author: HUGHES, Justice.

text:
    TRINITY UNIVERSAL INSURANCE COMPANY, Appellant, v. J. C. McLAUGHLIN et al., Appellees.
    No. 11074.
    Court of Civil Appeals of Texas. Austin.
    Nov. 6, 1963.
    Rehearing Denied Nov. 27, 1963.
    See 374 S.W.2d 350.

      Gay & Meyers, Bob Shannon, Austin, for appellant.
    Waggoner Carr, Atty. Gen., Pat Bailey, Asst. Atty. Gen., Austin, for appellees.
   HUGHES, Justice.

This suit arises from a Contract entered into between J. C. McLaughlin and the Texas State Highway Department on November 7, 1960, for road work to be performed by McLaughlin for a consideration of $176,841.20.

This work was duly performed by McLaughlin and accepted by the State Highway Department.

Appellant, Trinity Universal Insurance Company, is assignee of McLaughlin and brings this suit to recover the sum of $8,-817.36, the balance due under such road Contract, 5% of the contract price, which has been retained by the State Highway Department pursuant to the provisions of Art. 6674m, Vernon’s Ann.Civ.St., for the reason that it has not been shown that, as required by such statute, “all sums of money due for any labor, materials, or equipment furnished for the purpose of such improvements made under any such contract have been paid.”

The Contract referred to is one for ■“highway improvement.” Art. 6674Z, V.A. C.S.

Named as defendants herein were the members of the State Highway Commission, McLaughlin and certain other parties who were alleged to be asserting some claim to the funds sued for, the exact nature of such claims being unknown. Some of these alleged claimants filed disclaimers. None has answered.

Appellant prayed that the Highway Commissioners be required to pay such money retained by them under the McLaughlin. Contract into the registry of the Trial Court, upon the payment of which they should be discharged of all liability herein, and that its claim to such funds be adjudicated superior to all other claimants and that it have judgment therefor.

The Highway Commissioners, by appropriate pleadings, say that they are immune from suit since this is a suit against the State without legislative consent. This plea was overruled. Judgment was rendered denying appellant any relief.

The case was tried on the pleadings. No evidence was introduced. We quote from the answer of the Commissioners:

“X. That the Defendant, F. C. McLaughlin, has not, pursuant to Article 6674m, Vernon’s Civil Statutes, shown that all sums of money due for any labor, materials, or equipment furnished for the purpose of such improvements made under the aforesaid contract have been paid.
“XI. That the State Highway Department, has, in fact, been given notice that certain sums of money due for labor, materials, or equipment furnished for the purpose of such improvements made under the aforesaid contract have not been paid.
“XII. That the State Highway Department is, in fact, a mere stake-holder in the instant case and is ready, willing and able to tender the aforesaid sum that it is presently holding pursuant to the provisions of Article 6674m, Vernon’s Civil Statutes, into the registry of this Court or to such party or parties as this Court may direct.”

It is our opinion that the Trial Court correctly held that this was not a suit against the State in the sense that it could be maintained only with legislative permission. We base this conclusion upon the decision in Chapman v. Guaranty State Bank, 259 S.W. 972, Fort Worth Civil Appeals, reversed and remanded, 267 S.W. 690, Tex.Comm. of Appeals. That case involved a bank depositors’ guaranty fund and the assets of an insolvent bank. In holding that a suit against the State Banking Commissioner who held such funds and assets for application to a claim of the plaintiff was not a suit against the State, the Court stated:

“It thus appears that the money ap-pellees sought to recover is wholly within the control of the state banking board, payable only upon that board’s warrants, and that fund, by the specific terms of the law, may not be considered as a state fund. The state, therefore, can only be interested in that fund indirectly; i.e., by the interest that the state has in seeing that its laws, enacted for the protection of her people, are duly executed. Other provisions of the act undoubtedly place the control of the assets, other than cash, such as notes, etc., of an insolvent state bank in process of liquidation, in the hands of the commissioner of insurance and banking and the banking board, and which may be disposed of within the sound discretion of the board and commissioner, under the regulations of the act by sale or otherwise, and thus made to add to the guaranty fund. But nowhere in the law do we find any expression indicating that the state has a pecuniary interest in the promissory notes and other assets of the insolvent bank which has been operating under the state bank deposit guaranty law. In 36 Cyc. p. 916, in treating of the subject under consideration, it is said:
“ ‘It seems that the rule which forbids a suit against state officers because in effect a suit against the state applies only where the interest of the state is through some contract or property right, and it is not enough that the state should have a mere interest in the vindication of its laws, or in their enforcement as affecting the public at large or the rights of individuals or corporations; it must be an interest of value in a material sense to the state as a distinct entity.’ ”

See also to the same effect Reagan v. Farmers Loan and Trust Co., 154 U.S. 362, 14 S.Ct. 1047, 38 L.Ed. 1014, cited and quoted from in Chapman, supra.

Neither the State nor the State Highway Department, if considered separately from the State, has any pecuniary or proprietary interest in the subject matter of this suit. No judgment affecting the State in any manner could be rendered in this case. The only concern which the Highway Department has here is to obey the statutes which have been enacted, not for its benefit, but for the protection of those persons falling within the classes named in Art. 6674m, supra. Since the State and the Highway Department are here merely passive parties, with no claim to assert or defend, we hold that the members of the State Highway Commission are not immune from this suit. See State v. Lain, 162 Tex. 549, 349 S.W.2d 579.

It is the contention of appellant that Art. 6674m should be construed along with other relevant statutes and be held to apply only to Contracts for $2000.00 or less.

We will notice such other statutes.

Art. 5472a, V.A.C.S., provides, in part, that any person furnishing labor or material, etc. to “any contractor under a prime contract where such prime contract does not exceed the sum of Two Thousand Dollars ($2,000) for any public improvements in this State” shall have a lien on the moneys etc. due or to become due under such contract upon timely giving written notice to the officials whose duty it is to pay such claim.

Art. 5472b, V.A.C.S., provides, in part, that when any public official who receives such notice shall retain sufficient of the moneys due such contractor to pay the claim of which it has had notice in case it is established by judgment. Art. 5472b-l provides for a bond for a release of such impounded funds.

These statutes are in Title 90, Ch. 2, captioned LIENS, V.A.C.S.

Art. 5160, V.A.C.S., provides, in part, that any person as a “prime contractor” entering a formal contract in excess of $2000.00 with specified public bodies for “the construction, alteration or repair of any public building or the prosecution or completion of any public work” shall give a performance bond and a payment bond, the latter bond being for “the protection of all claimants supplying labor and material as hereinafter defined” in the prosecution of the work under the contract.

By complying with the provisions of this statute any claimant as therein defined may sue the principal and surety on the Payment Bond. This statute makes no provision for the public body to withhold any funds due the prime contractor under the contract.

Art. 5160 is found in Title 83, Ch. 4, captioned LABOR, V.A.C.S.

Articles 5160 and 5472a were amended by H.B. 344, Ch. 93, Acts 56th Leg., Reg. Sess., 1959, p. 155. We have, of course, described these statutes as amended and not as they read prior thereto.

We also note that Art. 6674m, supra, was amended by the Legislature about one month after it amended Arts. 5160 and 5472a, supra. H.B. 639, Ch. 434, Reg.Sess. 56th Leg.1959, p. 938.

We agree with appellant that all statutes enacted to protect furnishers of labor and materials on public works are in pari materia. C. A. Dunham Co. v. McKee, 57 S.W.2d 1132, El Paso Civ.App., writ ref.

The rule for construing statutes which are in pari materia is stated in 39 Tex.Jur., Statutes, Sec. 135, as follows:

“The purpose of the in pari materia rule of construction is to carry out the full legislative intent, by giving effect to all laws and provisions bearing upon the same subject.
“ * * * Any conflict between their provisions will be harmonized, if possible, and effect will be given to all the provisions of each act if they can be made to stand together and have concurrent efficacy.”

There is another rule of statutory construction, which we quote from Sec. 114 of the same authority:

“In case of conflict between a general provision and a special provision dealing with the same subject, the former is controlled or limited by the latter; and this is so whether the provisions in question are contained in the same act or in different enactments. In other words, when a statute makes a general provision apparently for all cases and a special provision for a particular case or class, the former yields and the latter prevails in so far as the particular case or class is concerned. In such circumstances, the special provision or statute is regarded as though it were an exception or proviso, removing something from the operation of the general law.”

Application of these rules of statutory construction to these statutes compels us to hold that Art. 6674m should be enforced in accordance with its plain and unambiguous terms.

Art. 6674m is a statute which by its express terms is applicable only to contracts for highway improvements. As such it constitutes an exception or proviso to the statutes which prescribe rights and duties of the interested parties under contracts for “public improvements” and “public work.”

By thus giving effect to Art. 6674m we honor the statutes as enacted by the Legislature and exercise judicial restraint in refusing to rewrite it to suit litigants or, perhaps, ourselves.

It seems obvious that if the Legislature had intended to restrict Art. 6674m to highway contracts for less than $2000.00 it would have so provided when it amended and re-enacted this statute shortly after it had written such restriction into laws pertaining to general public improvement contracts.

By post submission briefs our attention has been directed to an amendment made to Art. 6674m by the 58th Leg., Reg.Sess., Ch. 76, p: 129, by which provision for retention of a portion of the contract price for highway improvements after the work had been completed and accepted was eliminated. This amendment was subsequent to the judgment from which this appeal was taken.

