author: COLLINGS, Justice.

text:
    M. R. TRIPP, Appellant, v. Solomon R. BLOODWORTH et al., Appellees.
    No. 3841.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 17, 1964.
    Rehearing Denied Feb. 7,1964.

      Turpin, Kerr, Smith & Dyer, Max N. Osborn, Midland, for appellant.
    Warren Burnett and Lee Arnett, Odessa, Emil C. Rassman, Midland, for appellees.
   COLLINGS, Justice.

This suit was brought by Solomon R. Bloodworth against M. R. Tripp for damages. Plaintiff alleged that he received an injury while employed as a blueprint man for the Fluor Corporation, Ltd., the general contractor on the construction of a polyethylene plant in Ector County; that defendant Tripp, doing business as Tripp Construction Company, had a subcontract with the Fluor Corporation to do the dirt work on the job, and that while one of Tripp’s drivers was backing a carry-all in hauling caliche to the job he negligently backed the heavy equipment over plaintiff, crushing his left leg and foot.

Based upon the jury verdict, judgment was entered for Bloodworth and for the intervenor, Liberty Mutual Insurance Company, in the total sum of $30,000.00. M. R. Tripp has appealed.

At the time appellee Bloodworth was injured, appellant Tripp’s driver was backing a rubber tired 36,000 pound carry-all down an alleyway, proceeding in a northerly direction. The manner in which the vehicle was constructed was such that the operator’s vision was obscured for a distance of between 15 to 30 feet to the rear on the right side. Because of such obscured vision, it was necessary for the driver to guide the carry-all in backing down the alleyway by watching the steel columns which had been erected on the left side. The carry-all was not equipped with mirrors or warning devices. At the time of the injury Bloodworth was standing about four feet from the right side of the alleyway, directing the hanging of steel at a higher level. Shortly before the accident appellee and his helper had entered the alleyway about 15 or 20 feet from the south end and had then walked in a northerly direction to the place where he was standing at the time of his injury. When he entered the alleyway he looked, but at that time appellant’s heavy equipment was not seen. Appellee Bloodworth did not see appellant’s carry-all unit until it was on his leg. The driver of the carry-all knew nothing of appellee’s injury until he was told by another worker on the job.

The jury found in answer to special issues that the driver of appellant’s carry-all failed to keep a proper lookout which was a proximate cause of the accident, failed to keep the carry-all under proper control which was a proximate cause of the accident, and failed to exercise ordinary care in operating the carry-all without' a flagman to assist him, which was a proximate cause of the accident. The jury also found that appellee Bloodworth did not fail to keep a proper lookout, that he was working in the alleyway when he knew there was no flagman to warn appellant’s driver but that such conduct on the part of appellee was not negligence.

Appellant’s first three points complain of the failure of the court to submit to the jury certain requested special issues. The first point complains of the refusal of the court to submit requested special issues inquiring whether on the occasion in question appellee Bloodworth moved into the pathway of appellant’s carry-all, whether such conduct by appellee was negligence and a proximate cause of the accident. Appellant’s second point complains of the action of the court in refusing to submit requested special issues to the jury inquiring whether on the occasion in question Bloodworth failed to step out of the pathway of the carryall after it started backing down the alleyway, and whether such conduct was negligence and a proximate cause of the accident. Appellant’s point number three complains of the action of the court in refusing to submit requested special issues inquiring whether on the occasion in question Blood-worth failed to warn the driver of appellant’s carry-all that the alleyway was not clear, and whether such failure by Blood-worth to warn the driver was negligence and a proximate cause of the accident. Appellant contends that the pleadings and evidence raised issues of fact supporting the submission of each of the above requested special issues, that Rule 279, Vernon’s Texas Rules of Civil Procedure, requires the submission of controlling issues made by the pleadings and evidence and that the court therefore erred in refusing to submit such requested special issues.

