text:
    A. J. LAMB, Appellant, v. The STATE of Texas, Appellee.
    No. 39844.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1966.
    Rehearing Denied Dec. 31, 1966.

      James F. Moore, Lubbock, for appellant.
    Fred E. West, County Atty., Wm. Quinn Brackett and Carson Smith, Asst. Dist. Attys., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

Upon a trial before the court after a waiver of a jury, and a plea of not guilty, the appellant was convicted for driving while intoxicated and his punishment was assessed at a fine of $150 and three days in jail.

Notice of appeal was given February 4, 1966.

As a ground of error assigned in his brief filed in the trial court, the appellant urges that the evidence is insufficient to support the conviction.

C. R. Andrews, a Texas highway patrolman, testified that while parked about 2½ miles south of Lubbock he saw a pickup driven onto the highway; that he followed the pickup about ½ mile during which time it was driven across the center line and was weaving back and forth until he stopped it by the use of the red light and siren and that the appellant was the person driving the pickup; that he found one one-half pint bottle of Champion Bourbon, two cans of beer, and a paper cup partially filled with alcohol in the pickup; that he had occasion to observe the appellant’s manner of driving, his actions, conduct, and speech at the scene, and smelled a strong odor of alcoholic beverage “from” him; that he had had many opportunities during his adult life and as an officer, including eight years with the highway patrol, to' observe persons .that were intoxicated; that based on his experience and observation of the appellant at the time the pickup was stopped, he expressed the opinion that the appellant was then intoxicated.

Testifying in his own behalf, the appellant denied that he was intoxicated; but admitted that he drank two cans of beer about three hours before as he began a 100 mile return trip from Midland to his home near Lubbock, and also said he never drank any more beverage before he was stopped south of Lubbock; that the bourbon, beer, and paper cup offered by the state were never in the pickup and did not belong to him but that he saw similar articles in the patrol car; that due to physical disability he had some difficulty in walking; that a defect in the steering gear caused the pickup not to operate properly. A companion and a mechanic corroborated the testimony of the appellant.

By formal bill of exception the appellant seeks a reversal on the ground that prior to the commencement of the trial, the court failed to arraign the appellant.

The trial was had on January 14, 1966, and the sentence was pronounced on January 28, 1966.

The bill shows that previous to January 1, 1966, the appellant with his attorney appeared in open court in this cause, answered that his name was A. J. Lamb, the same name under which he is charged and was tried, and announced that, “We waive all formalities.”

Art. 26.01 Vernon’s Ann.C.C.P., provides that, “In all felony cases, after indictment, and all misdemeanor cases punishable by imprisonment, there shall be an arraignment.”

The purpose of an arraignment is to determine the identity and the plea of the person charged, and whether he is indigent.

The judgment recites in part that the appellant having been duly arraigned, appeared and announced ready for trial.

The procedure for arraignment had in fact been followed before the commencement of the trial, although the statute providing therefor was not then in effect. Art. 26.02 C.C.P. The time of the arraignment in view of the fact that it was had before the commencement of the trial, and the waiver in open court of all formalities reveals no error. Art. 26.03 C.C.P.

Reversal is sought on the ground that the appellant did not waive a trial by jury in writing and consent in writing to be tried before the court.

The formal bill recites that a jury was orally waived and the case went to trial without objection.

The judgment recites that when this cause was called for trial, both parties appeared and announced ready for trial and a jury being waived the case was tried before the court.

No requirement is found in the Code of Criminal Procedure that the waiver of a jury in the trial of a misdemeanor case be in writing. Although the right of trial by jury shall remain inviolate, the defendant in a criminal prosecution for any offense may waive any rights secured him by law except the right of trial by jury in a capital felony case in which the state has made known in open court in writing at least 15 days prior to trial that it will seek the death penalty. Arts. 1.12 and 1.14, C.C.P. No error is presented.

Error is urged on the ground that the evidence of the chain of custody of the state’s exhibits, to wit: one one-half pint of Champion Bourbon, two cans of beer, and a paper cup was insufficient to permit their introduction into evidence.

Officer Andrews testified in part as follows :

“Q In the conservation of time, Andy, just referring to all four things, I have set in front of you at this time, can you identify them?
“A Yes, sir, I can.
“Q And what are they, please?
“A Well, sir, there’s a Coors paper cup, a half pint of Champion Bourbon whiskey, two cans of Schlitz beer.
⅝ ⅜ ⅜ ⅝ ⅝ ⅜
“Q Where have you seen them before?
“A They were in the Chevrolet pickup driven by Mr. Lamb the night I arrested him.
“Q How do you know these are the same ones that were in there?
“A Because I have marked these items as part of the physical evidence that night.
“Q And that is your markings on there, you can definitely identify those as your markings?
“A Yes, sir.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“A I placed them in the patrol car, I kept them in my possession, took them to my office, placed them under lock and key there. I have a locker where I keep all my evidence in, I keep it locked up.
⅝ ⅜ ⅜ ⅜ ⅝ ‡
“Q All right. Now, are they in the same condition now as they were at the time you seized them?
“A No, sir, the only difference was this cup was approximately one-third full of some alcoholic beverage that night and I poured it out.
“Q Other than that, they are in the same condition as they were at the time that you seized them?
“A Yes, sir.”

The testimony of Officer Andrews sufficiently identified the four state’s exhibits to authorize their admission in evidence.

It is insisted that there is no statutory provision for the trial court to pronounce sentence in a misdemeanor case where the court heard the evidence after a plea of not guilty.

After the waiver of a jury, the trial was before the court. The offense charged provided for punishment by imprisonment. Upon the judgment of conviction the court was authorized to pronounce sentence. Art. 42.02 and 42.03 C.C.P.

The judgment is affirmed.

Opinion approved by the court.


source: Caselaw Access Project

author: MORRISON, Presiding Judge.

license: Public Domain

text:
    Oscar BUENO, Appellant, v. The STATE of Texas, Appellee.
    No. 39911.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1966.

      Marvin Foster, Jr., Corpus Christi, for appellant.
    Sam Jones, Dist. Atty., Douglas Tinker, Asst. Dist. Atty., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Presiding Judge.

The offense is robbery by assault with a prior non-capital felony conviction alleged for enhancement; the punishment, life.

In a brief filed in the trial court the appellant, without the citation of authority, makes several allegations of error. An examination of this lengthy record reveals that practically all of the inadmissible evidence about which complaint is made was elicited by appellant’s counsel and much of it developed in the absence of the jury. We have concluded that it would serve no worthwhile purpose to discuss the possibility of error had this evidence been introduced by the State.

We find no error in the court’s charge.

The indictment returned by the Nueces County Grand Jury against appellant charged two prior convictions. Proof of only one was permitted. The primary offense was alleged and proven to have been committed on September 25, 1965. The prior conviction proven was on January 13, 1961. Under the holdings of this Court in Covarrubias v. State, 169 Tex.Cr.R. 288, 334 S.W.2d 187; Haines v. State, 391 S.W.2d 58; and Wilson v. State, 398 S.W.2d 291, this is sufficient.

Finding no reversible error, the judgment is affirmed.


author: McDonald, judge.

text:
    Willie James FRANKLIN, Appellant, v. The STATE of Texas, Appellee.
    No. 39790.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1966.
    Rehearing Denied Dec. 31, 1966.

      Tom Upchurch, Jr., Amarillo, (on appeal), for appellant.
    B. G. Compton, Dist. Atty., Toby A. Priolo, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDonald, judge.

The offense is burglary of a private residence at night; on a plea of guilty the jury assessed punishment at 15 years confinement in the Texas Department of Corrections.

Notice of appeal was given prior to January 1, 1966.

At about 12:15 a.m. on the morning of May 21, 1965, Annette Dove returned to her residence in Amarillo after attending classes at Canyon, Texas. She entered her home, turned on the light and realized that someone was in the other room. She began screaming and a man rushed toward her. After a brief scuffle Annette’s sister was awakened by the noise and came into the room. The man immediately ran out the back door. A check of the residence revealed that a TV set, a purse, a radio, and some luggage were missing.

After he had been arrested Annette Dove positively identified the man who had been in her residence as Willie James Franklin, the appellant. Appellant signed a written statement admitting the guilt of the offense with which he was charged. While testifying in his own behalf he also judicially acknowledged the truth and correctness of the pertinent parts of his written statement.

Appellant’s first contention is that the trial court reversibly erred in sustaining an objection to certain testimony and commenting on the same, in violation of Article 707, Vernon’s Ann.C.C.P. The record is devoid of an objection to the comment of the court of which he now complains. No error is reflected. Steese v. State, 170 Tex.Cr.R. 269, 340 S.W.2d 49.