We must determine the effect of this amendment or repeal upon this suit. If it operates retroactively and validly so, then appellant is entitled to the relief sought. There is no question but that the amending or repealing statute has immediate effect. This is true because there is no saving clause as to pending suits or current public improvement contracts; hence, as to such, its effect is retroactive. The rules to be applied in resolving this question are stated in National Carloading Corp. v. Phoenix-El Paso Express, 142 Tex. 141, 176 S.W.2d 564, as follows:

“It is generally conceded that a right of action given by a statute may be taken away at any time, even after it has accrued and proceedings have been commenced to enforce it. 16 C.J.S., Constitutional Law, p. 1242, § 254. It is also well settled that if a statute giving a special remedy is repealed without a saving clause in favor of pending suits, all suits must stop where the repeal finds them, and if final relief has not been obtained before the repeal becomes effective, it cannot be granted thereafter, and the repeal deprives the court of jurisdiction of the subject matter. * * *
“The plaintiff asserts that it has a vested right in the recovery herein and urges that to give a retroactive effect to the provision in question is violative of the Fifth Amendment of the Constitution of the United States, which prohibits deprivation of property without due process of law. * * *
“We think it therefore becomes evidence that the plaintiff does not possess such a vested right as to come within the inhibition of the Fifth Amendment. Such a right must be something more than a mere expectation based upon an anticipated continuance of the existing law. It must have become a title legal or equitable, to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exemption from the demand of another. If, before rights become vested in particular individuals, the convenience of the State induces amendment or repeal of the laws upon which they are based, these individuals are left without any remedy at law to enforce their claims; and if final relief has not been granted before the repeal goes into effect it cannot be granted thereafter, even if a judgment has been entered and the cause is pending upon appeal. The general rule is that when such law is repealed without a saving clause, it is considered, except as to transactions past and closed, as though it had never existed.”

Art. 6674m did not create any right in laborers or materialmen. It gave them no lien upon the retained money or any right to subject it to their claims. At most, it established a legislative policy permitting coercion of contractors to pay claims, even invalid or fictitious claims. The repeal of this policy is of pure legislative concern. No claimant has a vested right in the continuation of such policy. We observe, in passing, that the obvious effect of this repeal is to enable contractors to defeat meritorious but technically inadequate claims of laborers and materialmen.

We are of the opinion that the State Highway Commissioners are withholding the money sued for without lawful authority. It is, therefore, ordered that the judgment of the Trial Court be reversed and judgment is here rendered that appellant recover of the State Highway Commissioners, in their official capacities and the State Highway Department the sum of $8,817.36.

All costs in this behalf expended are assessed against appellant.

Reversed and rendered.


source: Caselaw Access Project

license: Public Domain

text:
    L. C. BROWNING et al., Appellants, v. PAY-LESS SELF SERVICE SHOES, INC., Appellee.
    No. 11112.
    Court of Civil Appeals of Texas. Austin.
    Nov. 13, 1963.
    Rehearing Denied Dec. 11, 1963.
    J. W. Thomas, Belton; Robert L. Pen-rice, Waco, for appellants.
    Skelton, Bowmer & Courtney, Temple, for appellee.
   HUGHES, Justice.

Reverend L. C. Browning, Rosie Young, a feme sole and J. B. Wilson as next friend of Martha Wilson, a minor, sued Pay-Less Self Service Shoes, Inc. for damages, actual and exemplary, for their alleged wrongful detention and treatment by Pay-Less and its agents in Temple, Texas, on or about March 16, 1960.

Three separate suits were originally filed by appellants against individual defendants. These suits were superseded by amended petitions filed in these suits on March 12, 1962, in which the only defendant named was Pay-Less. These three causes were consolidated and a joint (2d) amended petition was filed by appellants June 18, 1962, naming Pay-Less as the only defendant.

Motion for summary judgment was made by Pay-Less and was sustained by the Trial Court. Judgment was rendered that appellants take nothing by their suit. The propriety of these actions is now before us. To determine this, it will be necessary for us to examine all relevant portions of the record, to-wit, the pleadings, motion for summary judgment and supporting and opposing affidavits. There are no depositions or admissions. Rule 166-A, T.R.C.P.

Appellants pled that Pay-Less was a •corporation engaged in the retail business ■of selling shoes at a location in Temple, and that on or about March 16, I960, they entered this place of business for the purpose of buying a pair of shoes. That a pair of shoes was purchased on the layaway plan, and then they left the store. Thereupon, an agent of Pay-Less commanded them to re-enter the store, which they did. Their exit from the store was then barred by this agent and appellants were ordered to remain in the store until the police arrived. When the police arrived, appellants were taken into custody by them at the request of the agent of Pay-Less. Appellants alleged that they were then taken by the police to police headquarters where they and their automobile were searched, the agent of Pay-Less having represented to the police that appellants had stolen shoes from its store. No stolen property was found in the possession of appellants, and they were released by the police.

Appellants, by their pleading, exonerated themselves from any illegal or improper conduct on the premises of appellee. They alleged that the acts of appellee were malicious and were committed without justification and without reason for it to believe that appellants had stolen any property from it. Damages resulting from the actions of appellee to appellants were alleged, actual and exemplary.

Pay-Less filed numerous exceptions to the pleading of appellants including exceptions that appellants’ cause of action, if any, was barred by limitations under Arts. SS26 and 5524, V.A.C.S. It answered with a general denial and by specially pleading, in substance, the following:

That Mrs. Browning, Rosie Young and Martha Wilson entered its store in Temple on or about March 16, 1960, and began looking at displayed shoes. The manner of displaying shoes was that the shoe boxes were opened and placed on slanting shelves in order that its employees could at a glance determine whether any shoes were missing from the boxes. Shortly before the named persons (called appellants) entered the store all empty boxes had been removed from the shelves. That when appellants entered the store no other customers were present. That appellants separated so that they could not be carefully watched. A short time later, it was noticed by employees of Pay-Less that six shoe boxes were empty; that at such time there were no other persons in the store except appellants and the employees of Pay-Less. That appellants left the store but at the request of an employee they voluntarily re-entered the store and were questioned regarding the missing shoes. In the meantime, the police having been called, appellants were further questioned by the police, and they voluntarily went to the police station. That appellants were not in custody or under arrest at any time, and their persons were never searched. That after questioning, appellants left the police station and returned to their homes.

Appellee alleged that the persons named did in fact steal six pairs of shoes on the occasion in suit.

Appellee further alleged that it had reasonable ground for supposing the offense of shoplifting to have been committed by-appellants on the occasion in suit and that its conduct thereupon was privileged under Art. 1436e, V.A.P.C.

Appellees’ motion for summary judgment was formal. It was supported by the affidavit of Jimmy O’Brien, manager of Pay-Less at the time of the incidents giving rise to this suit. The affidavit of Mr. O’Brien follows closely the allegations of the pleading of Pay-Less. He affirmed the pleading in all material aspects. The only additional fact in the affidavit, not in the pleading, is that appellants left the police station “without any charges being filed against them.”

A controverting affidavit was filed by Mrs. Browning, Rosie Young and Martha Wilson, from which we quote:

“Each affiant admits that on or about March 16, 1960, that he entered defendant’s shoe store located on west Adams Avenue at or in the 1400 Block, as invitees and potential customers for the specific purpose of purchasing shoes, and for no other purpose. They pointedly deny that the store had no other customer in it at the time of their entry, as claimed in the affidavit on file in support of the defendant’s motion, and on the contrary say that at the time stated and the place such store had many shoppers in it. They categorically deny that upon entering the store, they separated and each went alone in separate directions. Affiants purchased three pairs of shoes on the lay away plan, making a cash deposit therefor of $1.00. The clerk put the three pairs in one bundle, and plaintiffs together left the store. No sooner than reaching the sidewalk they were called back into the store by the defendant, its agents and servants acting in the scope of their employment. Upon reentering in obedience to the abrupt demand that they come back into the store, the agents and servants of the defendant locked and barred the door, and all exits to the store, and by such agents were accused of theft of 6 pairs of shoes, and demand was made of these affiants to produce the shoes. Affiants denied any knowledge of the missing shoes, or that they were in their possession. While thus incarcerated and imprisoned, an agent of the store of the defendant, called the police. Upon arrival of the police the officer began a series of questions. Upon the insistence of the agent of the defendant for the immediate arrest of the affi-ants, and each of them, the police informed such agent that it would be necessary for a complaint to be filed. Demand was made that affiants, these plaintiffs, all get into the police car and be taken to the police station in downtown Temple. One would not stating that she wished to drive her own car down. Two were required to get into the car of the police and the car driven by the third was herded down through town and to the police headquarters where complaints were filed, affiant’s car abruptly searched without a search warrant at the instance and request of the agent of the defendant. The affiants were detained under surveillance of the officers for hours and treated as common criminals. Demand was made for the key to the car that had been herded down and the car searched. Not finding the shoes, or any of them, and after demand was made to search for shoes on affiants feet, the prisoners were dismissed and allowed, after agonizing hours to go home.”

It is our opinion that the Trial Court erred in rendering a summary judgment against appellants.

It is the contention of appellee that this is a suit for malicious prosecution and that it is barred by Art. 5524, supra.

An essential element of a cause of action for malicious prosecution is a showing that the criminal prosecution has terminated favorably to the plaintiff. Only upon such successful termination of the prosecution does a cause of action for malicious prosecution arise. Malicious Prosecution, 37 Tex.Jur.2d, Sec. 44, p. 560.

The affidavit of appellants states that criminal complaints were filed against them. There is neither pleading nor affidavit evidence concerning the disposition of these complaints. Hence it is impossible to determine whether or not a potential cause of action for malicious prosecution has arisen.

We are clearly of the opinion, however, that the gravamen of appellants’ complaint is what transpired prior to the filing of any criminal charges. Certainly the filing of these complaints did not have the effect of expunging prior tortious acts committed by appellee, or of rendering them innocent, harmless or privileged. In making this statement we are, of course, not speaking factually, but only on the assumption that appellants’ version of the incident is correct. If unlawful detention becomes legal then recovery may be had only for the unlawful portion of the detention. 25 Tex. Jur. Sec. 35 False Imprisonment, p. 268.

