author: DICE, Judge.

text:
    Margarita CALZADA, (with aliases), Appellant, v. The STATE of Texas, Appellee.
    No. 40196.
    Court of Criminal Appeals of Texas.
    May 10, 1967.
    On Second Motion to Reinstate Appeal June 21, 1967.

      Cotton & Calhoun, by Ronald R. Calhoun, El Paso, for appellant.
    Jack N. Fant, County Atty., Norman C. Peyton and Danny J. Snooks, Asst. County Attys., El Paso, and Leon B. Douglas, State’s Atty., of Austin, for the State.
   OPINION

ON APPELLANT’S SECOND MOTION TO REINSTATE APPEAL

DICE, Judge.

The record having been perfected, our prior opinions are withdrawn and the appeal is reinstated.

The conviction is for shoplifting, with a prior conviction alleged for enhancement; the punishment, thirty (30) days in jail and a fine of $1.

Trial was before the court without a jury, upon appellant’s plea of not guilty.

It was shown by the state’s testimony that the appellant, while in the Popular Dry Goods Company, a department store in the city of El Paso, took from a hanger a woman’s suit of the value of $36, which was displayed for sale on a rack, placed the suit in a handbag, and left the store with the merchandise.

A prior conviction of appellant for a like offense was stipulated.

Dr. Manuel Hernandez, a psychiatrist, called as a witness by the appellant, testified that he had treated her for approximately a year and a half. The doctor testified that appellant suffered from psychoneurosis, which is manifested mainly by depression and the taking of things and known in layman’s terms as kleptomania. The doctor further testified that in his opinion the appellant, under ordinary circumstances, knew right from wrong but at the times she was taking things she could not distinguish the difference between right and wrong.

The doctor expressed the opinion that on the day of trial appellant knew right from wrong, and in answer to a question as to whether she knew the difference between right and wrong and was able to appreciate the quality of her act when she took the dress from the store under the circumstances shown, he replied:

“Well, I’m not sure that I could say. I don’t think so, with any authority,— from some of the, from the actions you [sic], as you describe them one might gather that she probably knew that what she was doing was wrong. Now, I think that, but I don’t think I could say that of my own account other than just to say that it seems as if she probably did know what she was doing.”

Three grounds of error questioning the sufficiency of the evidence to support the conviction are urged by appellant in her brief filed in the trial court.

She first contends that the court erred in refusing to grant her motion for acquittal, made at the close of the state’s case-in-chief, on the ground that the state had not negatived the element of consent to the taking of the merchandise.

The record reflects that when appellant’s motion for acquittal was made, the court permitted the state, over appellant’s objection, to reopen the case and offer testimony that appellant did not have permission to take the merchandise from the store. The court’s action in permitting the state to reopen the case is the basis of another ground of error urged by appellant.

We perceive no error. Art. 1436e, V.A. P.C., does not make want of consent an element of the offense of shoplifting. Henderson v. State, 362 S.W.2d 322.

In permitting the state to reopen the case and offer the additional testimony the court did not err, in view of Art. 36.02 of the 1965 Code, which reads:

“The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.”

Appellant’s third ground of error is that the court erred in rejecting her plea of insanity and finding her guilty despite the evidence presented.

The trial court was the judge of the weight to be given to the testimony and was authorized to reject her defense of insanity. Tennison v. State, 327 S.W.2d 575. The ground of error is overruled.

The judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Roger Warren BOLES, Appellant, v. The STATE of Texas, Appellee.
    No. 40446.
    Court of Criminal Appeals of Texas.
    June 21, 1967.

      Frans O. Borup, South Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Robert R. Scott, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is under Art. 483, Vernon’s Ann.P.C.,' for unlawfully carrying a prohibited weapon, to-wit: a knife; the punishment, a fine of $100.

Trial was before the court, without a jury, upon appellant’s plea of not guilty.

Two grounds of error are urged by appellant in his brief filed in the trial court.

He first contends that evidence pertaining to the knife in question was obtained as the result of his unlawful arrest. He also contends that the evidence is insufficient to sustain his conviction because the weapon found in the automobile was not a knife within the purview.of Art. 483, supra, and for the further reason that he was not shown to have been in possession of the weapon.

It was shown by the state’s testimony that on the day in question appellant was stopped and arrested by two city policemen while driving an automobile on a public street in the city of Houston. The officers’ attention was first directed to the vehicle 3>y the “tires spinning on the pavement; squealing tires * * * ” and by obser-ing the vehicle “Speeding West on South-more.” After stopping the vehicle, the officers could see the handle of a bayonet “On the floorboard, on the' driver’s side, leaning against the middle console.” The bayonet was described as “of the type fitted on the end of a rifle” and with a blade which measured seventeen inches long. When the car was stopped appellant was sitting in the driver’s seat and a passenger by the name of Hooks was seated in the back. Two other passengers, one by the name of Graves, were in the automobile.

Testifying in his own behalf, appellant admitted that he was the driver of the car but stated that the vehicle belonged to Hooks. Appellant swore that he did not own the bayonet and that it belonged to Hooks. On direct examination appellant testified that he did not know the bayonet was in the car, but on cross-examination he stated that it was under the seat.

We need not pass upon the legality of appellant’s arrest, in view of his admission that the bayonet was in the car under the seat. Vogt v. State, 159 Tex.Cr.R. 211, 258 S.W.2d 795; Bernard v. State, 172 Tex. Cr.R. 52, 354 S.W.2d 157.

We do not agree that the bayonet in question with a blade seventeen inches long is not a knife within the purview of Art. 483, supra.

Webster’s New International Dictionary, Third Edition, contains the following definition:

“Knife bayonet. A bayonet with considerable breadth of blade and a handle that enables it to be used as a knife, dagger, or entrenching tool.”

The word “knife” has been held to be a generic term and includes a razor used by an accused in committing an assault. Terrell v. State, Tex.Cr.App., 400 S.W.2d 566. Such term would include a bayonet of the type shown herein.

Under the facts, the trial judge was authorized to conclude that appellant was carrying the knife which was lying on the floorboard underneath his feet.

The majority opinion in Summerville v. State, 164 Tex.Cr.R. 591, 301 S.W.2d 913, is not here controlling, because in that case the weapon was in the glove compartment of the automobile, driven by the accused, in which there were other occupants.

The judgment is affirmed.


text:
    Lynwood O’NEAL, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 40301.
    Court of Criminal Appeals of Texas.
    May 24, 1967.
    Rehearing Denied July 19, 1967.
    Ogg, Merrill & Turner, by Joe E. Turner, Houston, (On Appeal) for appellant.

      Carol S. Vance, Dist. .Atty., James C. Brough, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The appellant and Walter Joe Alexander and Benjamin Bell were jointly indicted for the offense of statutory rape.

Upon the granting of a severance, appellant was separately tried and convicted and his punishment assessed at life imprisonment.

Trial was prior to January 1, 1966, under the 1925 Code of Criminal Procedure.

The state’s testimony shows that on the night in question the prosecutrix, then seventeen years of age, had a date with a young man — whom she subsequently married — prior to the date of trial. During the evening the couple drove to a place along White Oak Bayou near Creekmont Street, in Harris County, and parked. They got out of the car, and upon seeing lights of an approaching automobile they got back in the car. The approaching car then stopped and three young Negro men got out. One of the men, who was positively identified by the prosecutrix and her companion as the appellant, pulled the young man out of the car and beat him into unconsciousness with a tire tool. Appellant and the other two men, later identified by the prosecutrix as Benjamin Bell and Walter Alexander, then proceeded to have sexual intercourse with her without her consent. Appellant was the first to rape her and was followed by his two companions, and then each of the three raped her again. After the assault, appellant and his companions left the scene.

The prosecutrix and her companion then left and went to two separate hospitals for treatment of their injuries. An examination of the prosecutrix at the hospital showed that she had been raped and also corroborated her testimony of prior chastity.

Appellant was arrested at. 10 p.m. the following day by Officer J. N. Dechman, in front of the home of his co-indictee Alexander.

Following his arrest, appellant gave Officer Lloyd Frazier the underwear he was wearing. The underwear was bloodstained and a pubic hair found on the shorts was determined by Chemist McDonald to be identical with pubic hairs of the prosecutrix. A tire tool found near a vacant lot within a block of appellant’s home was identified by the prosecutrix’s male companion as the weapon used by appellant in assaulting him on the night in question. There was human blood on the tire tool but not of sufficient quantity for the chemist to type. The young man’s wallet was found in possession of the appellant’s co-indictee Bell.

As a witness in his own behalf, appellant denied having ravished the prosecutrix and swore that he was at another place at the time of the offense.

Witnesses were called who testified in support of his defense of alibi.

Appellant’s defense of alibi and his application for a suspension of sentence were submitted to the jury.

The court also instructed the jury on the law of principals.

Appellant predicates his appeal upon four grounds of error.

In his first two grounds he insists that the court erred in admitting in evidence the tire tool (state’s exhibit 7) and the billfold (state’s exhibit 10) because the items had not been properly connected with him and therefore were not relevant.

Under the record we find no merit in appellant’s contentions. The tire tool (state’s exhibit 7) was identified by the prosecutrix’s male companion as the weapon used by appellant in committing the assault upon him. He also identified state’s exhibit 10 as his wallet, which he had on his person on the night in question. Appellant’s co-indictee Walter Joe Alexander led the officers to where the tire tool was found, and the billfold was found on the person of his other co-indictee, Benjamin Bell.

