author: GREEN, Chief Justice. SHARPE, Justice

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. JOHN JANCIK PRODUCE, Appellee.
    No. 137.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 18, 1965.
    Motions for Rehearing Denied Dec. 8, 1965.
    Kleberg, Mobley, Lockett & Weil, Leslie S.Lockett, Corpus Christi, for appellant.
    North, Blackmon & White, Jack E. A. White, Corpus Christi, for appellee.
   GREEN, Chief Justice.

This suit involves a perishable freight loss and damage claim arising out of a carlot interstate shipment of lettuce. The fact that the shipment was damaged in transit through negligence of the carriers is not in dispute on this appeal. Appellant’s two points allege error in the trial court not entering judgment for the appellant due to the failure of the appellee to meet its burden of proving fair market value of the lettuce at destination at the time and in the condition in which the shipment (1) actually arrived, and (2) should have arrived if properly transported.

It is agreed that the measure of damages in such a claim is the difference between the market value at destination of the commodity had it arrived in the condition it should have been if properly transported, and the market value at destination of the commodity in the condition it actually was delivered, not to exceed indemnity for actual loss; and the burden is on the shipper to show such difference by a preponderance of the evidence. Missouri Pacific Railroad Company v. H. Rouw Company, Fifth Cir., 258 F.2d 445, cert. den., 358 U.S. 929, 79 S.Ct. 315, 3 L.Ed.2d 302; 13 C.J.S. Carriers § 255Z(2), p. 572, et seq. The cited case holds that, while the general rule is as stated, it is subject to qualifications depending on the fact situation; and the trial court’s judgment was reversed because it failed to take into account items of necessary expense, including selling expenses, in arriving at the true actual loss.

An important defect in appellee’s testimony on value is that he relies on inconsistent and conflicting theories to establish the market value of the commodity in the condition in which the produce did reach destination, and the value in which it should have got there if properly transported. For the former, he introduced evidence that ap-pellee actually received $1,056.00 from the consignee, after allowing consignee $800.00 off of the F.O.B. Pharr, Texas, purchase price due to the damage, and a stipulation that the consignee, if present in court, would testify that the price received for the commodity was the reasonable market value of that commodity at the time and in its condition upon arrival at destination. It will be noticed that the stipulation does not say by whom the price should be received, and each party places a different interpretation on that language, appellee contending it means the price received by him for the sale, and the appellant construing it to mean the price received by consignee on resale at destination. There was no evidence of consignee’s sales, or any prices received by him.

This being an F.O.B. sale at Pharr, Texas, with appellee not liable to pay any freight charges or other expenses after the car was loaded at Pharr, and there being no evidence of what such freight and other expenses amounted to, if we accept ap-pellee’s construction of the stipulation as correct, and hold the evidence above mentioned sufficient to support the jury’s verdict of $1056.00 as the value of the shipment as it arrived at destination, we are permitting appellee a market value at destination which does not include expenses that, according to appellee’s own witness, Palmer, necessarily are included within the value of the produce at destination.

On the other hand, the evidence on which appellee depended to establish market value at destination of’ the produce in the condition it should have arrived if properly transported did include the freight charges, which appellee did not pay, and was not liable to pay, and selling expenses which appellee did not incur. It was to appellee’s benefit to secure a low finding on value as the shipment did arrive, and a high finding on value as the shipment should have arrived, in order that the difference would fully cover his alleged- loss. As evidence of this last mentioned value, appellee placed in evidence a copy of the U. S. Department of Agriculture Philadelphia (destination point) Fresh Fruit and Vegetable Daily Market Report for February 8, 1960, (date of arrival) which gave the following quotation for Texas lettuce received on the wholesale market to 9:30 A.M. in less than carlot or truck loads: “Texas 24S ord-fair qual. cond. 4.00-4.50 poor 3.00”. Such market reports are admissible as evidence of value, when they are relevant to the facts. Art. 3731, Vernon’s Ann.Civ.Tex.St.; Missouri Pacific Railroad Company v. John B. Hardwicke Co., Tex.Civ.App., 380 S.W.2d 706; Missouri Pacific Railroad Company v. Duncan, Tex.Civ.App., 353 S.W.2d 315; 23 Tex.Jur.2d Evidence, § 321, p. 463. Upon the basis of such report Palmer, appellee’s office manager and salesman, testified that lettuce of the grade and condition as was in this shipment should have brought four to four and a half, or five dollars even, because the market report quotation was based on ordinary to fair quality.

But on cross-examination, Palmer admitted that the market quotations he had used could not be compared with the F. O. B. sale for several reasons. He said that freight charges were included in both his opinion and the market report, although ap-pellee was not liable for and did not pay them. He testified that the quotations in the market report included selling expenses, particularly a 10% commission, which was not true as to the F. O. B. sale. The quotations in the market report used as a basis for Palmer's values were for sales in less than carlot quantities. The F.O.B. sale was for a carlot quantity, and Palmer stated that as a general rule the price for produce bought in carlot quantities is lower. According to Palmer’s testimony, comparing F.O.B. sale with the values as quoted in the market report was like comparing an apple with a banana.

Obviously, $1056.00 could not be the market value of the lettuce as it actually arrived at destination if the same standard is applied to the term market value as appellee set in introducing in evidence the market report which included the matter of freight charges (amount not proved) and other expenses ; such figure would be more, though we are unable to state how much. On the other hand, if we find that the value at destination of the shipment in the condition in which it should have arrived is to be fixed by some standard that does not include the fixed, unproved expenses named, as ap-pellee would calculate the “as it did arrive” market value, there is no evidence by which such value could be calculated. There is not any consistent, probative evidence in the record by which the court, on consistent jury findings, could determine the difference between the reasonable market value of the shipment at destination in the condition that it should have arrived if properly transported, and such market value of the shipment as it did arrive.

The stipulation as to what consignee would testify as to value of the shipment as it did arrive relied on by appellee must be construed consistently with the rule of measure of damages as declared in Missouri Pacific Railroad Company v. H. Rouw Company, Fifth Cir., supra. The F.O.B. selling price at point of origin, which resulted from a private sale between consignor and consignee, of which appellant in so far as the record reflects, had no notice, and which did not include freight and selling expenses, cannot be compared with the market report at destination which, according to Palmer’s testimony, did include them, especially where there is no evidence of the amount of such expenses, and such F.O.B. price is not admissible as evidence of such value. Missouri Pacific Railroad Company v. Duncan, supra.

Since the $1056.00 received by shipper from consignee was based on the Pharr, Texas, selling price less the $800.00 allowance privately agreed upon by appellee and consignee, and included no freight charges or selling expenses, it could not constitute evidence of the market value of the produce as it arrived at destination, and we feel confident that the parties, in entering into the stipulation, did not intend that it should constitute such evidence. Appellant’s contention as to the meaning of the stipulation is consistent with the market value at destination rule, while appellee’s contention is not.

We find that the stipulation of the parties was not applicable to the testimony offered by appellee concerning the value as the shipment did arrive, and sustain appellant’s first point.

In addition to other portions of Palmer’s testimony, we call attention to his evidence that the market report was concerned only with sales in less than carlot shipments, and that as to carlot shipments, the prices were generally lower. We do not believe the report was relevant to the shipment in question and Palmer’s opinion based thereon has no probative value. Appellant’s second point is sustained.