Second, appellant contends that the trial court should have declared a mistrial when the state introduced as a witness one Fay Brooks. This contention is predicated on Article 714, Vernon’s Ann.C.C.P., which renders incompetent the testimony of spouses where they testify against each other. There was contradictory evidence as to whether or not Fay Brooks was the common-law wife of the appellant. Appellant did not move for a mistrial at any time before or after the testimony of Fay Brooks, nor did he request that an issue on common-law marriage be submitted or complain that one was not given. When the trial court sustained the objection to the admissibility of Fay Brooks’ testimony and admonished the jury to disregard it, appellant was then in the position of not having an adverse ruling as the trial court had fully responded to appellant’s objection and request. Van Skike v. State, Tex.Cr.App., 388 S.W.2d 716; Matlock v. State, Tex.Cr.App., 373 S.W.2d 237; Baker v. State, Tex.Cr.App., 368 S.W.2d 627 and Bearden v. State, 169 Tex.Cr.R. 437, 334 S.W.2d 447. We find no merit in this contention.

We find the evidence sufficient to sustain the verdict.

Appellant’s remaining contentions are not worthy of discussion and reflect no error.

The judgment is affirmed.


author: WOODLEY, Judge. MORRISON, Presiding Judge.

text:
    Ex parte Delbert Mac SAWYERS.
    No. 39843.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1966.
    Rehearing Denied Dec. 31, 1966
    Shaver, Hurley & Sowder, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., Roy L. Merrill, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

This is an appeal from an order entered in a habeas corpus proceeding in which appellant was remanded to custody for extradition to the State of New Mexico.

The Executive Warrant issued by the Governor of Texas was introduced in evidence by the state and was admitted over the objection that it was invalid on its face and because “valid complaints, warrants or supporting papers” were not introduced in connection therewith.

The state introduced in evidence the district attorney’s application to the Governor of New Mexico for Requisition to the Governor of Texas; the complaint, warrant and supporting affidavits and the designation by the Governor of New Mexico of an agent to receive Delbert Mac Sawyers and convey him to New Mexico which recites that Requisition had been issued the same day.

Though the record suggests that the Requisition or Demand of the Governor of New Mexico was introduced at the hearing, it does not appear in the record.

The complaint introduced in evidence by the state charges the defendant therein with a “violation of Sec. 64-10-3 N.M.S.A., 1953 Compilation, in that said defendant? did unlawfully hold or use evidences of car title, to-wit, a false Manufacturer’s Statement of Origin to a 1965 Chevrolet Impala motor vehicle, Manufacturer’s Motor Vehicle Identification No. 166375R111967, knowing the same to have been altered, forged or falsified, and charges that said act occurred on or about the 25th day of January, 1965, in the County of Santa Fe, State of New Mexico.”

The New Mexico Statute read into the record by appellant’s counsel makes it a crime to alter with fraudulent intent any certificate of title, registration evidence, registration plate, or permit issued by the Division or “(4) To hold or use any such document or plate, knowing the same to have been so altered, forged or falsified.”

While we do not attempt to otherwise construe the New Mexico Statute, we find no merit in the contention that it does not apply to a false manufacturer’s statement of origin to a motor vehicle, and overrule the contention that the complaint does not substantially charge the defendant therein with having committed a crime in the State of New Mexico.

We also overrule the contention that the copy of the complaint was not authenticated by the Executive Authority making the demand.

The Executive Warrant of the Governor of Texas recites that the Governor of the State of New Mexico had made his demand for the extradition of Delbert Mac Sawyers and that said demand was accompanied by copy of the complaint, warrant and supporting papers “duly certified as authentic” by the Governor of New Mexico.

The state was not bound to introduce in evidence the demand or Requisition of the Governor of New Mexico. Ex parte Hoover, 164 Tex.Cr.R. 251, 298 S.W.2d 579; Ex parte Shirley, 164 Tex.Cr.R. 447, 299 S.W.2d 701; Ex parte Black, Tex.Cr.App., 384 S.W.2d 876.

The introduction of the Warrant of the Governor of Texas-was sufficient to make a prima facie case authorizing appellant’s extradition. Ex parte Carroll, 152 Tex.Cr.R. 581, 216 S.W.2d 580; Ex parte Kaufman, 168 Tex.Cr.R. 55, 323 S.W.2d 48; Ex parte Williams, 169 Tex.Cr.R. 192, 333 S.W.2d 146.

The complaint, warrant and supporting papers introduced by the state did not destroy the prima facie case made by the introduction of the Executive Warrant of the Governor of Texas. Ex parte Gordon, 118 Tex.Cr.R. 150, 37 S.W.2d 1023; Ex parte Shirley, supra.

The judgment remanding appellant to custody for extradition to New Mexico is affirmed.

CONCURRING OPINION

MORRISON, Presiding Judge.

At first blush it would appear that the conclusion we reach here is in direct conflict with our holding in Ex parte Harck, 160 Tex.Cr.R. 602, 274 S.W.2d 74. A study of the record on Harck reveals, however, that the relator called the agent of the demanding state as a witness and proved by him that no demand from the Governor of Arizona was presented to the Governor of this State. In the case at bar we have no such showing, and our holding in Ex parte Parkinson, 160 Tex.Cr.R. 369, 271 S.W.2d 638, here controls.


author: PHILLIPS, Justice.

text:
    Bob TOELLNER, Appellant, v. Frank TREVINO, Appellee.
    No. 11439.
    Court of Civil Appeals of Texas. Austin.
    Nov. 23, 1966.
    Russell G. Ferguson, Austin, for appellant.
    No appearance for appellee.
   PHILLIPS, Justice.

Appellee, Frank Trevino, purchased a 1958 Chevrolet from appellant, a dealer, giving his old car in trade and signing a note payable to appellant for $657.80. In February of 1966, appellant repossessed the car claiming that the note was two payments in default; that appellee’s insurance on the car had been cancelled out, that ap-pellee had had more than a month to obtain other insurance on the car and had failed and refused to do so; that because certain young boys had been seen driving the car appellant had felt “unsafe and insecure,” that he had a right to such possession under the terms of the mortgage.

Appellee Trevino then brought a suit in conversion against appellant to which appellant filed a cross-claim wherein he asserted his right to possession under the purchase contract and sought foreclosure of his lien under its terms.

The suit was tried to the court without a jury after which judgment was rendered for appellee for the title to the car free and clear of any liens, together with the cash sum of $119.00 with interest on the cash sum of 6%. The court also made certain findings of fact and conclusions of law.

We reverse the judgment of the trial court and render judgment as hereinafter described.

Appellant is before this Court on three points of error, however, inasmuch as we sustain his first and third points, we will not discuss the second.

Appellant’s first point of error is that of the trial court in holding that appellant converted the automobile to his own use when appellant had the right of possession under the terms of the written contract; his third point of error is that of the trial court in denying appellant recovery on his cross-claim.

While there is some controversy as to whether appellee was actually in default in his payments, we base our holding upon the provision of the contract between the parties wherein appellee was bound to keep the car insured and also upon the provision in the mortgage providing for foreclosure. This provision reads as follows:

“Said Mortgagor further agrees to keep said goods and chattels insured against loss or damage by insurance loss if any, payable to said Mortgagee or the holder of this note and mortgage, as their interest may appear, paying the premium on said policy and delivered same to the holder of this note and mortgage, and in case said Mortgagor shall neglect or refuse to obtain said insurance or pay the premiums thereon or pay such taxes as aforesaid, then Mortgagee may at Mortgagee’s option, obtain such insurance and pay such taxes and assessments aforesaid and all such sums of money thus expended are hereby secured by these presents and shall be repayable with interest upon demand from said Mortgagor to said Mortgagee, and may be retained by said Mortgagee from the proceeds of the sale of said goods and chattels herein authorized.”

The trial court found that during the month of December, 1965 the insurance agency who had issued, appellee’s policy on the car mailed appellant notice that the policy would be cancelled January 2, 1966; that the policy was cancelled on January 2, 1966 and the insurance agency mailed ap-pellee Trevino a refund check in the amount of $33.00 on April 1, 1966; that after repossessing the car, appellant tendered the automobile to appellee in consideration that appellee would pay the balance owing on said indebtedness into the registry of the court.

With respect to the insurance in question, the court found that the note which ap-pellee signed stated that if the buyer did not carry insurance, the seller at his option would furnish insurance; that the weight of the evidence shows that the defendant exercised his option as the seller and furnished the insurance by charging the plaintiff a premium for insurance. Evidently the court reached this conclusion because appellant furnished appellee with the money to pay the premium on the original policy of insurance in the note on the car and repayment of this amount was included in appellee’s installment payments.

We cannot agree with these findings and the conclusion of law found by the court that the appellant by his own action exercised an option to furnish the appellee insurance.

The contract provided that the mortgagor (appellee) agreed to keep the car insured. The undisputed evidence shows that the insurance was cancelled out, that appellee had been cancelled out in the past, that appellant had called appellee on the telephone stating that appellee must secure another policy of insurance on the car, that ap-pellee agreed that he would do so but did not and that after some twenty-nine days after the insurance agency had cancelled the policy, appellee was still without insurance on the car. Consequently, appellant repossessed the car under the terms of the contract.

