text:
    Michael F. LEGGIO et al., Appellants, v. BRADLEY LAND AND DEVELOPMENT COMPANY, Appellee.
    No. 4009.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 12, 1965.
    Ginther, Erwin, Dillard & Caldwell, G. Ernest Caldwell, Houston, for appellants.
    Otto A. Yelton, Jr., Sam L. Sterrett, Jr., Houston, for appellee.
   COLLINGS, Justice.

Bradley Land and Development Company, a corporation brought suit against Michael F. Leggio, John Musachia, Jr. and Albert Daniel, for the possession of a house belonging to plaintiff, alleged to have been placed, through a good faith mistake, upon a lot owned by Leggio subsequently sold to Musachia. In the alternative, plaintiff sought to recover damages for unjust enrichment in an amount equal to the increased value of defendant’s lot upon which the house had been placed. Security National Life Insurance Company intervened and asserted a lien against the house and lot. The case was tried before the court without a jury and judgment was rendered that plaintiff take nothing against Albert Daniel, the house mover, but that plaintiff have judgment, jointly and severally, against Leggio and Musachia for $1388.00, the value of the improvement to defendant’s lot, with 6% interest per an-num, and that plaintiff have a lien against the house and lot securing the payment of such judgment, subject to the lien of Security National Life Insurance Company. The defendants Leggio and Musachia have appealed.

Appellants urge that the court erred in granting appellee, Bradley Land and Development Company judgment for the value of such improvements to their lot because, appellants contend, in effect, that (1) there was no showing that appellee was laboring under a mistaken belief as to the the ownership of the lot held in good faith without negligence; (2) that the evidence conclusively shows that appellee was guilty of negligence as a matter of law; (3) that the implied finding of fact that appellee was without negligence is not supported by evidence, and (4) is against the great weight and preponderance of the evidence.

The record shows that in 1960, appellee, Bradley Land and Development Company, purchased a house and lot in the City of Houston from a Mr. and Mrs. Hoyt. The evidence further indicates that appellee’s president, Mr. Harry E. Bradley, in 1961 told Tessel B. Harrison, a colored employee of appellee that if he, Harrison, would buy a lot that appellee would finance such purchase and would have the house appellee purchased from the Hoyts moved from the lot on which it was situated to the lot purchased by Harrison; that ap-pellee would see that some improvements were made to the house and obtain financing for the whole transaction. Bradley instructed Jesse Lopez, another of appel-lee’s employees, to handle the details of moving the house.

Tessel Harrison did purchase a lot, being lot 10, block 14 of the Flower City Addition, a subdivision of Harris County, and the lot was paid for by appellee. Jesse Lopez, in compliance with appellee’s instructions, made arrangements with Albert Daniel, a house mover, to move the house and since he did not know where the lot was, told Harrison to show Mr. Daniel the lot and how the house should be located thereon. Harrison took Mr. Daniel to the neighborhood where his lot was located but by mistake staked out and pointed out as his property Lot # 11, Block 14, which was next to Harrison’s lot but which belonged to appellant, Leggio. Based upon Harrison’s instructions Mr. Daniel obtained moving permits, moved and placed the house on Leggio’s lot. The charge for moving the house was paid by Houston Aviation Products Corporation, a corporation connected with appellee. After the house was moved Tessel Harrison had the plumbing, sewage and gas connected and appellee paid the expense. Harrison also did some work on the house, including repair of the roof.

Harrison remained in appellee’s employment for only two or three months after the house was moved and then on October 16, 1961, deeded his lot # 10 to appellee. He was not called as a witness because he could not be found. Appellee’s employee, Lopez, made several trips to the premises after the house was moved but appellee did not discover that the house was on Leggio’s lot # 11, instead of Lot 10, which had been bought by Harrison, until appellant Musa-chia started rather extensive repair work on the house.

Lots Nos. 10 and 11 adjoin each other, are the same size, are similar in appearance and are located at about the center of Block # 14. Lopez testified that to mistake one of these lots for the other would be normal. Harrison obviously believed that he owned the lot upon which he had the house placed, and his action in so placing the house was in good faith. Leggio testified that after he discovered the house on his lot he made diligent efforts to locate the owner but was unable to do so. He stated that his efforts to locate the owner of the house included an inquiry to the house mover, Mr. Daniel, but Daniel denied that such an inquiry was made of him. In 1962, Leggio sold his lot 11 upon which the house was mistakenly placed to Musachia. Musachia knew at the time he purchased lot 11 that the house had been placed thereon by mistake, and also knew that Leggio had not been able to locate the owner. Financing arrangements for this transaction were made through a loan company and the note and deed of trust made in connection therewith were, eventually, assigned to the intervenor Security National Life Insurance Company.

A person who, acting in good faith under a mistaken belief and without negligence, constructs or places improvements on land which belongs to another has the right to remove such improvements. Salazar v. Garcia, Tex.Civ.App., 232 S.W.2d 685, (Writ Ref.). No findings of fact were filed by the trial court and it must be presumed in support of the judgment that every fact supported by the evidence was found in favor of appellee. Western Management Corporation v. High Crest Realty Company, Tex.Civ.App., 331 S.W.2d 365. It is properly conceded by appellants that it was impliedly found by the court in support of the judgment that the house was in good faith by mistake placed upon Leggio’s lot and that appellee was not guilty of negligence. Appellants contend, however, that such implied findings have no support in the evidence and and that the evidence conclusively shows negligence on the part of appellant.

We cannot agree with appellants’ contention. In the first place appellee did not place the house in question upon Leggio’s lot. Appellee furnished the financing for its employee Harrison to purchase Lot # 10. The purchase of the lot was by Harrison and it is undisputed that the lot belonged to him. Appellee furnished the house in question to Harrison with the understanding that Harrison was to place it on his lot # 10 and that appellee would finance the entire transaction. Harrison, through mistake and obviously in good faith had the house placed on Leggio’s lot # 11, which adjoined his lot # 10. The two lots were in the same block, adjoined each other and were of the same size and similar in appearance. There is nothing to show and certainly nothing to show conclusively that Harrison although mistaken was not acting in good faith. Appellee’s employee, Lopez, made arrangements with the house mover to move the house, but Harrison, who owned Lot # 10, was the one who directed the moving to the location where the house was placed. Lopez did not know the location of Harrison’s lot, and the fact that he told and permitted Harrison to show Daniel where to place the house does not conclusively show negligence on the part of Lopez or his employer appellee. In. our opinion there was ample evidence supporting the implied finding that appellee was not guilty of negligence in connection with the placing of the house on appellant’s lot. An examination of the record as a whole does not reveal that such finding is against the great weight and preponderance of the evidence.

Appellants’ points are overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: GRISSOM, Chief Justice.

license: Public Domain

text:
    CECIL RUBY COMPANY, Appellant, v. Hollis JONES, Appellee.
    No. 3993.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 3, 1965.
    Rehearing Denied Jan. 21, 1966.

      L. W. Anderson, Dallas, for appellant.
    McMahon, Smart, Sprain, Wilson & Camp, Hugh F. Rives, Jr., Abilene, for appellee.
   GRISSOM, Chief Justice.