We agree with appellee Blood-worth’s contention that requested special issues 1, 2, 3, 6, 7, and 8 are evidentiary issues and inquire about evidentiary facts which were proper to be considered by the jury in determining whether appellee failed to keep a proper lookout. The ultimate issue in connection with each of these facts was whether appellee failed to keep a proper lookout. Appellant was entitled to have submitted to the jury the controlling issue on proper lookout and the court properly submitted that issue to the jury. It was found by the jury that appellee did not so fail. Appellant was not, however, entitled to the submission of other issues which presented only slightly different phases or shades of the controlling issue and which were merely evidentiary in the determination of the controlling issue. Neyland v. Passano, Tex.Civ.App., 352 S.W.2d 367, (Ref. N.R.E.); Fort Worth & D. C. Ry. Company v. Capehart, Tex.Civ.App., 210 S.W.2d 839, (Ref. N.R.E.); Franklin v. Love, Tex.Civ.App., 276 S.W.2d 927, (Ref. N.R.E.).

We are likewise of the opinion that the court did not err in refusing to submit appellant’s requested special issues 10, 11, and 12, which inquired whether ap-pellee failed to warn appellant’s driver of his presence in the alleyway and whether such failure was negligence and a proximate cause of appellee’s injury. Although it is undisputed that Bloodworth did not warn the driver of the carry-all that he was in the alleyway, it is likewise undisputed that appellee did not know that the carryall was in the alleyway until it was on his foot and leg. There was no evidence to the effect that appellee had any knowledge of the limitations of the driver’s vision. Ap-pellee was not bound to anticipate negligence on the part of the driver of the carryall or to warn the driver against such negligent conduct. Talley Transfer Company v. Cones, Tex.Civ.App., 216 S.W.2d 604, (Writ Ref.); Texas & Pacific Ry. Company v. Wylie, Tex.Civ.App., 36 S.W.2d 238. The court did not err in refusing to submit such special issues.

Appellant’s fourth point complains of the action of the court in refusing to submit to the jury his requested special issues numbers 17 and 18 inquiring whether the general contractor’s failure to keep a proper lookout for appellee’s safety was the sole proximate cause of the accident. Appellant’s 5th point complains of the refusal of the court to submit his requested special issues 19 and 20 inquiring whether the failure of the general contractor to provide appellee a safe place to work was the sole proximate cause of the accident, and in appellant’s 6th point it is contended that the court erred in refusing to submit to the jury requested special issues 21 and 22 inquiring whether the failure of the general contractor to furnish a flagman to warn appellant’s driver of the fact that men were working in the alleyway was the sole proximate cause of the accident. The questions inquired about in the above requested special issues were raised by appellant’s pleadings which alleged, in effect, that the failure of Fluor (1) to keep a proper lookout for appellee, (2) to provide him a safe place to work and (3) to provide a flagman to warn appellant’s driver of persons working in the alleyway constituted the sole proximate cause of the accident. The evidence showed that the Fluor Corporation, Ltd., was the general contractor and that appellant was a subcontractor. Appellee Blood-worth was an employee of the Fluor Corporation and according to his testimony, no one from the Fluor Corporation warned him of the presence of the carry-all just prior to the time of the accident. There was evidence to the effect, and it is undisputed, that no flagman was present on the job to give warning to Bloodworth or to appellant’s driver. This was the evidence supporting the submission of appellant’s requested special issues here in question and is the same evidence which raised the fact issue inquired about in special issue number 13 of the court’s charge as hereinafter set out. There was also undisputed evidence to the effect that appellant’s driver backed his machine down the alleyway knowing that he could not see any person or thing from 15 to 20 feet behind the vehicle on the right side; that he knew that men had been moving in and out of the alleyway; that the moving of the equipment which he was operating was dangerous, and that there was no flagman on the job.

The court submitted to the jury at the request of appellant special issue number 13 as follows:

“Do you find from a preponderance of the evidence that the failure of the Fluor Corporation, Ltd., to provide a flagman to warn Solomon R. Blood-worth of Vehicles in the alleyway where he was working was not the sole proximate cause of the accident in question?”

The jury answered that failure of appellee’s employer to provide a flagman was not the sole cause of the accident. Of course, if the act of a third party was the sole cause of appellee’s injury this would constitute a complete defense for appellant. However, special issue 13 was based upon the same pleadings and evidence as the requested issues which appellant contends the court erred in refusing to submit. It is based upon and includes the facts inquired about in such requested special issues. Appellant was not entitled to the submission of such requested special issues because they were merely different shades or phases of the controlling fact issue inquired about in special issue number 13. Appellant’s 4th, 5th and 6th points are overruled. Neyland v. Passano, Tex.Civ.App., 352 S.W.2d 367, (Ref. N.R.E.); Texas & Pacific Ry. Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280.