We hold that appellant had a right to repossess the car under the facts of this case. Singer Mfg. Co. v. Rios, 96 Tex. 174, 71 S.W. 275, 60 L.R.A. 143 (1903).

We reverse the trial court and render judgment for appellant for his debt, interest and attorney’s fees, foreclosure of the chattel mortgage lien and all costs in this behalf expended, together with an order of sale with direction that should the car sell for more than appellant’s debt and costs, that such excess be paid over to appellee.

The judgment of the trial court is reversed and rendered.

Reversed and rendered.


author: LANGDON, Justice.

text:
    Marjorie Lewis HOBDY, Appellant, v. Joseph L. LEWIS, Appellee.
    No. 16764.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 4, 1966.
    Rehearing Denied Dec. 16, 1966.
    Spence, Martin & Richie, and Gene Richie, Wichita Falls, for appellant.
    Schenk & Wesbrooks, and Perry Wes-brooks, Wichita Falls, for appellee.
   OPINION

LANGDON, Justice.

This appeal is from a judgment reducing the amount of child support from $230.00 to $210.00 per month. Appellant by two points of error contends the trial court erred in modifying the child support by reducing rather than increasing it; that such action had no support in the evidence and constituted an abuse of discretion. We affirm.

The parties were married on April 19, 1947 and had four children of their marriage. On January 8, 1963 the appellant was granted a divorce from appellee on her cross-action and awarded custody of the four children and child support in the sum of $230.00 per month. Both appellant and appellee were remarried at the time of the hearing for modification. An extended recitation of the evidence adduced at the trial will serve no useful purpose. Suffice it to say that several material changes were shown to have taken place since the support order contained in the original judgment.

The trial judge who entered the original judgment likewise ordered the modification. He was undoubtedly familiar with all of the facts and circumstances surrounding the financial circumstances of the parties. Findings of fact and conclusions of law were made and filed. The evidence reflected that the appellee was unable to meet all of his current obligations and could not discharge his debts. The record contains adequate evidence in support of the trial court’s action in reducing the support payments. We do not feel that its judgment should be disturbed. Livingston v. Nealy, 382 S.W.2d 511 (Corpus Christi Civ.App., 1964, writ ref. n. r. e.); Mobley v. Mobley, 221 S.W.2d 565 (San Antonio Civ.App., 1949, no writ hist.); McAfee v. McAfee, 258 S.W.2d 824 (Dallas Civ.App., 1953, no writ hist.); Cockrell v. Cockrell, 298 S.W.2d 178 (Amarillo Civ.App., 1957, no writ hist.). In the instant case most of the problems of the father were attributable to his remarriage. See 89 A.L.R.2d p. 106, “Anno: Divorce—Child Support—Modification” and discussion on “Remarriage of parent as basis for modification of amount of child support provisions of divorce decree.” See 21 Tex.Jur.2d 24, § 404, wherein it is stated, “The court has power and authority to alter, change, or suspend judgments regarding child support”, and cases cited thereunder.

The appellate court is not authorized to change or alter findings of the trial court unless the court has grossly abused its discretion. We are not authorized to change the amount found by the trial court merely because we might think it too high or too low. We must indulge every reasonable presumption, consistent with the record, in favor of the judgment. Brito v. Brito, 346 S.W.2d 133 (El Paso Civ.App., 1961, writ ref. n. r. e.); Brogdon v. Brogdon, 392 S.W.2d 385 (Fort Worth Civ.App., 1965, writ ref. n. r. e.). No clear abuse of discretion on the part of the trial court was shown by the record.

In Madden v. Madden, 365 S.W.2d 427 (Fort Worth Civ.App., 1963, no writ hist.), this court in holding that the trial court did not abuse its discretion held, “The duty of a father to support his children, after divorce, corresponds to his financial ability. Each case must stand on its own facts, and trial courts of necessity have wide' discretion in regard thereto.”

The appellant’s two points of error and the appellee’s cross-point of error are overruled and the judgment of the trial court is in all things affirmed.

Affirmed.


author: DIXON, Chief Justice.

text:
    Bill LATHAM, Appellant, v. James D. DEMENT et ux., Appellees.
    No. 16799.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 28, 1966.
    Rehearing Denied Nov. 25, 1966.

      John A. Pace, Dallas, for appellant.
    Matthews, Weaver & Thorp, and Paul Thorp, Dallas, for appellees.
   DIXON, Chief Justice.

This is an appeal from a judgment rendered in two cases which had been consolidated for trial.

On May 1, 1964 appellant Bill Latham filed suit No. 86,999-A against appellees J. D. Dement and wife Clara B. Dement for a balance of $6,072.64 alleged to be due on the construction of a house for appellees. In this suit appellant also prayed for an attorney’s fee in the sum of $2,000.

On July 2, 1964 appellant Bill Latham filed suit No. 88,821-E against appellee Dement for accounting under a written joint venture agreement dated July 15, 1963. This suit also included a count in trespass to try title wherein appellant Latham asserted an equitable title to an undivided one-half interest in certain lots in a residential real estate subdivision known as Rancho Estates. It was the development of Rancho Estates which was the subject of the joint venture agreement.

There was still another suit filed earlier by appellant Latham against appellee Dement. This was suit No. 83,576-G, a trespass to try title suit, filed in a District Court o.f Dallas County January 3, 1964 in which suit appellant asserted title to an undivided one-half interest in the same land involved in suit No. 88,821-E. This suit was tried and a “take nothing” judgment was rendered in favor of the defendant Dement. No appeal was taken from this judgment.

The “take nothing” judgment rendered in Cause No. 83,576-G is not the subject of this appeal, but its legal effect is material to our decision here — a matter which we shall discuss later in this opinion.

It is undisputed that the parties entered into the joint venture agreement of July 15, 1963.

Soon after signing the agreement appellant and appellee embarked on their joint venture and plans were drawn and filed dividing the acreage into fourteen numbered lots. Debts were incurred for the grading of streets, for the laying of concrete, for paving, etc. The parties agreed, partly for the purpose of stimulating sales, that each would build his home in the addition, the actual construction of said homes to be by appellant Latham. For that purpose Lot No. 6 was allocated to appellant Latham, Lot No. 7 to appellee Dement. Appellant agreed to build appellees’ home for “cost plus $500.00.” Appellees executed a warranty deed to appellant to Lot No. 7. An ¿greed valuation of $4,500 was placed on Lot No. 6 and $5,500 on Lot No. 7.

Disagreement and dissension soon developed between the joint venturers. The statement of facts is voluminous and we shall not attempt to detail all the controversies which arose.

Suffice it to say for present purposes appellant complained that appellee and his wife, because of their extravagance, ran the cost of their house in excess of their original commitment by the sum of more than $6,000; that Dement’s credit was bad and appellant had difficulty with suppliers of labor and materials because Dement was connected with the venture; that Dement failed to contribute his share toward the expenses and the financing of the venture; and failed to cooperate in various particulars.

Dement on the other hand complained that Latham failed to establish a bank account in the name of the joint venture; that he appropriated venture funds to his own individual use; and that Latham finally claimed that the houses he was building were for his own individual account, as was evidenced by warranty deeds executed by Dement to Latham to Lots Nos. 1, 6, 9 and 10 and that he owned a half interest in all the other lots. Dement contends that the deed to Lot No. 1 was conveyed to Latham at an agreed valuation of $3,550 to apply on Dement’s indebtedness to Latham for the construction of Dement’s home on Lot No. 7; that Lot No. 9 was conveyed to Latham in settlement of a controversy with Dement’s mother-in-law; and that the other deeds were executed for the purpose of expediting and facilitating the construction of houses on said lots so that Latham could the better discharge his obligations under the joint venture.

The trial was before the court without the aid of a jury. It was stipulated by the parties at a pre-trial conference that $6,503.14 was the balance due appellant Latham on the construction of appellee Dement’s house, subject to offsets contained in defendants’ answer.

In a written opinion and in the final written judgment the trial court made these findings:

(1) Appellees Dement were indebted to appellant Latham in the amount of $6,503.14 in Cause No. 86,999, less $2,997.64 which had previously been deposited in court by appellees, leaving a balance of $3,505.50 due appellant on said, claim, subject to offset hereinafter found (offset of $3,550, see paragraph (4) hereinafter).

(2) Because of breaches by appellant of the joint venture agreement appellee Dement had the right to terminate and did terminate the joint venture agreement, and same is no longer of any force and effect.

(3) Appellant Latham had advanced funds for the operatoin of the joint venture in the amount of $6,800 and is entitled to reimbursement from appellee Dement in that amount, subject to offsets hereinafter found.