Hollis Jones sued Cecil Ruby Company in the District Court of Eastland County for damages to his land. The defendant filed a plea of privilege to be sued in Bexar County. The plea was overruled and the defendant has appealed.

Appellant’s points are that the court erred in overruling its plea of privilege because (a) the plaintiff did not present evidence that the defendant was responsible for the damages to his land, (b) or the amount of damages and, therefore, jurisdiction was not shown. Under 'exception 14 to Article 1995, Vernon’s Ann.Civ.St., the plaintiff was required to establish only two venue facts: (1) that the suit is for damages to land and (2) that his land lies in the county in which he filed the suit. Plaintiff’s petition shows that his suit is one for damages to land. He testified that his land is in Eastland County. Nothing more was required. Under exception 14 the only venue fact upon which evidence is required is that plaintiff’s land is in the county in which the suit is filed. The other venue fact, that plaintiff’s suit is for damage to said land, is established by the facts alleged in plaintiff’s petition.

The plaintiff was not required to prove on the venue hearing that the defendant was responsible for the damage to his land. Piazza v. Phillips, 153 Tex. 115, 264 S.W.2d 428; Compton v. Elliott, Tex.Com.App., 26 Tex. 232, 88 S.W.2d 91, 93; Advanced Exploration Co v. Spires, Tex.Civ.App., 256 S.W.2d 247.

Appellant also contends that its plea should have been sustained because the plaintiff did not prove the amount of damages suffered was within the jurisdiction of the District Court of Eastland County. The amount in controversy is determined by the plaintiff’s petition. Neither the amount of damages sustained nor defendant’s responsibility therefor is a venue fact required to be established by the evidence under exception 14. However, the petition disclosed the jurisdiction of the trial court by virtue of Article 1970-141a.

All of appellant’s contentions have been considered and are overruled. The judgment is affirmed.


author: ARCHER, Chief Justice.

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. RAILROAD COMMISSION of Texas et al., Appellees.
    No. 11353.
    Court of Civil Appeals of Texas. Austin.
    Jan. 5, 1966.
    Rehearing Denied Jan. 26, 1966.
    William R. McDowell, Tom M. Lawty, Dallas, for appellant.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, T. B. Wright, Sam Kelley, Asst. Attys. Gen., Clark, Thomas, Harris, Denius & Winters, James H. Keahey, Austin, for appellees.
   ARCHER, Chief Justice.

This is an appeal from a summary judgment sustaining the Railroad Commission’s Order No. 13639-R.

A joint motion for summary judgment by the defendants Railroad Commission of Texas, Carling Brewing Company, Crown Cork & Seal Company, Inc., and Carter Foundation Production Company was made, and hearing set, reply having been made.

The Order of the Commission is as follows :

“RAILROAD COMMISSION OF TEXAS TRANSPORTATION RATE SECTION RAILROAD FREIGHT CIRCULAR NO. 27309
DOCKET NO. 13639-R SWITCHING LIMITS OF MISSOURI PACIFIC R.R. AT FORT WORTH, To extend to include Carling Brewing Co. and Carter Foundation Production Co., and to establish terminal switching charge to apply between said locations and interchange with other railroads in Fort Worth switching limits.
Austin, Texas, June 12, 1964.

The above cause involves an application filed by Missouri Pacific Railroad Company (hereinafter referred to as MP) for authority to extend their switching limits at Fort Worth as governing in connection with road-haul service, to include Carter Industrial Park and the plant of Carling Brewing Company under construction, and Carter Foundation Production Company, the latter being a development of some 2200 acres, a portion of which at least is being developed for industrial purposes. The application to extend the switching limits carried with it establishment of switching charge of $25.00 on cars handled by MP between Carter Park and interchange connections with other railroads in Fort Worth to be absorbed by said other railroads on shipments they handle in road-haul service.

From the present switching limits of MP at Fort Worth to the turn-out into Carter Park is 6.25 miles, and from the turn-out to the plant of Carling Brewing Company is 3 miles, involving an extension of 9.25 miles.

The reciprocal (terminal) switching charge in connection with road-haul shipments at Fort Worth is generally $15.83 per car. To justify a charge of $25.00 per car on cars switched between the Carter Park location and interchange connections with other lines in Fort Worth, on road-haul traffic, MP presented what is purported to be costs of performing the service for 60,000 pound and 70,000 pound net loads, for which the out-of-pocket costs were shown to be $24.25 and 24.46, and fully distributed costs $33.11 and $34.80, respectively.

Under the proposal the $25.00 charge would be absorbed by the other Fort Worth lines on shipments to or from Carter Park in road-haul service to points on their lines beyond Fort Worth. The shippers or receivers of freight at Carter Park would not be called upon to pay the $25.00 charge.

The Carter Park location is a new industrial area being developed by Carter Foundation Production Company, and Carling Brewing Company is erecting a brewery in that location. Crown Cork and Seal Company is constructing, or intend constructing, a plant in Carter Park; and it is the purpose to locate other industries at the location.

Carter Park Production Company, Car-ling Brewing Company and Crown Cork and Seal Company, along with the Fort Worth Chamber of Commerce and the Fort Worth Freight Bureau desire to have the Carter Park location placed in the switching limits so that it may 'be accorded reciprocal (terminal) switching the same as other industries in Fort Worth, and have negotiated with MP in an effort to accomplish that purpose. These interests, however, generally opposed the $25.00 charge. Carling fears that if the other Fort Worth railroads have to absorb $25.00 on cars to or from their plant, compared with $15.83 charge generally applicable between other locations in Fort Worth, such railroads might be reluctant to furnish the needed cars which in turn might result in some additional expense to them. Carter Foundation Production Company desires that the switching to and from Carter Park location be handled at the same charge, whatever it may be, that applies between other locations in Fort Worth. The Fort Worth Chamber of Commerce and Fort Worth Freight Bureau opposed the $25.00 charge because they fear it might be a deterrent in their efforts to locate other industries in Carter Park at Fort Worth but would not oppose it if it would not adversely affect their ability to do so. The interest of all of these parties seems to be to have the same switching charge to or from Carter Park as applies generally between other locations in Fort Worth, some of which they believe involve distances as great if not greater than the distance to and from Carter Park.

There is an intervening area between Carter Park and the present switching limits which the application of MP herein does not specifically ask to be included in the switching limits. To extend the switching limits to Carter Park, however, while maintaining the intermediate locations, at which there is some industry, separately and subject to rates based on distance therefrom, would have the effect in some instances of maintaining higher rates for the shorter than for the longer distances, which should be avoided.

We are of opinion and find that the application to extend the switching limits of MP at Fort Worth to include the Carter Park location and industries therein or to be located therein, should be approved; and further, that the extension of the switching limits should be made to include also the area intermediate between the turn-out into Carter Park and the present switching limits, thereby placing the line of MP between Carter Park and the present switching limits, in the Fort Worth switching limits.