Having determined that the judgment below should be reversed, we are met with the issue whether to remand for new trial, or render judgment for appellant. The power of the Court of Civil Appeals with respect to this question is defined by Rule 434, T.R.C.P., as follows :

“When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial.”

In this appeal appellant does not dispute the fact that the lettuce was damaged due to carrier’s negligence en route from shipping point to destination. The reversal of the judgment is due to the failure of ap-pellee to meet its burden of proving by competent evidence the amount of damages to be assessed. On that issue the case has not been fully developed. It appears to us that for such reason, and because the justice of the case requires another trial the case should be remanded. Aetna Insurance Company v. Klein, 160 Tex. 61, 325 S.W.2d 376; Williams v. Safety Casualty Co., 129 Tex. 184, 102 S.W.2d 178; Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699, on rehearing; Hicks v. Matthews, 153 Tex. 177, 266 S.W.2d 846; Minneapolis-Moline Company v. Purser, Tex.Civ.App., 361 S.W.2d 239, writ ref., n. r. e.

The following is from the opinion in Davis v. Gale, 160 Tex. 309, 330 S.W.2d 610, on page 613:

“Where a judgment has been reversed, it is the rule to remand to the trial court for a new trial rather than to render, where the ends of justice will be better subserved thereby. See Rule 505, Texas Rules of Civil Procedure; Hicks v. Matthews, 153 Tex. 177, 266 S.W.2d 846. It appears that the justice of this case demands another trial. This court has often remanded a cause to give parties an opportunity to supply additional evidence and to amend pleadings. See Hicks v. Matthews, supra; Associated Oil Co. v. Hart, Tex.Com. App., 277 S.W. 1043.”

As stated in Pelham Manufacturing Company v. Ridlehuber, Tex.Civ.App., 356 S.W. 2d 502, writ ref., n. r. e.:

“ * ' * * the fact ‘that a peremptory instruction would have been justified’ does not preclude remand. Hicks v. Matthews (supra); Aetna Ins. Co. v. Klein (supra). Remand, rather than rendition, has been consistent where the ends of justice are subserved, and deficiency of proof is obviously the result of a case not having been fully developed. Davis v. Gale, 160 Tex. 309, 330 S.W.2d 610, 613; Hall v. O. C. Whitaker Co., 143 Tex. 397, 185 S.W.2d 720, 724.”

Reversed and remanded.

SHARPE, Justice

(concurring in part and dissenting in part).

I am in accord with the holding- of the Court that the judgment should be reversed, but I am unable to agree that the case should be remanded for a new trial. In my view, judgment should be here rendered for appellant. The parties will hereafter be referred to as in the trial court.

The opinion of the Court as. to reversal rests firmly on correct holdings that the evidence wholly failed to raise issues of fact concerning the reasonable market value of the lettuce involved at destination point of the shipment either (1) in the condition in which it should have arrived, or (2) in the condition in which it actually arrived.

At the close of all the evidence a directed verdict in favor of the defendant would have been proper. After the jury verdict defendant’s motion for judgment non ob-stante veredicto was good. It thus appears that defendant was entitled to judgment in the trial court that plaintiff take nothing by this suit. Nevertheless, the trial court rendered judgment against the defendant on this shipment in the amount of $800.00, plus interest.

On this appeal the defendant contends that the judgment should be reversed and here rendered in its favor. The plaintiff primarily contends that the judgment should be affirmed, but with reference to the stipulation concerning the reasonable market value of the lettuce in the condition in which it actually arrived (involved only in one special issue and in point one of the case), says, “If it is now held to be inadequate, justice can only be served by remanding this case for a new trial, * * * ” This is the only ground relied upon by plaintiff as a-basis for remand.

The majority decision to remand this case for a new trial is based upon Rule 434, T.R.C.P., and cases construing it and its predecessor statutes. When we examine that Rule, we find that a Court of Civil Appeals upon reversal is directed to render such judgment or decree as the court below should have rendered except (1) when it is necessary that some matter of fact be ascertained, or (2) the damage to be assessed or the matter to be decreed is uncertain. When we examine the cases under Rule 434 we find that they announce the following rules:

“Even if the appellate court determines the trial court erred in failing to instruct a verdict, it may remand if the case was tried on an incorrect theory or was not fully developed, or where it appears ‘that the justice of the ease demands another trial.’ But where the record discloses an insuperable barrier to right of recovery, judgment should be rendered; and although the Court of Civil Appeals has wide discretion in determining whether to remand, unless the exceptions above noted exist there is no case for exercise of discretion if an instructed verdict was proper. It is ‘the uniform practice of the appellate courts in Texas’ to render and not remand.” Appellate Procedure in Texas, § 18.17 (by Judge Frank M. Wilson).

In this ease the plaintiff, in effect, relies solely for remand upon the ground that “justice can only be served by remanding this case for a new trial.” The plaintiff does not specifically contend that it is necessary that some fact be ascertained or that the damage to be assessed or the matter to be decreed is uncertain or that the case was tried on an incorrect theory or was not fully developed.

In my view, the plaintiff in order to avoid rendition of judgment here must demonstrate that the case falls within one of the recognized exceptions under Rule 434 T.R.C.P. If this is not done, we have no alternative but to render judgment rather than remand the case for a new trial.

In this case the defendant contested plaintiff’s claim to recover damages in any amount. The plaintiff wholly failed to meet his burden of establishing either of the essential elements of the alleged market value damages. The plaintiff was not misled by any ruling of the trial court or by conduct of counsel for the defendant. He was not in any way prevented from properly and fully developing his cause of action for damages, if he had one. The failure to prove his case is attributable to the plaintiff, not to anyone else. I believe that this last-mentioned factor is highly important in determining whether to render judgment or remand for new trial.

The defendant properly conducted its defense concerning damages in such a way that it was entitled to judgment in its favor. The defendant was entitled to rely upon the plaintiff’s failure of proof to defeat any recovery of damages, which is exactly what happened. When the plaintiff announced ready for trial he was on notice that he must meet his burden of proof as to damages or suffer a take-nothing judgment. A party to a suit is supposed to fully develop his cause of action or defense when the case is tried, and, in the absence of a showing to the contrary this will be presumed to have been done.

Plaintiff does not contend here that he was prevented from fully developing his case upon the first trial. He makes no showing that he will be able to produce other evidence upon a new trial. The only ground' mentioned by plaintiff which might fall in the category that “the justice of the case demands- another trial” is the one herein-before referred to in connection with a stipulation relating to the market value of the lettuce in the condition in which it actually arrived at destination. The plaintiff could have easily met his burden under that stipulation by simply showing the amount received for the lettuce by the consignee at destination. If that evidence was available it should have been produced by the plaintiff. The effect of remand would be to assume, without any basis, that such evidence would be available on a new trial. Even then, there would be no satisfactory explanation as to why it was not produced on the first trial. There is no showing here as to why the case was not more fully developed on either of the two damage issues upon which plaintiff had the burden of proof. Nothing has been presented which would show that the case has not been as fully developed as it ever will be. Absent such a showing we cannot presume that plaintiff did not produce all the evidence within his power necessary to establish his case.