Appellant’s 7th and 8th points complain of the action of the court in refusing to include in the court’s charge requested instructions concerning the duty of Fluor Corporation, the general contractor and ap-pellee’s employer, to provide a safe place for its employees to work and to inspect the premises for dangerous conditions and to provide a flagman to protect persons on the premises from danger. These points are not well taken. This suit is against appellant Tripp, a subcontractor on the job and not against the general contractor. As indicated in Tripp v. Watson, Tex.Civ.App., 235 S.W.2d 677, (Ref. N.R.E.), the requested instructions defined no terms used in the charge of the court and would not have aided the jury in answering any of the special issues submitted. The instructions would have been no help to the jury in determining whether appellant’s driver operated his heavy vehicle in a negligent manner or whether appellee himself was guilty of negligence proximately causing the accident. The requested instructions concerning any duty of the general contractor to provide a safe place to work or to provide a flagman would have been of no assistance to the jury in determining the fact question whether the failure of the general contractor to furnish a flagman was the sole proximate cause of the accident.

In appellant’s 9th point it is urged that the court erred in failing to grant his motion for a mistrial because appellant contends that appellee improperly injected insurance into the case and that reversible error was thereby committed in that it caused the jury to return an improper verdict. The record does show that appellee testified in answer to questions by his attorney that when, after he had partially recovered from his injury and applied to the employment agency for unemployment benefits and was asked by the representatives of that agency whether he had a law suit or an insurance case coming up, he answered that he did have. It was shown that appellee had filed a claim with the Industrial Accident Board and had received compensation payments. The instant suit against appellant for damages had not been filed when appellee applied for unemployment benefits. Actually, the insurance case referred to by Bloodworth in his statement to the employment agency referred to his claim for workmen’s compensation which was at that time pending before the Industrial Accident Board. Under these circumstances, we believe that the trial court could properly find, and we must assume that the court did find, that the injection of insurance into the case was inadvertent and not intentionally designed to inform the jury that the appellant, the defendant in this case, had indemnity insurance. There was no showing that the jury discussed insurance and in our opinion the record does not show that an improper judgment probably resulted.

Every mention of insurance in a damage suit does not constitute reversible error. On the contrary, the complaining party has the burden of showing that the injection of insurance into the case probably caused rendition of an improper judgment. Rules 434, 503, T.R.C.P. Dennis v. Hulse, (Sup.Ct.), 362 S.W.2d 308; Walker v. Texas Employers’ Insurance Association, 155 Tex. 617, 291 S.W.2d 298; Herrin Transportation Company v. Peterson, Tex.Civ.App., 216 S.W.2d 245, (Writ Ref.). Appellant’s 9th point is overruled.

Appellant’s 10th point complains of the following argument made by appellee’s counsel to the jury: “If any of you now have any doubt in your mind but that this man is tragically and permanently injured from looking at him, don’t you know that if there had been a doctor anywhere that would have said he isn’t, Mr. Osborn would certainly have had him examined by him.” Appellant objected to this argument urging that it was improper and outside the record, and that it constituted reversible error. Appellant particularly urges that there is vice in the argument in that it amounts to a comment upon the failure of appellant to call a witness. We can not agree with this contention. An examination of the argument complained of reveals that there is no reference to the failure of appellant to call any particular witness. It was stipulated by the parties in the presence of the jury that counsel for appellee offered to make appellee available to appellant’s attorney for medical examination. Appellant failed to introduce any medical testimony to dispute evidence introduced in behalf of appellee tending to show that appellee had sustained lasting disability. Under these facts, it is our opinion that it was not improper for appellee’s attorney to make the argument complained of. Commercial Standard Insurance Company v. Shudde, Tex.Civ.App., 76 S.W.2d 561; Airline Motor Coaches v. Green, Tex.Civ.App., 217 S.W.2d 70; Traders & General Insurance Company v. Childers, Tex.Civ.App., 95 S.W.2d 461; Galveston Theatres v. Larsen, Tex.Civ.App., 124 S.W.2d 936.