The prosecutrix testified that she later identified Walter Joe Alexander and Benjamin Bell as the other two persons who were with appellant when the offenses of rape were committed upon her.

In appellant’s third ground of error, he contends that the court erred in charging the jury on the law of principals because the state failed to connect him with his two co-indictees, Alexander and Bell.

This contention is also without merit, in view of the prosecutrix’s testimony that after the offense was committed she identified Alexander and Bell as the two other men who participated, with appellant, in the rapes on the night in question.

In his fourth ground of error, appellant Insists that the court erred in admitting the pair of shorts (state’s exhibit 9) in evidence because they were obtained as the result of a search following an illegal arrest.

The facts presented by the state relative to the arrest show that about 7 o’clock on the evening following commission of the offense, Deputy Sheriff J. N. Dechman received information from a businessman whom he considered to be credible that one of the three men being sought for the rape was named Lynwood and that one was named Alexander. Between 8 and 9 p.m., the officer had ascertained the name of Lynwood O’Neal and a description of his car. The officer also had information that appellant would be in a certain general area and felt that if he took the time to try to find a magistrate to obtain an arrest warrant appellant might leave the area. At 10 p.m., he found appellant talking to another officer who had no intention of arresting him. The car meeting the description given was parked nearby. He then arrested appellant. Officer Dechman testified that it would have taken at least forty-five minutes for him to have gone after an arrest warrant and he felt that, had he done so, appellant might escape.

Under the record, the officer was authorized to arrest appellant without a warrant, under the provisions of Art. 215, Vernon’s Ann.C.C.P. of 1925, now Art. 14.04 of the 1965 Code, upon receiving information that the felony offense had been committed and fearing that appellant would escape. See: Price v. State, Tex.Cr.App., 410 S.W.2d 778, and cases therein cited.

The state’s testimony shows that appellant’s shorts were not obtained as the result of a search but that they were voluntarily given by him to Chief Deputy Sheriff Lloyd Frazier. Appellant denied that the shorts were his and that he gave them to the officer. He stated that at the request of Chief Frazier he took off all of his clothes and put on jail clothing.

Under the state’s testimony, no question of an illegal search is presented. If, as contended by appellant, the shorts were obtained as the result of a search the same was legal as being incident to a lawful arrest. Price v. State, supra. Appellant’s consent, as testified to by the officer, would have also authorized the search. Feather v. State, 169 Tex.Cr.R. 334, 333 S.W.2d 851; Maldonado v. State, Tex.Cr. App., 397 S.W.2d 862.

Finding no reversible error, the judgment is affirmed.


text:
    Carlos MORALES, Appellant, v. The STATE of Texas, Appellee.
    No. 40378.
    Court of Criminal Appeals of Texas.
    May 31, 1967.
    See also Tex.Cr.App., 416 S.W.2d 403.
    J. Ray Martin, Amarillo, for appellant.
    Gene Compton, Dist. Atty., Bob D. Slough, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for -the State.
   OPINION

DICE, Judge.

The conviction is for robbery by firearms; the punishment, twenty-five years.

The record reflects that after a jury was duly selected and empaneled in the cause, appellant entered a plea of not guilty to the indictment.

Notice was given by the state, in writing, that it would not seek the death penalty.

Evidence was then introduced showing appellant’s guilt of the offense charged.

After the state rested its case-in-chief and appellant’s motion for an instructed verdict was by the court overruled, appellant made it known to the court that he desired to change his plea in the cause to that of “guilty.” A plea of guilty was then entered by appellant and, with the consent and approval of the state’s attorney and the trial judge, he waived a trial by jury in the case.

The jury was thereupon discharged, and the court rendered judgment based upon the evidence adduced before the jury, finding appellant guilty and assessing his punishment at confinement in the Department of Correction for twenty-five years.

One ground of error is urged by appellant in his brief filed in the trial court.

As we understand appellant’s contention, it is that the court erred in fixing his punishment in excess of the minimum of five years because he was not afforded a separate hearing on the question of punishment, as provided by Art. 37.07, subd. 2 of the Code of Criminal Procedure.

It is appellant’s contention that in the absence of a separate hearing, under Art. 37.07, subd. 2, supra, on the issue of punishment, and presentation of evidence by the state as to his prior criminal record and his general reputation and character, the court was unauthorized to assess his punishment at any term in excess of the minimum provided by statute.

Appellant apparently overlooks the fact that Art. 37.07, subd. 2, supra, providing for the alternate procedure in determining guilt or innocence and punishment, only applies where the plea is “not guilty” before a jury. Rojas v. State, 404 S.W.2d 30. Under the record, the provisions of Art. 37.07, subd. 2 were not applicable. We observe, however, that in cases where Art. 37.07, subd. 2, supra, is applicable it is not mandatory under the terms of the statute that the state offer evidence at the separate hearing on punishment.

When the state made it known that the death penalty would not be sought in the case, the learned trial judge properly permitted appellant to enter a plea of guilty and waive a trial by jury, as provided by Arts. 1.13 and 1.14 of the Code. It is undisputed that the evidence adduced was sufficient to support the court’s judgment finding appellant guilty.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Harmon Cecil TUCKER, Appellant, v. The STATE of Texas, Appellee.
    No. 40115.
    Court of Criminal Appeals of Texas.
    June 21, 1967.
    Tom Ryan, McKinney, for appellant.
    Leon B. Douglas, State’s Atty., Austin,, for the State.
   OPINION

MORRISON, Judge.

The offense is felony theft, habitual t the punishment, life in the penitentiary.

Trial was on January 5, 1966, and notice of appeal was entered February 24, 1966.

The record before us includes a motion by appellant filed in the trial court requesting that he be allowed to withdraw his notice of appeal and an order by the trial court granting such motion.

The appellate record had not been approved and the time for filing briefs had not expired at the time appellant’s request was granted; therefore, the trial court retained jurisdiction of the cause and had authority to grant the motion and dismiss the appeal. Arts. 40.09 and 44.11, Vernon’s. Ann.C.C.P. and Rangel v. State, Tex.Cr.App., 408 S.W.2d 231.

The appeal is dismissed as of June 2, 1967, the date of the trial court’s order.


author: CHAPMAN, Justice.

text:
    Jack DOUGLAS, Appellant, v. Charles J. VAUGHN, Appellee.
    No. 7722.
    Court of Civil Appeals of Texas. Amarillo.
    May 29, 1967.

      Albert Smith, Lubbock, for appellant.
    Splawn & Maner and Geo. H. Nelson, Lubbock, for appellee.
   CHAPMAN, Justice.

This is a venue case involving an automobile-pedestrian collision tried to the court. Suit was filed in Lubbock County, where the collision occurred, by Charles J. Vaughn of Lubbock County, against Jack Douglas of Lamb County and Paymaster Oil Mill Company, a corporation which has its principal office in Lubbock County. Appellant, Douglas, filed his plea of privilege to be sued in the county of his residence, alleging no exception to exclusive venue to be sued in the county of his residence exists.

Plaintiff-appellee, Charles J. Vaughn, controverted, alleging defendant was negligent in failing to keep a proper lookout; in driving his vehicle at an excessive rate of speed in the light of attending circumstances; in failing to apply his brakes in an effort to avoid the collision in question; in failing to keep the vehicle he was driving under proper control; in failing to turn his vehicle to the left in .an effort to avoid the collision; and “ * * * that any one or all of the aforementioned acts were a proximate cause of the injuries suffered by the plaintiff.” Exceptions 9a and 29a of Article 1995 were pleaded as grounds for retaining venue in Lubbock County. We will be concerned here with only the former.

Under Exception 9a, to sustain venue in the county where the collision occurred, it was necessary for appellee to prove by' a preponderance of the evidence that .an act or omission of negligence occurred in said county; that such act or omission was that of the defendant in person, or that of his servant, agent or representative acting within the scope of his employment; and that such negligence was a proximate cause of appellee’s injuries. Section 9a, Subsections 1, 2 and 3 of Article 1995, V.T.C.S.; Watkins v. Goolsby, supra; Cooper & Woodruff, Inc. v. Saucedo, supra; John F. Buckner & Sons v. Allen, 272 S.W.2d 929 (Tex.Civ.App.— Austin, 1954, writ dism’d).

The only point of error raised in this case is a “no evidence” point to the effect that appellee failed to prove that appellant was negligent and that such negligence was a proximate cause of appellee’s injuries. By such point we are “ * * * required to follow the rule, which, in effect, says:

‘If discarding all adverse evidence and giving credit to all evidence that is favorable to the successful party and indulging every reasonable conclusion that is favorable to him, a trier of the facts might have found in his favor, then it is to be concluded that there is evidence to support the finding.’ ” Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953).

No findings of fact or conclusions of law were filed by or required of the trial judge. Such being the situation, our Supreme Court in Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114 (1951) has held:

“The trial court’s judgment, therefore, implies all necessary fact findings in support of the judgment. In seeking to determine whether there is any evidence to support the judgment and the implied findings of fact incident thereto ‘it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.’ Austin v. Cochran, Tex.Com.App., 2 S.W.2d 831, 832; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696.”

Neither Renfro Drug Co. v. Lewis, supra, nor the cases it cited on the point under discussion are venue cases but our Supreme Court in discussing the law where “no evidence” points are raised has held: “The test on appeal from an order sustaining or overruling a plea of privilege is the same as in any other civil case.” Banks v. Collins, supra.