Many reported cases reflect that the question of whether, upon reversal, to render judgment or to remand for a new trial, is a vexatious one. It is difficult to determine from the opinions in many cases the exact reason justifying remand for a new trial. No useful purpose would be served by considering such decisions here. However, one of the best statements I have found in connection with the decision to render judgment or to remand where a plaintiff failed in his proof is contained in an opinion by Judge Fly,, then a Justice, and later Chief Justice, of the San Antonio Court of Civil Appeals, in the case of Maverick v. Routh, 7 Tex.Civ.App. 669, 26 S.W. 1008, 1010 (1894, n.w.h.), as follows:

“The judgment must necessarily be reversed, but appellees insist that when a cause cannot be affirmed by an appellate court, and it does not satisfactorily appear that justice to all parties will as certainly be done by reversing and rendering as by remanding, the latter should be done. The statute (sec. 36, p. 31, Acts 1892) provides that ‘when the judgment or decree of- the court below shall be reversed, the court of civil appeals shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained, or the damages to be assessed or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial in the court below.’ This is a re-enactment of article 1048, Sayles’ Civ.St. While it would be the duty of the appellate court to reverse and remand where the ascertainment of some fact was necessary to support the rendition of the proper judgment of the court, still we are of the opinion that a case should not be remanded because the successful party in the court below failed to introduce sufficient testimony upon which to justify a judgment. If appellees had been unsuccessful, and were before this court in the attitude of appellants, complaining of the judgment below, we would be compelled to affirm the judgment, and not reverse it merely to give them an opportunity to amend their proof Appellees stand in no better relation now than they would were they appellants. It is insisted that where manifest injustice will be done by a rendition of judgment in the appellate court, the cause should be remanded. This may be true, but we cannot say that injustice will be done by rendering a judgment in this court. Had appellees been lulled into security by any ruling of the court, or perchance any act of appellant, they might claim with reason that another opportunity should be given in order to fully develop the case, but, in the absence of any obstruction, we cannot presume that appellees, appreciating the fact that the burden was upon them to establish a breach of the covenants of warranty, did not produce every fact within their power necessary to establish their case. The judgment of the lower court is reversed, and judgment is here rendered for appellant for all costs in this and the lower court expended.”

The provisions of Rule 434, T.R.C.P., are the same as the statute involved in Maverick v. Routh, except for minor immaterial changes in references to the appellate court and the trial court.

The Supreme Court of Texas has held in the case of London Terrace v. McAlister, 142 Tex. 608, 180 S.W.2d 619 (1944), where rendition of judgment was held proper, with reference to Rule 434, T.R.C.P., applicable to the Court of Civil Appeals, and Rule SOS, T.R.C.P., applicable to the Supreme Court, as follows:

“There is no substantial difference in the meaning of the two rules, because the phrase ‘when it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain’, employed in Rule 434, means the same as the language ‘if it shall appear that the justice of the case demands another trial’, used in Rule 505. Williams v. Safety Casualty Co., 129 Tex., 184, 102 S.W.2d 178.”

I believe that Judge Fly’s sound reasoning in Maverick v. Routh is fully applicable to the instant case in the light of London Terrace v. McAlister, supra. Some of the cases decided by the Supreme Court of Texas upholding rendition of judgment, rather than remand for a new trial, are: Yarbrough v. Booher, 141 Tex. 420, 174 S.W.2d 47, 49, 150 A.L.R. 1369 (1943); Nardis Sportswear v. Simmons, 147 Tex. 608, 218 S.W.2d 451, 455, 219 S.W.2d 779 (1949); Haynes v. State, 100 Tex. 426, 100 S.W. 912 (1907); Findlay v. State, 113 Tex. 30, 250 S.W. 651 (1923); Texas & P. Ry. Co. v. Hogenloh, 151 Tex. 191, 247 S.W.2d 236 (1951). If the trial court in this case had rendered judgment for the defendant, which should have been done, and the plaintiff had appealed, we would be required to affirm it. Our Supreme Court, in the recent case of City of Houston v. Blackbird, 394 S.W.2d 159, 165 (Tex.1965), has reiterated the rule that “It is well settled that an errorless judgment of a trial court cannot be reversed in the interest of justice or to permit the losing party to have another trial.” If the trial court in our case had rendered the correct judgment, we would not be required to consider remand for new trial under Rule 434, T.R.C.P.

It is clear to me that plaintiff has failed to demonstrate that “the justice of the case demands a new trial” or as plaintiff puts it “ * * * justice can only be served by remanding this cause for a new trial.” I cannot find a proper basis on the present record for requiring this case to be tried again. I would readily agree to- a remand for new trial if the plaintiff had demonstrated that the case falls within one of the recognized exceptions to rendition of judgment. The defendant has already been put to the expense of this appeal, and if the case is remanded will be put to additional trouble and expense, all brought about without its fault. A remand of this case, in effect, tells the defendant: “You were entitled to judgment in your favor on the first trial of this case because the plaintiff wholly failed to meet his burden of proof and the trial court erred in rendering a judgment against you. You correctly sought relief by this appeal and the appellate court agreed with you and reversed the judgment. Although you have properly and fully defended against the claim asserted against you, and although you have been put to the expense of an appeal in order to seek relief from an incorrect judgment, nevertheless, we will require you to undergo another trial with the attendant trouble and expense in order to give the plaintiff a second opportunity to prove his case, all without any showing or satisfactory explanation by the plaintiff of his failure to do so upon the first trial.” I do not believe that such position is within any legitimate demand of justice.

There should be a proper end to litigation. Where a defendant was entitled to judgment in the trial court a case should not be remanded for new trial unless it falls within one of the recognized exceptions to rendition of judgment under Rule 434, T.R.C.P. In my view, a proper case for remand, upon reversal of an incorrect judgment, is not presented where it appears that the failure to fully develop the case is attributable solely to the plaintiff, who has wholly failed to offer evidence of probative force to support findings essential to the recovery. The same rule would be applicable to a defense upon a like failure of proof.

Instead of having a case where “the justice of the case demands another trial” I believe that what we have is a case where, in the words of Rule 434, T.R.C.P., justice demands “that the court shall proceed to render such judgment or decree as the court below should have rendered.”

I respectfully dissent to the action of the Court in remanding the case for a new trial. I would not only reverse the judgment of the trial court, but would here render judgment in favor of the defendant.


source: Caselaw Access Project

author: FANNING, Justice.

license: Public Domain

text:
    Jack A. FARR et ux., Appellants, v. JEFFERSON AMUSEMENT COMPANY, Inc., a Corporation, Appellee.
    No. 7686.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 2, 1965.
    Rehearing Denied Dec. 7, 1965.

      Bennett B. Patterson, Patterson, McDaniel, Moore & Browder, Houston, for appellants.
    John N. Touchstone, Vinson, Elkins, Weems & Searls, Houston, Carl D. Levy, Beaumont, for appellee.
   FANNING, Justice.