Appellant’s 11th point complains of the following portion of the closing argument of appellee’s attorney: “If there is one thought that I would like to leave with you on behalf of this man, I tell you it is this, we had rather have in this case a hung jury than a verdict for $29,000.00.” Appellant’s objection to this argument was that it was improper in that it requested the jury to do something other than decide the case on the evidence. We cannot agree with appellant’s contention that the argument was a request to the jury to decide the case on some other basis than upon the preponderance of the evidence. In our opinion no error is presented in this point. Texas Employer’s Insurance Association v. Mendenhall, Tex.Civ.App., 334 S.W.2d 850, (Ref. N.R.E.); Continental Bus System, Inc. v. Toombs, Tex.Civ.App., 325 S.W.2d 153, (Ref. N.R.E.). Even if it should be held that such argument was improper it does not constitute reversible error under rule 434, T.R.C.P.

We also overrule appellant’s contention in his 12th point that the cumulative effect of all of the alleged errors, including the mention of insurance, argument concerning failure of appellant to present medical evidence and asking for a hung jury under the circumstances constitute a denial of due process of law and result in a failure of appellant to receive a fair trial.

Appellee Bloodworth sought in his pleadings to recover the sum of $10,000.00, for physical pain and mental anguish and $20,-000.00 for loss of wages and earning capacity. The trial court in submitting the damage issue instructed the jury that they might consider both past and future pain and suffering and mental anguish and also any past and future diminished capacity to work and earn money. The jury returned a verdict of $30,000.00. Appellant apparently does not question the sufficiency of the evidence to support a recovery of $10,000.00 for past and future pain and suffering and mental anguish. Appellant does, however, in his 13th point contend that the award of $20,000.00 for loss of wages and earning capacity is excessive and should be reduced by a proper remittitur. Appellant contends that, based upon the evidence, there should be a remittitur of $12,500.00.

The evidence shows that appellee Bloodworth is 50 years of age and has a life expectancy of 22 years; that he follows the trade of a boiler maker and prior to the time he was injured was an able bodied worker and had become a first class hand in his trade. After appellee received the injury to his leg and foot in May of 1961, he remained in the hospital three or four weeks while efforts were being made to set his leg; that about a month after he left the hospital he had to return again for three or four weeks for another operation on his leg and foot and thereafter again returned for an additional twelve days of operations and skin grafts. Appellee was then on crutches for about seven months longer and during all of this period of time had no independent source of income. Up until the time of the accident he had been paid the union scale of $3.90 per hour. When appellee again began to work after the accident he found that he would suffer constant pain in his foot and leg and this condition has been continuous. He has become nervous and irritable. His occupation as a boiler maker requires a man to climb and move about and he is unable to do this as well as he could before the injury. His friends frequently have to help him on the job. The slightest turning of his ankle requires him to sit down and rest for as much as an hour and after a day’s work his foot and ankle are so swollen that he is required to soak them to relieve such condition. At the trial appellee exhibited his foot and leg to the court and jury and they had opportunity to see that approximately sixteen months after the injury his foot was still swollen, discolored and scarred, irritated where the skin grafts were taken, and to observe the general condition of his ankle and foot.

The rule to be used in determining whether a verdict is excessive and a remittitur required to cure the error is set out in Wilson v. Freeman, 108 Tex. 121, 185 S.W. 993, 994 and approved and quoted by our Supreme Court in Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 at page 840 as follows:

“All the Court of Civil Appeals can do, and all that is required of it to do * * * is to exercise its sound judicial judgment and discretion in the ascertainment of what amount would he reasonable compensation for the injury sustained, and treat the balance as excess * * * (Having) decided upon an amount that would be reasonable compensation * * * it should authorize a remittitur of the excess * * in accordance with its sound judgment.”