(4) Appellant Latham has received title to Lot No. 6 at an agreed valuation of $4,500; and also received title to Lot No. 1 at an agreed valuation of $3,550, and such agreed valuations aggregating $8,050 should be offset against appellant’s claims in this litigation.

(5) The balance of $3,505.50 found to be due appellant in paragraph (1) above, together with the sum of 6,800 found to be due appellant in paragraph (3) above amounts to the sum of $10,305.50; and after allowing the offset of $8,050 found in paragraph (4) above, a total net amount due appellant from appellee Dement was $2,255.50.

(6) Appellant has no interest in Lots Nos. 2, 3, 4, 5, 8, 11, 12, 13 and 14 of Rancho Estates, except that he is entitled to an equitable lien on said lots to secure payment of the $2,255.50.

(7) The balance due appellant on the construction of appellees’ house is not seriously disputed, except as to the offset matters above set out. The disputed fact issues which required the services of Latham’s counsel were raised in the accounting suit rather than in the house construetion suit, and as to these issues Latham was unsuccessful. Accordingly, Latham’s claim for attorney’s fee should be denied.

Judgment was rendered for appellant Latham for $2,255.50 in accordance with the above findings.

OPINION

In his first two points appellant asserts that Laving executed general warranty deeds to. appellant to certain lots appellees cannot claim that the construction of houses on said lots was for the benefit of the joint venturers; and all the evidence offered to show appellant had breached the joint venture agreement was incompetent and inadmissible because it violated the parol evidence rule in that it sought to vary and contradict the terms of the warranty deeds.

There is no merit in the first two points. It has long been the rule that under proper circumstances parol evidence is admissible to show the true consideration for the execution of a warranty deed. For example, a deed absolute on its face may be shown to have been intended as a mortgage, or a conditional sale, or a sale with option to repurchase. Loving v. Milliken, 59 Tex. 423; Parmenter v. Kellis, Tex.Civ.App., 153 S.W.2d 965 (writ refused). In this case the recited consideration in each of the warranty deeds was “$10.00 and other valuable considerations.” This recital plainly showed that in each instance the deed itself was not the entire contract between the grantor and grantee and the rule permitting parol testimony to show the true consideration becomes especially applicable. Gulf C. & S. F. Ry. Co. v. Jones, 82 Tex. 156, 17 S.W. 534 (Tex.Sup.Ct.); Johnson v. Elmen, 94 Tex. 168, 59 S.W. 253; Detering v. Boyles, Tex.Civ.App., 155 S.W. 984 (no writ hist.); Cochell v. Cawthon, Tex.Civ.App., 110 S.W.2d 636 (writ dis.); Barton v. Kuehne, Tex.Civ.App., 234 S.W.2d 84 (no writ hist.); West v. Wahlenmaier, Tex.Civ.App., 278 S.W.2d 213 (ref.n.r.e.); Puckett v. Frizzell, Tex.Civ.App., 377 S.W.2d 715 (no writ hist.). Appellant’s first two points are overruled.

In his third and fourth points appellant says that the court erred in holding that appellees could unilaterally rescind the joint venture agreement; and erred also in failing to give judgment dissolving the joint venture and distributing the assets under the law applicable to joint ventures and partnerships in Texas.

The court found that because of breaches of the contract by appellant appellee Dement was justified in terminating the agreement; and the judgment does for practical purposes dissolve the contract by so finding and by holding that the contract “is no longer of any force or effect.” Suit No. 88,821-E was a suit for an accounting and the court did in effect resolve the claims of the parties against each other. There was no evidence that there were any profits from the venture. Appellant himself testified that he was not able to show that there were any profits. We think the court’s holdings were warranted under the circumstances shown by the record. Thompson v. Duncan, 44 S.W.2d 904 (Tex.Com.App.); Jowell v. Carnine, 32 S.W.2d 511 (writ refused). Appellant’s third and fourth points are overruled.

In his fifth point appellant claims that the court erred in not vesting title to the unsold lots in the joint venture, thus vesting a one-half undivided interest in them in appellant. We cannot agree to appellant’s claim for three reasons:

(1) The written agreement expressly provides that title to the unsold lots shall remain in appellees.

(2) In the earlier suit filed January 3, 1964 against appellees in Cause No. 83,576-G appellant pleaded trespass to try title in statutory form, claiming a one-half undivided interest in the same property presently in controversy in Cause No. 88,812-E filed July 2, 1964. In connection with the January 3, 1964 suit appellant filed a chain of title showing that he claimed'a one-half undivided interest in the property "by and under the joint venture agreement.-

Appellee answered the January 3, 1964 trespass to try title suit by a plea of not guilty and special pleas setting up his defenses under the joint venture agreement. The suit was tried and ended in a “take nothing” judgment against appellant Latham and in favor of appellee Dement. This judgment had the effect of an adjudication of title in appellee so far as appellant was concerned. Art. 7391, Vernon’s Ann.Civ.St.; Trigg v. Whittenburg, Tex.Civ.App., 129 S.W.2d 472 (writ refused); Permian Oil Co. v. Smith, 129 Tex. 413, 73 S.W.2d 490, 111 A.L.R. 1152 and 129 Tex. 413, 107 S.W.2d 564, (Tex.Sup.Ct.); Foster v. Wells, 4 Tex. 101, 104.

In the later suit for accounting and trespass to try title filed by appellant on July 2, 1964 (one of the cases now before us on this appeal) appellees pleaded res judicata of the trespass to try title count by virtue of the “take nothing” judgment in the earlier suit filed by appellant on January 3, 1964. This plea of res judicata was undoubtedly good.

The suit filed January 3, 1964 seems to have presented the same issues in regard to title as were presented in the suit of July 2, 1964. In any event appellant could have and should have litigated all his claims in the earlier trespass to try title suit; and if he did not do so the earlier judgment against him will be res judicata of all the issues which he could have and should have raised in said earlier suit. Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97, 99; Trigg v. Whittenburg, Tex.Civ.App., 129 S.W.2d 472 (writ refused); Pennington v. Pennington, Tex.Civ.App., 145 S.W.2d 688 (no writ hist.); Ogletree v. Crates, 363 S.W.2d 431 (Tex.Sup.Ct.); Chem-Gas Engineers, Inc. v. Texas Asphalt & Refining Co., et al., Tex.Civ.App., 398 S.W.2d 143 (no writ hist.).

(3) The evidence offered by the parties on the question of the purpose of the execution of the warranty deeds in controversy was contradictory and questions of fact in regard to title, if there were any, were found by the trial court contrary to appellant’s contentions.

Appellant’s fifth point is overruled.

In his sixth point appellant contends that the court should have allowed him attorney’s fees under Art. 2226, V.A.C.S. for services performed and materials delivered in the construction of appellees’ home. The court properly denied recovery for said fees. It was stipulated that appel-lees owed appellant $6,053.14 on the home. Against this appellee Dement was entitled to an offset in the sum of $2,997.64 which he paid into the registry of the court when he filed his answer in Cause No. 86,999-A. The court found that appellee was also entitled to an offset of $3,550, the agreed price of Lot No. 6 on which appellant built his home. These two offsets totaled the sum of $6,547.64 — more than enough to account for appellant’s claim of $6,053.14. Therefore Latham was unsuccessful in his effort to establish a net claim against appellees in Cause No. 86,999-A and it was not error for the court to deny recovery for attorney’s fees. Paddock Engineering Co. of Texas v. Rife, Tex.Civ.App., 310 S.W.2d 594, 597 (ref.n.r.e.); Johnny Morrow’s Wrecking Crew v. Slate, Tex.Civ.App., 368 S.W.2d 32 (ref.n.r.e.).

We are of the opinion that appellant was not entitled to recover attorney’s fees for another reason. Plaintiff’s cause of action in suit No. 86,999-A was for damages for breach of a written building contract between appellant and appellees for the construction of a house for appellees. An award of attorney’s fees is not proper in such a case. Parks v. Benson Co., Builders, Tex.Civ.App., 393 S.W.2d 700, 704 (ref.n. r.e.); Ford Motor Co. v. Davis Brothers, Inc., Tex.Civ.App., 369 S.W.2d 664, 668 (no writ hist.); Kirkwood & Morgan, Inc. v. Roach, Tex.Civ.App., 360 S.W.2d 173, 177 (ref.n.r.e.); Hicks, et al v. Smith, Tex.Civ.App., 330 S.W.2d 641, 647 (ref.n.r.e.); Meaders, et al v. Biskamp, 316 S.W.2d 75, 78 (Tex.Sup.Ct). In the last named case our Supreme Court held that a claim for money due under a contract for the sale of real estate, an oil lease, and for the drilling of an oil well is not included within the definition of a sworn account under Art. 2226, V.A.C.S.

Appellant’s sixth point is overruled.

The judgment of the trial court is affirmed.

Affirmed.