Appellants, on May 12, 1960, in the 55th District Court, Harris County, Texas, filed suit against seven defendants, one of which being appellee. Thereafter appellee timely filed its plea of privilege to be sued in the county of its residence, Jefferson County, Texas. On June 20, 1960, appellants filed their controverting affidavit and plea, serving a copy of same on appellee with an attached notice advising that a hearing on ap-pellee’s plea of privilege was set for Sept. 12, 1960. However counsel for appellants requested a postponement of the plea of privilege hearing, which request was granted.

More than 4 years and four months after Sept. 12, 1960, to-wit, on Jan. 15, 1965, ap-pellee filed its motion requesting the trial court to sustain its plea of privilege and to order the cause, insofar as it concerned ap-pellee, to be transferred to Jefferson County, Texas, tne county of appellee’s residence. The motion sets out the dates of the filing of the plea of privilege and of the controverting affidavit and further avers “that no hearing has ever been held on this Defendant’s Plea of Privilege and Plaintiffs’ controverting affidavit, and that the Plaintiffs’ attorney has not, within the past four years, requested any hearing or setting for this Defendant’s Plea of Privilege, and that the Court should now declare that the Plaintiffs have abandoned their controverting affidavit and Plea because of such inaction.” In the prayer to said motion ap-pellee prayed that its plea of privilege be sustained, that the court declare and hold that plaintiffs (appellants herein) had abandoned their controverting affidavit, and that the cause as to appellee be transferred to Jefferson County, Texas, the county of defendant-appellee’s residence.

On March 8, 1965, appellants filed a six-page sworn reply to the motion to transfer. On March 22, 1965, the motion was heard by the trial court, with the result that the court sustained appellee’s motion and ordered the case, insofar as it pertained to appellee, be transferred to Jefferson County, Texas. Appellants have appealed.

Appellants present numerous points and contentions, and contend, among other things, to the effect that the trial' court did not permit them to introduce evidence showing alleged due diligence in the prosecution of this suit and/or in the disposition of ap-pellees’ plea of privilege, and that the trial court erred in sustaining appellee’s motion and transferring the case, insofar as it concerned appellee, to Jefferson County, Texas.

The judgment recites that evidence was heard. The parties make conflicting statements In their briefs as to what was heard by the trial court. However it appears from the statement of facts that the trial court did not permit the appellants to introduce evidence in support of the allegations made in their sworn reply to appel-lee’s motion. Apparently the trial court concluded that the sworn reply did r.ot eon-tain sufficient factual averments to raise an issue as to whether appellants had a valid excuse for their lack of diligence and more than four years of inactivity, and concluded that under the pleadings and other matters before the court that appellee was entitled to the relief sought under authority of Hargrove v. Koepke, Tex.Civ.App., 320 S.W.2d 53, hereinafter referred to.

The trial court had before it a docket sheet of the case showing more than four years inactivity on the part of the appellants in seeking a hearing on their controverting plea-. The trial court had before it the motion of appellees and the six-page sworn reply of appellants.

We have carefully examined the six-page sworn reply of appellants and are of the opinion that it does not allege sufficient facts which would excuse the delay of more than four years in securing a hearing on appellants’ controverting plea. In other words, as we view it, since appellants’ reply to appellee’s motion to transfer did not allege sufficient facts to warrant a finding that the appellants were not lacking in due diligence, there was no necessity for the trial court to hear evidence from appellants on such allegations made in their reply. In this connection see Fielder et al. v. Swan et al., Tex.Civ.App., 175 S.W.2d 279, writ refused (1943) wherein it was stated:

“Of course the question of discontinuance of a suit by delay is based on the ‘factual situation’ as to lack of due diligence in prosecuting it; and where the facts alleged are such as to warrant a finding that the plaintiff was not lacking in due diligence, he has the right to be heard to explain, if he can, his delay in prosecuting the suit. Callahan v. Staples, 139 Tex. 8, 161 S.W. 2d 489.” (Emphasis added.)

In Bevil et al. v. Johnson et al., 157 Tex. 621, 307 S.W.2d 85 (1957), it was held that a district court did not abuse its discretion in dismissing a motion for new trial for failure to prosecute with due diligence, even though the defendants had no intention to abandon the motion and though they had hopes of settling the case. Similar allegations are made in appellants’ sworn reply to appellee’s motion to transfer. Appellants in their sworn reply stated that since Sept. 10, 1960, “neither counsel for plaintiffs nor counsel for Jefferson Amusement Company have discussed the matter of a setting of their cause”, and further alleged immediately after said above quoted statement as follows:

“but numerous attempts have been made with the principal defendants to the said suit to settle the same; that during the period of this time counsel for the Plaintiffs has for approximately eighteen months been physically unable to try causes at the insistence and advice of his physicians, but there have been frequent negotiations in an attempt to settle the said cause; that when it became apparent that the cause could probably not be settled, the said Plaintiffs did on the 17th day of December, 1964, preparatory to trial of the cause, issue a commission to take the deposition of Julius Gordon, President of Jefferson Amusement Company, Inc., and other parties defendant; that upon the filing of this notice to take depositions the attorney for Jefferson Amusement Company, Inc. was consulted and advised that any date within his convenience would be agreeable for the taking of the deposition, and that there was no attempt to discommode the said Julius Gordon nor his attorneys.”
(Note: There are no allegations that there were any settlement negotiations between appellants and appel-lee herein. These settlement negotiations were between appellants and defendants other than the appellee.)

It appears from the pleadings that appellants’ attorney is a member of a firm of attorneys which attorney and firm appear to be counsel of record for appellants — -although said attorney was disabled from trying the case for an undesignated 18 months period, there is no allegation that he was not able to try the case at any other time during the remainder of the aforesaid period of more than four years and no allegation was made that no other member of his firm could not try it during his 18 months period of disablement. We have carefully examined all of the allegations in plaintiffs’ said sworn reply and conclude that such allegations are wholly insufficient to show due diligence and do not satisfactorily explain or excuse the more than four years delay and inaction on the part of appellants in securing a setting and hearing on their controverting affidavit and plea in opposition to appellee’s plea of privilege.

The case of Loftus v. Beckmann et al., Tex.Comm.App., 1 S.W.2d 268 (1928), cited by appellants, is clearly distinguishable from the instant situation because in Loftus an agreement was made between the parties that the case should remain on the docket subject to future contingencies. This is not the case here as appellants in their sworn reply do not make any allegations of such character.

Also in the case at bar there are no pleadings of fraud or overreaching or inequitable conduct, of any character, on the part of appellee or appellee’s counsel, which would in any way have excused the delay and inaction on the part of appellants. As we view this case, appellants simply do not allege any satisfactory or sufficient reasons to excuse their more than four years of delay and inaction.

In Hargrove v. Koepke, San Antonio C.C.A., opinion by Justice Pope, 320 S.W.2d 53, no writ (1959), it was held that where a plaintiff waited four years and nine months before asking for a venue setting in a plea of privilege case, the plaintiff would be deemed to have abandoned his controverting affidavit because of lack of diligence and the case' would be transferred to the county of the defendant’s residence.