False imprisonment is, in general, the direct restraint by one person of the physical liberty of another, without adequate legal justification. False Imprisonment, 25 Tex.Jur.2d Sec. 17, p. 250. One must, of course, be involuntarily deprived of his liberty in order for such deprivation to be wrongful. J. C. Penney Company v. Romero, 318 S.W.2d 129, San Antonio Civil Appeals, writ ref., n. r. e. See also Dallas Joint Stock Land Bank of Dallas v. Britton, 134 Tex. 529, 135 S.W.2d 981, Tex.Comm. of App., pointing out the distinction between malicious prosecution and false imprisonment.

The affidavit of appellants is, in our opinion, sufficient to make an issue of fact as to whether or not they were involuntarily restrained of their physical liberty by appel-lee.

Art. 1436e, V.A.P.C., provides:

“Section 1. Any person while legally in a retail business establishment as an invitee or licensee who removes from its place, goods, edible meat or other corporeal personal property of any kind or character under the value of Fifty Dollars ($50.00) kept, stored or displayed for sale with the intent to fraudulently take and to deprive the owner of the value of the .same and to appropriate the same to the use and benefit of the person taking is guilty of shoplifting. Altering of label or marking on goods, edible meat or other corporeal personal property or transferring same from one container to another with intent to defraud the owner also constitutes the crime of shoplifting.
“Prevention of consequences of shoplifting
“Sec. 2. All persons have a right to prevent the consequences of shoplifting by seizing any goods, edible meat or other corporeal property which has been so taken, and bringing it, with the supposed offender, if he can be taken, before a magistrate for examination, or delivering the same to a peace officer for that purpose. To justify such seizure, there must, however, be reasonable ground to suppose the crime of shoplifting to have been committed and the property so taken, and the seizure must be openly made and the proceeding had without delay.”

There is nothing in this record indicative of the value of the missing six pairs of shoes. If their value exceeded $50.00 this statute is, by its terms, inapplicable.

Sec. 2 of this statute authorizes the seizure of the property taken and “ * * * bringing it, with the supposed offender * * * ” before a magistrate.

Since no property was seized as contemplated by this statute, there was no authority under such statute for appellee to restrict the free movement of appellants in any respect. Only in conjunction with the seizure of property under the circumstances described is the restraint of the supposed offender authorized by this statute.

We quote from 6 Tex.Jur.2d, Arrest, Sec. 12, p. 148, regarding arrests without a warrant:

“The provisions of the code providing for arrest without a warrant are founded in the law of necessity, that is, the necessity for prompt action in order to arrest or detain the offender so as to prevent his escape. The general purpose of such laws is to prescribe the duties of officers and, at the same time, to protect the liberty of the citizen or individual. The Constitution guarantees that the people are to be secure in their persons from all unreasonable seizures. Therefore, despite obiter dicta expressions to the contrary in a few cases, the courts, both civil and criminal, have consistently said that the arrest of a citizen without a warrant is an unreasonable seizure of his person, unless it is expressly authorized by statute. And since the matter of arresting without a warrant is exclusively regulated by the Constitution and the state statutes, it follows that the authority to arrest without warrant cannot be conferred by the common law or by the court decision of other states. Such statutes are strictly construed and must always be subordinated to the constitutional guaranties against unreasonable seizure. Hence, if the situation that, it is claimed, authorizes an arrest without warrant does not come squarely within one of the statutory classifications, authority does not exist, * * ”

It is a matter of deep public concern when one citizen is authorized to arrest another citizen without a warrant issued in accordance with law. Such arrests are fraught with grave danger to the public tranquility, peace and to individual freedom which we hold so dear. We do not for a moment believe that the Legislature has authorized a clerk in a variety store to arrest on suspicion of the theft of a ten cent bottle of perfume all the persons then in the store, be they few or many, and carry them before a magistrate when the only evidence of the theft of the perfume is that it is not in its accustomed place and is never found. If the Legislature had authorized such indiscriminate citizen arrests without legal warrant and upon such flimsy grounds, its action would be of extremely doubtful constitutionality. We are resolute in our conviction that the Legislature has made no such attempt, and that Art. 1436e, supra, plainly authorizes a citizen’s arrest only as a concomitant to the seizure of property under the circumstances described in the statute.

We also hold that an issue of fact would be presented if Art. 1436e is applicable to this case which is whether or not appellee had reasonable ground to suppose that appellants had taken the property or committed the offense of shoplifting.

According to appellants, they did not take the shoes, other people were in the store who could have taken them; they, appellants, did not separate in the store; they were there for a lawful purpose; they committed no suspicious acts. Then, too, there is only appellee’s employee’s statement that any shoes were stolen or missing. This statement is not acceptable as a matter of law since it is an element of the offense charged to appellants, the commission of which they deny. Furthermore, the fact that appellants were in custody from the time they left the store until released by the police and no shoes were found on them weighs heavily in favor of their innocence.

The judgment of the Trial Court is reversed and this cause is remanded for trial in accordance with this opinion.

      . In McBeath v. Campbell, 12 S.W.2d 118, Tex.Comm. of App., a sheriff was held liable for false imprisonment of prisoner both before and after issuance of writ of habeas corpus, the false imprisonment by the sheriff having created the necessity for the writ, even though the imprisonment under the writ was legal.


author: CLAYTON, Justice.

text:
    Miguel H. MARTINEZ, Jr., et al., Appellants, v. Ray PEARSON, Independent Executor of the Estate of Louis Bailinas, Deceased, et al., Appellees.
    No. 5597.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 30, 1963.
    Rehearing Denied Nov. 27, 1963.
    Gerald B. Shifrin, Irion & Rash, El Paso, for appellants.
    Scott, Hulse, Marshall & Feuille, J. F. Hulse, James S. Moore, El Paso, for appel-lees.
   CLAYTON, Justice.

Plaintiffs (appellants) herein filed suit against defendants (appellees) Ray Pearson as Independent Executor of the Estate of Louis Bailinas, deceased, and the heirs of the decedent, alleging that the decedent and his wife, Isabel D. Bailinas, who predeceased him, had entered into a parol contract whereby each spouse would devise to the other all property of each, and the surviving spouse would devise the remainder of all property of the couple to the plaintiffs, with the exception of small bequests to the defendant heirs. The couple executed simultaneous and mutual wills whereby each spouse devised to the other all property of each, but no mention was made in either will of the disposition of the remainder of the property by the survivor, or of the alleged parol agreement. Upon the death of Isabel D. Ballinas, her husband qualified as her executor and received her property under her will. The husband died approximately two months later without having changed or altered his will in any respect, and defendant Ray Pearson qualified as his executor.

Plaintiffs pleaded specific performance of the parol contract and in the alternative, that a constructive trust for the benefit of plaintiffs be impressed upon the property. In a hearing before the court, certain of defendants’ special exceptions were sustained by the trial court, plaintiffs were denied leave to further amend their First Amended Original Petition and the case was dismissed. In his order dismissing the cause, the trial court ruled that, having sustained certain special exceptions to the petition, the latter did not set out a cause of action; and further, that however said cause of action might be alleged it would be subject to the special exceptions that the purported oral agreement was void and un-enforcible under the provisions of the Statute of Frauds, Art. 3995, Vernon’s Ann.Civ. St., and was not in compliance with the provisions of Sections 59 and 60 of the Texas Probate Code. Appeal was perfected, and plaintiffs’-appellants’ first three points of error are directed at the foregoing three findings by the trial court. The fourth point assigns error to the further finding of the court that plaintiffs’ allegation of the creation of a constructive trust involved the pleading of conclusions of law rather than of fact.

Appellants’ brief the first three points together. They rely on Larrabee et al. v. Porter et al., 166 S.W. 395 (Tex.Civ.App., 1914, wr. ref.) as supporting their contention that mutual wills are enforcible in Texas and are irrevocable under the circumstances alleged in their amended petition. Texas law is too well established to admit of controversy that mutual wills are enforcible in Texas. But their irrevocability is dependent upon the facts of each case. In the Larrabee case, Larrabee and his wife, pursuant to an agreement between them, executed their joint and mutual will by which they gave to the survivor a life estate in all their property, both joint and several, with remainder, share and share alike, to their five daughters (emphasis supplied). Upon the death of Mrs. Larrabee without having revoked or attempted to revoke said will, Larrabee probated the same and used, occupied and enjoyed the fruits from said property to the exclusion of his children. Subsequently, Larrabee remarried and executed a second will to the benefit of his then wife, stating therein that it was his intention to expressly revoke the former will. Upon his death, application was filed by the second Mrs. Larrabee to probate the second will. This application was opposed by beneficiaries of the first will, which cause of action reached the Court of Civil Appeals upon appeal by the second wife from an adverse judgment of the district court. In affirming the judgment of the district court the Court ol Civil Appeals quotes from Frazier v. Patterson, 243 Ill. 80, 90 N.E. 216 (1909), wherein a husband and wife made a joint and mutual will, devising a life estate in their property to the survivor, with remainder to their daughter during her natural life and after her death to her children. (Emphasis supplied.) The husband predeceased the wife, who had the will probated and thereafter took possession of all property and continued to use and occupy the same and enjoy the revenues therefrom to the exclusion of the husband’s heirs until her death. Before her death, however, the wife executed another will by which she attempted to revoke the joint and mutual will and make a different disposition of her estate. This will was attacked by children of the wife’s daughter (who had predeceased her mother), and the Illinois Supreme Court upheld the lower court which had entered a decree for partition among the grandchildren in accordance with the provisions of the joint will. The Supreme Court held:

“ * * * A joint and mutual will is revocable during the joint lives by either party, so far as relates to his own disposition, upon giving notice to the other; but it becomes irrevocable after the death of one of them if the survivor takes advantage of the provisions made by the other. * * *
“ * * * The leading case in England on this subject is Dufour v. Pereira, 1 Dick. 419. In that case it was held that a joint and mutual will might be revoked by both jointly, or that it might be revoked separately, provided the party intending it had given notice to the other of such revocation, but that neither of them could, during their joint lives, revoke it secretly, nor could it be done by the survivor after the death of the other; that such wills constituted a mutual contract between the parties which could not be rescinded by the survivor after the death of one, on the theory that the first that dies carries his part of the contract into execution. In such case the courts will not permit the other party to afterwards break the contract. The doctrine of this case has been approved in a number of well-considered cases in this country. Allen v. Boomer, 82 Wis. 364, 52 N.W. 426; Edson v. Parsons, 155 N.Y. 555, 50 N.E. 265; Carmichael v. Carmichael, 72 Mich. 76, 40 N.W. 173, 1 L.R.A. 596, 16 Am.St.Rep. 528; Bower v. Daniel, 198 Mo. 289, 95 S.W. 347.”