       The substance of the material provisions of the agreement may be summarized as follows :
      (1) Dement was owner of approximately 22 acres of encumbered land which the joint ventures proposed to subdivide into 14 lots, the development to be named Rancho Estates.
      (2) It was stipulated that Dement was to retain title to the property and was to be paid the sum of $20,000 before any of the profits from the sale of lots were to be divided by the joint venturers. Out of this $20,000 Dement agreed to pay off the encumbrance of $9,000 against the property.
      (3) The joint venture would be responsible for planning engineering, construction of improvements and all other acts and expenses necessary to cause the development to be made ready for the sale of lots to the public.
      (4) Latham, a construction contractor, was to secure purchasers for the lots and wherever possible to agree to use the services of the joint venture in the construction of houses thereon. The identity of such purchasers and the terms of all agreements entered into with purchasers were to be subject to the written approval of Dement.
      (5) Dement agreed to devote so much of his time as should be necessary to the business of the venture and to his obligations in connection therewith.
      (6) Latham agreed to devote so much of his time as should be necessary to the business of the venture and to the construction of improvements required by the development and to the improvements in the form of homes and accessory buildings and improvements.
      (7) The parties agreed to divide the venture’s profits and losses equally, after the payment to Dement of the $20,000 for the sale of lots.
      (8) The parties were to use their credit for the purpose of securing funds for the operation of the venture.
      (9) All sums of money were to be deposited into a bank account in the name of the venture. Venture funds were to be withdrawn from said bank account for the personal use of the venturers only by mutual agreement and to be equalized if made for purposes of division of gains.
      (10) Neither venturer without the written consent of the other was to sell or assign his interest in the venture or any of its assets, or settle any indebtedness due to the venture except on full payment thereof, or hire any employee or enter into any contract.


author: NORTHCUTT, Justice.

text:
    J. R. WILKINSON et al., Appellants, v. SOUTHERN FARM SUPPLY ASSOCIATION et al., Appellees.
    No. 7651.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 24, 1966.
    Rehearing Denied Dec. 12, 1966.

      Nelson, McCleskey & Harriger, Lubbock, Don Graf, Lubbock, of counsel, for appellants.
    Crenshaw, Dupree & Milam, Lubbock, J. Orville Smith, Lubbock, of counsel, for appellees.
   NORTHCUTT, Justice.

On July 28, 1964, at about 10:00 o’clock p. m. Dick Wilkinson, a thirteen-year old boy, was injured in a collision between a propane truck and a Volkswagen station-wagon in which Dick was riding as a passenger. J. R. Wilkinson and Betty Wilkinson, parents of Dick Wilkinson, brought the suit against Southern Farm Supply Association, the owner of the propane truck and Sylvester Witt, the driver of the truck, to recover damages, individually and on Dick’s behalf. The parties will be referred to hereafter as they were in the trial court.

It was plaintiffs’ contention the defendants were negligent in leaving the butane truck stopped, parked or standing upon the paved or main traveled part of the highway contrary to the statutes of the State of Texas, Vernon’s Ann.Civ.St. Article 6701d, Section 93(a); in leaving the truck stopped, parked or standing upon the paved or main portion of the highway when a reasonable, prudent man would not have done so under the same or similar circumstances; in failing to drive the truck off of the highway onto the shoulder of the road; in failing to place out flares to the rear of the truck; in failing to keep a proper lookout for approaching traffic; in failing to have the lights on the truck on and properly working; in failing to give proper warnings to approaching traffic and that each and all of the acts of negligence were a proximate cause of the collision and injuries.

The defendants answered setting out several acts of negligence of Harry Kumlin, driver of the stationwagon, and that such acts and each of them was the sole proximate cause of the collision and damages resulting therefrom. Defendants further pleaded that the collision was wholly unavoidable and that the same was caused by a new dependent and intervening cause, to-wit: the rain and smoke present on the occasion in question. The defendants also answered pleading that the defendant, Sylvester Witt, was confronted with a sudden emergency which arose suddenly and unexpectedly and which was not caused or brought about by any act or remission on the part of said defendant so that said defendant under the circumstances and conditions which suddenly confronted him acted as an ordinary prudent person would have acted under the same or similar circumstances in the face of such sudden emergency.

The case was submitted to a jury upon special issues. The jury found it was not negligence to stop the truck at its location on the highway just prior to the collision in question; that Sylvester Witt failed to keep a proper lookout for traffic approaching from the west just prior to the collision in question; but such failure was not a proximate cause of the collision; that Witt’s failure to put out a flare to the rear of the truck prior to the collision was negligence but was not a proximate cause of the collision; that Witt was not negligent in failing to warn traffic approaching from the west by the use of his flashlight; that Witt did not fail to have each of the lights on the rear of the truck properly visible to traffic approaching from the west; that Sylvester Witt at the time of the collision was acting in an emergency and that after such emergency arose Witt acted as a reasonable prudent person would have acted under the same or similar circumstances; that Harry Kumlin failed to keep a proper lookout under the circumstances and conditions existing on the occasion in question but that such failure was not the sole proximate cause; that the failure of Harry Kum-lin to turn to the left before the collision was not the sole proximate cause of the collision in question; that before the collision Harry Kumlin failed to make a timely application of his brakes but that such failure was not the sole proximate cause of the collision; that the collision was not an unavoidable accident. The remaining issues and answers were as to the amount of damages.

The trial court entered judgment that plaintiffs take nothing. Plaintiffs filed a motion for a new trial and an amended motion for a new trial and presented evidence at the hearing on the motion for new trial as to the misconduct of the jury. The trial court overruled the motion for a new trial and from that order and judgment plaintiffs perfected this appeal.

Plaintiffs contend by their first point of error that the court erred in failing to submit to the jury the requested Special Issues 2 and 3. Issue 2 asked if it was negligence to leave the truck standing at its location on the highway just prior to the collision in question and Issue 3 was whether such negligence was a proximate cause of the collision in question. The place where the accident happened was a four-lane highway— two lanes for traffic going east and two lanes for traffic going west. The propane truck was proceeding in an easterly direction and the car that was on fire had been going west before it caught fire and had stopped across the highway to the northwest from where the accident happened.

Just prior to the accident Sylvester Witt was driving to the east in a truck loaded with propane gas, the total weight of the rig being about 56,000 pounds. When he saw smoke ahead of him on the highway he slowed down and saw two men running from a burning car on the highway waving for him to stop. When he was alongside of the men they asked for his fire extinguisher. Witt pulled on past the burning car about 100 to 150 feet; stopped at the extreme edge of the south lane of pavement. Witt testified he flipped on his emergency lights which flashed red to the rear and amber to the front and went to the portion of the truck where the fire extinguisher was kept, removed it and handed it to the men who flagged him, took his flashlight and started towards the burning car when a Volkswagen bus also traveling east ran into the rear of the truck. He testified the elapsed time from when he stopped the truck until the collision was about 1 ½ minutes or less. There was other testimony about the lights being on over the truck and others said they did not see any lights on the rear of the truck.

The first issue submitted by the court to the jury asked, “Do you find from a preponderance of the evidence that it was negligence to stop the propane truck at its location on the highway just prior to the collision in question?” The jury answered the issue, “No.” Rule 279, Texas Rules of Civil Procedure, provides:

“Where fthe court has fairly submitted the controlling issues raised by such pleading and evidence, the case shall not be reversed because of the failure to submit other and various phases or different shades of the same issue.”

We believe under the facts of this case the real issue involved was whether the driver of the truck was guilty of negligence in stopping on the highway. In other words, if he was going to let the men have his fire extinguisher should he have driven off the pavement before stopping under the conditions then existing. If the driver was guilty in leaving the truck standing it was because of his stopping under the circumstances. We are of the opinion, and so hold, under Rule 279 and the holdings of the Supreme Court in the cases of Blaugrund v. Gish, 142 Tex. 379, 179 S.W.2d 266; Triangle Cab Co. v. Taylor, 144 Tex. 568, 192 S.W.2d 143; Northeast Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487, that the trial court submitted the real issue involved and was not required to submit the issues requested by the plaintiffs. Plaintiffs’ first point of error is overruled.