Following these well-established guidelines, we must now look to the evidence favorable to appellee, discarding all adverse evidence, and indulging every reasonable conclusion favorable to appellee.

At about midnight, November 4, 1964, ap-pellee was “driving around” in Lubbock when he ran out of gas “about Frankford and Fourth, somewhere along there” while traveling west. He got out on the pavement about two feet from the north side “ * * * and started trying to flag somebody down.” After -trying to flag down three or four cars he saw a vehicle about a hundred to a hundred and fifty yards away coming from the east at “ * * *

the speed limit or there abouts” with its lights on dim. He did not see any car going east. He stood and waved his arms from the time he saw it. The vehicle did not slow down and did not apply its brakes. The last thing he remembered was the vehicle coming up real fast. He started to run north and that was the last thing he remembered until he was waking up and a nurse in the hospital was giving him a shot.

At the time just related his car with the lights on was about fifty yards east of him parked four feet to the north, off the pavement and facing west.

It later developed that the vehicle which hit him was a 1961 Chevrolet pickup being driven by appellant, Douglas.

The deposition testimony of Mr. Douglas shows there was a second car parked to the north of the pavement with no lights on about a hundred feet east of appellee’s car and headed east. Mr. Douglas says he hit appellant while in about the center of the right-hand lane with the left side of his hood while appellant was staggering across the highway from south to north. He says he could see him only fifty to sixty feet away and that he was in about the center of the right-hand lane when he discovered him.

It is without question in the record that appellee was out in front of the lights of his car, since it was to the east of him. Appellant says a car was coming facing him with the lights on, so that made three sets of lights that would have been shining toward appellee when he was on the highway. The trial court could have impliedly found from such testimony that appellant was not keeping a proper lookout or he would have seen appellee, whatever part of the north lane he was in, with automobile lights shining toward him from both directions; that he failed to apply his brakes in an effort to avoid the collision; and that such failure and/or failures was a proximate cause of appellee’s injuries.

With the knowledge of two cars parked off the pavement to his right and another car coming toward him from his left, there is also evidence from which the trial court could have impliedly found that appellant was driving at an excessive rate of speed in the light of attending circumstances, and that such was a proximate cause of the injuries to appellee.

Appellant says in his deposition that ap-pellee was moving toward the north from about the center of the north lane of a four-lane highway and that he cut to his right, the direction appellee was moving. The reason advanced for doing so was that he would have been headed for a head-on with the approaching car if he had turned to the left to avoid the pedestrian. Yet, he had an entire lane to his left free of either vehicular or pedestrian traffic he could have driven in and avoided hitting appellee. The trial court could have impliedly found negligence and proximate cause in failing to turn to the left in order to avoid the collision.

Under the conditions described the trial court was not bound by appellant’s testimony that he could see appellee only fifty to sixty feet away, even though he had on dark colored clothes, and it is certainly reasonable that the trial court could have impliedly found that appellant could have •steered his vehicle from one lane to another in sixty feet unless he was traveling at an ■excessive speed under the circumstances.

The trial court as the trier of the facts was the judge of the credibility of the witnesses and the weight to be given to their testimony. Jess Edwards, Inc. v. Foley, 321 S.W.2d 328 (Tex.Civ.App.—Waco, 1959, no writ); Denton v. Bennett, 364 S. W.2d 857 (Tex.Civ.App.—Fort Worth, 1963, writ ref’d n. r. e.) ; Southland Life Ins. Co. w. Aetna Casualty & Surety Co., 366 S.W.2d 245 (Tex.Civ.App.—Fort Worth, 1963, writ ref’d n. r. e.).

“The court was not bound by testimony of any one witness but could accept all, part or none thereof, or he could accept part of the testimony of one witness and part of another, or draw his own deductions from all the evidence.” Denton v. Bennett, supra.

“As a general rule evidence given by an interested witness, even though un-contradicted, presents an issue to be determined by the trier of facts.” Southland Life Ins. Co. v. Aetna Casualty & Surety Co., supra.

An exception is stated in McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722, 728 (1943) as follows:

“Where the testimony of an interested witness is uncontradicted, is clear and positive, and there are no circumstances in evidence tending to discredit or impeach such testimony, conclusive effect may be given thereto. Trinity Gravel Co. v. Cranke, Tex.Com.App., 282 S.W. 798, loc. cit. 801; American Surety Co. v. Whitehead, Tex.Com.App., 45 S.W.2d 958, loc. cit. 961. The applicable rule is further strengthened where the testimony of the interested witness is, as in this case, corroborated by other witnesses and the opposite party had the means and opportunity of disproving the testimony, if it were not true, and failed to do so. Sim-onds v. Stanolind Oil & Gas Co., 134 Tex. 332, 350, 114 S.W.2d 226, 136 S.W.2d 207.”

Such exceptions do not exist in our case.

Without question there is evidence from which a trier of the facts might find appellee’s action was negligence and a proximate cause of the collision, but we are not concerned with contributory negligence on the venue question, which is a matter to be properly considered in a trial on the merits. John F. Buckner & Sons v. Allen, supra; Allen M. Campbell, Gen. Contractors, Inc. v. McDonald, 347 S.W.2d 781 (Tex.Civ.App. — Beaumont, 1961, no writ) ; Perry Construction Company v. Watkins, 367 S. W.2d 913 (Tex.Civ.App. — Waco, 1963, no writ).

The judgment of the trial court denying the plea of privilege is affirmed.

      I. First paragraph, Section 9a, Article 1995, Vernon’s Ann.Tex.Civ.St., Watkins v. Goolsby, 337 S.W.2d 363 (Tex.Civ. App.— Eastland, 1960, no writ); Cooper & Woodruff, Inc. v. Saucedo, 363 S.W.2d 902 (Tex.Civ.App.— Amarillo, 1962, no writ).


author: HUGHES, Justice.

text:
    Lee E. NEWSOM, Appellant, v. LIBERTY SIGN COMPANY et al., Appellees.
    No. 11495.
    Court of Civil Appeals of Texas. Austin.
    May 3, 1967.
    Rehearing Denied May 24, 1967.
    Second Motion for Rehearing Denied June 14, 1967.

      Grady, Johnson, Smith & Blakeley, Robert C. Johnson, Dallas, for appellant.
    Malone, Seay & Gwinn, Walter W. Steele, Jr., Akin, Gump, Strauss, Hauer & Feld, Robert L. Meyers, III, Dallas, for appellees.
   HUGHES, Justice.

Liberty Sign Company, appellee, sued Lee E. Newsom, 2538 Corporation and J. H. Stecker for rent, liquidated damages and attorney’s fees allegedly due under an advertising display sign contract between Liberty and Newsom and assumed by Stecker and 2538 Corporation. Newsom, in the event of judgment against him sought judgment over and against J. H. Stecker and 2538 Corporation. Newsom also filed a third party action in which he sought judgment against Lawrence Schell, doing business as Dallas Neon Sign Company, in which he sought damages in the sum of $15,000.00 for his interference with contractual relations existing between Liberty and Newsom.

Trial was to a jury but the trial court withdrew the case from the jury and rendered judgment for Liberty against New-som, Stecker and 2538 Corporation, jointly and severally for $575.55 rent, $8,157.17 liquidated damages and $2,750.00 attorney’s fees. Newsom was awarded judgment over against Stecker and 2538 Corporation, jointly and severally. A take nothing judgment was rendered in favor of Schell, doing business as Dallas Neon Sign Company.

During the trial Newsom paid into the registry of the court $575.55 for the rent sued for, and Liberty has been paid this amount.

Only Newsom has appealed from the above judgment.

Appellant’s first three points, jointly briefed, are that under the contract between him and Liberty his liability for future rents was abated by the removal of the sign by a third party and the refusal of Liberty to restore the sign constituted a total breach of the contract by Liberty and it, therefore, could not maintain a suit on it.

Appellant’s fourth point is that Liberty, despite the delinquent rent, elected to continue the contract in force and had no right to terminate the contract and claim liquidated damages after the destruction of the display.

We will discuss these four points together.

The parties agree that the facts are not in dispute. We will state them fully but as succinctly as possible. We set out below all the provisions of the contract, wherein Liberty is Lessor and Newsom is Lessee, which the parties deem pertinent.

The original display contract was amended by written agreement dated September 16, 1964, by virtue of which it was agreed that an additional canopy sign would be furnished, installed, and maintained on the roof of the building, that Newsom would pay an additional $350.00 as initial rent, that the monthly rent would be increased from $153.35 to $191.85, and that the monthly rate in default clause would be decreased. At the time the amended agreement was signed, Newsom paid Liberty $357.00.

Liberty furnished and installed one sign on the shopping center parking lot on land not covered by Newsom’s lease but owned and controlled by a Mr. Padgett. Liberty installed the other sign on the outside roof or wall of the restaurant building at a place not covered by Newsom’s lease but owned and controlled by a Mr. Padgett. Liberty made its own arrangements with Mr. Pad-gett and secured his consent to the installation of the signs on the parking lot and exterior wall of the building. Newsom took no part in these negotiations. Newsom had neither possession nor custody of the signs, but they were owned exclusively by Liberty.