After this quotation from the Frazier case, the Larrabee case continues :

“In the instant case, if the will itself does not imply or import a contract to execute it (which we are inclined to think is the case), yet the evidence is clear, and the jury found that the same was executed by reason of a previous contract between the parties to make it, giving to each a life estate in their entire property, with remainder to their daughters. (Emphasis supplied). This will was executed upon a valid consideration, to wit, the reciprocal devise of the one to the other; and subsequent to the death of the wife, who had scrupulously acquiesced in -its provisions, the surviving husband probated same, went into possession, and enjoyed the fruits of the entire property to the exclusion of the beneficiaries, his children, until his death,, attempting, however, to revoke same during his life by the execution of the second will and deed to his last wife. We think the authorities quoted and cited are ample to sustain us in holding that this could not be done under the circumstances stated * * (Emphasis supplied.)

Emphasis has been added to the cases referred to above, and relied upon by appellants, to point up the difference between the quoted cases and the facts of the instant case as reflected in the amended petition of the plaintiffs. We quote from such pleadings (emphasis added):

“II.
“Plaintiffs allege and would show that sometime prior to the 7th day of November, 1959, LOUIS BALLINAS' and his wife, ISABEL D. BALLINAS, entered into a valid, legal and binding parol contract and agreement with each other under the terms of which said: parties agreed one with another and by and between themselves that upon the death of either, all the property of the first deceased spouse would be bequeathed and devised to the survivor, and that on the death of the survivor, the remainder of the property of the first deceased spouse and all the prop erty of the survivor would be bequeathed and devised to your plaintiffs herein * * * ” (with the exception of small bequests to the defendants).
“III.
“Plaintiffs allege and would show that in fulfillment of her agreement and contract which she, the said ISABEL D. BALLINAS had made with her husband, LOUIS BALLINAS, the said ISABEL D. BALLINAS did on the 7th day of November, 1959, make and execute a valid will devising and bequeathing all her property, personal and real to her husband, LOUIS BALLINAS.
“IV.
“Plaintiffs allege and would show that in ffdfillment of his agreement .and contract which he, the said LOUIS BALLINAS had made with his wife, ISABEL D. BALLINAS, the said LOUIS BALLINAS did on the 7th ■day of November, 1959, make and execute a valid will devising and bequeathing all his property, personal and real to his wife, ISABEL D. BALLINAS* * *.
“X.
“* * * That LOUIS BALLINAS •died before having complied with the .said parol contract and agreement to bequeath and devise all the property, real and personal, from and belonging to ISABEL and LOUIS BALLI-NAS to your Plaintiffs herein, in that LOUIS BALLINAS left as his Last 'Will and Testament the aforementioned instrument, the mutual and reciprocal Will in which he bequeathed and devised all his property to ISABEL D. BALLINAS, * * *.”

It will be readily seen that while in the •quoted cases the agreement of the parties with regard to the devise of their property lias been carried over and has been embodied in the provisions of their wills made pursuant thereto, in the instant case this has not been done.

Without attempting to analyze all the Texas cases cited by appellants in support of their position under the first three points of error, we feel that the same deficiency in the instant case, as pointed out above, differentiates this case from those cited and relied upon by appellants. As an example, appellants cite and quote Weidner v. Crowther, 301 S.W.2d 621 (S.Ct., 1957), as follows :

“At the heart of a mutual will lies a contract of the parties. It would be manifestly unjust to permit the surviving party to the contract to disavow it and its obligations, as those obligations are incorporated in their will, after the other party has fully performed by abiding by it until his ability to revise it has been terminated by death.” (Emphasis supplied.)

In the Weidner case, unlike the case at hand, the obligations of the parties were incorporated in their will.

Both parties herein rely on the case of Kirk v. Beard, 345 S.W.2d 267 (Tex.S.Ct., 1961). This case modified and affirmed the judgments of the trial court and the Court of Civil Appeals, the latter opinion appearing in Kirk v. Beard, 334 S.W.2d 531 (Tex.Civ.App., 1960), wherein the wills involved in the litigation are set out in full. We do not perceive that the opinion of the Supreme Court in the Kirk case alters our declaration that the case now before us deals with a situation at variance with the cases relied upon by appellants. The Supreme Court in the Kirk case sets out the facts involved therein as follows (emphasis added in quotations) :

“The respondents * * * are nieces of J. E. Sexton, deceased. They brought this suit to establish their claim to all of the estate, both real and personal, owned by J. E. Sexton at the time of his death. Their claim is based on a contract alleged to have been made between J. E. Sexton and his brother, W. H. Sexton whereby these brothers orally agreed that they would make mutual and reciprocal wills; that J. E. and W. H. Sexton each executed identical wills devising each to the other his undivided half interest in all lands owned by them in Johnson, Hill and Somervell Counties, together with all personal property situated thereon; and leaving to the nieces, share and share alike, the remainder of his property, both real and personal.
“The brothers on the 23rd of November, 1948, did execute separate wills containing the foregoing provisions.” (See the provisions of the wills in 334 S.W.2d at pages S32-S3S.) “W. H. Sexton died on October 30, 1952. His will was probated and his estate distributed according to the terms of the will. J. E. Sexton died March 1, 1958.”

The trial court rendered judgment in favor of the nieces that they have and recover all of the property, both' real and personal, belonging to J. E. Sexton at the time of his death, and this judgment was affirmed by the Court of Civil Appeals. The Supreme Court held that “title to all of the property owned by J. E. Sexton at the time of his death except the lands in Johnson, Hill and Somervell Counties, together with the personal property situated thereon, being the property described in the mutual wills of J. E. and W. H. Sexton and devised to each other respectively, is owned by and vested in the four nieces but that their claim to the above lands in the said counties and personal property thereon is not established” thus modifying, and, as modified, affirming the judgment of the trial court and the Court of Civil Appeals.

Appellants quote the following excerpts from the Supreme Court opinion (emphasis supplied) :

“To sustain their theory that the Statute of Frauds bars recovery petitioners cite a number of Texas decisions but these do not directly deal with the fact situations here where mutual wills have been executed in accordance with an oral contract and one party has taken the benefits provided under the will of the deceased party. Illustrative of these cases are Upson v. Fitzgerald, 129 Tex. 211, 103 S.W.2d 147, and Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216. * * *
“The law announced by the above cases is too well established to be questioned but it may not be applied to the facts of this case. We have here considerably more than a parol promise to devise land for a paid consideration. Mutual wills have been executed pursuant to an oral contract plus the acceptance by the survivor of the benefits provided by the will of the deceased. The deceased party to the contract has fully and completely performed.” * * *
“We hold that recovery in this case upon the oral contract to devise is not barred by the Statute of Frauds. Although we have found no Texas decision passing directly on this question, recovery has been allowed under similar facts. Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 169 A.L.R. 1; Sherman et al v. Goodson’s Heirs et al, Tex.Civ.App., 219 S.W. 839, wr. ref.; Pullen v. Russ, Tex.Civ.App., 226 S.W. 2d 876, wr. ref. n. r. e.; Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588; Larrabee v. Porter, Tex.Civ.App., 166 S.W. 395, wr. ref.; Moore v. Moore, Tex.Civ.App., 198 S.W. 659, wr. ref; Johnson et al. v. Durst, Tex. Civ.App., 115 S.W.2d 1000, wr. dism. In none of these cases, however, was the effect of the Statute of Frauds determined. However, in Larrabee v. Porter, the court in passing upon a similar state of facts, although observing that the Statute of Frauds defense had not been invoked, took occasion to say that the undisputed evidence showed such part performance as to take the case out of the statute.”

The Supreme Court then followed the above quotations with the following observation (emphasis supplied):

“The general and majority rule is stated in 97 C.J.S. Wills § 1367, p. 313, thus: ‘An oral agreement to make mutual wills may be taken out of the Statute of Frauds by part performance, as by the death of one party, leaving a will in accordance with the agreement, and the acceptance of benefits, under such will, by the survivor.’ ”

The Supreme Court also referred to its decision in Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588 (1954), in which it had held:

“While the question is not free from difficulty, and we recognize that the makers of a joint and mutual will, or of mutual wills, have the right and power to provide that all of the property owned by the survivor at his death shall pass under and be bound by the terms of their will, we do not believe such effect should be given to mutual wills unless the intention to do so is set forth in the will by very plain, specific and unambiguous language(Emphasis supplied).

We are constrained to find that the cumulative effect of the holdings above set out is to bar the alleged parol contract between Louis Ballinas and his wife under the provisions of the Statute of Frauds, since the wills of the parties were not made in accordance with, or pursuant to the alleged parol contract (Kirk v. Beard, S.Ct., supra). If this be so, then to support the appellants’ position in this matter would be, in effect, to write a new will for Louis Bal-linas supplying the provisions for disposition of the remainder estate alleged to have been embodied in the parol agreement — a will that would not in any respect comply with the requirements for wills prescribed in Sections 59 and 60, Texas Probate Code. It follows that neither of the prayed-for alternative remedies of specific performance or the creation of a constructive trust to the benefit of plaintiffs-appellants are available to them under the existing fact situation; that the trial court did not err in its findings and the consequent dismissal of plaintiffs’ cause of action; and that plaintiffs’-appellants’ first three points of error must be, and are hereby, overruled.