We are further of opinion and find that as long as the general reciprocal (terminal) switching charge at Fort Worth is $15.83, the said charge should be made to apply also between the Carter Park location and the intermediate area, on the one-hand, and interchange connections with other railroads in Fort Worth, on the other hand, on shipments they may handle to or from points on their lines; the said switching charge to be subject to the current switching absorption rule.

Public hearing having been held in the above numbered and entitled cause, pursuant to notice duly given, and the evidence there presented having been considered, and having entered above herein our opinion and findings, which opinion and findings are made a part of this order, it is ordered by the Railroad Commission of Texas that the road-haul switching limits of the Missouri Pacific Railroad Company at Fort Worth, Texas, be extended to the extent provided in our said findings above herein and to be subject to reciprocal (terminal) switching charge and current switching absorption rules, as provided in our said findings.

It is further ordered that our order herein, and the tariff amendments to be based thereon, shall become effective five days after publication by Missouri Pacific Railroad Company, but not later than July 15, 1964.

A reconsideration of said Order was had and the petition of the plaintiff was denied.

An order granting defendants’ motion for summary judgment was granted and reads:

“On the 9th day of April, 1965, came on to be heard the Joint Motion for Summary Judgment of the Defendants, the Railroad Commission of Texas and its members and Carling Brewing Company, Crown Cork & Seal Company, Inc., and Carter Foundation Production Company, pursuant to Rule 166-A, T.R.C.P. It appearing to the Court that due notice had been given and that all parties appeared through counsel of record and announced ready, the Court proceeded to consider the pleadings, evidence and arguments of counsel on said Motion for Summary Judgment. The Court is of the opinion that there are no material fact issues in this case and that Defendants are entitled to judgment as a matter of law; it is therefore
ORDERED, ADJUDGED and DECREED that Plaintiff take nothing by this suit at its cost. To which action of the Court Plaintiff Missouri Pacific Railroad Company in open court duly excepted and gave notice of appeal to the Court of Civil Appeals for the Third Supreme Judicial District at Austin, Texas.
SIGNED, RENDERED and ENTERED this 16th day of April, 1965.
/s/ Herman Jones
JUDGE HERMAN JONES”

There is only one point in this case and it is that the trial court erred in granting defendants’ motion for summary judgment.

Appellant contends that the switching rate had prescribed an unreasonable and unjust charge and cite Article 6453, V.A.C.S. as a basis to enjoin the Order and allege that the rate of $15.83 fixed is $8.42 below out-of-pocket cost of providing the service and $18.28 below the fully distributed cost, and the revenue derived from switching Carter Industrial Park over appellant’s railroad under the charge prescribed does not yield sufficient revenue to pay for the cost of transporting it, and is unreasonable and unjust.

Appellant cites Railroad Commission v. Oil Field Haulers Ass’n., Tex.Civ.App., 369 S.W.2d 931 for the statement at p. 941 that “if the rates here are compensatory * * then it is not possible for them to be unreasonable or unjust * * * ”

The above case was reversed by the Supreme Court in 381 S.W.2d 183.

For the purposes of their joint motion for summary judgment appellees did not contest the factual allegations set out in appellant’s Paragraph IV of the First Amended Original Petition which sets out its application to extend its switching limits and to establish a charge of $25.00 per car and other allegations, but say that the allegations do not support a legal conclusion as set out in Paragraph V of the Petition and do not state a cause of action. Paragraph V alleges that the order is unreasonable and not supported by substantial evidence.

At the hearing before the Commission Carling, Crown Cork & Seal, the Carter Foundation and the Fort Worth Chamber of Commerce urged the Commission to include the Carter Industrial Park within the Fort Worth switching area at the area-wide charge of $15.83.

Under Article 6448, V.A.C.S., the Commission has the duty to “adopt all necessary rates, charges and regulations, to govern and regulate freight and passenger traffic” and is not restricted to considering applications on a “take it or leave it” basis, but may, on its own motion, if necessary, act.

Halbouty v. Railroad Commission, 163 Tex. 417, 357 S.W.2d 364.

Mr. C. R. McNamee, Rate Director for the Commission, in an affidavit attached to the motion for summary judgment, stated as follows:

“THE STATE OF TEXAS ] COUNTY OF TRAVIS f
BEFORE ME, the undersigned authority, a Notary Public in and for Travis County, Texas, on this day personally appeared C. R. McNamee, who by me duly sworn states on oath:
My name is C. R. McNamee and I live in Austin, Texas. I am the Transportation Rate Director of the Railroad Commission of Texas. As such it is my duty to hear applications, complaints and other matters relating to rates on freight moving intrastate between points in Texas by rail. It is also my duty among other things, to hear testimony presented in hearings before the Commission, and to make recommendations to the Commission for its consideration. I also have the general duty, among other things, of preparing the orders of the Commission, for the signatures of the Commissioners, after the Commission has reached its decision and instructed as to substance of the things which are to go into the order. I have been with the Railroad Commission 43 years.
Attached hereto as Exhibit 1 and made a part hereof for all purposes is a true and correct copy of the Commission’s Railroad Freight Circular 26742, Notice of Hearing in Docket No. 13,639-R. I held such hearing as the Commission’s Rate Director on July 16, 1963. At the outset of the hearing, counsel for the Missouri Pacific Railroad Company, Mr. M. D. Sampels, attempted to present the application on a package basis — that the Commission could either grant both the switching limits extension and the $25.00 charge or deny them both. I drew his attention to the notice and stated that the Commission could grant or deny either or both or fix the switching charge at any amount it found proper under the evidence. He then asked for and I granted a short recess to allow him to discuss the matter with the Missouri Pacific’s home office in St. Louis, Missouri. After the recess, he returned and stated:
‘Therefore, even in light of the fact that the Railroad Commission of Texas saw fit to broaden the issues in this proceeding so as to consider any charge that it determines just and reasonable, the Missouri Pacific wishes to go forward in this proceeding, and prove by competent evidence that a charge of $25.00 per car is fully justified and should be approved by the Commission at the same time that it places the Carter Industrial Area within the Fort Worth switching limits.’
The general reciprocal (terminal) switching charge at Fort Worth is $15.83. Such charge has been fixed by the Commission for eight other railroads serving Fort Worth as well as for the Missouri Pacific. Such charge has been in effect for the Fort Worth area since December 9, 1958, and, so far as I know, has never been attacked in court as unjust or unreasonable.
Attached hereto as Exhibit 2 - is a true and correct copy of Railroad Freight Circular 27309, the Commission’s Order in Docket No. 13639-R.
The facts set forth in this affidavit are within my personal knowledge, and I am competent to testify to them.
/s/ C. R. McNamee
C. R. McNAMEE
SUBSCRIBED AND SWORN TO BEFORE ME by the said C. R. Me-NAMEE this 10th day of March, 1965, to certify which witness my hand and seal of office.
/s/ Mary Ferguson
Notary Public in and for Travis County, Texas”

The Commission heard the statements and the above affidavit and had access and knowledge of its records and could take notice thereof, and the parties were given full opportunity to show that at the time the order was entered there did, or did not, then exist sufficient facts to justify the entry of the same. Cook Drilling Co. v. Gulf Oil Corp., 139 Tex. 80, 161 S.W.2d 1035.