Plaintiffs present their points of error two through nine, both inclusive, under one argument. Since all of these points concern the answers of the jury to Special Issues 11, 12, 20, 21, 22 and 23, we will repeat the findings of the jury to those issues. In answer to Issue 11 the jury found Witt was acting in an emergency and as to 12 that he acted as a reasonable and prudent person would have acted under the same or similar circumstances. Issues 20, 21, 22 and 23 ask as to different phases of damage. Each of the issues as to damages ended as follows: “Proximately caused by the negligence, if any, of the defendant.” It is contended that when the court inquired of the jury what sum of money would fairly and reasonably compensate the plaintiffs for certain injuries, if any, proximately caused by the negligence, if any, of the defendant and the jury answered a certain amount that that would entitle plaintiff to recover damages for injuries proximately caused by the negligence of the defendants. In other words, such finding established that the defendant was negligent and such negligence was a proximate cause of the injuries regardless of the finding in answer to special issues that the defendant was not negligent. Then further contended if they were wrong in that contention then the answers to Issues 11 and 12 and the answers to Issues 21, 22 and 23 were in conflict, further contending as to Issues 11 and 12 that there was no evidence to support the submission of those issues to the jury; that the situation confronting Witt was not a sudden discovered situation; that the situation confronting Witt did not require action on his part and that the situation confronting Witt did not present any danger to Witt or to the vehicle he was driving, nor was the situation one in which Witt experienced any apprehension of any peril to himself. It is undisputed in this record that Witt did not stop the propane truck until two men came running to him wanting a fire extinguisher. It had been raining off and on all day and the bar ditch of the highway was muddy and it was raining lightly at the time. Witt did not know whether or not any one was in the burning car. As soon as he could get the fire extinguisher the men grabbed the extinguisher and started running back to the car and Witt turned and started following them across the highway and was across the center stripe close enough that the flashlight was shining on the hood of the burning car when the accident happened. Article 6701d, Section 93(a) V.A.T.S. provides that no person shall stop upon the paved or main traveled part of the highway when it is practical (Emphasis ours) to stop off such part of the highway. Witt was afraid to park off the highway because of the wet condition, as he was afraid he would get stuck in the mud. The jury found that Witt acted in an emergency and acted as a reasonable and prudent person would have done under the same or similar circumstances. The jury found in answer to all of the special issues as to the negligence pleaded and presented to the jury that Witt was not negligent or that such negligence was not a proximate cause of the damage. The answers as to the damages as here submitted were general but the answers to the special issues as to the negligence of Witt and a proximate cause were definite and specific and the trial court had the power to apply that reasonable construction which he deemed proper and it was his duty to harmonize the findings of the jury. Howard v. Howard, Tex.Civ.App., 102 S.W.2d 473; Schneider v. Delavan, Tex.Civ.App., 118 S.W.2d 823 (writ dism.)

We think it has been definitely determined in this state that specific findings of the jury control over general or ambiguous findings. Barclay v. C. C. Pitts Sand & Gravel Company, Tex., 387 S.W.2d 644; First Nat. Bank of McGregor v. Collins, 266 S.W.2d 506 (N.R.E.); Vouras v. 3523 Turtle Creek, Inc., 369 S.W.2d 819 (N.R.E.) and the cases there cited. We overrule plaintiffs’ points of error two through nine, both inclusive.

Plaintiffs’ points of error 10, 11, 12 and 13 contend the court erred in holding there was such misconduct of the jury as to cause a reversal of the case. The real issue as to misconduct seemed to be based upon the statement being made as to whether it was legal to park on the pavement in a state of emergency. Mr. Kelly, a policeman, was foreman of the jury. When the jury was considering whether or not Mr. Witt was negligent in stopping on the pavement a discussion was had as to whether or not it was legal or lawful for him to stop there. There were three of the jurymen that testified Mr. Kelly stated it was legal to block the highway in a case of an emergency. All of the issues holding Witt was not negligent and was acting under an emergency and acted as a reasonable prudent person would have acted under the same or similar circumstances were answered unanimously. When the jury got to considering the damage issues Mr. Kelly stated the issues should be answered, “None,” because of their previous findings. Some, and especially one, juror wanted to give damages and two or three times they reconsidered their answers previously given and each time the answers were the same. We cannot believe that after the jurors were informed of the effect of their answers and two or three times went back and reconsidered their answers and made the same answers each time that they were misled or unduly influenced but that such statements or arguments made by Mr. Kelly, if any amounted to nothing more than the arguments of an opinionated juror who believed in his position from the evidence introduced. Rule 327 and 434, T.R. C.P.; Kendall v. Southwestern Public Service Company, Tex.Civ.App., 336 S.W.2d 770 and the cases there cited. We overrule plaintiffs’ points of error 10, 11, 12 and 13.

We have carefully considered all of appellants’ assignments of error and are of the opinion that there was sufficient evidence to sustain the jury’s findings as to the negligence and proximate cause and that Witt was acting in an emergency. We think that a proper judgment was rendered upon the verdict of the jury.

Judgment of the trial court is affirmed.


author: NYE, Justice.

text:
    Harlan V. KARNEI, Appellant, v. Lamar DAVIS, Jr., et al., Appellees.
    No. 240.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 30, 1966.

      Paul D. Little, Corpus Christi, for appellant.
    William E. Henderson, of Foreman, Dyess, Prewett, Henderson & Cantey, Houston, for appellees.
   OPINION

NYE, Justice.

This is a suit brought by the plaintiff Harlan V. Karnei to recover a ⅜2 overriding royalty interest in a number of mineral leases owned by defendants. Plaintiff seeks to impose a constructive trust upon certain leases and to require the defendants to account for the production thereunder. The alleged agreement between the parties for the royalty interest, was oral. The defendants denied making any promise to assign the royalty interest, and specially plead the defense of statute of frauds. Thereafter defendants filed a motion for summary judgment relying on two points to wit: (1) that plaintiff is attempting to enforce an oral promise to convey an interest in land, and that such promise is void by virtue of the statute of frauds; and (2) that a constructive trust could not have arisen under the facts. The trial court granted the defendants’ motion for summary judgment. Plaintiff has perfected his appeal to this court, alleging a single point of error: i. e., that the pleadings, affidavits and deposition of plaintiff raise a genuine issue of material fact that would entitle him to have such issue determined by a jury or other trier of the facts.

Plaintiff agrees that in the ordinary sense an oral promise to convey an interest in land is void by virtue of the statute of frauds. However, it is plaintiff’s contention that he is not seeking to enforce an oral promise to convey an interest in land as such, he is seeking to establish a constructive trust, and the facts construed in the light of summary judgment law entitled him to a reversal and a remand.

In the leading case on Summary Judgments the Supreme Court in Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952) said:

“The burden of proving that there is no genuine issue of any material fact is upon the movant, and ‘All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment.’ (citing cases)”

In determining such a motion, the appellate court accepts as true all evidence of the party opposing the motion which tends to support such party’s contention, and gives him the benefit of every reasonable inference which properly can be drawn in favor of his position.

Considering then for the purpose of this appeal, the facts contained in plaintiff’s affidavit, deposition and pleadings as true, we look to these alleged facts which plaintiff contends establishes the trust. On or about January 29, 1963, the defendants had commenced a re-entry operation in search of oil and gas on an abandoned well designated the Borth No. 1. Such reworking operations resulted in the production of oil. During the time the well was being tested, and when it appeared that the well would be a commercial producer, the defendants called the plaintiff to one side and told him they were interested in securing other oil and gas leases in the area. They told him not to disclose this fact to one Edward R. Bennett, for whom plaintiff had originally secured the Borth lease and which was subsequently assigned to the defendants. The defendants told plaintiff that if he could point out to them (defendants) any lease or tract of land that had possibilities for oil and gas and upon which they could acquire an oil and gas lease, or that an assignment of an oil and gas lease could be made to them, they would assign to the plaintiff a ⅜2 overriding royalty interest in any likely prospect lease he disclosed to them. Plaintiff, placing confidence and reliance in the promise made to him by the defendants, began a systematic review of the oil and gas leases and land located in the northern part of Goliad County, Texas. Plaintiff was a driller and was familiar with this area by virtue of working on drilling rigs for many years. He pointed out and discussed with the defendants several tracts of land and certain leases which he described as being excellent prospects for oil and gas, some of which were the leases described in his petition upon which there is production.

The defendants subsequently sent J. E. Freeman and A. G. Matlage to secure these certain leases. They contacted plaintiff and told him they were sent by the defendants. The plaintiff assisted them in securing the leases which are fully described in plaintiff’s petition. Plaintiff believed that defendants would assign to him the overriding royalty interest as promised as they did nothing to indicate to him that they would repudiate their promise. However, in the latter part of April, 1964, the plaintiff requested that the defendants convey to him his said overriding royalty interest which was refused.

Plaintiff testified that he is a man with very modest education, but with a wealth of experience in the oil and gas industry; that he had excellent contacts with the landowners in and around the Weesatche (sic) area of north Goliad County, Texas, having lived in that area all his life. He makes no claim to training or experience in geology or petroleum engineering. However he contends that his experience in oil and gas, especially in this area, was a thing of value to the defendants for which they had engaged his services for many months prior to the filing of the suit. Plaintiff contends that he spent his time and effort, utilized his knowledge of the geographical area, and exploited his relationship with the landowners in that area, to gain for the defendants the valuable leases as set out in plaintiff’s petition. ' He states that he certainly did not perform these services for defendants gratuitously, but expected the defendants to keep their bargain of assigning to him the ⅛2 overriding royalty interest in the leases he was able to help them acquire as promised. Plaintiff argues that these facts clearly establish a relationship of trust and confidence with the defendants, at least to the extent that such statements and testimony and allegations raise issues of fact that entitles him to have this case ultimately determined by a jury.