Newsom paid Liberty the $191.85 due on October 1, 1964, as well as the $191.85 due on November 1, 1964. The amount due on December 1, 1964, was not paid until January 5, 1965. Newsom did not pay the stipulated monthly amounts due on January 1, February 1, and March 1, 1965. Notwithstanding Newsom’s failure to make these monthly payments when they were due, Liberty was satisfied with Newsom’s credit and chose to continue the contract in effect. Liberty claimed, sued for, recovered, and has been paid by Newsom $191.85, the full contract rent for each of the months of January, February and March, 1965.

In February, 1965, Newsom sold his restaurant to 2538 Corporation, a business wholly owned by J. H. Stecker, under a written contract in which the purchaser agreed to pay Liberty all of the fifty-seven monthly installments then unpaid on the display contract and also agreed not to injure, damage, or destroy and not remove the display signs.

On February 9, 1965, Stecker advised Liberty by letter that he was negotiating with Newsom for the purchase of the restaurant and intended to assume the payments due Liberty under the display contract. In reply Liberty wrote Stecker on February 11, 1965, stating that it required Newsom’s permission for Liberty to deal with Stecker in the matter and Liberty requested that Stecker furnish credit information on his corporation.

Stecker changed the restaurant from a short order business into a steak house, redecorated the leased premises, and began operations about February 16, 1965. Stecker did not consider the sign compatible with his steak house operation and requested Liberty to make certain alterations in the signs. On or about the 7th day of March, 1965, Jack Brown, the President of Liberty met with Newsom. Brown testified that “the basic thing at the meeting was to let Mr. Newsom know that he was our customer and that he was the man who was on our contract and we were looking to him for payment, and if we were able to negotiate and work out some sort of deal with Mr. Stecker we would still be looking to Mr. Newsom to get the payment.”

On March 11, 1965, Jack Brown of Liberty, wrote James H. Stecker stating, inter alia:

“ * * * Let me try to clarify our position on this contract:
1. * * * Both of these displays are the personal property of Liberty Sign Co.
2. We have been informed that you have entered into a contract with Mr. Lee Newsom to pay the 57 remaining monthly rental payments * * * Liberty Sign Co. has not consented to an assignment of this contract.
3. Liberty Sign Co. is under no obligation to extend credit to anyone for any changes that might be desired of these sign displays.
4. I am enclosing a blank contract form * * * showing that this display is the personal property of Liberty Sign Co. and it cannot be repaired, replaced, altered or any other work done to it by anyone other than Liberty Sign Co.
5. We have submitted you drawings showing suggested alterations to the sign display to be handled in several financial ways. We feel that it is your decision to decide if you want this work done and how you plan to handle the payments. We are agreeable to make any alterations on the sign on a cash basis with the remaining payments of the contract being paid as per the contract.”

On March 11, 1965, Stecker wrote Liberty claiming that Liberty would not cooperate in altering the signs and requesting that the signs be removed by no later than Monday, March 15, 1965.

Stecker’s threat to remove the signs was discussed between the attorneys for Liberty and Newsom and both objected to the removal of the signs. Newsom demanded that Liberty prevent Stecker from moving the signs and suggested that Liberty get an injunction to restrain Stecker from carrying out his threat. Liberty’s attorney was of the opinion that it could not obtain an injunction and he demanded that Newsom prevent removal of the sign by securing an injunction restraining Stecker. Newsom’s attorney insisted it was the duty of Liberty to protect the signs and prevent their removal.

After receiving the March 11, 1965, letter from Stecker, Jack Brown, President of Liberty, told Newsom that Stecker had threatened to take down the signs, and Newsom testified: “Mr. Brown asked me that if I noticed or detected anyone removing the sign that I contact him personally or someone within his organization.” Newsom agreed to notify Liberty if he discovered the signs were being removed. Newsom had nothing to do with operation of the restaurant and Stecker and his 2538 Corporation were acting entirely on their own. Neither Stecker nor 2538 Corporation was an agent, servant, or employee of Newsom. Stecker and 2538 Corporation later abandoned the restaurant in May of 1965.

On March 16, 1965, Durwood D. Crawford wrote Newsom in behalf of Liberty that it had been pointed out to Stecker that “if the sign is removed, Liberty would make claim against you for the default rate in the rental agreement.”

After March 16, 1965, and before the signs were removed, Newsom’s attorney advised Stecker on two or three occasions that Newsom objected to the threatened removal of the signs.

On Sunday, March 21, 1965, Newsom received a telephone call that someone was in the process of removing the signs and he immediately called Liberty and gave them this information. Newsom then drove to the parking center and parked his car across the street from the sign. Oliver, a Vice-President of Liberty, arrived about the same time and spoke to Newsom. Oliver, went across the street, took some pictures, and talked to the man who was dismantling the sign. Newsom remained across the street. Newsom testified: “I was standing there by my car and Mr. Oliver just took over — went on over to take over presumably whatever was to be done, to prevent the sign from being taken down.” Liberty Sign stipulated at the trial as follows:

“1. David Oliver is an employee of Liberty Sign Company and acted in that capacity on the day the signs in question in this law suit were removed from the location where they had been previously placed by the Plaintiff, Liberty Sign Company, and was present at said location and did have a conversation with a man named Verdelle MacWilliams, who was at that time engaged in the process of removing said signs, at which time the only thing the said David Oliver stated to the said Mac-Williams was that he, David Oliver, was employed by Liberty Sign Company and that the signs so being removed belonged to Liberty Sign Company.”

The signs were removed on March 21, 1965, by Lawrence Schell, doing business as Dallas Neon Sign Company, the third party Defendant, and several days later, on March 24,1965, were delivered by Schell to Liberty.

The display contract was in effect on March 25, 1965, when Liberty first attempted to terminate it.

Mr. Jack Brown, President of Liberty Sign Company, testified as follows:

“Q At the time this letter (referring to Liberty’s letter of March 25, 1965) was written you had not attempted to exercise any option to terminate this contract at any time prior to this letter?
A Prior to that, no sir.
Q But it was by this letter that it was endeavored ?
A Yes, sir.”

On March 25, 1965, the attorney for Liberty wrote Newsom that “since the signs have been removed and Liberty has not received the payments due on the signs for the past three months, it has no alternative but to declare the contract in default and the entire amount due as set forth therein. * * * I am enclosing a liquidation statement showing the amount due based on the default provisions in the contract.” A statement attached to this letter claimed rent at the rate of $191.85 “through March, 1965” plus an alleged “amount due under default provision 54 months @ 77% Ünac-crued Rentals (77% x $10,359.90) — $7,977.12' Plus 2% sales tax $171.05 Total Amount Due Liberty Sign Company $8,723.72.”

The signs have never been replaced by Liberty nor has Liberty ever offered to-replace the signs.

Liberty was holding off in exercising its-right to declare the balance of the contract: due as provided in Paragraph D and was. attempting to reach agreement with Stecker on the price and terms of payment on some-modifications he was requesting. Newsom, was continually informed of the delinquent-status of the payments and negotiations: and was told that Liberty was still holding-him responsible because its contract was. with him. When Stecker could not reach agreement with Liberty on the modifications he advised that he would take down the sign. Newsom was informed of this and discussion was had between the attorneys for Newsom and Liberty. Newsom was told that if the sign came down Liberty would declare the contract terminated as provided in Paragraph D of the Rental Agreement, and the liquidated damages due. This was stated verbally and in the letter written on March 16th, some four or five days before the sign was removed. Newsom and his attorney said they were going to do nothing to prevent the removal. Newsom did not take any legal action to prevent removal. Neither did Liberty.

The rents due under the lease were payable monthly in advance.

We must, in view of the above facts and circumstances, determine the rights of the parties under the lease agreement. Appellant would have us give priority and conclusive effect to Section 5 of the contract which provides that rent should abate during the period the display was out of service in the event it was destroyed or substantially damaged from any cause except the deliberate act of lessee or his agents.

Appellee, on the other hand, would have us give priority and conclusive effect to paragraph D of the contract which provides that if lessee should default in the payment of rents Lessor “may, at its option” terminate the agreement, remove the sign and recover liquidated damages from the lessee.

It is our opinion that Liberty lost the right to exercise its option to terminate the lease for nonpayment of rents when it breached its agreement to rebuild the display in the event of its destruction.

We believe that the following rule quoted in Federal Sign Co. of Texas v. Fort Worth Motors, 314 S.W.2d 878, Tex.Civ.App., Fort Worth, n. w. h., is applicable here:

“Where one party seeks to enforce performance of a contract or to recover damages for a breach thereof, and the. contract contains mutual covenants or requires him to do an act to entitle him to the action, he cannot maintain such action without alleging and proving performance or tender of performance on his part, unless such performance has been excused.”

The lease agreement, despite the default in the payment of rents, was in full force and effect and Newsom was liable for the rents in full as they accrued since Liberty had not exercised its option to terminate the lease when, on March 21, 1965, the display signs were removed. This was a total breach of the lease agreement by Liberty and under Section 5 of the lease all rent was abated until the display signs were restored. As they were never restored, the rents were permanently abated.

It is also our opinion that Liberty waived its right to terminate the contract for nonpayment of rents for the months of January, February and March, 1965, by its action, conclusive in nature, in demanding and receiving full rent for those months rather than a much smaller amount which it would have been entitled to receive in the form of liquidated damages after termination of the contract.