The area-wide rate as fixed is compensatory for the area as a whole.

The judgment of the trial court is affirmed.

Affirmed.


author: MOORE, Justice.

text:
    TEXHOMA STORES, INC., Appellant, v. AMERICAN CENTRAL INSURANCE CO., Appellee.
    No. 186.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 6, 1966.
    Rehearing Denied Jan. 27, 1966.
    Wm. Andress, Jr., Andress, Woodgate, Richards & Condos, Dallas, for appellant.
    Webber W. Beall, Jr., Touchstone, Bernays & Johnston, Dallas, for appellee.
   MOORE, Justice.

This is an appeal from an order dismissing appellant’s suit “with prejudice” because appellant’s attorney refused to obey the order of the trial court directing him to deliver appellant’s income tax returns in their entirety for admission into evidence. Appellant, Texhoma Stores, Inc., brought this suit against American Central Insurance Co. upon a policy of fire insurance in the amount of $85,000.00 alleging a loss of $95,796.45 as a result of a fire in one of 'its stores. The insurance company denied liability contending that the insured, through its officers, agents and representatives, James Melton, Sr., Secretary-Treasurer and Ralph Ross, assistant store manager, voluntarily and intentionally set fire to the property and also that they, along with Mrs. James Melton, Sr., President of the corporation, misrepresented material facts as to the value of the stock of merchandise so that it was over-insured. Prior to the date of trial, the insurance company served a subpoena duces tecum upon Mrs. Melton requiring her to produce the corporate income tax returns for the year 1960-1961. Trial was before a jury. Mrs. Melton was the first and only witness to testify. Upon direct examination, she testified that as of December 31, 1961, she owned 400 of the 500 shares of capital stock of the corporation and that her husband did not own any stock. Upon objection of counsel for the appellee, the court withdrew from the consideration of the jury her testimony relating to the ownership of the stock by her husband ruling that the records of the company would be the best evidence. Upon cross examination, counsel for appellee made demand for the corporate income tax returns which were produced, and submitted to the trial judge for examination. In submitting the returns, counsel for appellant while contending that the returns were privileged, offered to allow the same to be examined by the trial court, stating that appellees could have whatever information the court found to be material and relevant. Thereupon, counsel for ap-pellee listed numerous items of information which they desired from the returns and the trial judge, with the assistance of counsel for the appellant, supplied the requested information covering the inventory of the merchandise, net profit, salaries, taxable income and the amount of income taxes paid. During the process of this discovery procedure which was conducted outside the presence of the jury, the trial judge interrupted and the following colloquy ensued between the court, Mr. Andress, counsel for appellant, and Mr. Touchstone, counsel for appellee:

“THE COURT: Wait a minute. The Supreme Court case here says it is discretionary with the Judge, to let what he thinks is necessary to the case to go in—
* * *
“THE COURT: Now, I am going to let the whole taxes go in.
“MR. ANDRESS: No, sir. I am going to object to the whole taxes going in. There are things in here that is none of their business, about what they spent for various and assorted things, contributions or anything of that sort.
“THE COURT: There is some stuff in there that is going to make somebody look like they committed perjury here yesterday, too.
“MR. ANDRESS: Well, this is confidential information—
“THE COURT-. I know, but look there and—
“MR. ANDRESS: Well Your Hon- or, I am very sorry, but I am not going to turn these tax returns over until I get an order from a higher court. The laws of the United States of America says that these are confidential. I will furnish them the information that may be necessary, but I will not turn the returns over to them.
“THE COURT: All right then, I will just have to dismiss this case here if you won’t obey my order. I don’t want to have to put you in jail, but I will dismiss the case.
“MR. ANDRESS: Let the record so show.
“THE COURT: Now, what do you want me to do?
“MR. ANDRESS: I am saying this. That I will turn over to them any pertinent information for which they ask in connection with it, but I will not turn over the corporation income tax returns for them as a fishing expedítion because they are privileged under the laws of the United States of America.
“THE COURT: They may be, but here you are saying that they were not insolvent and you have got a very material issue. The lady says she owns Ninety Percent of the stock and the income tax returns shows she—
“MR. ANDRESS: Now Your Hon- or, you are revealing information that has not been asked for.
“THE COURT: That is the reason I am going to let it in. Now, do you want to let it in or do you want to dismiss your suit?
“MR. ANDRESS: Dismiss the suit.
“THE COURT: All right.
“MR. ANDRESS: I will not do it. We except and give notice of appeal to the Court of Civil Appeals for the Fifth Supreme Judicial District of Texas. Your Honor, let the record show that when I said dismiss the suit, I was not acquiescing in the Court’s action.
“THE COURT: I understand. All right. Listen to me. Plaintiff’s counsel refused to obey the Court’s order that the 1961 and ’62 copies of the—
“MR. ANDRESS: ’60 and ’61 Judge.
“THE COURT: ’60 and ’61 copies of the Plaintiff’s income tax reports be offered in evidence in accordance with the Court’s orders, Plaintiff’s cause of action is dismissed, to which the Plaintiff excepts and gives notice of appeal.”

After dismissing the jury, the court made this statement:

“THE COURT: Let the record further show that the 1960 and 1961 income tax records show that Mr. Melton owns Eighty Percent of the stock and Mrs. Melton doesn’t own any of it.”
The judgment recites that after careful examination the court was of the opinion that the tax returns in their entirety were material and relevant to the issues on trial and for that reason were admissible in evidence and that because of plaintiff’s disobedience to deliver the tax returns for admission into evidence, the case was dismissed with prejudice.

It is conceded by both parties that as a general rule income tax returns are not wholly privileged documents, but are subject to discovery to the extent of relevancy and materiality which must be shown. Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434; Maresca v. Marks, (S.Ct.) 362 S.W.2d 299.

Since the income tax returns were not introduced in evidence, or made a part of the record on appeal, we are not in a position to determine whether the returns in their entirety were relevant and material to the issues involved or whether the trial judge abused his discretion in so ruling. However, we have reached the conclusion that a determination of that question is not necessary.

The appeal is not predicated upon the order directing the income tax returns be delivered for introduction into evidence. The appeal is from the order of the court dismissing the appellant’s suit “with prejudice” because of the refusal of the appellant’s attorney to comply with the order of the court.

Appellant contends that the trial court was without authority to make an order dismissing its cause “with prejudice” and that same was void because not within the court’s authorized jurisdiction. Appellee, on the other hand, contends that the order of dismissal was discretionary and that Rules 167 and 170, Texas Rules of Civil Procedure, and authorize such procedure.

Rule 167 relates to discovery. It specifically authorizes the court to order the production, inspection and copying of private documents “which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody, or control.” Alternative penalties are provided for a refusal to make discovery as required by Rule 167. These penalties are found in Rule 170 and among them is one authorizing the court to dismiss the action or proceeding.