As we have construed this case, we feel that appellants’ fourth and last point of error, that the trial court erred in sustaining a special exception that plaintiffs’ allegations of the imposition of a constructive trust involves the pleading of a conclusion of law rather than fact, if upheld, would not affect our ultimate conclusion. It is true, as appellants point out, that Rule 45, T.R.C.P., provides that pleadings in the district courts shall “(b) [cjonsist of a statement in plain and concise language of the plaintiff’s cause of action or the defendant’s grounds of defense. That an allegation be evidentiary or be of legal conclusion shall not be ground for objection when fair notice to the opponent is given by the allegations as a whole.” However, plaintiffs’ alternate pleading for the imposition of a constructive trust upon decedent’s property rests upon plaintiffs’ allegations concerning the parol contract and the execution of the mutual wills of Isabel and Louis Ballinas. Whether this alternate pleading be a conclusion of law or of fact, upon which we feel that we need not pass, the substantive pleadings upon which plaintiffs base their cause of action remain and are governed by the law of this State, as expressed above, which is adverse to plaintiffs’ position herein.

Accordingly, we find no error in the disposition made of this case by the trial court’s judgment and the same is hereby affirmed.


author: GREEN, Chief Justice.

text:
    W. B. CARTER, Appellant, v. A. R. McHANEY, Appellee.
    No. 8.
    Court of Civil Appeals of Texas. Coipus Christi.
    Nov. 14, 1963.
    Luther Jones, Jr., Corpus Christi, for appellant.
    Jack White of North, Blackmon & White, Corpus Christi, for appellee.
   GREEN, Chief Justice.

This suit was filed in the District Court of Nueces County, Texas, by W. B. Carter, appellant, against A. R. McHaney, appellee, seeking by way of a declaratory judgment a judicial declaration as to exactly how much Carter owed McHaney on the judgment of the Court of Civil Appeals, 4th Supreme Judicial District in McHaney v. Hackleman, et al., Tex.Civ.App., 347 S.W.2d 822, writ ref. n. r. e.

The prior suit was brought by McHaney against Hackleman and Carter for specific performance of a written contract whereby McHaney should sell, an Hackleman should buy certain described improved real property in the City of Corpus Christi, Nueces County, Texas, for the sum of $60,-000.00 to be paid on or before March' 14, 1959.

In June, 1959, McHaney filed suit for specific performance against Hackleman and Carter to compel buyers to pay him $60,000.00 for said realty. A jury trial followed, and, though the jury verdict was favorable to plaintiff, the trial court on December 9, 1959, rendered judgment non ob-stante veredicto denying specific performance and awarding plaintiff recovery of the $1,000.00 earnest money. McHaney appealed and, as shown in the opinion, 347 S.W.2d 822, delivered May 24, 1961, the Court of Civil Appeals reversed and rendered, finding Carter liable as a partner with Hackleman in the contract to purchase, and holding that on the jury verdict, judgment should have been rendered for specific performance.

After writ of error was denied by the Supreme Court, n. r. e. the mandate of the Court of Civil Appeals was issued to the District Court and filed by the District Clerk of Nueces County on November 2, 1961. In view of the effect we give this mandate later in this opinion, we copy the order of the Court therein contained as follows:

“This cause came on to be heard on the transcript of the record, and the same being examined, because it is the opinion of the Court that there was error in the judgment of the Court below in rendering judgment against the appellees, H. B. Hackleman and W. B. Carter, only for the amount of the earnest money, it is therefore considered, adjudged and ordered that said judgment be, and it is hereby, reversed, and judgment here rendered for specific performance that should have been rendered by the Court below.
“It is therefore, ordered, adjudged and decreed that appellant, A. R. Mc-Haney, do have and recover of and from the appellees, H. B. Hackleman and W. B. Carter, the sum of $1000.00 earnest money held by the Guaranty Title and Trust Company of Corpus Christi, Texas, and judgment for the additional sum of $59,000.00, and that the implied vendor’s lien against the property described in Plaintiff’s Original Petition, as found in the transcript, be fixed, established and foreclosed, and that an order of sale issue and the property be sold as under execution.
“It is further ordered that Appellees, H. B. Hackleman and W. B. Carter, pay all costs of this Court in this behalf expended and incurred, and this decision be certified below for observance.”

Thereafter the property was sold under execution on February 6, 1962, for $45,000.-00, of which $68.60 was applied to court costs, $261.81 to costs of the sale, and the balance was credited to the indebtedness. On April 26, 1962, Carter paid McHaney $7,494.30 on the balance of his debt. No other payment has been made on the judgment rendered by the 4th Court of Civil Appeals.

The present cause was tried on a written stipulation of facts which, together with the mandate of the Court of Civil Appeals, constitute the entire statement of facts.

From the time the sales contract was signed until the date of the execution sale on February 6, 1962, McHaney was in possession of the property, using same for his own purposes and collecting rents and revenues therefrom.

It was stipulated that from November 13, 19S9, the agreed date of the termination of the trial in the other suit, to February 6, 1962, the amount of gross revenues produced by said realty and retained by Mc-Haney was $9,550.55, of which $2,125.45 was applied to payment of taxes, $593.80 to insurance premiums, and $334.31 to repairs. Carter raised no objections to the propriety of these expenses, but asserted a right to have the net revenues applied as part payment on his debt, alleging that during said period McHaney was mortgagee in possession. McHaney denied such claim.

On November 2, 1945, McHaney had executed a note for $13,000.00, secured by a mortgage on this realty, and he claimed the right to deduct from said gross revenues the sum of $1,100.00 interest paid on this loan, in the event Carter was to be entitled to apply such net revenues on his debt. Carter contended that this was not a proper charge against him.

The disputed issues in the trial court resolved to the following:

1. Was Carter entitled to offset against his debt to McHaney the amount of rents and revenues, after deduction of the expenses of taxes, insurance, and repairs, produced by said realty from November 13, 1959, which according to the stipulation of the parties, was the date of the termination of the district court trial, and the date from which Carter claimed, to February 6, 1962, the date of the execution sale?
1(a) Was McHaney entitled to include as a proper expense, to be deducted from gross revenues along with taxes, insurance and repairs, the item of interest paid on the note owing by him ?
2. Was Carter entitled to offset against his debt the amount of reasonable rental value of McHaney of the portion of the realty which the parties stipulated McHaney did use during the period, which reasonable rental value, so the parties agreed, was $100.00 per month for each month of said period?
3. Was McHaney entitled to interest on the $60,000.00 purchase price, at 6% per annum from March 14, 1959, the date of the breach of the sales contract by the vendees, to February 6, 1962?

Basing his findings on the stipulation of the parties, and crediting Carter with the net amount received from the execution sale and with his cash payment of $7,494.30 on April 26, 1962, the trial court ruled as follows:

“It is the finding and opinion of the Court that A. R. McHaney as Vendor in possession of the property from March 14, 1959 (the date on which W. B. Carter, the Vendee, was due to pay $60,000.00 purchase price) shall retain all rents and revenues of the subject property received by him until the date of May 24, 1961 (the date on which the Court of Civil Appeals reversed the judgment of the lower Court and rendered a judgment for specific performance). The Court further finds that during such period, W. B. Carter, as Vendee, is not liable to A. R. McHaney for interest on the purchase price of $60,000.00.
“The Court further finds and is of the opinion that A. R. McHaney, as Vendor, is entitled to interest on the sum of $60,000.00 from the date of May 24, 1961 (date of the Court of Civil Appeals judgment) to February 6, 1962 (date of the foreclosure sale by the Sheriff of Nueces County, Texas), and that during such period, W. B. Carter is entitled to the said rents and revenues received during such period by A. R. Mc-Haney as Vendor in possession of the property. The Court is further of the opinion that the claim of W. B. Carter against A. R. McHaney for reasonable rental for the use of part of the property in the operation of A. R. Mc-Haney’s business during the period is denied, and the claim for credits to apply against rents collected by A. R. Mc-Haney for interest on mortgage payments is denied as being an obligation which A. R. McHaney could have liquidated and would have saved the interest thus accruing.”

The Court found that the balance of Carter’s indebtedness to McHaney was $11,-239.72, and rendered judgment for Mc-Haney for that amount, with interest at 6% per annum from May 7, 1963, until paid.

Appellant’s appeal is based on two propositions. (1) He asserts the right to offset, against his debt to McHaney, the amount of net revenues collected and retained by McHaney from the realty during the period from November 13, 1959, to February 6, 1962. The trial court allowed him credit only for such net revenues collected after May 24, 1961, the date of the opinion of the 4th Court of Civil Appeals. (2) He asserts the right to offset the rental value of the use made of the property for his business purposes by McHaney while he was in possession thereof between November 13, 1959, and February 6, 1962, which the parties stipulated to be $100.00 per month. The court denied this claim in toto.

Appellee McHaney denies that appellant is entitled to such offsets, and in addition in a counter claim asserts that the trial court erred in not awarding him interest on the $60,000.00 from March 14, 1959, the date of the breach of tire contract by appel-lee. The trial court’s ruling was that interest started from May 24, 1961. McHan-ey further claims the right to charge, against the rents and profits of the building, the item of $1,100.00 paid by him as interest of his note above mentioned.