The law we rely upon here is stated in 17 Am.Jur.2d, Contracts, Sec. 447, p. 908, as follows:

“There is no doubt that a default in the performance of a contract may be waived. The right to treat a repudiation as a total breach may be waived. The right to refuse to perform further or to accept further performance and to maintain immediately an action for damages because of a material or total breach may be waived, and the injured party may accept or insist on performance after such breach of the contract. Where there has been a material breach which does not indicate an intention to repudiate the remainder of the contract, the injured party has an election of continuing performance, or of ceasing to perform, or of repudiating the contract. Any act by the injured party indicating an intent to continue will operate as a conclusive election, not depriving him of his right of action for the breach which has already taken place, but depriving him of any excuse for ceasing performance on his own part. Under ordinary circumstances where there is an existing actual breach of contract of a character going to the essence, the innocent party will, if he insists on performance notwithstanding the breach, keep alive his own obligation to continue with performance, with the result that the party at fault, even though having in the interval done nothing in reliance on a continuance of performance, may, if he sees fit, turn about and hold the innocent party to performance. In other words, a party may waive a breach by the other party and then be liable for his own subsequent breach.”

These rules are applied in Western Irrigation Co. v. Reeves County Land Co., 233 S.W.2d 599, Tex.Civ.App., El Paso, n. w. h.

By claiming and accepting the full rents for the months of January, February and March, Liberty waived its right to use nonpayments of these rents as a basis for termination of the lease and its right to invoke the liquidated damages provision of the lease.

Liberty argues that the breach of the lease by Newsom, the nonpayment of rents when due was a continuing breach which gave it the right at any time to terminate the lease and invoke the provision for liquidated damages.

As indicated, Liberty cannot take advantage of this rule, valid though it may be, for two reasons: (1) Its own breach of the contract intervened before it attempted to exercise its option to terminate the lease (2) It waived the right to terminate the lease by claiming and accepting 100% of the delinquent rents, rather than a smaller sum to which it would have been entitled as liquidated damages upon termination of the lease.

The remaining points in the brief of Newsom relate to the amount of liquidated damages and attorney’s fees which were awarded. Under the decision reached by us only the amount of attorney’s fees need be noticed. The trial court allowed attorney’s fees which may total $2750.00. This sum was based on the judgment rendered below.

Since Liberty has recovered only $575.55, reasonable attorney’s fees as provided for in the lease agreement should be reevaluated. For this purpose, we are required to reverse and remand this case.

We affirm the judgment of the trial court insofar as it rendered a take nothing judgment against appellant Newsom and in favor of Lawrence Schell doing business as Dallas Neon Sign Company.

We otherwise reverse the judgment rendered below and remand this case for further proceedings consistent with the opinion.

Affirmed in part, in part reversed and remanded.

ON MOTION FOR REHEARING

Liberty in its motion for rehearing contends that our opinion is erroneous in that it is based on “waiver” which was not pleaded and which, if pleaded, merely presents an issue of fact. These contentions are incorrect here for several reasons.

We did say that Liberty “waived” its right to terminate the lease for nonpayment of rents by claiming and accepting 100% of the delinquent rents for the period of default rather than claiming a lesser amount which it would have been entitled to had the lease been terminated. This may have been a loose use of the word “waived.” See 21 Tex.Jur.2d, Election of Remedies, Sec. 3, p. 198.

What we held was that Liberty faced with the option of declaring the lease forfeited for nonpayment of rents and claiming liquidated damages as provided therein or continuing the lease in effect and become entitled to 100% of the rents, elected as between these substantive rights and chose the latter course. The result of this election was to lose, give up, surrender or “waive” its alternative right.

No issue of fact is presented regarding the election of Liberty to collect 100% of the delinquent rents. It wrote a letter demanding these rents. It sued for them. It obtained a judgment for them. It accepted satisfaction of this judgment. Factually and judicially Liberty is bound by the election it made. The election of Liberty being reflected by its own pleading, it was not incumbent on Newsom to plead such election.

Even if the pleadings of Newsom are defective, this is immaterial under Rule 67, Texas Rules of Civil Procedure. See Texas Reserve Life Insurance Co. v. Security Title Co., 352 S.W.2d 347, Tex.Civ.App., San Antonio, writ ref. n. r. e., where it is held issues of waiver and ratification, not pleaded, were tried by consent, no objection being made, and that since the evidence establishing ratification and waiver were undisputed, no issues thereon were required to be submitted to the jury and the provisions of Rule 279, T.R.C.P., were inapplicable.

The motion is overruled.

Motion overruled.

      •. “Lease:
      1 Lessor shall, to Lessee’s special order and specifically for Lessee’s use, construct, install and, during the term of this Agreement, maintain for and lease to Lessee an advertising display (s) described in the specifications and hereinafter called ‘Display’ at (installation address) 1030 Preston Royal Plaza, City Dallas, State of Texas.
      Damage or Destruction of Display:

        5 In the event Display is destroyed or substantially damaged from any cause except deliberate act of Lessee or his agents, Lessor will, upon notification of such damage by Lessee, rebuild Display to conform to its original specifications. If restoration of the premises where Display is located is necessary, Lessee shall, within thirty days after notification of such requirement by Lessor, provide Lessor with written assurance that restoration will be promptly made, or that Lessee will, within six months, provide another suitable location for Display and pay, as a separate charge, all costs involved in the removal of Display to and its installation at such new location. If written assurance of Lessee is so required, but not given, this Agreement shall terminate as of the date the damage occurred, and any rent accruing after such date and paid by Lessee shall be refunded. Unless this Agreement is thus terminated, rent shall abate during the period Display is out of service and the term of this Agreement shall be extended for a period equal to such period of no service, and rent shall be payable during such extended term.
      8 This Agreement consists of the provisions hereof and the attached specifications, rental terms and conditions and the maintenance provisions and constitutes the entire understanding between the parties. This Agreement does not become binding upon Lessor until accepted by Lessor and by an executive officer.
      DELIVERY AND PERFORMANCE
      A Lessor shall use due diligence in furnishing, installing and maintaining Display, but the performance of Lessor under this Agreement shall be subject to any delay resulting from strikes, breakage, fire, labor disputes, unforeseen commercial delays, war, act of God, or other causes beyond control of Lessor. MAINTENANCE OF DISPLAY
      B Lessor, at its expense, shall maintain Display in good condition and appearance. If Display fails to operate for any reason except through fault of Lessee’s agents or employees, Lessor shall, upon notice in writing by Lessee, repair Display within forty-eight hours of receipt of such notice. If Lessor fails, except for reasons beyond its control, to repair Display within such time period, Lessee shall receive credit for the actual time of no service in excess of forty-eight hours, using the maintenance portion of the rental as the basis of such credit. This provision is not intended to reflect the standard of service intended by Lessor, but only to establish, under the above circumstances, an equitable adjustment between Lessor and Lessee.
      DEFAULT
      D If Lessee shall default in payment of the rental herein provided for, Lessor may, at its option and without demand or notice, terminate this Agreement and remove the display at Lessee’s expense. In such event, the unpaid rent for the unexpired portion or period of this Agreement shall become immediaüey due and payable. Lessee agrees to pay Lessor all such rents and any other amounts due Lessor, less of unaecrued rentals, which amount Lessee agrees constitutes the actual liquidated damages Lessor shall sustain by reason of Lessee’s default hereunder and that same is not a penalty. Lessee further agrees to pay Lessor the reasonable cost, including, but not limited to, attorney’s fees incurred by Lessor in collecting

        any monies that shall accrue under the terms of this Agreement. E2 Lessee shall be responsible for securing and maintaining in force all necessary permits from the owner of the premises upon which Display is to be installed, and for all other private permissions necessary for the maintenance, use and existence of Display. Lessee will also be responsible that public permits, once issued, shall not be revoked. Lessor shall not be obligated to commence construction of Display until public permits have been issued. If public permits are denied after every reasonable effort by both parties to secure same, then this Agreement shall terminate without liability to either party. E3 Display, for all purposes, shall be deemed personal property and shall not, by reason of attachment to realty be deemed a fixture or appurtenance thereto, and shall remain severable therefrom and the sole property of Lessor. Without prior written consent of Lessor, Lessee shall not, at any time or at any location, permit Display to be repaired, replaced, altered or other work to be done on Display by any one other than Lessee or Lessor’s agent.”


author: WERLEIN, Justice.

text:
    Don SHEPHERD, Appellant, v. Peter F. ERICKSON, Appellee.
    No. 15094.
    Court of Civil Appeals of Texas. Houston.
    May 25, 1967.
    Rehearing Denied June 15, 1967.

      Wallace T. Sisk, Houston, for appellant.
    Fred C. Brigman, Jr., Houston, Brigman, Martin & Smith, Houston, of counsel, for appellee.
   WERLEIN, Justice.

This is an appeal from a summary judgment. Appellee sued appellant, Don Shepherd, on a promissory note in the sum of $50,000.00, dated March 23, 1966, and payable to appellee on demand at The Bank of Texas in Houston, with interest and attorney’s fees.

Appellee’s affidavit is to the effect that he was still the owner and holder of said note and had many times between September 23, 1966 and November 1, 1966 requested payment of the note, and upon appellant’s failure to pay the same he placed the note in the hands of his attorneys for collection and agreed to pay them attorney’s fees in excess of the amount provided in said note.