A district judge has and should have broad and ample powers to enforce his orders. However, the power to close the doors of the courthouse and refuse to proceed with a judicial hearing is a highly drastic sanction capable of abuse and resulting injustices. The penalty provided in the Rule is a harsh one and should be imposed only when clearly authorized. Sears, Roebuck & Company v. Hollingsworth, 156 Tex. 176, 293 S.W.2d 639.

At the time the coercive order was entered, the trial court refused to exercise his power of punishment for contempt. He chose, rather, to make use of the drastic order which assessed a penalty upon the appellant corporation before determining guilt of either the corporation or its attorney.

The income tax returns were before the court and the trial court clearly had the authority, under penalties of contempt, to require the same to be delivered for introduction into evidence. Rules 177a and 184, T.R.C.P.; Sears, Roebuck & Company v. Hollingsworth, supra; Dobbins v. Gardner (Tex.Civ.App.), 377 S.W.2d 665.

The trial court thus had two alternative methods of enforcing the production of the documents, either by contempt or by dismissal. The selection of the method of coercion within itself involved a matter of judicial discretion. In our view, the appellant should not have been deprived of its privileges as a litigant "until his contempt has been adjudicated rightfully.” 17 C.J.S. Contempt § 97, page 276. We therefore reach the conclusion that a proper exercise of judicial discretion, under the facts and circumstances presented here, would require a determination of the question of contempt before invoking a drastic order which fixes a penalty before a determination of guilt. Ordinarily, such procedure is effective to require the production of documents by the attorneys. The procedure employed here, however, would be effective only against the litigant. Had the trial court sought to enforce his order by contempt rather than by dismissal, the rights of the litigant would have been protected until the question of the power, authority and jurisdiction of the court to enter the order could have been tested in habeas corpus proceedings. Under all the facts and circumstances, we think the trial court abused his discretion in failing to exhaust other available remedies prior to ordering a dismissal. There is no showing that the corporation or any of its officers were in any way responsible for the conduct of their attorney. We think the appellant and its officers had a right to rely upon the trial judge to at least make an effort to require obedience to his order before assessing punishment against the corporation.

In addition to this, if the trial court had any authority to impose the penalty of dismissal “with prejudice” it must be found in Rule 170. We have carefully examined Rule 170 and fail to find anything therein which would indicate that the trial court is given authority to dismiss a cause of action “with prejudice.” While the rule does provide that upon failure to obey an order made under Rule 167, the trial court is authorized to dismiss the action by proceedings, it nowhere provides that the same may be dismissed “with prejudice.” Insofar as we have been able to determine, the sanction here invoked has no basis in either constitutional or statutory enactment, and we have been unable to find any decisions holding that a trial judge has such power. For this additional reason, we have therefore reached the conclusion that the trial court had no authority to penalize the appellant by completely terminating its litigation. Sears, Roebuck & Company v. Hollingsworth, supra; Murphy v. Stigall (Tex.Civ.App.), 352 S.W.2d 918.

For the reasons stated, the judgment of the trial court will be reversed and the cause will be remanded for a new trial

Reversed and remanded.


author: HUGHES, Justice.

text:
    Ben VERASTIQUE, Appellant, v. TERRACE ASSOCIATES, LTD., Appellee.
    No. 11348.
    Court of Civil Appeals of Texas. Austin.
    Jan. 5, 1966.
    Rehearing Denied Jan. 26, 1966.
    Sneed & Vine, J. P. Darrouzet, Houghton Brownlee, Jr., Austin, for appellant.
    McGinnis, Lochridge, Kilgore, Hunter & Wilson, Lloyd Lochridge, David Franklin, Austin, for appellee.
   HUGHES, Justice.

Ben Verastique, appellant, sued Terrace Associates, Ltd., appellee, on a sworn account totaling $4,182.29, for attorney’s fees and costs, alleging that the account sued on was for fruits and vegetables furnished the Terrace Motor Hotel in Austin, Texas, which motel “has been operated as such by Austin Terrace, Inc., a corporation now in bankruptcy, for the benefit of and under a contract with” appellee, and that appellee, by reason of such contract was liable for such account, and that Austin Terrace, Inc. was the alter ego of appellee.

Trial was non-jury. Judgment was rendered that appellant take nothing by his suit.

The case was tried upon stipulations. The relevant facts are:

On or about' May 1st, 1958, appellee owned Terrace Motor Hotel, Terrace Motor Hotel Coffee Shop No. 1, Terrace Motor Hotel Restaurant No. 2 and certain other property which was subject to a lease by appellee to Newmark & Co., a New York Partnership.

Simultaneously, to-wit: on May 1st, 1958, Newmark & Co. assigned this lease to the Sherator Corporation, which is also known as the Sheraton Austin Corporation, which, in 1959, assigned the lease to Austin New-mark, Inc. (its name was changed to Austin Terrace, Inc. September 24, 1963), who held the same as a tenant from 1959 until the corporation took bankruptcy on March 17, 1964.

Newmark & Co., a New York Partnership, was composed of Aaron Gural, Jerry S. Handler, Jack Shenker, R. Siegal and Leonard S. Abrams up to February 1, 1964, when Abrams dropped out, and is a real estate organization which buys and sells and manages real estate and which has been in business for about 20 years. The office of this partnership is located at 1440 Broadway, New York, New York. The percentages of ownership in Newmark & Co. and in Austin Terrace, Inc., as of 1959, were as follows:

Both appellee and Austin Terrace, Inc. have addresses at 1440 Broadway, New York City, New York.

The exact number of shares in Austin Terrace, Inc. is not reflected in the record, however, there is shown in a claim by New-mark & Co. in account with Austin Terrace, Inc. an item in the amount of $2,500.00 for the capital stock, this item being dated September 30, 1959.

Austin Terrace, Inc., (formerly Austin Newmark, Inc.) was organized to take over the lease from Sheraton Corporation. This was accomplished in July of 1959 and the take-over of the lease from the Sheraton Corporation was primarily discussed and arranged by the then partners of Newmark &, Co., who became the only stockholders of Austin Terrace, Inc.

By the year 1961, the liabilities of Austin Terrace, Inc. had exceeded its assets according to the testimony of its own bookkeeper. In the year 1961 the excess was close to $300,000.00 of the liabilities over assets. By the year 1964 the excess of liabilities over assets was approximately one-half million dollars. This condition was brought about by everyday operating expense and because of money that was due to Newmark & Co., money which had been advanced for the operation of Austin Terrace, Inc. New-mark & Co. had guaranteed a note of Austin Terrace, Inc. in the amount of $40,000.-00 prior to the time Austin Terrace, Inc. became bankrupt, of which $16,500.66 has been paid by Newmark & Co.

At all times pertinent to this lawsuit, appellant sold to Austin Terrace, Inc. the items at the prices sued for in this lawsuit.

Appellee, Terrace Associates, Ltd., is a limited partnership doing business in Texas.

No owner, or partner, of appellee, Terrace Associates, Ltd., owned any stock in Austin Terrace, Inc., or any interest in Newmark & Co. These latter two companies were completely owned by the persons and in the proportions shown above. None of these persons owned any interest in appellee, Terrace Associates, Ltd.