We have carefully considered all the evidence in the light of the standard set forth by our Supreme Court and have concluded that $20,000.00 is not an excessive award for appellee’s lost past earnings and decreased future earning capacity.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: TIREY, Justice.

license: Public Domain

text:
    J. C. McCAULEY, Appellant, v. Allyne McCAULEY, Appellee.
    No. 4156.
    Court of Civil Appeals of Texas. Waco.
    Dec. 30, 1963.
    Rehearing Denied Jan. 23,1964.

      L. F. Sanders, Canton, Dunnam & Dun-nam, Waco, (Appeal Only), for appellant.
    Jack Sims, Hillsboro, for appellee.
   TIREY, Justice.

This action is one for divorce, non-jury. The Court granted the husband a divorce and found that two minor children were born of the marriage and awarded the custody of the children to the mother and fixed support orders at $150.00 per month for each child; also fixed certain visitation rights for the plaintiff, providing in detail as to when and how these visitation privileges were to be carried out. The Court also found that the husband and wife had certain community properties and made division of the community properties between them, 'and further adjusted the values by placing a lien on certain of the properties awarded to the husband. The judgment contained certain recitations of findings of fact made by the trial court with reference to his division of the community property. There was no request for findings of fact and conclusions of law and none were filed.

The judgment is assailed on what plaintiff below designates as 4 points. They are to the effect that the Court erred: (1) “in attempting to partition in kind properties that it had not determined were capable of partition in kind.” ; (2) That it abused its discretion in that it made an unfair and unjust partition of the properties between the parties; (3) In finding that the plaintiff had dissipated and disposed of substantial portions of the property before and after the divorce suit was filed; (4) In finding that $300.00 should be paid as child support.

In paragraph 5 in the pleading on which plaintiff went to trial we find these allegations : “Plaintiff would further show that there is certain community property and there are a number of debts for which the greater portion of said property is liable, and the court should in fairness to both of said parties partition and divide the community property in accordance with the facts, law and indebtedness.” And he prayed for a divorce "together with his proper proportion of the community property, and that the court award the care, custody and control of said minors as the court deems proper and necessary and to the best interest of said minors, * * * ” and that plaintiff have such other and further relief, both general and special, in law and in equity to which he may be justly entitled.

Defendant went to trial on her first amended original answer. It contains a general denial and she asked for the care, custody and control of the children and for support, and she prayed for such relief, together with general and special relief in law or in equity. In the judgment we find this recital:

“that the plaintiff and defendant own certain community property, being that described and awarded hereinafter to such respective parties, and the Court, having due regard to the rights of each party and of their children, being of the opinion and finding that the plaintiff, -J. C. McCauley, both during the pendency of this cause in this Court and prior thereto, materially and radically dissipated, reduced and disposed of substantial portions of the community property of the parties, inequitably and unfairly to the defendant, Allyne Mc-Cauley, * * * ” that “Allyne Mc-Cauley, is unable to support herself and at the same time adequately care for the two children * * * awarded to her as their custodian, and that a division of said said community property and the payments of monies in the following described manner will be, under the evidence and the findings of the Court herein, just, right and equitable.”

The court then awarded to Mrs. McCauley a tract of land in Dallas County which appears to be the homestead tract, together with all furniture and household goods, a 1959 model Oldsmobile, five U. S. Savings Bonds, maturity value $25.00 each, 100 shares of capital stock of Margo, Inc., an outboard motor, boat and trailer, four cemetery lots in Grove Hill Cemetery in Dallas County. And awarded to plaintiff Mc-Cauley, the following property as his separate property and estate: A lot in Hill County, an undivided one-half interest in two acres of land on the County line road on Highway 183 in Dallas County and provided that he assume and pay and discharge the note and indebtedness against the house situated at 1162 Carbona Drive awarded to Mrs. McCauley, and described the indebtedness, the total indebtedness being in excess of $4,000.00, and further decreed that he pay to Mrs. McCauley the sum of $12,500.-00 in five annual installments of $2500.00 each, the first installment to be paid on or before the 6th day of March 1964, and one to be paid on or before the 6th day of March of each succeeding year until all are paid, with interest at 6% per annum from March 6, 1963. The decree further ordered plaintiff to execute and deliver his promissory note in conformity with the above requirements payable to Mrs. McCauley as above stated, and the decree expressly awarded a lien upon all the property, both real and personal the court had awarded to Mc-Cauley, and provided that the award to Mc-Cauley of such property was subject to the lien and trust for the benefit of Mrs. Mc-Cauley to secure her in the payment of said $12,500.00 note. The decree further provided that plaintiff McCauley pay all obligations and liabilities incurred by plaintiff and defendant prior to February 13, 1963, and McCauley was directed to pay all income taxes for the year 1962 or any prior year, and the decree further provided that each of the parties shall immediately deliver full custody, possession and control of all the property awarded to the other, and that each shall deliver such abstracts of title and conveyances of ownership as exist relating to such property, and that each shall execute, acknowledge and deliver to the other such certificates of title, deeds and transfers as may be necessary to evidence and confirm the ownership of the property awarded to the other. That part of the decree granting a divorce to the parties is not assailed.