Appellant asserts that the court incorrectly held there was an absence of any genuine issue of fact, and also erred in holding that appellant was entitled to a $5,000.00 credit without also holding that there was a material issue of fact with respect to an extension or deferment of payment of the note under the disputed evidence. In his affidavit appellant stated certain matters leading up to the execution of the $50,000.00 note and alleged that appellee informed him that if he could obtain certain money from a trust, the $50,000.00 note would not be due and payable until the financing involved in the trust was due and payable, even though his note was a demand note. He also stated in his affidavit that on or about October 1, 1966 appellee reiterated that the note was not due and payable in keeping with the over-all financing arrangement under which the note was entered into. He further stated that appel-lee requested him to make a payment direct to the Fort Worth National Bank in the approximate amount of $5,000.00 which would be offset against the note due appel-lee when such note was actually due, and that he made such payment of $5,000.00.

At the hearing on the motion for summary judgment, appellee agreed to the allowance of a credit of the $5,000.00 which appellant asserted he had paid, and thereupon the trial court entered summary judgment for the balance of the note plus attorney’s fees and interest. Resolving all doubts as to the existence of a genuine issue of material fact against appellee and in favor of appellant, we are of the opinion that the trial court did not err in granting the summary judgment. Since appellee allowed appellant the $5,000.00 credit at the hearing, the only genuine issue of material fact was effectively eliminated. Gulbenkian v. Penn, 1952, 151 Tex. 412, 252 S.W.2d 929; Womack v. Allstate Insurance Co., 1956, 156 Tex. 467, 296 S.W.2d 233; Stafford v. Wilkinson, 1957, 157 Tex. 483, 304 S.W.2d 364; Rule 166-A, Texas Rules of Civil Procedure.

Appellant’s allegations with respect to certain negotiations and agreements leading up to the execution of the $50,000.00 note and particularly those relating to the time of payment of the note would be inadmissible in evidence upon a trial of the case since such allegations clearly constituted an effort on the part of appellant to vary by parol the terms of the written instrument with respect to payment. In Kuper v. Schmidt, 1960, 161 Tex. 189, 338 S.W.2d 948, the court said:

“As pointed out in Helmke v. Prasifka, Tex.Civ.App., 17 S.W.2d 463 (wr. ref.), there is a distinction between a parol condition affecting delivery of a negotiable instrument and one affecting its payment. By the express terms of the Negotiable Instruments Act, delivery upon a condition or for a special purpose only may always be shown as between the immediate parties. Article 5932, Sec. 16; Williams v. Jones, 122 Tex. 61, 52 S.W.2d 256. See also Moser v. John F. Buckner & Sons, Tex.Civ.App., 283 S.W.2d 404 (no writ); Bynum v. Peoples State Bank of Turkey, Tex.Civ.App., 243 S.W.2d 190 (no writ); Hunley v. Garber, Tex.Civ.App., 254 S.W.2d 813 (no writ). On the other hand a parol condition or agreement relating to payment of a delivered instrument is not enforceable if it operates to add to, take from or vary the terms of the written agreement. Helm-ke v. Prasifka, supra. See also Shepherd v. Woodson Lumber Co., Tex.Civ.App., 63 S.W.2d 581 (no writ).”

See also Super-Cold Southwest Co. v. Elkins, 1942, 140 Tex. 48, 166 S.W.2d 97; Community Savings and Loan Association v. Fisher, Tex.Sup.1966, 409 S.W.2d 546; Wells v. Davis, 314 S.W.2d 406, Tex.Civ.App. 1958, no writ history.

The allegations that appellee reiterated that appellant’s note was not due and payable in keeping with the over-all financing arrangement and that appellee agreed to defer payment of appellant’s note until other notes involved were due and payable, and “did so in and for the consideration stipulated above and the terms of the agreement concerning the execution of same,” are no more than a repetition of the prior parol arrangement and agreement which appellant claimed preceded the execution of the demand note. Such allegations had to do with only the time of payment of a demand note, and would be inadmissible in evidence on a trial of the case. Appellant does not deny that appellee made demand for payment of the note many times between September 23, 1966 and November 1, 1966. Such latter demand was after the time that appellant contends appellee reiterated that the note was not due and payable.

Although appellant asserts that there was a fact issue with reference to an agreement by appellee to defer demand on the note until certain other notes were due and payable by other parties, which latter notes were not due and payable, there is no allegation or contention that payment of the note in question was extended for any definite period of time. The law is well settled that the extension of a note must be for a. definite period in order to be enforceable as an extension agreement. Tsesmelis v. Sinton State Bank, Tex.Com.App.1932, 53 S.W.2d 461, 85 A.L.R. 319; Dickson v. Kilgore State Bank, Tex.Com.App.1924, 257 S.W. 867; Crispí v. Emmott, 337 S.W.2d' 314, Tex.Civ.App.1960, and authorities cited therein. The mere payment of a part of an obligation that is due and payable is not a consideration for an agreement to extend the time of payment of the balance due on such obligation. Corbett v. Sweeney, 151 S. W. 858, Tex.Civ.App., error ref.; Neyland v. Lanier, 273 S.W. 1022, Tex.Civ.App. 1925.

Appellant in his brief asserts, that delivery is a question of fact where the issue is properly raised by the pleadings, and that a conditional or contingent delivery may be shown by parol. In the instant case appellant has failed, however, to show either in his unsworn first amended original answer or in his controverting affidavit that there was no delivery of the note or that there was a conditional delivery thereof, or a delivery which would take effect upon the happening of some contingency. Appellant’s pleading consists of a general denial of the allegations of appellee’s petition and the allegations in appellee’s motion for summary judgment. He has not pleaded any affirmative defenses to the note which, of course, he would have to plead in order to rely thereon. Rule 94, T.R.C.P. The only parol agreement which he attempted to establish related to the time of payment of the note. He thus attempted to vary the written instrument by parol with respect to the terms of payment. This he may not do. Kuper v. Schmidt, supra.

Judgment of the Trial Court affirmed, Associate Justice Coleman not sitting.


author: O’QUINN, Justice.

text:
    William C. MILLS, Executor of the Estate of Jobe Howell, and William C. Mills and Millie Exa Mills, Guardians of the Persons and Estates of William Jobe Howell and Dixie Lynn Howell, Minors, Petitioners, v. Maria Floravanti McKay HOWELL, Individually and as Next Friend of Kelly Luisa McKay, a Minor, Respondent.
    No. 11502.
    Court of Civil Appeals of Texas. Austin.
    May 10, 1967.
    Rehearing Denied May 24, 1967.

      W. D. Brown, Quitman, Strasburger, Price, Kelton, Miller & Martin, Royal H. Brin, Jr., Dallas, for petitioners.
    Harold B. Stone, Dallas, for respondent.
   O’QUINN, Justice.

On petition for writ of error, the executor appointed under a will and the guardians of the persons and estates of minor children of deceased seek to set aside a declaratory judgment holding the petitioner for judgment to be the surviving common law wife of deceased and her infant daughter the child of that marriage.

The first question in the case is whether appeal by writ of error was perfected.

Petitioners for writ of error are residents of Wood County, Texas, where the estates are being administered, and the judgment they ask be set aside was granted in Dallas County, Texas, in district court.

Jobe Howell, an officer in the United States Air Force, died December 30, 1965, leaving a will devising all his property to his children, William Jobe Howell and Dixie Lynn Howell. His wife, Betty Nell Howell, had preceded him in death April 11, 1955. The will named Howell’s father-in-law, William C. Mills, independent executor of the estate and designated Mills and his wife, Millie Exa Mills, guardians of the estates of the two children.

Howell’s will was probated in Wood County March 28, 1966, and letters testamentary were issued to Mills as an executor. In a companion proceeding in county court, Mills and his wife were appointed guardians of the persons and estates of the two minor children April 11, 1966. The estate of Howell consisted of real property in Wood County, certain personal property, and life insurance policies, including Servicemen’s Group Life Insurance.

On May 19, 1966, there was initiated in district court in Dallas County a proceeding styled, “In the Matter of Maria Fioravanti McKay Howell, Individually and as Next Friend of Kelly Luisa McKay,-a Minor.” The petition was sworn to by Maria Fiora-vanti McKay Howell as party plaintiff, setting out allegations upon which to base her prayer for judgment declaring a valid and subsisting common law marriage with Howell from September, 1957, until his death, and declaring Kelly Luisa McKay the daughter and lawful heir of the deceased Howell. Judgment was entered the same day the petition was filed, May 19, 1966.

The petition named no defendants. No notices or citations were issued or served, and no grounds of jurisdiction were set out in the petition. Petitioners in this cause, the executor and the guardians, were not made parties, were not served, and did not in any manner participate in the declaratory judgment proceedings. The only party to the petition for declaratory judgment was the petitioner in that case, for herself, and as next friend for her minor daughter.

Howell had not designated a beneficiary of his Servicemen’s Group Life Insurance. The respondent in this action, Maria Fiora-vanti McKay Howell, made claim to the proceeds as Howell’s widow, and petitioners, Mills and wife acting in their appointed capacities, made claim in behalf of Howell’s estate and his two children. In support of her claim to the insurance proceeds, the respondent sent a copy of the declaratory judgment to the office of Servicemen’s Group Life Insurance.

When Howell died in December, 1965, his will reflected that he had two heirs. With no beneficiary designated in the Servicemen’s policy, the proceeds, together withoall his other property, would go to his two heirs, to be administered by the executor and the guardians he named in the will. The declaratory judgment in May, 1966, would add another lawful heir and a surviving wife, to share in his estate. It appears that if respondent is the surviving spouse of Howell, payment of the insurance proceeds would be made to her, but if she is not his widow, Howell’s two children named in the will would be entitled to the money.