In the ordinary cases of fiduciary relationships involving trust and confidence, you look to those relationships of attorney and client, parent and child, partners, close family relationships, joint adventurers, and parties who have over a long period of time worked together for the joint acquisition and development of property previous to the particular agreement sought to be enforced. In order for a constructive trust to arise there must be a fiduciary relationship before, and apart from, the agreement made the basis of the suit. Thigpen v. Locke, 363 S.W.2d 247 (Tex.Sup.1962); Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (Tex.Sup.1962).

The plaintiff admits that he had no previous contract or relationship with the de-iendants prior to the making of this agreement at the time herein alleged. However, plaintiff contends that all such relationships must have a beginning as in this case where plaintiff and defendants created a relationship of trust and confidence between themselves on the morning of January 29, 1963. This contention is without merit.

Article 3995, Vernon’s Ann.Tex. Civ.St., the Statute of Frauds, provides in part that no action shall be brought in any court upon a contract for the sale of real estate or the lease thereof for a term longer than one year unless the promise or agreement upon which such suit shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged. The overriding royalty sought here is such an interest in real estate as to make this statute applicable. It is also such an interest in real estate as to fall within the Texas Trust Act. Article 7425b-7. This act provides that “ * * * a trust in relation to or consisting of real property shall be invalid, unless created, established, or declared: (1) By a written instrument subscribed by the trustor or by his agent thereunto duly authorized by writing; * * Even though this act states that it does not apply to a constructive trust, the facts of plaintiff’s case taken as true, do not create one.

Plaintiff relies on the holdings of the case of Thompson v. Newman, 378 S.W.2d 879 (Tex.Civ.App. Waco, 1964) and of those which were announced in the retrial of the same case in Consolidated Gas & Equipment Co. of America v. Thompson, 397 S.W.2d 260 (Tex.Civ.App. Amarillo, 1965). We agree that the facts are very similar to the case at bar except in the Consolidated case the facts are even more stronger in favor of the persons attempting to enforce the constructive trust. This case has since been reversed and rendered by the Supreme Court. Justice Greenhill speaking for the entire Court said: “ * * * the fact that one businessman trusts another, and relies upon his promise to carry out a contract, does not create a constructive trust. To hold otherwise would render the Statute of Frauds meaningless.” We hold that the facts of the case at bar simply do not show a relationship between the parties that in law would impose a constructive trust. We believe that Consolidated Gas & Equipment Co. of America v. Thompson, 405 S.W.2d 333 (Tex.Sup.1966), is controlling.

The judgment of the trial court is affirmed.


text:
    HUNT DEVELOPERS, INC., Appellant, v. WESTERN STEEL COMPANY, Appellee.
    No. 244.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 17, 1966.
    Rehearing Denied Dec. 15, 1966.

      John A. Waller, Jr., Corpus Christi, for appellant
    William R. Anderson, Jr., of Sorrell, Anderson & Porter, Corpus Christi, for ap-pellee.
   OPINION

NYE, Justice.

Appellee Western Steel Company sued Hunt Developers, Inc., the owner of certain properties, and contractor Gerald DeGough, d/b/a G & G Construction Company on an open account to establish and foreclose a statutory materialman’s lien. Trial was to the court without the aid of a jury and resulted in a judgment against the contractor and owner of the properties.

The court entered an interlocutory default judgment against DeGough, contractor, for the amount of the open account ($2,499.36) plus $600.00 attorneys’ fees, and subsequently made such judgment final. Final judgment was further rendered in favor of Western Steel Company, the mate-rialman, for the amount of its account against Hunt Developers, Inc. and foreclosing the liens against Hunt’s properties. No appeal has been taken by DeGough as to judgment against him. Hunt has perfected its appeal to this court.

Appellant, Hunt Developers, Inc., hereinafter referred to as owner, employed Gerald DeGough, d/b/a G & G Construction Company, hereinafter referred to as contractor, to do the concrete work on the foundations and driveways for the construction of houses on eight lots of owner. Contractor ordered reinforcing steel, wire mesh and anchor bolts from Western Steel Company, hereinafter called materialman, to be used in the construction of the houses on owner’s property. Owner’s agreement with contractor was oral and no provision was made for any retainage. The concrete work was performed and completed by contractor at various times on the eight lots. As agreed upon, owner paid the contractor almost immediately after the completion of the concrete work on each lot. The first delivery of materials to the contractor was on or about February 15, 1965 and the last delivery was made on or about March 5, 1965. The contractor did not pay the mate-rialman.

On May 18, 1965 materialman filed its lien affidavit against the properties involved. This affidavit was filed within thirty days after the work had been completed as to six lots and more than thirty days as to two lots. The trial court disallowed the lien against the latter two lots and entered judgment foreclosing materialman’s lien on the remaining six lots of owner. It was stipulated that ten percent of the total cost of each house was more than materialman’s claim against each. Materialman notified Hunt on May 4, 1965 that he had furnished material to contractor. On May 6, 1965 the owner advised the attorneys for material-man that contractor had already been paid. The notice was mailed to owner less than ninety days after all of the material was delivered.

Appellant-owner’s first point is to the effect that the notice mailed by material-man to the owner was ineffective to establish a lien to the "fund that should have been retained by the owner under Article 5469, Vernon’s Ann. Civ. St.

Materialman’s notice was as follows:

“You are hereby notified that the undersigned, under the provisions of Article 5453, Vernon’s Annotated Civil Statútes, hereby gives notice of an unpaid balance due to the undersigned, Western Steel Company, by Jerry DeGough, doing business as G & G Construction Company, in the amount of Two Thousand Four Hundred Ninety-Nine and 36/100 Dollars ($2,499.36). This indebtedness is for the furnishing of reinforcing steel, wire mesh and anchor bolts in the construction of houses on lots set forth below. The specific amount due on each lot is set forth below. The claim of the undersigned against Jerry DeGough, doing business as G & G Construction Company, became due as is set forth below:

This notice was sent by certified mail on May 4, 1965, return receipt requested.

In a letter dated May 6, 1965, owner advised materialman’s attorneys as follows:

“Gentlemen:
We have today received notice from you regarding the claim of Western Steel Co. against Jerry DeGough doing business as G & G Construction Co. in the amount of $2,499.36.
“The balance due on each job listed in the notice has been paid by us to G & G Construction Co.”

In a letter dated May 7, 1965, material-man, through his attorneys advised owner as follows:

“Dear Mr. Hunt:
This will acknowledge receipt of your letter of May 6, 1965. We assume from your letter that you have not complied with Article 5469 of Vernon’s Annotated Civil Statutes, and, therefore, we will claim a lien as set forth under such Statute.”

No other notice was given to the owner. Thereafter, on May 18, 1965, materialman filed its lien affidavit.

The primary question to be decided is whether or not the notice mailed by ma-terialman was sufficient under the statutes to entitle the materialman to a lien under Article 5469, V.A.C.S. Appellant-owner contends that the notice received by the owner was simply a statement that contractor owed materialman a certain amount of money and was insufficient as a matter of law to entitle the materialman to a lien under Art. 5469, V.A.C.S. Appellant advances several grounds for his conclusion.

(1) It does not contain any itemization of any description whatsoever of the type of materials furnished.

(2) It does not contain a statement or billing in the usual and customary form as is stated under, the statute to be sufficient.

(3) It does not contain any statement to the effect that the owner of the property, if the bill remains unpaid, may be personally liable and his property subjected to a lien, which is necessary in order to authorize an owner to retain funds.

(4) It does not contain a demand to the owner to pay the claim as required under Article 5453(3).

It is appellee’s position that he has complied with the applicable mechanic’s and materialman’s lien laws and since owner failed to retain ten percent of the contract price as required under Article 5469, V.A.C.S. for thirty days after the work had been completed, owner is liable and his property is subject to a material-man’s lien to the extent of the amount of the fund that should have been retained under Article 5469, V.A.C.S.

Appellant’s grounds one and two above are without merit. The fact that materialman did not send a statement or billing in the usual or customary form does not make the notice ineffective. This statement or billing is not a requirement, but merely a suggested one as being sufficient. The notice did itemize the material furnished as being reinforcing steel, wire mesh and anchor bolts for the construction of houses on lots owned by the appellant. Certainly, it is conceivable that this itemization might be more descriptive than the customary billing or statement which the statute provides as being sufficient. See Murchison v. Caruth Building Service, 369 S.W.2d 380, Tex.Civ.App. (1963), ref. n. r. e.