The facts in the Hargrove case show that plaintiff filed suit in October, 1946, that defendant filed a plea of privilege, a venue trial was had, but in April, 1948, the judgment was reversed and the cause remanded, that amendments were made by the parties and the venue setting was made for Oct. 11, 1948, and was postponed by agreement because of a death in the family of plaintiff’s attorney. Not until July 3, 1953, and after different counsel had come into the case for plaintiff, did he ask for another setting. A hearing was obtained for Sept. 21, 1953, and at that time defendant filed his motion that the plaintiff had abandoned his controverting affidavit by reason of a delay in asking for a setting for a period of four years and nine months. We quote from the Court’s opinion in the Hargrove case, in part, as follows;

“The trial court required the plaintiff to prove diligence, and then held that he had exercised diligence. We are called upon to examine the evidence to determine whether it proves diligence. Plaintiff proved that one of his attorneys was ill during 1949 and 1950. The proof, on the other hand, shows that plaintiff had other counsel who actually handled the settings and correspondence during 1948, and who was an attorney of record until June, 1953, when plaintiff employed new counsel. Plaintiff proved that he was absent from the State for nine months during 1950 or 1951, but he did not prove the circumstances which occasioned this absence. Plaintiff states that the dockets of Bexar County were crowded between 1948 and 1953. The argument is that because the dockets were crowded, he asked for no settings. If plaintiff had requested settings which were denied, or if he had been crowded off the docket after settings, there would be some proof of diligence. Because dockets are crowded does not justify plaintiff in doing nothing at all for almost five years. In fact, the record does not bear out the claim. The case was filed, venue was once tried and heard to conclusion on appeal, between October, 1946, and April, 1948. In 1948 there was a venue setting, and in 1953, after request, another setting was obtained. Each time plaintiff asked for a setting he received one promptly. Between 1948 and 1953 he received no setting because he asked for none. An effort is made to attribute some of the delay to the defendant, because defense counsel would not agree to try the venue and merits together and would not stipulate concerning certain medical evidence plaintiff needed. Defense counsel, as early as 1948, made his position clear on these subjects. There is no duty upon opposing counsel to agree to a trial of the merits with venue; nor will we invoke sanctions upon the defendant for failing to aid his opponent in marshalling his evidence. Mention is made of recurrent conversations between plaintiff’s counsel and his own witnesses. For almost five years, however, plaintiff contacted neither the court nor the defendant about a setting. Plaintiff’s counsel casually mentioned the case to defendant’s counsel one day in the foyer of a San Antonio office building, but did not discuss a setting or trial. Plaintiff had counsel during all of the time in question, but he did change attorneys.
“We are construing Rule 87, Texas Rules of Civil Procedure, which contemplates that courts shall promptly dispose of venue questions. The rule says so. We are not prepared to hold that a request made after waiting four years and nine months, is diligence. The showing of diligence was no more than a scintilla of evidence. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.
“The provision of Rule 87, T.R.C.P., that venue questions shall be heard promptly, we are advised is directory only. Farrar v. Anglin, Tex.Civ.App., 273 S.W.2d 665. To hold that a provision is directory is not to hold that it is meaningless. In our opinion, the provision for a prompt hearing is a strong factor that judges consider in setting their cases, and this record bears out the idea that judges grant venue hearings promptly if and when requested.
“The long delay on this preliminary matter was not excused and diligence was not proved. Bevil v. Johnson [157 Tex. 621], 307 S.W.2d 85; Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489; Flanagan v. Smith, 21 Tex. 493, 496; Brooks Supply Co, v. Hardee, Tex.Civ.App., 32 S.W.2d 384; 4 McDonald, Texas Civil Practice, § 17.18.
“The judgment is reversed and the cause remanded with instruction that the cause be transferred from Bexar County to McCulloch County.”

In Denton County v. Brammer et ux., Tex., 361 S.W.2d 198 (1962), the Bram-mers timely filed objections to an award in condemnation. About 7 years thereafter the Brammers filed amended objections. No citation was ever issued or served. The Brammers allowed a 5 year period to elapse after their withdrawal of the commissioners’ award before obtaining a setting and trial in the county court on their claim. The Denton County case, supra, was a 5 to 4 decision of the Supreme Court of Texas, with a majority opinion, a concurring opinion and a dissenting opinion being written in said cause. The majority opinion stated in part as follows:

“The question of law presented to this Court by Denton County is: Whether the trial court abused its discretion in failing to hold that the circumstances of the unexplained failure of Brammer to cause citation to issue, and the undisputed evidence that Bram-mer waited for a period of five years after having withdrawn the $800.00 deposit (the award of the Commissioners) before obtaining a setting and trial of his claim for compensation and damages, raised a conclusive presumption that Brammer had abandoned his objections.
******
“Brammer abandoned his objections and exceptions long before the filing of his amended objections and exceptions to the award, and, therefore, was not entitled to a judicial determination of the matters presented in his objections and exceptions to the special Commissioners’ award. See Flanagan v. Smith, 21 Tex. 493; Ponton v. Bellows, 13 Tex. 254; Gillespie’s Adm’r v. Redmond, 13 Tex. 9; Bogle v. Landa et al., 127 Tex. 317, 94 S.W.2d 154; Ware v. Jones et al., Tex.Com.App., 242 S.W. 1022; Routh v. City of San Antonio, Tex.Civ.App., 302 S.W.2d 452, no writ hist.; Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489, 491; Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85. * * *"

In the dissenting opinion in the Denton County case, supra, it was stated in part as follows:

“The true question before this Court is not whether as a matter of law Brammer abandoned his objections to the award of the special commissioners, but is whether the trial judge abused his discretion in overruling and in not sustaining Denton County’s motion to dismiss the objections. Our latest expression on the subject of discontinuance or abandonment is found in Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85. In that case we reaffirmed the power of a trial court to dismiss a legal proceeding because of failure to prosecute it with due diligence, and said:
‘The matter rests in the sound discretion of the trial court. It is not an unbridled discretion, but a judicial discretion subject to review. Upon review, the question is whether there was a clear abuse of discretion by the trial court. That is a question of law.’ (307 S.W.2d 87)
* * * * * *
“No opportunity has been offered Brammer to present evidence to the trial judge to explain his undue delay in the respects mentioned, and the trial judge, therefore, has had no opportunity to exercise his discretion in adjudicating the basic facts of the discontinuance. I would reverse the judgments of the courts below and would remand the cause to the trial court with directions to hear such evidence as Bram-mer may care to offer on the motion to dismiss. The trial judge should then act on the motion to dismiss. If good reason for his delay is not shown by Brammer, his objections should be dismissed and judgment should be entered on the award just as though no objections had been filed. If good reason is shown, the motion to dismiss should be overruled and the court should proceed to retrial of the case on its merits. In either event the court’s ruling on the motion to dismiss would be reviewable on appeal as for abuse of discretion.”

The concurring opinion in the Denton County case, supra, states in part as follows :

“I concur in the result reached here, namely, the reversal of the judgments of the trial court and the Court of Civil Appeals, and the rendition of judgment in favor of G. H. Brammer and wife, only in the sum of $800.00, for the reason that in my opinion the matters of fact alleged by the condemnces in their brief to excuse their delay are not sufficient in law.” (Emphasis added)

Since the matters of fact pleaded by appellants in their sworn reply to excuse their more than four years of delay and inaction are not sufficient in law (as herein-before held and outlined) we think it is clear that the trial court did not err (nor did he abuse any discretion lodged in him) in not permitting appellants to offer formal sworn proof of the factual matters pleaded in appellants’ sworn reply to appellee’s motion. Undoubtedly the trial court accepted as true all the factual matters set forth in appellants’ said sworn reply and concluded that said pleaded factual matters, accepted as true, were not sufficient in law to excuse appellants’ said admitted more than four years delay and inaction.