Appellant has one point of error which is that since the record shows that Austin Terrace, Inc. was indebted to him and that it was the alter ego or agent of appellee that appellee was liable for such debt.

It is our opinion that there is no factual basis to support appellant’s point. There is no evidence that Austin Terrace, Inc., was the agent or alter ego of appellee.

The only connection between appellee and Austin Terrace, Inc. and the other associations named above was the lease executed by appellee with Newmark & Co. It. was stipulated that appellee “had no agreement, verbal or written, with Newmark & Co. or Austin Terrace, Inc. with respect to the Terrace Motor Hotel * * * other than the lease contract. * * * received no payments either directly or indirectly on account of the operation of Terrace Motor Hotel other than rental paid under the lease * * * at no time had any salaried employee connected with the operations of the Terrace Motor Hotel * * * ”

In addition, as shown supra, none of the general or limited partners of appellee owned any interest in Newmark & Co., Austin Newmark, Inc. or Austin Terrace, Inc. at any time.

Since the lease executed by appellee is the only link connecting it with Austin Terrace, Inc., we must examine it to determine whether it creates a relationship of agency between the parties or that of landlord and tenant. Appellant gives us little assistance in analyzing the lease, saying merely that, “This lease covers just about every conceivable contingency that could occur. We shall not go into the lease in detail, but simply note to the Court that on page three of the lease and page four along with other cross paragraphs, the lease admits of no other use than that of a first rate motel, and so limits the lessee that he can do nothing else except run a first class motel, and he is even limited in doing that.”

We have examined the lease in question and find it comprehensive, very comprehensive. Most of its provisions relate, however, not to the use of the property by the lessee, but to the protection of the landlord in the collection of his net annual rental of $330,-000.00 and in the preservation of the property. Most every contingency in these matters seems to have been anticipated and provided for. These provisions, for the most part, are not activated until there is default by the lessee or the property suffers loss or damage. The provisions of the lease respecting the use of the property by the lessee are:

“Tenant covenants and agrees that it will use said premises only for the purpose of conducting therein and thereon a motel, restaurant and suitable associated retail business and for no other purpose, and Tenant further agrees to operate the said motel and restaurant in keeping with acceptable standards of a first-class operation of similar character. Nothing in the foregoing sentence shall prohibit Tenant from operating on the premises a private membership organization. Tenant will not use or suffer said premises to be used for any disorderly, immoral or unlawful purposes and will not sufA, or commit any waste to, in, or upon said building, furniture, furnishings, fixtures, roadways and premises in general.
3. A. Tenant covenants and agrees to maintain the amount and quality of the chattels, furniture, furnishings and equipment now used and installed in said motel, in a first-class, clean and sanitary condition, making such repairs and replacements as may be necessary and proper to maintain the character and quality of the chattels, furnishings, fixtures and equipment appropriate for the operation of a high-class motel. In performance of its obligation hereunder, Tenant shall have the right to dispose of such chattels, furnishings, furniture and equipment from time to time during the term hereof or any renewal term provided that it shall replace same with items of at least equal quality and utility.
B. Tenant shall maintain high standards of service, cleanliness and quality. During the term hereof, the motel, together with all departments thereof, shall be kept open to the public at all times which the Tenant shall reasonably determine, and be managed and conducted in a first class and proper manner.
C. The Tenant will at all times comply with all laws, ordinances and regulations in the operation of said motel, and at no time will the Tenant do or perform, or with knowledge suffer or permit to be done or performed, any act of omission or commission which will cause or suffer the operation of said motel to be abated or interfered with. Landlord represents that the building and improvements thereon will, at the commencement of the term hereof, comply with all such laws, ordinances and regulations.
# ⅜ ⅛ ⅝ * ⅜
The Tenant upon performing and observing the covenants and conditions herein on the part of the Tenant to be performed shall quietly and peaceably hold and enjoy the leased premises during the term of this agreement of lease, subject to the terms of said lease.
* * * * * *
Notwithstanding anything to the contrary herein contained, the Tenant shall not and will not use the demised premises for any unlawful purpose or any purpose not in compliance with the zoning ordinances and/or building regulations adopted by any governmental authority having control of the type of use to which the premises may be put and any certificate of occupancy relating to the demised premises, and the Tenant shall throughout the term of this lease, and any extension term, execute and comply with, at its own cost and expense, all laws, rules, orders, ordinances, notices and regulations at any time issued or in force which may be applicable to the demised premises or the occupation thereof, of any governmental authority having jurisdiction thereof, together with every department, bureau and official thereof, and of the Board of Fire Underwriters or similar body in the locality. It is the intention of the parties hereto that the Tenant shall, will and hereby does assume full and entire responsibility, in connection with the demised premises.”

We do not find these provisions, or any or all of the provisions in the lease, sufficient, as a matter of law, to create the relationship of master and servant between the parties thereto. There was no attempt, as we view it, on the part of lessor to control lessee in the details of the operation of the motel. The rent was a fixed rent. It did not depend upon the income from the property. The lessee could charge the public for the use of the premises and for his services what he pleased. He could do business with whom he pleased.

The limitations upon the use of the demised property were general in nature and of a character not uncommon in leases of commercial property. Certainly, it is not unusual for landlords to restrict the use of the property to a certain type of business, or to provide that such business shall be conducted in a first class manner, consistent with law and morality.

We find nothing in the record to indicate that this lease was a subterfuge or that it is anything except what it purports to be. In our opinion, it created the relationship of landlord and tenant between the parties, and nothing more.

We overrule appellant’s point and affirm the judgment of the trial court.


author: DUNAGAN, Chief Justice.

text:
    H. H. BOUCHER, d/b/a H. H. Boucher Company, Appellant, v. CITY PAINT & SUPPLY, INC., Appellee.
    No. 176.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 13, 1966.

      Jerry Kelfer, Waitz, Bretz & Collins, San Antonio, for appellant.
    William T. Burke, Jr., Palmer, Green, Palmer & Gilmore, Dallas, for appellee.
   DUNAGAN, Chief Justice.

This is a suit on open account. Appel-lee is a corporation engaged in business in San Antonio, Texas, selling paint, wallpaper and lacquer. Appellant is a resident of Dallas County, Texas, who owned an interest in two apartment houses in San Antonio, Texas, known as Grayson House Apartments and Le Chalet Apartments. Appellant had business dealings with the appellee in connection with his ownership and management thereof, prior to the transactions involved in this suit. On or about September 28, 1961, appellant entered into a contract with Dr. H. N. Roberts to supervise the erection and construction of an apartment house that Roberts desired to build at 6000 Blanco Road, in the city of San Antonio, Bexar County, Texas, for a fee of $10,000.00. Dr. Roberts ran out of money and appellant ceased to work for him on or about March 20, 1962.