Appellant has filed a supplemental brief in which he assigns points 5, 6, 7 and 8. They are substantially to the effect that the Court erred in awarding a money judgment against plaintiff, in that it ordered him to pay in cash the sum of $12,500.00 to defendant and to execute his note therefor, and because there is no pleading to support a money judgment against plaintiff.

We are of the view that each of appellant’s points is answered adversely to him by virtue of the provisions of Article 4638, Vernon’s Ann.Civ.Tex.St., and the pronouncements of our Supreme Court in the following cases: Ex parte Scott (Scott v. Scott, Scott v. Bond), 133 Tex. 1, 123 S.W.2d 306; Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299; McElreath v. McElreath, 162 Tex. 190, 345 S.W.2d 722; Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21; Wallace v. Briggs, 162 Tex. 485, 348 S.W.2d 523; Ex parte Prickett, 159 Tex. 302, 320 S.W.2d 1; Reardon v. Reardon, 163 Tex. 605, 359 S.W.2d 329. See also McBean v. McBean, Tex.Civ.App., 371 S.W.2d 930. Article 4638 aforesaid provides:

“The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate.”

In construing this Article our Supreme Court, in Ex parte Scott, aforesaid, made the following pronouncement:

“By the provisions of Article 4638, R.C.S.1925, the court pronouncing the decree of divorce has jurisdiction, in the divorce action, to decree a division of the estate of the parties in such a way as the court may deem just and right, having due regard for the rights of each party and their children, if any. This statute does not allow the divorce court to compel either party to the divorce action to divest himself or herself of the title to realty. As we construe it, Article 4638, supra, is mandatory in its provisions, * * *. Also, under this statute the division of the property does not have to be equal. The court can be controlled by what the facts may lead him to believe is just and right.”

In Hailey v. Hailey, our Supreme Court reaffirmed the doctrine announced in the Scott case, supra, and in the opinion we find this statement:

“ * * * the statute puts the duty on the trial court to make a partition of the community property whenever the pleadings of either party show the existence of such property. The trial court shall consider all the facts and circumstances shown by the evidence and then partition the community property, both personal and real estate, in such manner as may be just and right.”

Going back to appellant’s pleadings on which he went to trial he specifically alleged that there was a community estate between him and his wife and he asked the court to make proper division of the property as between them, and this request made to the court by appellant was exactly what the court undertook to do as was his duty to do under the provisions of Article 4638, aforesaid, and under the decisions we have heretofore cited. Under the record here there was no separate property of either spouse. The court in its decree specifically stated: “ * * * that a division of said community property and the payments of monies in the following described manner will be, under the evidence and the findings of the court herein, just, right and equitable.” The court then proceeded to make the division between appellant and appellee in the manner we have heretofore stated. There was tendered in evidence a financial statement of plaintiff dated May 31, 1962, which showed total liabilities and net worth $90,654.54. In his financial statement as of January 25, 1963, it shows (as we understand it) a net worth of his property used in road construction work to be a total net of $15,592.50. He shows real estate, plus household furniture, and a boat and trailer $10,056.00, cash on hand $210.65, and accounts outstanding in the sum of $11,742.72. Testimony was further tendered to the effect that after the divorce suit was filed he transferred a Cadillac automobile for an inadequate consideration, and that he further transferred $17,-650.00 worth of equipment to Jack Langford in satisfaction of an alleged debt. Other testimony was tendered with reference to the possession and disposition of substantial sums of money over a period of two (2) months and, in addition thereto, two days after the separation of the parties appellant withdrew $6000.00 from the bank account of the parties.