It is our view that neither error nor abuse of discretion on the part of the trial court is shown under the record in this cause. All of appellants’ points and contentions have been considered and the same are overruled.

The judgment of the trial court is affirmed.


author: PRESLAR, Justice.

text:
    John H. KELSEY et al., Appellants, v. Perry H. CORBETT et al., Appellees.
    No. 5716.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 13, 1965.
    Rehearing Denied Nov. 17, 1965.
    Stubbeman, McRae, Sealy & Laughlin & F. H. Pannill, Midland, for appellants.
    Deaderick, McMahon & McKim and Con-nell Ashley, Odessa, Kert, FitzGerald & Kerr, Midland, for appellees.
    Gibson, Spence & Gibson, Austin, amicus curiae.
   PRESLAR, Justice.

John H. Kelsey and others, tax-payers and taxable property owners within the District of Pecos County Water Control and Improvement District No. 2, appellants herein, brought this suit as plaintiffs, seeking a judgment declaring that neither the plaintiffs nor their property interests were subject to the ad valorem taxes levied and assessed for the purpose of payment of interest and principal, past and future, on bonds issued by such Improvement District. Named as defendants were Pecos County Water Control and Improvement District No. 2, Perry H. Corbett and J. Folse Roy, the original purchasers and present hloders of the bonds, and Dan L. Crump, Tax Assessor and Collector for Pecos County, and others.

Pecos County Water Control and Improvement District No. 2 was formed by an election held in 1955, and it is conceded by all parties hereto that all proceedings relating to the formation of such District and the approval of its bonds are, on their face, letter-perfect. The plaintiff-appellants quite frankly concede in their brief in this court that their position is:

“(a) There were no resident property taxpaying qualified voters who had rendered their property for taxes so as to be qualified to vote — in fact, there were no inhabitants at all in the area constituting the purported district;
“(b) The persons who did vote at the election to create a district and at the election to authorize the issuance of the bonds were imported from outside the district for the sole purpose of casting ballots at this fictitious election, and were neither residents of nor owners of property within the purported district, and
“(c) The defendants who are the original purchasers and present claimants of the bonds knew at all material times, and particularly at and prior to their purchase of the bonds that there were no resident property tax-paying qualified voters who had rendered their properties for taxes who did or could have voted at the elections and therefore knew, or were on notice, that the elections were fictitious.”-

Plaintiffs went to trial on their Third Amended Original Petition, all of which, except paragraph 2 thereof, they specifically dismissed with prejudice; and paragraph 2 simply adopted their Second Amended Original Petition; so that, in effect, they went to trial on their Second Amended Original Petition. An analysis of that petition shows that they allege only that there was (1) no such legal entity as Pecos County Water Control and Improvement District No. 2; and (2) that they, the plaintiffs, were not obligated to pay the bonds and their property not subject to them.

At the conclusion of all the evidence the trial court withdrew the case from the jury and rendered judgment contrary to the plaintiffs’ position and upholding the validity of the District. In that action we think the trial court was correct for two reasons: first, that the plaintiffs’ suit was, in essence, an election contest which they could not maintain in such a proceeding; and second, the plaintiffs could not question the existence of the District, as quo warranto was the sole exclusive remedy.

Plaintiffs sought to show that at the time the District was formed in 1955 there were no residents within the physical boundaries of the District, and that those who voted for the formation of the District and for the issuance of the bonds thereof were not property-owning residents of the District. As stated, an election was held, and such election proceedings were in all things valid on their face, and were approved by the Commissioners Court of Pecos County. In effect, plaintiffs are attacking the qualifications of those who voted in the election. This they seek to do by suit filed some six years after such election, and not in conformity with the Election Code. In all their contentions plaintiffs come back to this one proposition —that there were no residents of the District and those who voted in it were not qualified, so that it can be said that that is the true basis of their lawsuit. Almost the same proposition was before the Commission of Appeals in Slater v. Ellis County Levee Improvement District No. 9, 120 Tex. 272, 36 S.W.2d 1014, where the following question was certified to the court:

“First Question.
“Did the trial court err in sustaining appellees’ special exception to that portion of appellants’ answer which set up the fact that no legal bond election was held in said district because the true facts, of which the commissioners court had actual knowledge, were that none of the parties who voted therein were property holders or qualified voters within said district, and because the judges and clerks who held said election were not qualified voters within said district?”

In answering the question the court said: “The remedy given by the statutes (articles 3041 to 3075) for contesting elections of this character for irregularities or fraud is exclusive of all others.” (Citing numerous authorities). Such articles 3041 to 3075 were, in 1951, replaced by Articles 9.01 to 9.38 of the Election Code of the State of Texas, V.A.T.S. Article 9.36 of such Election Code provides:

“ * * * If no contest of said election is filed and prosecuted in the manner and within the time herein provided for, it shall be conclusively presumed that said election as held and the result thereof as declared are in all respects valid and binding upon all courts ‡ ‡ * »

The record in the case before us indicates that no election contest was filed in regard to this District. The matters sought to be litigated in this suit could be heard only in an election contest brought in the time and manner provided by the statutes.

The proceedings for the formation of this District being in all things regular on their face, and it having operated as a corporation under such proceedings, only the State can now question its existence. Walling v. North Central Texas Municipal Water Authority, 162 Tex. 527, 348 S.W.2d 532, is the latest pronouncement by our Supreme Court restating this rule of law:

“ * * * When a body has acted and has been dealt with as a corporation after attempting to comply with the requirements of a valid statute authorizing its creation as such, only the State may question its corporate existence on the ground that the law was not followed. La Salle County Water Improvement Dist. No. 1 v. Guinn, Tex.Civ.App., 40 S.W.2d 892, wr.ref.; Kuhn v. City of Yoakum, Tex.Com.App., 6 S.W.2d 91; Bowen v. Board of School Trustees, Tex.Civ.App., 16 S.W.2d 424 (no wr.).”

Clearly, plaintiffs sought to question the existence of Pecos County Water Control and Improvement District No. 2 and cannot, under the above authorities, do so; and the judgment of the trial court was in that respect correct.

In its judgment the trial court allowed the County Attorney of Pecos County attorney’s fees for representing the Tax Assessor-Collector of said County, and taxed such fees as costs of court against appellants. We see no basis for such allowance of attorney’s fees, since the Tax Assessor-Collector was not in the true position of a stakeholder but was, in fact, a party defendant. Unless it can be said that the attorney’s fees are due by some statute, there can be no basis for them, and we see no such statutory basis here. The contention seems to be that such fees were by stipulation or agreement, but we do not construe the stipulation to be that one party would pay the attorney’s fees of his adversary. The propriety of such an arrangement would raise a serious question. We construe the stipulation to be that if, in fact, attorney’s fees were allowable, the court could then decide the amount. That part of the judgment allowing such attorney’s fees and taxing same as cost is reversed and here rendered.

All other assignments of error have been considered, are found to be without merit, and are accordingly overruled.