The contract between Dr. Roberts and appellant Boucher contained the following paragraphs we think pertinent here:

“That we, Dr. Herbert N. Roberts, hereinafter called First Party, and Harry Boucher, hereinafter called Second Party, enter into and contract the following agreement;
“WHEREAS, First Party is desirous of building an apartment building located on the real property described as Block ONE (1), New City Block 12412, Northcrest Hills, Unit 2, situated within the corporate limits of the City of San Antonio, Bexar County, Texas, having a mail address of 6000 Blanco Road, said property fronting west 325.73 feet on Blanco Road, 220 north on Oban Drive, east 325.89 feet on Godfrey Drive and south 220 feet on Barchester Drive, and
“WHEREAS, Second Party is desirous of supervising the construction of said apartment buildings on said site and to see that same is constructed in a good and workman like manner and in accordance with the plans and specifications;
“THEREFORE, First Party and Second Party enter into the following agreement,
WITNESSETH:
“It is agreed and understood that Second Party will supervise the construction of said apartment buildings and see that same is constructed in a workmanlike manner so that said real property will be improved with six two-story brick veneer garden type apartments containing twenty-four living units to be constructed in accordance with the complete and final plans and specifications drawn by Malone-Hilliard & Associates, Architects and Planning Consultants of Arlington, Texas.
⅜ * *
“It is further agreed and understood that the Second Party shall receive the total sum of $7500.00 for his services, payable $1500.00 per month for a period of five months, payments to be made on the 1st day of each month, the first payment to be made on the 1st day of July, 1961, and all of said payments to be paid when due provided that said contract is performed in accordance with the instructions of First Party and in a good and workmanlike manner.”

The contract further provides that the Second Party shall negotiate and enter into sub-contracts but that it is expressly understood and agreed that First Party shall approve all said contracts before they are actually consummated and before any monies are paid out under any sub-contract, that the payment shall be approved by First Party and by the Main Bank & Trust Company of San Antonio.

Appellee instituted this suit against the appellant, H. H. Boucher, upon a sworn account on or about September 12, 1962, alleging as follows:

II.

That, heretofore, to-wit, at the special instance and request of the Defendant, Plaintiff sold and delivered to him as buyer, in the regular course of business, the goods, wares and merchandise shown in Exhibit “A”, which is duly verified and hereinafter attached and made a part hereof. That the Defendant hereby became bound to pay to Plaintiff on demand so much money as said goods, wares and merchandise were reasonably worth.

III.

That such goods, wares, and merchandise on such dates so delivered were as listed in Exhibit “A” and were reasonably worth the several sums of money respectively set out in connection with them.

Attached to said petition was the statement of the alleged account, which statement neither showed the nature or character of the items sued for nor the unit price thereof.

Appellant denied the account under oath, and specially pleaded his contract with Dr. Roberts, attaching a copy thereof to his answer, and alleging, in abatement, that Roberts was both a necessary and proper party to the appellee’s suit. He further alleged that if the account sued upon was due and owing, which was not admitted but denied, that it was due and owing by Roberts and not by appellant.

Trial was to the court sitting without a jury on December 21, 1964, and upon conclusion of the testimony, the court took the matter under advisement and thereafter on the 17th day of February, 1965, rendered judgment for the appellee against the appellant for the sum of $765.81 plus $230.00 attorney’s fees, plus interest and costs, from which judgment this appeal was perfected.

The appellant’s first four Points of Error are as follows:

First Point

The court erred in rendering judgment for the appellee and against appellant because there is no competent proof of the sale of goods by appellee to appellant.

Second Point

The court erred in rendering judgment for the appellee against appellant because there is no competent proof of the delivery of goods by appellee to appellant.

Third Point

The court erred in rendering judgment for the appellee and against appellant because there is no competent prooí that the persons who signed appellee’s invoices were the agents, servants or employees of appellant.

Fourth Point

The court erred in rendering judgment for the appellee and against appellant because there is no competent proof that the signatures appearing on appellee’s invoices are genuine.

No findings of fact or conclusions of law were filed by the trial court and the case having been tried to the court without the aid of a jury, we must determine whether there was any evidence to support the judgment and the implied findings of fact incident thereto, and in doing so will consider only the evidence most favorable, and disregard that opposed, to these issues. Opryshek v. McKesson & Robbins, Inc., 367 S.W.2d 367, (Tex.Civ.App.) 1963, n. w. h.; Renfro Drug Co. v. Lewis, 148 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114.

Appellee filed a verified account showing that appellant was indebted to it in the sum of $765.81. This verified account was denied under oath by appellant, thus appellee was confronted with the necessity of establishing each and every item of its account by legal and competent evidence. This it failed to do. Interstate Minerals, Inc. v. Harroun, 173 S.W.2d 547, (Tex.Civ.App.) 1943, n. w. h.; Major v. Meinrath Brokerage Co., 116 S.W.2d 861, (Tex.Civ.App.) 1938, n. w. h.; J. E. Earnest & Co. v. Word, 137 Tex. 16, 152 S.W.2d 325, 1941; Taylor v. Wright Sales Company, 357 S.W.2d 824, (Tex.Civ.App.) 1962, n. w. h.; Trice Contract Carpets & Furniture, Inc. v. Martin, 334 S.W.2d 554, (Tex.Civ.App.) 1960, n. w. h.

In the case of Burtis v. Butler Bros., 243 S.W.2d 235, (Tex.Civ.App.) 1951, n. w. h., the court said:

“ * * * A counterpart of Rule 166-A, Summary Judgment, is Rule 185 for speedy ascertainment of fact issues in a suit on sworn account; it providing that in absence of an affidavit of denial, the opposing party 'shall not be permitted to deny the account.’ Conversely, an affidavit by a defendant denying the justice of a sworn account has the effect of neutralizing the affidavit thereto made by the plaintiff. ‘Upon filing of the denial the plaintiff’s account stands as though it had not been verified; its character as prima facie evidence is destroyed, and the burden rests upon the plaintiff to prove his case as at common law.’ ”

This court in Parker v. Center Grocery Company, Inc., 387 S.W.2d 903, (Tex.Civ.App.) 1965, n. w. h., held that where a defendant denied the account in toto by filing its sworn denial under the provisions of Rule 185, Texas Rules of Civil Procedure, that the effect of the defendant’s sworn denial was to put the plaintiff on proof of its case by a preponderance of the evidence as at common law. That the essential elements of such proof are, inter alia, (1) sale and delivery of the merchandise and (2) that the amount of the account is just, or in other words, that the prices charged are in accord with an agreement or in the absence of an agreement that they are usual, customary or reasonable.

Appellee offered into evidence a copy of the account attached to its petition and the court sustained the appellant’s objection thereto on the ground that the same was not itemized. We think the court properly sustained appellant’s objection. Taylor v. Wright Sales Company, supra.

The account not having been received into evidence, the same cannot be considered by the court in determining the sufficiency of the evidence to support the judgment. Trice Contract Carpets & Furniture, Inc. v. Martin, supra. Appellee made no attempt to prove its case under the Business Records Act, Article 3737e, Vernon’s Annotated Civil Statutes, but, on the contrary, attempted to prove its case by the direct testimony of Mr. Val B. Prince, the vice-president and general manager of the appellee’s corporation. Ap-pellee offered into evidence 29 invoices which were identified as plaintiff’s Exhibit 2. Appellant objected to the introduction thereof on the ground that some of the invoices were not signed by anyone and that all the orders were signed by persons other than appellant. The court overruled this objection. Mr. Prince then attempted to testify to the sale and delivery of the merchandise listed on the invoices to the appellant. On cross examination of witness Prince, he testified:

(1) That it would be pretty hard to tell what invoices were delivered by the witness personally, and he didn’t remember which ones they were.