As shown by his rulings mentioned above, the trial court accepted May 24, 1961, the date of the opinion of the 4th Court of Civil Appeals in McHaney v. Hackleman, et al., supra, as the effective date of that court’s judgment and mandate. In this, we believe that the court erred. We agree with the statement contained in appellee’s brief, that there is ample authority for the proposition that a judgment of an appellate court reversing and rendering an erroneous judgment of a trial court relates back to the entry of the improper judgment. Givens v. Missouri Kansas Texas Railroad Company of Texas, 196 F.2d 905 (5th Cir., 1952); Deming Inv. Co. v. Giddens, 41 S.W.2d 260 (Tex.Civ.App., 1931, writ dism. agreement of parties); Houston Gas & Fuel Co. v. Perry, 127 Tex. 102, 91 S.W.2d 1052; Smith v. American Fire & Cas. Co., 242 S.W.2d 448 (Tex.Civ.App., 1951, no writ history); D. C. Hall Transport, Inc. v. Hard, 355 S.W.2d 257 (Tex.Civ.App., 1962, writ ref. n. r. e.).

In the case of D. C. Hall Transport, Inc. v. Hard, 160 Tex. 565, 335 S.W.2d 584, the Supreme Court of Texas reversed a trial court judgment non obstante veredicto entered for the defendant with instructions to the trial court that certain necessary omitted findings of fact be made, and that having made such additional findings it proceed with the disposition of the cause under Rule 279 just as though no judgment non obstante veredicto had been entered. The trial court, in line with the opinion of the Supreme Court, made its findings of facts on the unsubmitted issues, and entered judgment for the plaintiff, to include interest on the amount of the judgment from the date of the original entry of the judgment non obstante. This point was raised on appeal, and was disposed of in favor of the plaintiff, in D. C. Hall Transport, Inc. v. Hard, 355 S.W.2d 257 (Tex.Civ.App., 1962, writ ref. n. r. e.). The court said, in this regard, 355 S.W.2d page 260:

“We overrule defendants’ contention that the court erred in the judgment of March, 1961, in awarding interest from March 13, 1958, the date of the judgment non obstante.
“It is to be remembered the Supreme Court did not remand for a new trial. The case was remanded .with directions to the trial court to make certain findings, on the evidence adduced at the original trial, and enter judgment in accordance with such findings. In effect the 1961 judgment was the judgment which should have been rendered on March 13, 1958, when the non ob-stante judgment was rendered. Since the judgment non obstante was erroneous, and the 1961 judgment took its place, plaintiff was entitled to interest from the date of the erroneous judgment. Smith v. American Fire & Casualty Co., Tex.Civ.App., 242 S.W.2d 448.”

From the record in the prior trial, which both parties by agreement filed in this court as a part of the record in the present appeal, we note that the district court judgment non obstante veredicto was rendered and dated December 9, 1959, to become effective as of that date. That was the judgment which was reversed when the judgment was rendered for McHaney for $60,000.00, in McHaney v. Hackleman, supra. When the mandate of the appellate court, reciting such judgment, was filed in the district court, that superseded the trial court judgment and became the judgment in the case. The mandate recites that it is the judgment “that should have been rendered by the court below.” Hence, having superseded and taken the place of the erroneous judgment, its legal effect dates from the December 9, 1959, date of said trial court decree. See cases cited above.

The order of the appellate court, as contained in its said mandate, having become effective from December 9, 1959,. the date of the superseded judgment non obstante veredicto, and having failed to make reference to interest, it should bear interest at 6%' per annum from that date, as provided by Article 5072, Vernon’s Ann. Tex.St., which reads in part as follows:

“All judgments of the courts of this. State shall bear interest at the rate of six per cent per annum from and after the date of the judgment, * *

Appellee asserts a right to have interest on the sum of $60,000.00 start from March 14, 1959, the date of the breach of the contract. If he ever had such right, it was waived when he failed to have the Court of Civil Appeals pass on that issue in the other cause. That court having granted judgment for the definite sum of $60,000.00, and such judgment having become effective as of December 9, 1959, we hold that such judgment bears interest at. 6%' per annum from December 9, 1959, until paid. Deming Investment Co. v. Giddens, supra; Houston Gas & Fuel Co. v. Perry, supra; Smith v. American Fire & Cas. Co., supra; Givens v. Missouri Kansas Texas Rr. Co., supra; D. C. Hall Transport, Inc. v. Hard, supra.

As stated heretofore, from the date-of the execution of the contract of sale until the execution sale on February 6, 1962, McHaney remained in possession of the property in question. He elected, by his suit for specific performance, to enforce rather than rescind the contract and secured his judgment for the purchase price with equitable lien on the property to enforce payment thereon and with order of sale under execution. Said judgment having become effective as of December 9,1959, the date of the erroneous judgment non obstante, and bearing legal interest from that date in McHaney’s favor, we are convinced that from such time, McHaney should be deemed to have been in the position of mortgagee in lawful possession of the property, with all the rights and obligations of such.

It is the generally accepted rule of law that a mortgagee lawfully in possession must account for the rents and profits received by him or, even under some circumstances, that he might have received by the use of reasonable diligence and care. 39 Tex.Jur.2d, Mortgages and Trust Deeds, Sec. 54, p. 83 et seq.; 46 A.L.R. 138 et seq.; 25 A.L.R.2d 961 et seq.; Miller v. White, et al., 264 S.W. 176 (Tex.Civ.App., 1924, n. w. h.); Pioneer Building & Loan Ass’n v. Cowan, 123 S.W.2d 726 (Tex.Civ.App., 1938, writ dism. jdm. corr.); Pioneer Building & Loan Ass’n v. Compton, 138 S.W.2d 884 (Tex.Civ.App., 1940, n. w. h.); Norris v. Patterson, 261 S.W.2d 758 (Tex.Civ.App., 1953, writ ref. n. r. e.).

Proper expenses incurred by the one in possession in connection with his possession, such as taxes paid, insurance premiums, and reasonable repairs, may be deducted from such gross revenues, 39 Tex. Jur.2d, Sec. 57, page 86, and these items were admitted by Carter to be legitimate expenses.

We accordingly hold that Carter is entitled to be credited on his debt with the net amount of rents and revenues, after deducting taxes, insurance and repairs, that said building produced and which were retained by McHaney for the period between December 9, 1959, and February 6, 1962.

Carter was in no way obligated for the interest which McHaney owed his creditor on the note McHaney had signed. To charge Carter with this item, while also holding him liable to McHaney for interest on Carter’s obligation, would be imposing on Carter a responsibility for double interest. We hold that McHaney was not entitled to deduct as a proper expense the $1,100.00 item of interest on the note which he had executed and secured by a lien on this property prior to all of this litigation.

It was stipulated by the parties that while McHaney was in possession of the property he used part of it for his business purposes without paying rent and that the reasonable rental value of said use for such period was $100.00 for each month. The authorities cited above wherein it was held that the net rents and revenues received from the property by McHaney should be credited to the indebtedness, support the legal principle that Carter is entitled to have such admitted rental value also applied thereto. We, therefore, hold Carter' is entitled to have applied to his indebtedness the sum of $100.00 per month for such reasonable rental value from December 9, 1959, to February 6, 1962.

Summarizing our holding on the matters in dispute between the parties on this appeal, we have held as follows:

(1) Appellee is entitled to interest at the rate of 6% per annum on the judgment debt of $60,000.00 from December 9, 1959, until paid, allowing proper credit on principal and interest (without compounding interest) for the net sum received from the execution sale on February 6, 1962, and the cash payment of $7,494.30 made by appellant on April 26, 1962.
(2) Credit for the amount of net rents and revenues collected and retained by appellee from the property for the period from December 9, 1959, to February 6, 1962, shall be allowed appellant as an offset to his indebtedness.
(3) The claim of appellee to deduct, from the amount of gross revenues produced by the realty, the sum of $1,-100.00, paid by him as interest on the note executed by him is denied.
(4) Credit for the rental value of the use for business purposes made by ap-pellee of this property, at the agreed sum of $100.00 per month, for the period between December 9, 1959, on February 6, 1962, shall be allowed appellant as an offset to his debt.

We would like to be in a position to reform the judgment of the trial court and render judgment herein, but due to calculations of interest which must be made and the absence of stipulations as to the amount of net rents and revenues which accrued between November 13, 1959, and December 9, 1959, we cannot do so.

The judgment of the trial court is reversed, and this cause is remanded for further proceedings in accordance with this opinion.

The costs of the appeal are assessed equally one-half to each party.

      . Although the order in the appellate court judgment and in the mandate specified $1,000.00 earnest money, and $59,000.00, additional judgment, the statement of facts in the present cause treats this as a judgment for $60,000.00 and says nothing as to what happened to the earnest money deposit.

      . Haekleman does not appear in the present ease in any way, and the trial was had as though Carter had the whole burden of discharging this debt.


author: BARROW, Justice.

text:
    MEDINA ELECTRIC COOPERATIVE, INC., Appellant, v. Cecil REAGAN, Appellee.
    No. 14152.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 6, 1963.
    Frank X. Vance, Hondo, Crawford &: Crawford, Uvalde, for appellant.
    David R. White, Uvalde, for appellee.
   BARROW, Justice.

This suit was filed by Medina Electric-Cooperative, Inc., to condemn a right of' way containing 15.655 acres of land, for the-purpose of erecting and maintaining a transmission line across a 4700-acre ranch and farm owned by Cecil Reagan. The right of' way measured forty feet in width across. Reagan’s property, except for about 7,000' feet along the south boundary line where-only a twenty-foot wide strip was taken.

The only point in controversy at the trial was ever the amount of damages, which was. resolved by a jury. The jury found that the pre-condemnation value of the 15.655-acre ■strip was $2,937.50, and the post-condemnation value is $1,121.25. The jury also found that the remainder of appellee’s land suffered a diminution in value of $8,325.00. Judgment was entered for the sum of $10,-141.25, and appellant duly perfected this appeal.

