a reply brief herein, but has filed a motion to dismiss the appeal because no motion for new trial was filed by appellant. None was necessary on appeal from the dismissal of appellant’s suit for want of jurisdiction. Rule 324, Texas Rules of Civil Procedure.

Appellant’s petition was filed on April IS, 1964, which was twenty-seven days after he had received notice of the order of suspension which appellee had issued on March 18, 1964. Appellee filed a motion to dismiss this suit because it was not filed within ten days after notice of such suspension was received by appellant. No evidence was heard on this plea to the jurisdiction. The trial court sustained appel-lee’s plea to the jurisdiction and dismissed the case.

This action was erroneous in that appellant’s suit was timely filed. Art. 6701h, supra, was amended in part by Acts. 1963, 58th Legislature, Ch. 506, p. 1320, effective January 1, 1964. Sec. 2(b) of Art. 6701h, as amended, provides in part: “Any order or act of the Department, under the provisions of this Act, may be subject to review within thirty (30) days after notice thereof, or thereafter for good cause-shown, by appeal to the County Court at. Law at the instance of any party in interest. * * t-»

Appellant’s suit was filed within the required thirty-day period and therefore the-trial court erred in sustaining appellee’s. motion to dismiss for want of jurisdiction. The judgment is reversed and the cause remanded.


text:
    Clay KITCHENS, Independent Executor of the Estate of Inez Kitchens, Deceased, et al., Appellants, v. Peggy Viola KITCHENS et al., Appellees.
    No. 14348.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 27, 1965.
    Rehearing Denied Feb. 24, 1965.
    O’Neal Dendy, San Angelo, M. C. Blackburn, Junction, for appellants.

      Lee & Lee, Mason, Stovall & Gibbs, San Angelo, for appellees.
   BARROW, Justice.

This is the second appeal of this case which originally involved three separate appeals or segments of a suit brought by Peggy Viola Kitchens and Lynette Wallace against Clay Kitchens, individually and as independent executor of the estate of Inez Kitchens, deceased, and Patricia Anne Bunyard, seeking, among other reliefs, partition of an 1126-acre ranch in Menard County, alleged to be the community property of John P. Kitchens and his wife, Inez Kitchens. John P. Kitchens died intestate in 19S2, leaving as survivors his widow, Inez Kitchens, and three children, Clay, Ray, and Lynette Kitchens Wallace. Ray died testate in 1959 and left his widow, Peggy Viola Kitchens, as independent executrix and sole heir of any interest he might have in the Menard County ranch land. Inez Kitchens died on October 31, 1960, testate, with Clay Kitchens as her independent executor. Patricia Anne Bunyard is the daughter of Ray and Peggy Viola Kitchens. Reference is made to the prior opinion for a full statement of the facts, 372 S.W.2d 249, writ dismissed for want of jurisdiction.

On the prior appeal the Tenth Court of Civil Appeals affirmed the judgment of the trial court, insofar as it related to construction of the will of Inez Kitchens as being an invalid restraint on alienation, and to the finding of an existence of a partnership between Inez Kitchens and her three children. The issue of whether the Menard County Ranch land was community or separate property was severed, and this phase of the case was reversed and remanded for determination of an ultimate issue of fact as to whether John P. Kitchens intended to make a gift to his wife, Inez, so as to constitute the ranch land her separate property in law.

Upon retrial, the jury found that although John P. Kitchens consented for his son Ray to place the name of Inez Kitchens as grantee in the deed of August 14, 1933, John P. did not intend to give his wife his interest in the Menard County ranch as her separate property. ■ The trial court rendered judgment on this verdict in accordance with the prior opinion, and or-dered that the land be partitioned and one-half given to appellants, Clay Kitchens and Patricia Anne Bunyard (they having stipulated that their shares be given to them in one tract), one-third to appellee Lynette Wallace, and one-sixth to appellee Peggy Viola Kitchens.

Appellants have asserted four points of error, two of which relate to holdings in the prior opinion of the Court of Civil Appeals, and two to the admissibility of documentary evidence at the second trial.

Appellants urge that the trial court erred in refusing to submit their duly requested issue on the defense of legal estoppel which was pleaded by them. On both trials it was stipulated that in 1925 John P. Kitchens and his wife, Inez, caused the title to the Menard County land to be placed in their son Ray for their benefit, and for the purpose of placing such, land beyond the reach of the creditors of John P. Kitchens. At the first trial the jury found, as on the second trial, that John P. Kitchens knew of and consented to the insertion of the name of his wife, Inez, as grantee in the 1933 deed. The jury also found in the first trial, in response to an issue substantially similar to that requested on the second trial, that John P. caused Inez to be named as grantee to prevent collection of the judgment against himself.