Except for the allowance of attorney’s fees, the judgment of the trial court is in all things affirmed.


author: MOORE, Justice.

text:
    C & H TRANSPORTATION COMPANY, Inc., Appellant, v. A. W. WRIGHT, Appellee.
    No. 165.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 28, 1965.
    Rehearing Denied Dec. 2, 1965.

      Richard Grainger, Ramey, Brelsford, Flock & Devereux, Tyler, for appellant.
    Charles Clark, Calhoun & Clark, Tyler, for appellee.
   MOORE, Justice.

Plaintiff, A. W. Wright, brought this suit against his former employer, C & H Transportation Company, Inc., defendant, alleging in Paragraph II of his petition that during the year 1963 he worked as an employee for the defendant, but on or about March 1, 1964, defendant terminated his employment; that upon termination of his employment, defendant issued him a Driver Settlement Statement in which the company purported to arrive at the amount of money due him by reason of his employment with the company, and that the Driver Settlement Statement contained an entry thereon showing that the company had advanced him the sum of $470.55 on February 12, 1964. He alleged that this amount of money was never advanced to him and by reason of this, the payment made by the company on settlement of the account was $470.55 less than the amount actually owed to him.

He alleges that although he had made numerous demands upon the defendant for the payment of the $470.55, defendant refused to pay the same and he was compelled to employ attorneys to represent him in this connection and was therefore entitled to an attorney’s fee in the amount of $225.00.

In addition to the claim, plaintiff also alleged in Paragraph IV of his petition that:

“During the time Plaintiff was an employee of Defendant, he was covered by a policy of insurance issued by the Tennessee Life Insurance Company. This was a group insurance plan which covered his hospital and medical expenses and certain disability benefits. Plaintiff does not have a copy of that policy of insurance and hereby makes demand upon Defendant to produce same. While Plaintiff was in the hospital, prior to his termination as an employee of Defendant, and was unable to attend to his own affairs, his wife and father-in-law contacted Defendant in regard to the time which Plaintiff would be terminated as an employee of Defendant. They were assured that Plaintiff would not be terminated until May 1, 1964, and that under the terms and provisions of the said insurance policy that it could be converted to an individual policy by application to the Company within thirty days of the date of termination. Thus, Defendant contracted and agreed with Plaintiff that he would not be terminated until May 1, 1964, but in complete disregard for that contract and agreement Defendant terminated Plaintiff without giving him notice of such fact on March 1, 1964. Plaintiff, unmindful of the fact that he had been terminated on March 1, 1964, gave notice to Tennessee Life Insurance Company on April 28, 1964, that he wished to convert his policy of insurance to an individual policy. Plaintiff did this on the assurance of Defendant that he was not to be terminated until May 1, 1964. However, Tennessee Life Insurance Company notified Plaintiff on June 2, 1964, that since he had been terminated on March 1, 1964, that his application to convert his insurance to individual coverage came too late. By reason of this fact, Plaintiff has been unable to convert the said policy of insurance to an individual policy and by reason of his health at this time he is unable to secure any insurance. By reason of this fact and by reason of his continued disability which in all probability will continue for the remainder of his life, causing Plaintiff to incur hospital and other medical expenses which would have been paid by the Insurance Company under the terms and provisions of the policy referred to hereinabove, Plaintiff has been damaged in the sum of $10,000.00.”

The court rendered a default judgment against the defendant. The judgment recites that the defendant, although duly served with process, failed to appear or answer therein and that the plaintiff was therefore entitled to recover judgment by default; but that it appearing to the court that the cause of action was unliquidated, the court proceeded to hear evidence, and the evidence having been heard by the court and it appearing to the court that the plaintiff had been damaged by the defendant, C & H Transportation Company, Inc., plaintiff was entitled to the following judgment:

“A. The sum of $470.55 as wages due under the employment contract between Plaintiff and Defendant.
“B. The sum of %200.00 as attorneys’ fee in connection with the claim for wages due under the above mentioned employment contract which the court finds to be a reasonable attorneys’ fee.
“C. The sum of $5000.00 by reason of the breach of the contract not to terminate Plaintiff as an employee of Defendant as set forth in Paragraph IV of Plaintiff’s Original Petition to which reference is here made.”

C & H Transportation Company, Inc. has perfected this appeal by writ of error seeking a revision, and correction of the judgment and has assigned three Points of Error, alleging (1) that the petition fails to state a cause of action which would be good as against a general demurrer, and (2) that the judgment does not conform to the pleadings as a matter of law, and (3) that the pleadings do not give fair notice as to the nature of the plaintiff’s claim in the relief sought.

The rules authorize the taking of a judgment by default. In order to support such a judgment, it is essential that the petition show a good cause of action upon which a default judgment can be entered. Griswold v. Carlson, 151 Tex. 246, 249 S.W.2d 58. Under Rule 90, Texas Rules of Civil Procedure it is provided that every defect, omission, or fault in a pleading, either of form or substance, is waived unless complained of in the lower court; "but the rule also specifically proves "[T]kai this rule shall not apply as to any party against whom default judgment is rendered(Emphasis supplied.)

Rule 47, T.R.C.P. provides that the pleadings must give a party fair notice of the claim involved and it is therefore clear from Rule 90 aforesaid that a party seeking a reversal of a default judgment because of defects, omissions or faults in pleadings, either in form or substance, does not waive the insufficiency of the pleadings merely because of the default, and in order to be sufficient to support a default judgment, a plaintiff’s petition must at least set forth sufficient of the facts and circumstances which constitute his cause of action as to fairly notify his adversary of the basis of his claim and of the relief which he is seeking. See Volume 4, McDonald Texas Civil Practice, Section 1723, page 1372; White v. Jackson, (Tex.Civ.App.) 358 S.W.2d 174.

In determining the sufficiency of a pleading to support a judgment by default, the averments of the pleadings are to be taken as proven or confessed; and, if the pleadings do not inform the court what judgment to render, that is, if it does not, with sufficient certainty, set forth the cause of action as to the name of parties, dates, amounts, etc., to enable the court to render judgment without information aliunde, it is not sufficient, and the judgment cannot be sustained. Morgan v. Davis, (Tex.Civ.App.) 292 S.W. 610; Anderson v. Dreyfuss & Son, (Tex.Civ.App.) 32 S.W.2d 527.

Bearing in mind the rules and principles above mentioned, we shall now attempt to apply them to the petition here under challenge. The sum and substance of Paragraph II of plaintiff’s petition is that “Plaintiff worked as an employee” for defendant and upon the termination of his employment, a settlement was made in which he received $470.55 less than the amount due and owing him. Although the pleading does not use the word “contract”, we surmise that plaintiff is attempting to allege a breach of some type of contract of employment. A contract is a promise or set of promises to which the law attaches legal obligations. Williston on Contracts, Vol. 1, See. 1, page 1. Since employment creating the relation of master and servant, principal and agent, employer and employee, and so forth, results only from a contract, the averment in a pleading attempting to allege a cause of action upon the contract that “Plaintiff worked as an employee of defendant” is likewise only a conclusion of law. There is no allegation of the beginning or expiration date of the contract. There is no allegation of the type of work to be performed; there is no allegation as to the compensation to be paid and received ; there is an entire omission to allege performance or even what would constitute performance, and there is no allegation as to the amount which plaintiff claimed to be due and owing him at the time of the termination of his employment.