The judgment of-the-district court declared that a controversy existed under the Declaratory Judgments Act (Article 2524-1, Vernon’s Ann.Tex.Sts.). It declared respondent to be the surviving spouse of Jobe Howell, by virtue of a common law marriage, and Kelly Luisa McKay to be Howell’s child and lawful heir, and decreed they were entitled to the rights respectively of surviving spouse and child.

Petitioners come to remove this judgment for revision and correction to this Court by petition for writ of error.

Respondent has filed a motion to dismiss this appeal.

Writ of error as a means of affording review of proceedings in the trial court is available to persons who were parties to the suit in trial court but did not participate in the actual trial of the case. The general rule is that this form of appeal is limited to parties of record. Gunn v. Cava-naugh, 391 S.W.2d 723 (Tex.1965).

While there are certain exceptions to this rule, we find that this cause does not come under any of these exceptions. This Court in 1966 applied the rule stated in Gunn v. Cavanaugh, supra, and stated, referring to the decision by the Supreme Court:

“There the Court followed the time honored rule that only persons who are parties or their privies, regardless of their interest in the outcome of the case, may appeal from the judgment in the case, and if relief from such judgment is sought by persons other than parties and their privies, such relief must be sought in a court of original jurisdiction.” Industrial Generating Co. v. Jenkins, Tex.Civ. App., Austin, 410 S.W.2d 658.

The exceptions to the general rule are referred to in both Gunn v. Cavanaugh and Industrial Generating Co. v. Jenkins. The cause before us is not a class suit such as Ambassador Oil Corp v. Robertson, Tex.Civ.App., Austin, 384 S.W.2d 752 (writ ref. n. r. e.). It is not a case involving the doctrine of virtual representation as applied in Mason v. Mason, 366 S.W.2d 552 (Tex. 1963).

We have been cited to Specia v. Specia, Tex.Civ.App., San Antonio, 292 S.W.2d 818 (writ ref. n. r. e.), which was a will contest, as authority for holding that this appeal has been perfected. We cannot agree. The Specia case was referred to in Gunn v. Cavanaugh and the Court pointed out that “Probate appeals are distinguishable from the usual species of civil cases * * * ” 391 S.W.2d 723, 725, col. 2.

We conclude that petitioners are not entitled to appeal in this suit on writ of error, and agree respondent’s motion to dismiss should be granted.

In view of the disposition to be made of this appeal, we do not have the judgment of the district court before us, and therefore express no opinion upon its validity.

The motion to dismiss this appeal is granted.

Appeal dismissed.

ON MOTION FOR REHEARING

Petitioners on motion for rehearing ask the Court to say that if the declaratory judgment were before us, we would find it void. We cannot determine the validity of a judgment which is not before us. We call attention, however, to the first sentence of section 11 of the Uniform Declaratory Judgments Act:

“When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.” Article 2524— 1, sec. 11, Vernon’s Ann.Tex.Stats.

As pointed out in the opinion, the declaratory judgment purports to add another heir and a surviving wife to share in the estates being administered by petitioners. Under the wording of the statute itself, parties whose interests are affected must be made parties, and the declaration cannot prejudice the rights of persons not party to the proceeding. We have observed that only the person seeking the declaration was a party to that action. If there are no opposing rights, an opinion is purely advisory and void; if there are opposing rights, all interests affected must be party if the declaration is to be valid. Just as jurisdiction may not be conferred by agreement of the parties, so it may not be conferred by agreement between the sole party to an action and the court.

Motion overruled.


author: McDONALD, Chief Justice. WILSON, Justice

text:
    Tommy Lee BROCK et al., Appellants, v. Virginia BOSS et vir, Appellees.
    No. 4611.
    Court of Civil Appeals of Texas. Waco.
    May 25, 1967.
    Rehearing Denied June 15,1967.
    Baker, Botts, Shepherd & Coates, Robert J. Malinak, Houston, for appellants.
    Robert J. Barr, Houston, for appellees.
   McDONALD, Chief Justice.

OPINION

This is an appeal by defendant from a judgment for plaintiff in a rear end collision case, in which judgment was rendered for plaintiff after disregarding two jury findings.

Plaintiff Boss was driving southeasterly on the Gulf Freeway Service Road. Defendant Brock was behind plaintiff. Plaintiff stopped at the traffic signal light at the Cullen Boulevard intersection at a time when the light was yellow. Defendant’s car hit plaintiff’s car in the rear, causing damage. The jury found defendant was following too closely, failed to keep a proper lookout; failed to make proper brake application; all of which proximately caused plaintiff’s damage of $4240.69. The jury further found in answer to Issues 9 and 10 that, “just before the collision plaintiff stopped her automobile more suddenly than it would have been stopped by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances,” and that this was a proximate cause of the collision.

The trial court disregarded the answer to Issues 9 and 10, and entered judgment for plaintiff for $4240.69.

Defendant appeals, contending the trial court erred:

1) In disregarding the jury’s findings to Issues 9 and 10 for the reason there was ample evidence to sustain same; and
2) In entering judgment for plaintiff because the finding against her of contributory negligence proximately causing the collision, bars her recovery.

Plaintiff was travelling on Gulf Freeway Service Road; defendant was behind plaintiff. Both cars were within the speed limit. Plaintiff stopped at the traffic light at Cullen Boulevard when the light was yellow. Defendant failed to stop and ran into the rear end of plaintiff’s car. Defendant testified plaintiff was “almost on the intersection” when the light turned yellow and “he thought she would proceed through the yellow light, but she instead, brought her car to a sudden stop.” Plaintiff was going no more than 30 mph initially; slowed down to 20, and then applied her brakes and stopped at the yellow light. The jury convicted defendant of several acts of negligence proximately causing the collision, and convicted plaintiff of negligence in stopping suddenly.

Under the facts, we think plaintiff had a legal right to stop her car when the traffic signal turned yellow. Article 6701d, Vernon’s Ann.Tex.Civ.St. (Sec. 33) defines the yellow signal as the caution signal, and prohibits a car from proceeding on the red signal. Plaintiff stopped on the yellow signal — although defendant thought she would proceed through the light. In an analogous factual situation, Justice Norvell, in Bass v. Stockton, CCA (nwh) 236 S.W. 2d, 229, 231 says:

“It seems to us that in view of the wording of the statute, as well as for considerations of personal safety, a cautious-person would stop on a yellow light, and evidence showing that a motorist did that and nothing more is insufficient to support a finding of negligence. The law does not require one to employ split-second timing in determining whether to-cross a street • intersection on a yellow light or not.”

Such case further holds plaintiff in such situation violated no legal duty to defendant by stopping her automobile when the traffic light changed to yellow.

To the same effect is Kuykendall v. Doose, CCA (nre) 260 S.W.2d 435.

The trial court properly disregarded the findings in answer to Issues 9 and 10.

Defendant’s points and contentions are overruled.

Affirmed.

WILSON, Justice

(dissenting).

I dissent. The majority opinion is based on the theory that “plaintiff had a legal right to stop her car when the traffic signal turned yellow.” Plaintiff’s legal right to stop solves no question here. The question is not of her right to stop, but the manner of stopping. The question is whether there was any evidence of probative force to sustain the jury findings of negligence and proximate cause as to the manner of stopping. There is. Neither the trial court nor we have authority to disregard that finding. The question is not one of how we would have found as members of a jury.

In Bass v. Stockton, Tex.Civ.App., 236 S.W.2d 229, no writ, cited by the majority, there was no jury finding as to the manner in which the lead car was stopped. The only question was sufficiency of evidence on the proper lookout finding against the driver of the lead car, and that dealt with lookout to the rear. It was held the evidence did not raise the issue. As to the mere fact of stopping, the court emphasized: “that and nothing more is insufficient to support a finding of negligence.” Here there is more. There is a sudden stop from a speed of 30 miles per hour, right at the light, “almost on the intersection.” The lead car was “almost on the light” when the driver “hit her brakes hard and came to a sudden stop.”

In Kuykendall v. Doose, Tex.Civ.App., 260 S.W.2d 435, writ ref. n. r. e., the jury found the lead car was stopped so suddenly as to constitute a hazard to rear vehicles, but found the sudden stop was not negligence. Again the question was whether evidence supported a finding that the lead driver failed to keep a proper lookout to the rear. The present question was simply not in either case cited.

Here the jury found the lead car was stopped more suddenly than it should have been stopped in the exercise of ordinary care. To follow the majority reasoning would be to hold the lead car will invariably be free from negligence in stopping (regardless of the circumstances attending, and the manner of the stop) if there is an amber or yellow light.

When the evidence, including favorable circumstances and inferences sustaining the jury findings, is given effect and contrary evidence disregarded, as is required in this appeal, there is no authority to ignore the jury finding. I would reverse.


author: CHADICK, Chief Justice.

text:
    Robert L. SONFIELD, Jr., Appellant, v. G. D. EVERSOLE, Appellee.

      No. 7802.
    Court of Civil Appeals of Texas. Texarkana.
    May 2, 1967.
    Rehearing Denied May 23, 1967.