The first appeal disposed of the issue of legal estoppel by the holding at page 255 of 272 S.W.2d, supra: “The effect of the stipulation is that the son held the record title for the benefit of the community. The fact that he so held it to prevent its subjection to satisfaction of a judgment against his father, or that he conveyed it to his mother for- the same purpose, did not affect its validity as between the spouses and those claiming under them.” (Citing authorities.) The Court further held that neither the stipulation nor the jury finding was a basis for judgment that the ranch was the separate property of Inez. The case was remanded for determination of an ultimate issue as to whether John P. Kitchens intended to make a gift of the ranch lands to his wife, Inez.

It is our opinion that this holding in the first appeal, which became final, although open to review by the Supreme 'Court, is the law of this case. In State By and Through State Bd. of Morticians v. Cortez, Tex.Civ.App., 323 S.W.2d 56, affd. Tex.Sup., 333 S.W.2d 839, Justice Pope, in speaking for the majority of this Court, set forth with approval the general rule: “ ‘The majority of the jurisdictions which have passed on the question hold that where a decision is rendered by an intermediate court, and appeal or other remedy is open to the losing party to have that decision reviewed in the court of last resort, if he fails to avail himself thereof, but allows the case to be remanded for further proceedings, and thereafter appeals again to the intermediate court and thence to the court of last resort, the points decided by the intermediate court on the first appeal will be regarded as the law of the case in the court of last resort, and will not there be re-examined.’ 3 Am.Jur., Appeal and Error, § 988.” See also: 5 Am.Jur.2d Appeal and Error, § 747 ; 87 A.L.R.2d 271; State v. Stone, Tex.Civ.App., 290 S.W.2d 761, wr. ref., n. r. e.

Texas authorities recognize the right of the Supreme Court, in its discretion, to reconsider upon a second appeal what it or an intermediate court had previously decided on a prior appeal of the same case. Connecticut General Life Ins. Co. v. Bryson, Tex., 219 S.W.2d 799; Kempner v. Huddleston, 90 Tex. 182, 185, 37 S.W. 1066. We see no reason for this Court to exercise this discretion where this issue was fully developed on the first trial, largely through stipulated evidence, and appellants’ right of appeal was lost through their own failure to timely perfect their application for writ of error.

Appellants’ points complaining of the court’s refusal to submit the issue of legal estoppel and placing the burden of proof upon them, were decided adversely to them in .the prior opinion of the Tenth Court of Civil Appeals and will not be reconsidered by us.

Appellants also assert that the trial court erred in admitting numerous legal documents concerning the ranch land which were signed by John P. Kitchens subsequent to the deed of 1933 to his wife, and that the trial court erred in admitting into evidence an oil and gas lease signed in 1957 by all the “possible heirs” of John P. Kitchens. It is our opinion that reversible error is not shown by the admission of any of these documents.

These documents consist of ’a deed of trust to secure a loan of. $5,600.00 from the Federal Land Bank of Houston on Decern-ber 27, 1933, as well as a release of this lien on October 20, 1944, and an oil and gas lease executed on May 18, 1943. The deed of trust was executed by “Inez Kitchr-ens and husband, John P. Kitchens” and was admitted without objection. The release was styled: “Federal Land Bank to Inez Kitchens” although in the body it stated that it was releasing the deed of trust executed by “Inez Kitchens and husband, John P. Kitchens.” These documents were offered in connection with appellees’ proof that the land was paid for out of the community estate. The oil and gas lease was made by “Inez Kitchens joined by her husband, John P. Kitchens.” Appellants objected to these two documents as being irrelevant, immaterial and prejudicial in that John P. Kitchens was required to sign them whether the land was the separate property of his wife or community, but by their admission in evidence the jury would consider that John P. Kitchens had an interest in the land.

We believe that any error in the admission of these documents was harmless. No ownership of the property by John P. Kitchens is asserted in any of these documents, in that each infers ownership in Inez Kitchens, with John P. joining her in the execution of each instrument. Furthermore, the admission of the deed of trust, without objection, rendered harmless any subsequent error in admission of the same testimony. Slayden v. Palmo, 108 Tex. 413, 194 S.W. 1103; Medina Electric Cooperative, Inc. v. Ball, Tex.Civ.App., 368 S.W.2d 227, no wr. hist.