Appellant has asserted two points, both of which relate to the post-condemnation valuation of the 15.655-acre strip. In its first point, appellant complains of the error ■of the trial court in sustaining appellee’s objection to the testimony of appellant’s witness Seitz, as to the market value of this •strip immediately after the taking. In its •second point, appellant complains of the error of the court in instructing the jury to ■disregard the previous testimony given by Seitz on the post-condemnation value of the strip.

Appellee now concedes that this evidence was admissible and that his objection and request that the jury disregard Seitz’s testimony were erroneously sustained. The law is settled in Texas that the taking of a strip for a right of way easement is a taking of less than the entire fee of the strip. Texas Pipe Line Co. v. Hunt, 149 Tex. 33, 228 S.W.2d 151; Texas Elec. Service Co. v. Vest, Tex.Civ.App., 310 S.W.2d 733. Appellee asserts, however, that this error of the trial court was harmless as the same testimony was already before the jury without objection, and, in any event, the error was cured when the court subsequently gave both parties opportunity to offer evidence on the question of the market value of the right of way strip after the taking.

The transmission line was carried by single poles, spaced about 450 feet apart and mounted twenty-one feet above the ground. The poles along the south boundary line were located on the adjoining owner’s land and only an aerial easement was taken of this part of appellee’s property. Appellee and his real estate witness, John Kimble, as well as appellant’s witnesses, E. E. Seitz and Donald B. Morgan, all testified without objection to the physical. arrangement of the right of way on appellee’s land. It was shown that appellee could farm or graze the right of way, except in the immediate area of the poles. On the other hand, there was evidence that the right of way could not be satisfactorily used by appellee due to the difficulty in spraying same for insects. On direct examination by appellant, Seitz testified without objection, that the market value of the strip immediately after the taking would be one-third less than its value before the taking. However, while Seitz was still being examined by appellant, the following proceedings took place:

“Q Mr. Seitz, I believe you stated that one-third of the value of the land before the taking, before the easement was on it, is the value of the use the Medina Electric Co-op would acquire in this easement strip ?
“A Yes.
“Q Due to their use of the property ? “A Yes.
"MR. WHITE: (Counsel for appel-lee) That question is improper, Your Honor. The issue there on the strip actually taken is the reasonable market value of the land taken. The question of what your damages is is the difference between the market value of the remainder after it was taken.
"THE COURT: Do you object to the question?
"MR. WHITE: Yes, sir, and I object to his answer, and I ask that the jury be instructed not to consider his answer of one-third off of the figure that he has given.
"THE COURT: Gentlemen of the Jury, you will not consider the answer of the witness to the last question.”

It is our opinion that the above objection and instruction of the court, although technically instructing the jury to disregard only the last question, was calculated to erroneously instruct the jury to disregard the testimony concerning one-third loss in value. This erroneous instruction was made certain when the trial court sustained a later objection by appellee that: “The sole issue is what was the value of the land taken.”

This error, however, was made harmless by subsequent proceedings. After both sides closed, but before the charge was’ prepared, the trial court determined that it would submit issues as to the market value of the strip before and after the taking by appellant. The trial court, under authority of Rule 270, T.R.C.P., on its own motion reopened the case and permitted both parties to offer evidence of the market value of the strip after the taking. Appellee offered evidence that the difference in market value of the strip was $3,044.33. Appellant did not recall Seitz or offer any other witness. There is no showing in the record as to the unavailability of Seitz or request by appellant for time to secure any other witness on this issue.

In Yaeger v. Long Bros. Drilling Co., Tex.Civ.App., 147 S.W.2d 276, writ refused, this Court held that a party waived his complaint of erroneous exclusion of evidence when he declined the trial court’s offer to reopen the matter and elicit an answer to the excluded question from the witness. See also Balcones Corp. v. Sutherland, Tex.Civ.App., 318 S.W.2d 691; Gibralter Colorado Life Co. v. Taylor, Tex.Civ.App., 99 S.W.2d 1084, rev. on other grounds, 132 Tex. 328, 123 S.W.2d 318; Strohmeyer v. Wing, Tex. Civ.App., 77 S.W. 977.

The error of the court in erroneously sustaining appellee’s objection to testimony by appellant’s real estate witness, Seitz, and instructing the jury to disregard his previous testimony was therefore harmless under Rule 434, T.R.C.P.

The judgment is affirmed.


author: CHAPMAN, Justice.

text:
    LEA COUNTY ELECTRIC COOPERATIVE, INC., Appellant, v. CITY OF PLAINS et al., Appellees.
    No. 7288.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 28, 1963.
    Rehearing Denied Dec. 2, 1963.

      Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Calloway Huffaker and Harold Green, Tahoka, for appellees.
   CHAPMAN, Justice.

Lea County Electric Cooperative, Inc., a nonprofit cooperative electric energy company, incorporated under the laws of the State of New Mexico originated this suit against the City of Plains, and its mayor, city councilmen, and city secretary in their official capacities. The Cooperative sought judgment decreeing as valid a lower schedule of rates to be charged its customers in the City of Plains for electricity.

Its pleadings say that by a resolution of the Cooperative Board of Trustees it adopted a schedule of electric energy rates for the City of Plains, as well as the other cities in which it does business, and under date of April 21, 1960, submitted to the city council of the City of Plains such proposed rates for its consent; that the City did not act on the proposal, and that thereafter the-matter was again called to the attention of the City. The Cooperative contends, as it did in the trial court, that by its silence the City consented to the proposed rates submitted to the city council on April 21, 1960, that the current rates set by the City Franchise Ordinance are in violation of Article 1438, Vernon’s Ann.Tex.Civ.St, and sought a temporary injunction permitting it to place into operation the lower rates pending final determination of the suit.

The City filed many exceptions to the jurisdiction of the court to pass upon the questions presented and by cross-action sought a permanent injunction against the Cooperative from doing business in the City of Plains and requiring it to remove all its poles, lines and other facilities from the streets and alleys of the City.

In answer to the City’s cross-action the Cooperative pleaded the City could not question its right to do business in the City because (1) such question could be raised only in a direct quo warranto proceeding and (2) the City had no legally 'cognizable or compensable damage in that the only-damage it could suffer could be from competition, from which it has no legal right to be free.

The trial court dismissed the Cooperative’s suit on the ground it had no authority to determine the questions presented regarding rates and sustained the Cooperative’s exceptions to the cross-action of the City and dismissed such cross-action.

Both parties have appealed from the action of the trial court.

Prior to the date of its incorporation the people of the City of Plains received electric energy from Plains Power & Light Company through “central station service” as that term is defined in Subdivision (S) of Section 3 of Article 1528b V.T.C.S. That service continued until the Cooperative purchased that company on February 21, 1953. The Cooperative furnished all the electric power for the City until February 21, 1957, at which time the City of Plains installed its own municipal electric power system. From that time to the present the Cooperative and the City have been competitors in furnishing electricity to the City.

Article 1119 V.T.C.S. gives all incorporated cities and towns incorporated under the General Laws thereof the power to regulate by ordinance the rates and compensation to be charged all persons, companies or corporations, using the streets and public grounds of said city or town, and engaged in furnishing water, gas, telephone, light, power, or sewerage service to the public and to prescribe rules and regulations under which such commodities shall be furnished, and services rendered, and to fix penalties to enforce such charges, rules and regulations; provided, however, they shall not prescribe any return or compensation which will yield more than a fair return upon the fair value of the property used and useful in rendering its service, and which in no event shall exceed 8 per cent per annum.

The City of Plains was incorporated under title 28, Vernon’s Texas Civil Statutes, on October 20, 1952.

The power of a city, so organized, to regulate rates is governmental. City of Uvalde v. Uvalde Electric & Ice Co., 250 S.W. 140 (Tex.Com.App.); City of Wink v. Wink Gas Co., Tex.Civ.App., 115 S.W.2d 973 (writ refused). It is not a judicial function. Community Natural Gas Co. v. Natural Gas & Fuel Co., Tex.Civ.App., 34 S.W.2d 900, syl. (7-8).

In the last cited case where the competing gas companies furnishing service to the City of Brownwood were involved the court held the controversy was one which addresses itself in the first instance to the City of Brownwood, not to the courts, and that its duty to regulate included the power to. prevent ruinous competition among the producers as well as unjust charges to the consumers.

In City of Wink v. Wink Gas Co., supra,, by a “writ refused” disposition our Supreme Court has approved a holding to the-effect that since the power to regulate rates is one derived from a general grant, courts, have jurisdiction to inquire into the reasonableness of the mode by which it is proposed to be exercised. However, this was a case directly attacking a rate ordinance and another ordinance already passed. In the-instant case the City had not even had a hearing on the rates the Cooperative sought to invoke. The court in the Wink case also, held:

“The power of the city to regulate rates to be charged by public utilities and to prescribe rules and regulations under which such commodities shall be furnished is governmental.”

Therefore, we believe the trial court properly held that it was without jurisdiction to grant the relief sought by the Cooperative.

In view of the cross-action of the City we actually have two law suits in one, with four briefs. We now pass to a consideration of the suit by the City seeking a permanent injunction against the Cooperative from doing business in the City of Plains and requiring it to remove all its poles, lines and other facilities from the streets and alleys of the City.

We believe the trial court also properly dismissed the cross-action of the City of Plains under the exceptions to the effect that the questions presented as to the right of the Cooperative to do business under the laws of Texas can only be raised and determined in a direct quo warranto proceeding brought by the Attorney General of the State of Texas. Article 4, Section 22, Texas Constitution, Vernon’s Ann. St.; State v. International & G. N. R. Co., 89 Tex. 562, 35 S.W. 1067; Security State Bank of San Juan v. State, Tex.Civ.App., 169 S.W.2d 554, 561, syl. (10-11), (refused W.M.); Southwestern Gas & Electric Co. v. City of Gilmer, D.C.Tex., 123 F.Supp. 11, affirmed 5 Cir., 224 F.2d 794; Laurel Land Memorial Park Inc. v. Pinto, Tex. Civ.App., 358 S.W.2d 729 (NRE).