Appellant’s contention under Number (4) that the notice did not contain a demand does not make the notice deficient. Such demand under Art. 5453, Section 3, is applicable where a claimant is desirous of demanding payment of his claim by the owner as prescribed in Art. 5454, V.A.C.S. When an owner has withheld payment from the original contractor pursuant to Art. 5463 and a claimant gives timely notice to the owner that his claim has accrued (Art. 5467) or is past due, then the claimant may make demand in writing to the owner with a copy to the contractor. If the contractor shall not within thirty days after receiving such demand advise the owner in writing that he intends to dispute the claim then the contractor shall be considered as having consented to the demand and the owner may pay the claimant. Demand is not a necessary prerequisite to a valid notice to claim a lien under Art. 5469, V.A.C.S.

Appellant contends that in order to be entitled to the claimant’s fund under Art. 5469, V.A.C.S., notice must be given in accordance with Art. 5453, 2b (2) accompanied with the warning that if the bill remains unpaid the owner may be personally liable and his property subject to a lien unless he withholds payment from the contractor or unless the bill is otherwise paid or settled. It is true that this warning must be given in order to trap funds under Art. 5463 but it is not necessary or contemplated under Art. 5469. A brief discussion of these articles is necessary for this conclusion.

Prior to the change in the “mechanics’, contractors’ and materialmen’s” lien law in 1961, Article 5463, V.A.C.S., limited the owner’s liability. This article provided in part: “But the owner shall in no case be required to pay, nor his property be liable for, any money that he may have paid to the contractor before the fixing of the lien or before he has received written notice of the existence of the debt.” See Berry v. McAdams, 93 Tex. 431, 55 S.W. 1112, Supreme Court (1900) and the many cases found in Shepard’s Texas citations under this citation; Marek v. Goyen, 346 S.W.2d 926, Tex.Civ.App.(1961); 38 Tex.Jur.2d, Sec. 69, page 632. The owner, under the new revised statutes, as well as the former ones cannot be liable for more than the contract price if he complies with the statutes. Article 5463, Paragraph 2, V.A. C.S., still limits the owner’s liability in that he “shall in no case be required to pay, nor his property be liable for, any money, other than that required to be retained by him under the provisions of Article 5469 hereof, that he may have paid to the contractor before he is authorized under this Article to retain the money.” If the owner fails to comply with the statute and pays to the contractor money due under the contract after he has received proper notice in accordance with Article 5453, V.A.C.S., he may be liable for that which he was authorized to retain under Art. 5463, and in addition the money he is required to retain under the provisons of Art. 5469, V.A.C.S.

Where derivative claimants give proper notices in accordance with Article 5453, V.A.C.S., prior to the payment by the owner to the contractor, such notices operate much in the same way as do writs of garnishment. 38 Tex.Jur.2d, Section 41, p. 594. These derivative claimants can only acquire liens by giving the proper notices required by the statute (Article 5453, V.A.C.S.) and by filing with the county cleric proper affidavits claiming their lien. (Owner makes no contention that contractor’s affidavit was not timely filed or was insufficient in any manner.) This is the same as was provided under the old statute. Even though a notice is given within the time prescribed by the statute it may come too late to impound funds in the owner’s hands. If all of the funds owing to the contractor have been paid to him by the owner under the terms of the contract prior to the receipt of the notice, there may be nothing left to which the claimant’s lien can attach, unless it is those funds provided for in Article 5469, V.A.C.S.

Under the old law Article 5469, V.A.C.S., the owner was required to retain in his hands ten percent of the contract price for a period of thirty days after the completion of the work. This fund that was required to be retained by the owner, was for the benefit of artisans and mechanics. This duty was imposed upon the owner even though he had no notice of the outstanding claims at the time the job was completed. If the artisans and mechanics gave timely notice and perfected their liens they obtained an enforceable lien against the owner’s property and a claim against the owner to the extent of ten percent of the contract price. Miller v. Harmon, 46 S.W.2d 342, Tex.Civ.App. (1932). The new statute as amended preserves a preference in this same fund for the same thirty-day period, not only for artisans and mechanics, but further, after they have been satisfied, to all other claimants who may share ratably in the balance to the extent of their claims. This imposes a duty upon the owner to withhold ten percent of the contract price for the benefit of those who would qualify under this statute. It is to the extent of this fund that appellee materialman makes claim for a lien.

In order for a claimant to qualify for a lien to the extent of this fund required to be retained by the owner, he “shall send notices in the time and manner required by this Act and shall file affidavits claiming a lien not later than thirty (30) days after the work is completed * * Article 5469, V.A.C.S.

Article 5453 makes the notice requirement a condition precedent to the validity of such claims under these Acts. Chapter 2, Title 90, Articles 5452-5472d as amended in 1961, 57th Legislature. The Act provides in part:

“Such notices shall be sent by certified or registered mail, addressed to the owner, and where required by this Article to the original contractor, at their last known business or residence address. A copy of the statement or billing in the usual and customary form shall suffice as a notice under this subparagraph; provided, however, if such statement or billing is to be effective to authorize an owner to retain funds for the payment of such claim as provided in Article 5463 of this Act, it shall contain or be accompanied by some form of statement to an owner to the effect that if the bill remains unpaid he may be personally liable and his property subjected to a lien unless he withholds payments from the contractor for the payment of such statement or unless the bill is otherwise paid or settled.” (emphasis supplied)

The notice requirement under Article 5453, paragraphs 2a, 2b(1), 2b(2) first paragraph, and 2c, make no reference to the requirement that a warning must be given to the owner to make the notice effective. Yet these are notice requirements that are sufficient under certain circumstances. Article 5469 provides that notice must be given in the time and manner required by this Act. This Act under 5453, 2b (2) first paragraph, provides that “Where the claim consists of a lien claim arising from a debt incurred by the original contractor, (as here) * * * notice to the owner, as prescribed in paragraph 2b(1) of this Article will be sufficient.” If the notice under 2b(1) is sufficient, then the warning is not required, as no mention of warning is given under 2b(1).

The notice provision under 2b (2) second paragraph, where the warning provision is contained, confines it to the trapping of funds under Art. 5463, V.A.C.S. Article 5453 says: “provided, however, if such statement or billing is to be effective to authorize an owner to retain funds for the payment of such claim as provided in Article 5463 of this Act * * (emphasis supplied), it shall contain the statutory warning. Article 5463, V.A.C.S. provides that the owner may, when notice of claims have been received, retain in his hands the amounts of money necessary to pay the claims from payments or part payments to the original contractor under certain numerated conditions. This is the retained fund provision which authorizes the owner to deduct from the amount due the contractor and requires the contractor to defend certain suits. The warning provision is not applicable to Article 5469, V.A.C.S.

Article 5469 requires the owner to retain in his hands during the progress of the work and for thirty days after the work has been completed to secure the payment of claimants with preference to artisans and mechanics ten percent of the contract price to the owner. It is undisputed that the owner did not retain any funds. The owner paid the contractor in full as soon as he completed the job. The materialman gave the owner notice within thirty days after the work had been completed that his materials had not been paid. His affidavit was duly filed, the validity of which is uncontested, within ninety days after his indebtedness accrued. It would have served no purpose for materialman to have given the owner the statutory warning in addition to the notice for two reasons: (1) Article 5469, V.A.C.S. fixes the duty on the owner to retain funds for lien claimants for thirty days after the job has been completed and (2) the owner had already paid out the amounts owed to the contractor and therefore there were no retained funds existing as required by Article 5469, V.A.C.S. The emergency clause in connection with Ch. 382, p. 872, of the Laborers’ and Materialmen’s Lien Law, 57th Legislature, 1961 provides: “the fact that the existing Statutes governing mechanics and material-mens lien are antiquated, vague, and ambiguous, and have been the subject of numerous conflicting court decisions resulting in loss of liens through technicalities, creates an emergency * * (emphasis supplied)

The materialman-appellee substantially complied with all the provisions of the mechanics’ and materialmen’s lien act. This compliance is especially sufficient where no one has been misled to his prejudice. The Legislature did not intend that the materialman should lose his lien through the technicalities of a warning, where the owner was not misled to his prejudice. Appellant’s first point is overruled.

Appellant’s third point of error is that the ten percent provision under Article 5469, V.A.C.S. concerns only ten percent of the contractor’s contract and not ten percent of the contract price of the house. Article 5469 V.A.C.S. clearly states that the owner is to retain ten percent of the contract price. This does not refer to a particular contract, a subcontract or anything less than the contract price of the building. Miller v. Harmon, 46 S.W.2d 342, Tex.Civ.App.(1932). Appellant argues that under the old statute ten percent of the entire contract must be withheld but that under the 1961 amendment this was modified. The amendment of Article 5469 in 1961 still requires the owner to withhold ten percent of the contract price to secure the payment of claimants who qualify under this Act. We hold that Article 5469 requires the owner to retain ten percent of the entire contract price of the building. Lane-Wells Company v. Continental-Emsco Company, 397 S.W.2d 217, Tex.Sup.Ct. (1965). Appellant’s point is overruled.

We have considered appellant’s other points and overrule them.

Judgment of the trial court is affirmed.