The oil and gas lease of 1957 makes no reference to John P. Kitchens and does not in any way'identify the lessors as signing in the capacity of heirs of John P. Kitchens, deceased. It is noted, however, that the husband of Lynette Wallace and the wife of Clay Kitchens also signed the instrument, which lends credence to the proposition that John P. Kitchens was required by law to join his wife in the execution of the other instruments. We do not see any materiality in this instrument,, but cannot say that prejudicial -error is shown by its admission which would require a reversal of this case. Rule 434, Texas Rules of Civil Procedure.

The judgment is affirmed.

      . “SPECIAL ISSUE NO. 1:
      “From a preponderance of tlie evidence, do you find that John P. Kitchens knew that his son, Ray Kitchens, was placing the name of Inez Kitchens as grantee in the deed of August 14, 1933, to the 1126 acres in Menard County?
      “We, the Jury, answer: He did know. “SPECIAL ISSUE NO. 2:
      “From a preponderance of the evidence, do you find that John P. Kitchens consented to his son, Ray Kitchens, placing the name of Inez Kitchens as Grantee in the deed of August 14, 1933, to 1126 aeres in Menard County?
      “We, the Jury, answer: He did consent.
      “SPECIAL ISSUE NO. 3:
      “From a preponderance of the evidence, do you find that on August 14, 1933, John P. Kitchens intended to give his interest, if any, in the 1126 acres of land in Menard County, to Inez Kitchens as her separate property?
      “We, the Jury, answer: No.”


author: BATEMAN, Justice.

text:
    ROBERT W. PAYNE COMPANY, Appellant, v. J. W. HILL CONSTRUCTION, Appellee.
    No. 16462.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 5, 1965.

      • Henry Stollenwerck, Dallas, for appellant.
    Fanning, Billings, Harper, Pierce & Gil-ley, Dallas, for appellee.
   BATEMAN, Justice.

The appellant Robert W. Payne Company, as general contractor, was building an apartment building in San Antonio, Texas. Its superintendent in charge of the work was S. W. Shelton. Purporting to act for appellant, Shelton entered into a written subcontract with appellee J. W. Hill Construction whereby the latter agreed, for a consideration of $2,397.50, to install certain paving for driveways and parking areas which appellant was obligated under its general contract to install. Shelton, continuing to act on behalf of appellant, orally agreed to pay appellee for certain “extras” consisting of furnishing a crane for $102 in extending the asphalt paving 18 inches inside the back fence for $127.

After the paving work was completed it was discovered that rain water drained from this property onto a neighbor’s adjoining property. Appellee re-entered and at its own expense erected a curbing that apparently corrected this condition. Appellant paid $2,000 to apply on appellee’s claim and answered appellee’s suit for the claimed balance of $626.50 and statutory attorney’s fee by filing a sworn denial of Shelton’s authority to contract on its behalf and a general denial.

The court, at the end of a non jury trial, rendered judgment for appellee for $500 plus $200 attorney’s fee. Findings of fact were filed pursuant to Rule 296, Vernon’s Texas Rules of Civil Procedure, to the effect that (1) the parties entered into the written subcontract; (2) the work provided for therein was fully performed in a good and workmanlike manner; (3) in addition to which appellee furnished a crane, for which the charge of $102 was reasonable; (4) Shelton had apparent authority to enter into the. written contract and to order the crane on behalf of appellant; (5) appellant ratified the said written and oral contracts; (6) appellant was estopped to deny liability thereunder, but (7) had a credit of $2,000 and (8) owed appellee a balance of $500(9) plus $200, attorney’s fee. The court’s conclusions of law were that appellant had breached the written and oral contracts and appellee was entitled to the judgment rendered.

Appellant asserts by seven points of error that: (1) the court erred in holding that Shelton had apparent authority to make the contracts on behalf of appellant; (2) the court erred in holding that appellant ratified the contracts; (3) the court erred in holding that appellant was estopped to deny liability thereon; (4) the court erred in holding that appellant had breached the contracts; (5) there was no evidence to sustain the judgment; (6) under the undisputed evidence appellee had agreed to obtain the approval of the neighbors for the curb, which agreement was breached by ap-pellee; and (7) there is a conflict in the findings of the court which renders a judgment impossible.