      Robert L. Sonfield, Sonfield, Sonfield & Lawrence, Houston, for appellant.
    Fred W. Hodson, Jr., Erwin, Wagner & Hodson, Houston, for appellee.
   CHADICK, Chief Justice.

This is a suit to reduce to judgment a negotiable promissory note. A summary judgment for the payee was entered in the trial court and is here affirmed.

The defendant in the trial court, Robert L. Sonfield, Jr., and George H. Lawrence (not made a party to the suit) were comakers of the note, and G. D. Eversole, the plaintiff, was payee. The note is regular and complete on its face; the principal amount is $21,000.00, date is February 2, 1965, interest is Six per cent per annum, and both principal and interest are payable on or before the expiration of one year from date. Defendant Sonfield filed verified pleadings in the trial court and in response to the plaintiff’s summary judgment motion filed an affidavit setting out facts relied on to relieve him partially or wholly from his obligation to pay the note.

The Sonfield affidavit describes a series of transactions beginning in October, 1963, culminating in the execution of the $21,000.-00 note. It states that contemporaneously with the execution of the note the parties to it agreed that Sonfield would be liable to pay $10,500.00 of the face amount, and co-maker Lawrence’s liability was for a similar sum. In a separate paragraph the affidavit says:

“ * * * Shortly after execution of the note, however, the exact date being forgotten, it was mutually agreed between Plaintiff and Affiant for himself and on behalf of the said George H. Lawrence that the maturity date of the note was extended for an additional period of one year so as to become due and payable on February 2, 1967, and that the said note would be further renewed from year to year, to become due and payable on the said February 2 of each such year, until the said capital stock of RCA Investment Corporation became marketable through a regularly licensed broker who is a member of a national stock exchange and is being bought, sold and traded in the securities market. Defendant believed that Plaintiff would abide such agreement and relied thereon.”

In the trial of a lawsuit the parol evidence rule excludes from the court’s consideration extrinsic evidence of prior or “contemporaneous expressions of the parties relating to the same subject matter as that to which the written memorial relates”, on the theory that “reduction of a transaction to a final written form supersedes prior and contemporaneous outside expressions of the parties” if the extrinsic evidence contradicts or varies the terms of the written instrument. 2 Tex. Law of Evidence, § 1601, 1602, and 1671. There are numerous exceptions to the rule, extrinsic evidence is admissible to show fraud, duress, and in a variety of other situations involving written instruments. However, the proof in this record does not bring the claimed contemporaneous agreement fixing Sonfield’s liability on the note at one-half of its face amount within any recognized exception; estoppel was plead and that defense will be examined in subsequent discussion. Appellant has not cited a factually similar case in which a Texas Court has held extrinsic evidence admissible to show an agreement limiting the amount a maker of a note is obligated to pay to a lesser sum than the face of the note. An accommodation maker, surety, etc., is to be distinguished from a simple maker of a note as the technical term is used here. The agreement shown by the affidavit is a classic example of an agreement rendered inadmissible by the parol evidence rule. See Tex.Jur. (2) § 342 (1961) for a broad statement of the rule.

Next for consideration is the agreement made after execution of the note to extend the time of payment as set out in the extract from the Sonfield affidavit quoted above. Evidence of such an agreement is admissible and must be considered when all the elements essential to the creation of a contract are shown by the tendered proof. 9 Tex.Jur .2d Bills and Notes § 303 (1959). Among the necessary provisions of a contract for an extension is agreement that payment be extended to a fixed time. Benson v. Phipps, 87 Tex. 578, 29 S.W. 1061 (1895); Tsesmelis v. Sinton State Bank, 53 S.W.2d 461, 85 A.L. R. 319 (Tex.Comm.App.1932); Kirby v. American State Bank of Amarillo, 18 S.W. 2d 599, 63 A.L.R. 1528 (Tex.Comm.App. 1929). The only evidence of an agreement to extend time of payment is contained in the section of Sonfield’s affidavit above quoted. On examination it is apparent that the agreement does not fix a definite and certain future time for payment. The date payment matures is the date a certain stock becomes marketable in a particular way. There is no evidence that such event is bound to occur. The proof fails to show a valid contract extending the time for payment of the $21,000.00 note.

Defendant Sonfield plead that he believed Eversole would abide by the time of payment extension agreement, that he relied upon it and was thereby lulled into a sense of security which Eversole is estop-ped to interrupt by suing to reduce the note to judgment. A very respected text, 31 C.J.S. Estoppel § 63 (1964), in discussing equitable estoppel (estoppel in pais) makes an incisive statement of the particular phase of the doctrine invoked here, and the public policy underlying, it in this language:

“One of the purposes of estoppel is to prevent one person, by throwing another off his guard, from obtaining an unfair advantage or from acting inconsistently to another’s disadvantage. So, where one party has by his representations or conduct induced the other party to a transaction to give him an advantage which it would be against equity and good conscience for him to assert, he will not in a court of justice be permitted to avail himself of that advantage. However, the doctrine of equitable estoppel may not be properly invoked to permit the party asserting it to secure an undue advantage.”

Failure to extend the time for payment of the note is not shown to have worked to Eversole’s advantage, or to accord him a benefit not otherwise enjoyed as payee under the written provisions of the note. Neither is there shown a disadvantage to Sonfield resulting from reliance upon the agreement. The extension agreement is not shown to have changed or to have induced him to change his position in a detrimental way. Estoppel is not supported by proof.

The record left the trial court no alternative but to grant the motion for summary judgment; and as the record stands this court has no alternative to affirmance. The judgment is affirmed.


text:
    J. HOFERT COMPANY, Appellant, v. Edwin W. INMAN, Appellee.
    No. 11503.
    Court of Civil Appeals of Texas. Austin.
    May 24, 1967.
    Thompson, Roby & Puett, Van Thompson, Jr., Austin, for appellant.
    Edwin W. Inman, Austin, for appellee.
   HUGHES, Justice.

J. Hofert Company, appellant, sued Edwin W. Inman on a sworn account in the amount of $2,773.59 for Christmas trees sold and delivered to Mr. Inman. This account was verified as required by Rule 185, Texas Rules of Civil Procedure.

Appellee, who represented himself, filed an unsworn answer which we copy in full:

“Now comes Edwin W. Inman, who resides at 907 Mansell St., Austin, Texas, hereinafter called Defendant, who for the purpose of denial, and for cause of action herein be stopped, of party J. Hofert Co., hereinafter called Plaintiff, and for cause of action stopped, would respectfully show the Court as follows:
I.
That heretofore, that the allegations of paragraph I inclusive has no dates, of delivery, or signed invoices of merchandise received, nor, as to agreement.
II.
Deny the allegations were reasonable in the worth of any date they were sold to anyone.
III.
I deny that there is a balance due owing to Plaintiff of any amount.
IV.
I deny that Plaintiff presented this claim to me more than 30 days prior to the filing of this suit.
Wherefore, premises considered, Defendant prays the Court, that Plaintiff be estopped in final hearing hereof, and Defendant be granted relief of any legal false claims made by Plaintiff.”

During the course of the trial, the trial court gave appellee the opportunity to swear to this answer, but the offer was declined.

The trial court rendered judgment for appellant for the sum of $1,000.00.

There is no basis in law or in fact for the judgment rendered.

In the absence of a sworn written denial by appellee, as required by Rule 185, T.R. C.P., appellee could not deny the claim of appellant. For the benefit of appellee, we will quote from Collins v. Kent-Coffey Manufacturing Company, 380 S.W.2d 59, Tex.Civ.App., Eastland, writ ref., an exceedingly clear statement of the well settled law which precludes any relief being granted to him:

“Appellee’s suit was upon an open account, verified in accord with Texas Rules of Civil Procedure, rule 185. Appellant’s answer was not sworn to. Appellant’s position is that the allegations of his unverified answer raised issues of fact as to whether a portion of the account was lawfully chargeable to him and whether he was entitled to an offset to said account by reason of damage to the merchandise delivered to him. Rule 185 provides that when an action is founded upon an open account for merchandise, supported by affidavit of the plaintiff that such claim is within his knowledge just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof, unless the defendant files a written denial, under oath, stating that such claim is not just or true, in whole or in part, and if in part only, stating the items and particulars which are unjust. 'When the opposite party fails to file such affidavit, he shall not be permitted to deny the claim, or any item therein * * *’. Appellant, having failed to ‘file such affidavit’, as required by Rule 185, he could not deny appellee’s claim and there was no genuine issue of material fact as to whether appellant was lawfully chargeable with a portion of the account or whether he was entitled to the alleged offset.”

From a factual point of view, appellee testified that he ordered the trees from appellant, that he inspected the trees upon arrival in Austin, that he accepted them and has made no payment for them.

Mr. Inman did testify that the trees were in a “deplorable” and “burned” condition when received and that after the unsold trees were sent to the city dump that a representative of appellant examined them and Stated that he thought the freight car door must have opened while the trees were in transit which let in air and caused needle burn.

Mr. Inman received about $800 from sales of the trees purchased.

There is no evidence of the number of trees which were “burned,” nor is there any evidence of the amount of diminution in market value of the trees. That they had some market value is shown by the sales made.

Factually speaking, there is no evidence from which the trial court could find that appellee owed only $1,000.00 on the $2,773.59 account.

The judgment of the trial court is reversed and judgment is rendered for appellant for the sum of $2,773.59 with interest at the rate of 6% per annum from July 27, 1966, until paid.

Reversed and Rendered.