The allegation that “plaintiff worked as an employee” and also the allegation that “defendant paid plaintiff on settlement $470.55 less than the amount actually owed to him” is a purely legal conclusion, without facts in support thereof, and is not therefore sufficient to support the judgment by default. White Motor Company v. Loden, (Tex.Civ.App.) 373 S.W.2d 863; White v. Jackson, supra. Appellee’s claim for attorneys’ fees must likewise fall.

Turning now to Paragraph IV of plaintiff’s original petition, the sum and substance of the allegation is that defendant contracted and agreed that his employment would not be terminated until May 1, 1964, hut that defendant breached the contract by terminating his employment on March 1, 1964, and as a result thereof he suffered damages in that the termination of his employment resulted in the cancellation of a certain policy of hospitalization insurance.

In the case of J. M. Radford Grocery Company v. Jamison, (Tex.Civ.App.) 221 S.W. 998, it is said: “* * * A declaration in an action on a contract must aver every [essential] part of it. So much of the contract as is essential to the cause of action should be specially set out. The material facts of a contract cannot be presumed; * * *. The petition alleges no consideration. In our system of pleading no presumption of consideration exists, and one seeking to enforce a contract, or to recover damages for its breach, is required to both plead and prove a valid consideration for the undertaking. * * * ”

The alleged contract not to terminate the employment of the plaintiff was not in writing. The necessity of alleging and proving the consideration in an oral contract in order to enforce its terms is a rule elementary and long established by the decisions of this state. Cisco & N. E. R. Co. v. Ricks, (Tex.Civ.App.) 33 S.W.2d 878; Hardwicke v. Trinity Universal Ins. Co., (Tex.Civ.App.) 89 S.W.2d 500.

Evidently, the “agreement” referred to in plaintiff’s pleadings and thought to be made the basis of legal liability in this suit is an agreement without consideration and one which the courts never undertake to enforce. Moreover, plaintiff does not allege that the promise not to terminate his employment was made to him, or that he agreed to continue to perform services for defendant. The allegation is that such a promise was made to his wife and father-in-law, neither of whom are alleged to be his agent. At most, the agreement, if any, not to terminate plaintiff’s employment was but a gratuitous promise, not made to the plaintiff but to his wife and father-in-law.

Another reason why the judgment in favor of the plaintiff cannot be permitted to stand is found in the fact that plaintiff’s case is not for damages growing out of the employment contract, but is for special damages which are alleged to have resulted from the breach of the contract. Damages resulting naturally, but not necessarily from acts complained of, are special damages. Damages necessarily arising from breach of contract and not reasonably contemplated by the parties as likely to arise thereform cannot be recovered without allegations and proof of knowledge by the parties breaking it of the special circumstances producing such damages. Cisco & N. E. R. Co. v. Ricks, supra.

We therefore conclude that Paragraph IV when tested by a general demurrer does not state a cause of action and will not therefore support a judgment by default.

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

Reversed and remanded.


author: MASSEY, Chief Justice.

text:
    Bob ROGERS, Appellant, v. Jon L. CARVAIN, Appellee.
    No. 16681.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 19, 1965.

      Andress, Woodgate, Richards & Condos and William Andress, Jr., Dallas, for appellant.
    Curry & Curry, and Tim C. Curry, Fort Worth, for appellee.
   MASSEY, Chief Justice.

Plaintiff Jon L. Carvain recovered a personal judgment against defendant Bob Rogers for the sum of $350.00, the amount which plaintiff had delivered to the defendant on a contract to purchase two antique chairs. There was further consideration due to be delivered upon plaintiff’s acceptance of title and possession to the chairs, but plaintiff discovered at time for such acceptance that defendant had painted them — and thus rendered them unacceptable. Therefore plaintiff refused to consummate the contract and demanded the return of the $350.00 theretofore paid. It was to recover said payment that plaintiff brought his suit.

Defendant countered by pleading a case for specific performance of the contract by plaintiff. Prayer in his cross-action was for the delivery of the balance of that consideration which the plaintiff had promised, and in the alternative for damages in the amount of $350.00 in the event plaintiff was unable to make specific performance.

The case was called for trial. Plaintiff and his attorney appeared and announced ready. According to the face of the judgment rendered in the case the defendant, “having been duly notified by mail through his attorney of record that this case was regularly set for trial on this date and hour, said notification having been confirmed by telephone with the office of defendant’s attorney” came not and “wholly failed to appear”. Plaintiff introduced evidence supporting the material allegations of his pleadings, upon which the trial court rendered judgment.

Within the period for which motion for new trial was allowable the defendant filed such a motion. A hearing was held with the attorneys for bnth parties being present. According to the trial court’s Order Overruling Defendant’s Motion for New Trial the same was entered by the court “after hearing all of the evidence, arguments and statements of counsel”. No statement of facts was brought forward showing any evidence adduced upon such hearing and there was no bill of exception wherein any such evidence was embodied.

By the defendant’s first point of error complaint is made that there was an abuse of discretion by the trial court in going to trial in the absence of defense counsel. In Strode v. Silverman, 217 S.W.2d 454 (Waco Civ.App., 1949, error refused), is stated the general rule: “Ordinarily, before a new trial will be granted upon that ground it is necessary for the complaining party to allege in his motion and to submit proof upon a hearing thereof showing that his failure to be represented at the trial was not due to his fault or negligence, or that of his counsel, and that he has a meritorious defense to the cause of action asserted against him.” (Emphasis supplied.)

The record presented on appeal fails to show that the evidence introduced upon the hearing of the Motion for New Trial met this requirement. If a reversal be obtainable it is obligatory that the complainant discharge the burden of establishing facts which show that error exists. This burden has not been discharged. The point of error is accordingly overruled.

By another point the defendant insists that error exists because his cross-action for relief was not disposed of by the judgment, purportedly final, entered by the trial court. It is true that the cross-action is not mentioned in the judgment. However, we believe that the rendition of judgment for the plaintiff in this case includes by necessary implication the denial of the cross-action of the defendant. A judgment for rescission of the contract and a return to plaintiff of the amount of consideration delivered thereon (or a personal judgment against defendant for the amount in cash representing such consideration) necessarily implies a denial of contradictory relief in the form of specific performance of the same contract. That being true the point of error is overruled as without merit for the judgment is to be treated and considered as though the relief for which defendant prayed was specifically denied. 3 Tex.Jur.2d 356, “Appeal and Error — Civil”, § 89, “Counterclaims and cross actions”; Trammell v. Rosen, 106 Tex. 132, 157 S.W. 1161 (1913).

Defendant also contends that the evidence upon which the judgment was rendered was not supported by the plaintiff’s pleadings. Examination of the statement of facts in light of the presentation made by defendant’s brief discloses that plaintiff merely failed to introduce evidence relative to that additional performance due from him to the defendant in the event the contract had been consummated, or might be due from him to the defendant in the event the trial court ordered specific performance Considered as a variance between plaintiff’s pleading and evidence it would he upon matter which was wholly immaterial since the court rendered judgment for the plaintiff.

Judgment is affirmed.