(2) That it was only once or twice that the witness personally delivered merchandise on the job and that the rest of the time his driver delivered it.

(3) He didn’t personally take all the telephone orders for merchandise, but that some of them were taken by girls in the office.

(4) That he did not know what was said to the order taker.

(5) It is a well-established principle of law that hearsay evidence, even though un-objected to, will not support a judgment. One of the leading cases is Henry v. Phillips, 105 Tex. 459, 151 S.W. 533, 538, in which Judge Dibrell, speaking for the court, said:

“ * * * Such incompetent testimony can never form the basis of a finding of facts in an appellate court, notwithstanding its presence in the record without objection. When the appellate court comes to apply the law to testimony constituting the facts of the case, it can only base its conclusion upon such testimony as is under the law competent. That which is not competent testimony should be given no probative force. The admission of such testimony is no talisman to give effect to that which is irrelevant and incompetent to sustain or deny a material issue in a case.”

See also United States Fidelity & Guaranty Co. v. Inman, 65 S.W.2d 339, (Tex.Civ.App.) n. w. h.; Johnson v. Gattegno, 267 S.W. 740, 743, (Tex.Civ.App.) n. w. h.; Heard v. Howard, 215 S.W.2d 364, (Tex.Civ.App.) n. w. h.

In the case of Counts v. Quin, 9 S.W.2d 394, 395, (Tex.Civ.App.), n. w. h., the court had before it a case in which invoices, to prove a cause of action, had been received in evidence, and the appellant had assigned insufficient of the evidence as error on appeal. The court held that before the invoices could have been received as evidence for any independent purpose, the usual predicate for the introduction should have been laid, i. e., the testimony of the party making them should have been introduced, showing that he had made them and that they were correctly made.

A careful examination of appellee’s Exhibit 2, the 29 invoices, upon which ap-pellee relies to establish its case, reveals that none of same purport to be receipted for by the appellant who was the agent of Dr. Roberts by virtue of the employment contract between them. A parry dealing with an agent is bound, at his peril, to ascertain not only the fact of the agency, but the extent of the agent’s power, and in case either is controverted the burden of proof is upon him to establish it. Overton v. First Texas State Ins. Co., 189 S.W. 514, (Tex.Civ.App.) 1916, error refused; American Mortgage Corporation v. Spencer, 45 S.W.2d 301, (Tex.Civ.App.) 1932, error dismissed.

The testimony of Mr. Prince is very equivocal on the question of who ordered the various bills of merchandise which he claimed that the appellant purchased from the appellee, but it appears to be quite clear from his testimony that appellant did not order all, or even most, of same. Under these circumstances, any alleged contract between appellee and appellant was execu-tory in nature and it was incumbent upon appellee to prove delivery to appellant or someone designated by him to receive the goods. Lange v. Interstate Sales Co., 166 S.W. 900, (Tex.Civ.App.) writ refused.

An examination of the aforesaid invoices reveals numerous handwritings thereon and further reveals that all of the words and figures appearing thereon were not written at the same time. In some instances, a portion of the words and figures were written in ink while others were written in pencil and many of them demonstrate the use of different pens and/or different pencils on the same invoice. Mr. Prince testified that he wrote some of the invoices, but he never identified same. Since, under his testimony, he was not present at the time of the delivery of more than two of such bills of merchandise, he could not have possibly observed the signing of the remainder of the invoices.

Mr. Prince made no effort to identify the signatures or to show that he was qualified to do so. In the case of Abeel v. Weil, 115 Tex. 490, 283 S.W. 769, 771, the court said:

“ * * * Before a witness is qualified, or, in other words, competent, to testify to his opinion or belief that a particular signature presented to him is the genuine signature of another, such witness must be acquainted with the signature or handwriting of such other person. Such acquaintance is not presumed, but must be shown by evidence. * * * ”

The court further stated, quoting Wig-more On Evidence, page 1054, Sec. 654:

“The burden of showing that the witness is qualified or competent is on the party offering his testimony.”

Tt is uncontroverted that the appellant has no right, title or interest in and to the apartment house project here involved and located at 6000 Blanco Road in San Antonio, Bexar County, Texas, other than the fee provided for in his contract with Dr. Roberts. Appellant received no benefits of any kind, character or nature whatsoever, direct or indirect, from the goods, wares and merchandise allegedly furnished by the appellee, other than one small twill brush, which was furnished to the Le Chalet Apartment project. Mr. Prince admitted that the appellant had paid for the materials which he bought for the Le Chalet Apartment.

In view of the fact that the appellant has denied under oath the account sued upon, we do not think the appellant discharged the burden of proof required of him. Appellant’s Points 1-4 are sustained.

The appellant next complains by his 5th Point that there is no competent proof that the prices charged appellant by appel-lee for the goods, wares and merchandise shown on appellee’s invoices were the usual, customary and reasonable prices thereof at the time and place of sale.

Upon a careful search of the record, we fail to find any evidence that the prices charged by appellee for the merchandise, the subject of this suit, were either usual, customary or reasonable. Nor do we find any testimony as to an agreed purchase price offered with respect to the value of the goods. In the absence of an agreement by appellant to pay any particular price, it was essential to appellee’s case against appellant to offer proof on the point; but none was offered. Opry-shek v. McKesson & Robbins, Inc., supra; Dodson v. Kemper Military School, 42 S. W.2d 288, (Tex.Civ.App.) error dismissed; Trice Contract Carpets & Furniture, Inc. v. Martin, supra. Point 5 is sustained.

Our conclusions above reached render unnecessary a discussion of appellant’s 6th Point assailing the awarding of $230.00 attorney’s fees to appellee under Article 2226, Vernon’s Annotated Civil Statutes. Having failed to obtain a valid judgment against appellant on the account, appellee is not entitled to recover its attorney’s fees against him.

Appellee has not filed a brief and did not avail itself of oral argument. It has not challenged in any manner the statements in appellant’s brief relative to the facts and the record. The Court of Civil Appeals must assume as true all facts stated by appellant in his brief and render judgment in conformity therewith. Rule 419, Texas Rules of Civil Procedure; Traweek v. Shields, 380 S.W.2d 131, (Tex. Civ.App.) 1964, n. w. h.; Gonzales v. Gonzales, 224 S.W.2d 520, (Tex.Civ.App.) 1949, writ refused; Coates v. Coates, 355 S.W.2d 260, (Tex.Civ.App.) 1962, n. w. h.; Rancher v. Franks, 269 S.W.2d 926, (Tex.Civ.App.) 1954, n. w. h.; Hartford Fire Ins. Co. v. Owens, 272 S.W. 611, (Tex.Civ.App.) 1925, writ refused. However, we have checked the references in appellant’s brief and find them to be correct.

For the reasons above stated, the judgment is reversed and remanded to the trial court.