The first five points of error will be considered and disposed of together. If the foregoing findings and conclusions of the trial court are supported by some evidence of a substantial and probative character, they are controlling upon this court and will not be disturbed even though we might have reached a different conclusion therefrom. City State Bank in Wellington v. Wellington I. S. Dist., Tex.Civ.App., 173 S.W.2d 738, affirmed 142 Tex. 344, 178 S.W.2d 114; Richardson v. Raby, Tex.Civ.App., 376 S.W.2d 422, 426, no wr. hist. As we said in Nathan v. Hudson, Tex.Civ.App., 376 S.W.2d 856, 862, wr. ref. n. r. e.:

“The trial court’s findings of fact and conclusions of law should be construed together and, if possible, to be in harmony with the judgment and to support it; and in determining whether the findings are supported by any evidence of probative value we should give credence only to the evidence favorable to the findings, disregarding all evidence to the contrary. Brown v. Frontier Theatres, Inc. (Tex.Sup.), 369 S.W.2d 299, 301.”

We find no evidence of actual authority of Shelton to contract on behalf of appellant, but the record shows without dispute that he was appellant’s superintendent on this particular building project, and was the only one appellant had there handling the job constantly. In addition to this circumstance, the theory of apparent authority, as well as those of estoppel and ratification, finds support in the testimony of appellant’s president, Robert W. Payne, Jr. He testified that his first knowledge of the paying work that was being done was obtained when he arrived in San Antonio and saw that the caliche base thereof was down, at which time Shelton gave him a copy of the contract sued on; whereupon he told appellee’s superintendent that no adequate provision had been made for drainage and if and when this had been corrected, to “keep going,” but that if he didn’t make the suggested .“valley” in .the paving he could not proceed.' He did not say anything to “any of the Hills” regarding Shelton’s lack of authority, and he did not fire Shelton for exceeding his authority. He later paid $2,000 to appellee. He also said that after the paving was finished he told J. W. Hill, Jr., one of the partners in J. W. Hill Construction, to correct the drainage and get releases from the adjoining property owner “and the apartment house people,” after which he would pay the balance of approximately $200 owing “according to the agreement.” He further testified that the whole apartment building had been accepted and that his company (appellant) had been paid in full for it, after which, a complaint having been made concerning drainage, appel-lee installed a curbing to deflect rain water into the street, and that since then there have been no complaints about water drainage. He admitted that his company owed the $102 for the crane, although he considered the charge excessive.

It is our opinion that these facts amply supported all of the court’s findings of fact. The first five points of error are overruled.

By its sixth point of error appellant asserts breach by appellee of its agreement to obtain approval by the neighbors of the curbing erected by it. It is undisputed that after completion and acceptance of the entire building and payment to appellant of the full amount of the general contract a heavy rain occurred and that some of the rain water backed- up in the building and some drained onto the adjoining lot owned by one Elkins; that when this was called to the attention of J. W. Hill, Jr. he agreed to erect the curbing to deflect the water into the street and to obtain an approval of this method from Elkins. The curb was built but the approval was not obtained. The trial court evidently entertained the view that the contract was substantially performed by appellee and that appellee was entitled to the unpaid balance of the contract price even though it had not obtained Elkins’ approval. We agree.

The agreement to obtain Elkins’ approval of the curbing was not a part of, but was at variance with, the prior contract. It is well settled that when a subsisting written contract is attempted to be amended or modified by a subsequent oral agreement, the latter must be supported by a consideration. Lacking this essential element, the agreement in question was void and unenforceable and its breach by appellee would not excuse performance of the main contract by appellant. Bates Grain Co. v. Cassidy, Tex.Civ.App., 225 S.W.2d 1018, wr. ref. n. r. e.; Universal Credit Co. v. Cole, Tex.Civ.App., 146 S.W.2d 222, no wr. hist. Appellant’s sixth point of error is overruled.

The seventh point of error asserts that the judgment appealed from was “impossible” because the court’s finding that Shelton had apparent authority to make the contracts conflicts with its finding that appellant ratified such contracts. We fail to see any such fatal conflict. While the finding of apparent authority may have been sufficient in itself to support the judgment, making the finding of ratification superfluous, the findings are not inconsistent and--do not present an irreconcilable conflict. Both could be true. The seventh point is ■overruled.

The judgment appealed from is

Affirmed.