We believe there is also another reason why the action of the trial court in dismissing the City’s cross-action was proper. No legally, cognizable and justiciable right or interest of the City is or will be infringed or invaded because the Cooperative is furnishing electric energy therein. It is obvious from the record that the competition of the Cooperative to the municipal electric energy plant is the real basis of the City’s complaint. The City does not have a right to grant an exclusive franchise to itself or anyone else. Article 1, Section 26, Constitution of Texas; Article 7428a, V.T. C.S.; West Texas Utilities Co. v. Smith, Tex.Civ.App., 168 S.W.2d 665 (writ refused); Southwestern Gas & Electric Co. v. City of Gilmer, Tex., supra.

The City has neither a legal nor equitable right to be free from competition in the furnishing of electric energy to its inhabitants. Any damage that would be caused is damnum absque injuria, a damage not consequent upon the violation of any right recognized by law. Southwestern Gas & Electric Co. v. City of Gilmer, Tex., supra.

The City’s cross-action stated that Faulk-enbury, Romans, and Duff each brought the action “as a member and/or stockholder and/or owner of equity” in the Cooperative. As such they sought to question the right of the Cooperative to furnish electric energy to the City.

In considering the proposition as to whether a member of a corporation may question its action a distinction must be made between the act of a corporation which is merely without authority, i. e., acts beyond the powers of the corporation as defined by its Articles of Incorporation —ultra vires acts — and an illegal act, an act contrary to an express statutory or penal code. Appellant alleges the Texas Statutes, illegal acts as distinguished from ultra vires acts, prohibit the electric services rendered by the Cooperative to the City.

In Texas a corporate act becomes illegal when committed in violation of an express statute or a specific subject or when it is malum in se or malum prohibitum , or when it is against public policy. Southwestern Gas & Electric Co. v. City of Gilmer, Tex., supra; Staacke v. Routledge, 111 Tex. 489, 241 S.W. 994. Under these authorities the acts may be questioned only through quo warranto by the Attorney General.

Therefore, even if it might be said that the three Cooperative members above named have properly intervened they are without authority to question acts that are illegal as distinguished from ultra vires acts in the proceeding.

Accordingly, the judgment of the trial court is in all things affirmed.

      . A wrong in itself; an actor case involving illegality from the very nature of the transaction, upon principles of natural, moral and public law.

      . A wrong prohibited; an act involving an illegality resulting from prohibitive law.


author: POPE, Justice.

text:
    Walter STOUT, Appellant, v. George V. RHODES, Appellee.
    No. 14161.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 30, 1963.
    Rehearing Denied Nov. 27, 1963.
    Louis E. Marshall, San Antonio, for appellant.
    Terrell McKay, San Antonio, for appel-lee.
   POPE, Justice.

Appellant, Walter Stout, sued his next-door neighbor to obtain a permanent injunction against the violation of building restrictions which prohibited apartment houses in Mahncke Park, an Addition to the City of San Antonio. The jury found that the development of the lots in the vicinity of the parties’ properties was such that it is no longer possible to provide appellant in any substantial degree with the benefits of the general building scheme, and the court denied the injunction. We affirm the judgment.

Mahncke Park was placed under restrictions in 1929. It consisted of two streets, Funston and Parland, both of which front upon a park which separates the streets. The streets run east and west between Broadway and North New Braunfels Avenue, which run north and south-. The deed restriction, here pertinent, provided:

“Said property shall be used for private residence purposes only, including customary out-buildings, such as private stable, garage or servants quarters, and no part thereof shall be used for business purposes.”

Appellant, Stout, purchased his lot on Funston Street in 193S and built his home thereon. In 1957 Rhodes bought the property adjoining Stout to the east. His deed provided that it was “subject to the restrictions now in force against said property as shown by instruments duly recorded in the office of the County Clerk of Bexar County, Texas.” This express reference to the deed restrictions in the Rhodes’ deed is the basis for several of appellant Stout’s points. He reasons that, as a matter of law, Rhodes may not go behind his 1957 deed to show any prior violation of the restrictions. There have been no substantial violations since 1957, but there were many prior to that date. This assertion is the basis of points grounded upon Stout’s motion for summary judgment, special exceptions, his motion for instructed verdict, and his motion for judgment notwithstanding the verdict.

The law does not sustain appellant’s point. The “subject to” provision does not prevent Rhodes from claiming an abandonment of the restrictions prior to the 1S57 deed to Rhodes. Kokernot v. Caldwell, Tex.Civ.App., 231 S.W.2d 528, states that those words mean “subordinate to,” “subservient to,” or “limited by.” They are words of qualification and not of contract. 84 A.L.R.2d 780. They are, in our opinion, notice to and an acknowledgment by Rhodes that such restrictions are of record, but they are not in fact an acknowledgment of the 1957 validity of the restrictions.

Appellant, Stout, also attacks the jury findings as having no support in the evidence. The jury found (1) that Mahn-cke Park was laid out under a general building scheme which was for private residence purposes only, (2) that the neighborhood had not been developed under the general building scheme or plan, (3) that the development of the lots in the vicinity of plaintiff’s and defendant’s properties, was such that it is no longer possible to secure to plaintiff in a substantial degree the benefits to be realized through the general building scheme or plan, and (4) that the owners of lots in the neighborhood had “acquiesced in the building of a gasoline service station, apartments, garage apartments, and apartment houses to such an extent that prior to the institution of this action there had been such a general acquiescence in violation of restrictions, in violation of the general building scheme or plan throughout the addition as to amount to a general abandonment of said general building scheme or plan.”

The only violation involved on this appeal is that of building a structure other than one for private residence. This is a suit in equity which seeks to prohibit a violation of that class only. This is not a suit to cancel all of the restrictions. It is not a suit which has for its purpose the denuding of the neighborhood of restrictions not here involved. Lebo v. Johnson, Tex.Civ.App., 349 S.W.2d 744; 4 A.L.R. 2d 1113.

There is evidence which supports the findings. Witnesses testified that commencing at Broadway and moving eastward along Funston, the street on which both parties live, there, were many violations. On Broadway and Funston there is a twenty-unit apartment; at 110 Funston, a ten-unit apartment with two additional garages; at 114 Funston, a duplex; at 118 Funston, a ten-unit apartment; at 130 Funston, a duplex; at 138 Funston, a dwelling with a garage apartment; at 144 Funston, a duplex; at 148 Funston, a duplex; at 206 Funston, a two-family dwelling; at 216 Funston, a dwelling with a garage apartment; at 214 Funston, a four-unit apartment with two garage apartments; at 220 Funston, a duplex with a garage apartment; at 230 Funston, a duplex; at 234 Funston, a four-unit apartment (next door to appellant); at 242 Funston, Rhodes’ four-unit apartment (even prior to the addition to the rear of his house) ; at 304 Funston, a duplex with three units; at 308 Funston, a duplex with a garage apartment; at 312 Funston, a duplex; at 332 Funston, a duplex; at 334 Funston, a four-unit structure. On the other side of the park, again beginning at Broadway and moving eastward, there is a filling station; at 123 Parland there is a four-unit apartment with a garage apartment; at 133 Parland, an eight-unit apartment; at 135 Parland, a duplex and a garage apartment; at 143 Parland, a duplex. A school occupies all of the 200 block. At 315 Parland there is a duplex; at 319 Parland, a dwelling with a garage apartment; .at 331 Parland, a three-unit building; at 337 Parland, a duplex; at 347 Parland, a dwelling with a garage apartment; at 411 Parland, a dwelling with a garage apartment; at 415 Parland, a dwelling with a garage apartment; at 417 Par-land, a duplex; at 423 Parland, a three-unit structure, and at 451 Parland, a dwelling with1 a garage apartment. Each of these constitutes a violation of the original restrictions, and they collectively support the findings.

Appellant, Stout, argues that most of these violations, while within the subdivision, are so far removed from him that they are not material to his immediate neighborhood. Stewart v. Welsh, 142 Tex. 314, 178 S.W.2d 506. The law will permit remote violations, but many of these can not be so termed. Stout resides at 238 Funston. He originally built his own house as a duplex, and later converted it into a single residence. To his immediate west is a four-unit structure about which he has never complained. To his immediate east is the Rhodes property, which was a four-unit apartment even prior to 1957, about which- he did not complain. When Rhodes took his deed in 1957, which referred to the restrictions, he was purchasing a structure which itself was, and for many years had been, in violation of them. According to our tabulation, on Funston Street itself, there were eight structures in the 100 block and seven in the 200 block which violated the restrictions. There were four-unit apartment houses on both sides of appellant, Stout.

The Rhodes construction which provoked this suit was an addition of 'four apartments to the rear of his existing four-unit building. While it is true that trivial violations are not significant, Ragan v. Mosher, Tex.Civ.App., 225 S.W.2d 438, and there are no eight-unit apartments in the two hundred block of Funston, where Stout lives; there were repeated violations of the restrictions against private residences, and we can not say that the judgment was without support in the evidence. Dellaughter v. Hargrove, Tex.Civ.App., 40 S.W.2d 253; Clifton George Co. v. Great Southern Life Ins. Co., Tex.Civ.App., 234 S.W. 705.

Appellant, Stout, by other points, states that special issue number four is a comment upon the evidence in calling attention to the filling station and apartments, and he also objects to the court’s failure to define abandonment. In our opinion, the first three issues provide a sufficient basis for the denial of the injunction, and any errors in the submission of the other issues are immaterial to the judgment. 7 Thompson, Real Property (Perm. Ed.) § 3649.

The judgment is affirmed.