Our view of the record here is that the court’s judgment in this cause shows that the court was making a partition of the whole of the community estate between the parties in a manner that he thought was just and right, and as the court was required to do by Article 4638, aforesaid. The next major question that presents itself is: Did the trial court abuse its discretion in a division of the property between the parties and in fixing the amount of the support orders for the two children ages 12 and 13 respectively? We have carefully considered the entire record in this cause and we cannot honestly and conscientiously say that under the record as a whole it shows that the trial court did abuse its discretion in either instance.

Appellant in his brief assails part of the decree as being void and unenforceable. The part complained of relates to the part in the decree that ordered plaintiff to pay off and discharge an indebtedness against the homestead awarded to the appellee as part of her share in the division of the community estate, and with reference thereto the decree provided:

“It is, * * * decreed that the violation, at any time or times by the said plaintiff, J. C. McCauley, of the above order and decree by failing to pay any installment or payment as they become due upon the above described Dallas County house note or the interest thereon, at the times and in the amounts above stated, shall subject the plaintiff, J. C. McCauley, and make him in all tilings subject to, proceedings for contempt of Court and being held in contempt of Court in the same manner that he would be subject to such contempt proceedings for failure to pay the child support payments hereinabove ordered.”

Appellant says in effect that there is no provision in our statute, nor in our Constitution, nor in any of the provisions of the new rules, particularly rule 308, Texas Rules of Civil Procedure, that authorizes the court to enter such decree. We sustain this contention. In Wallace v. Briggs, supra, the Supreme Court, in point 2, made the following pronouncement:

“The court has the power on the final disposition of the case to award attorneys’ fees to the wife, the reasonableness of which are to be determined by the trier of the facts, and they are then entered as a part of the final judgment. Even then there is no authority for the judge to summarily order them paid or attempt to enforce that order by contempt proceedings.1’ (Emphasis added.)

It is our view that the last sentence of the opinion quoted sustains appellant’s contention. See also Ex parte Prickett, supra.

Accordingly, that part of the decree which provides that appellant may be punished for contempt for his failure to execute and carry out the provisions of the decree is hereby stricken, and the decree is so modified and reformed.

We have carefully considered each of appellant’s points in his original brief and his supplemental brief, and each is overruled, except as above stated.

The judgment is modified and reformed as hereinbefore stated, but in all other respects it is affirmed. All costs are taxed against appellant.

Modified and reformed in part, and in part affirmed.


author: MOORE, Justice.

text:
    William M. DAVIS, Appellant, v. Lloyd HINTON et al., Appellees.
    No. 14.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 16, 1964.
    Rehearing Denied Feb. 6,1964.

      Earl Luna, Luna & Vaughn, Dallas, for appellant.
    Robert H. Thomas, Strasburger, Price, Kelton, Miller & Martin, Dallas, for appel-lees.
   MOORE, Justice.

This is an injunction suit instituted in the court below by Lloyd Hinton and other property owners in the Valley View Addition Nos. 1, 2 and 3 of the City of Farmers Branch in Dallas County, Texas, seeking a permanent injunction to enjoin William M. Davis, defendant (appellant herein) from violating the deed restrictions on Lot No. 4, Block 1, owned by him and situated in said Addition.

The plaintiffs in the suit allege that the defendant Davis violated deed restriction No. 1 and restriction No. 3, which restrictions read as follows:

“1. All lots in the Tract shall be known and described as residential lots. No structure shall be erected, altered, placed or permitted to remain on any residential building plot other than the 1 detached single-family dwelling not to exceed two stories in height and a private garage for not more than two cars and other necessary out-building’s incidental to single family use;”
“3. No noxious or offensive trade or activity shall be carried on upon any lot nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.”

Plaintiffs allege that defendant was using said property as a business or a commercial establishment in violation of said restrictions. The defendant denied that he was violating the restrictions and pleads waiver of the restrictions and laches on the part of the plaintiffs, and further pleads that due to the changed conditions in the neighborhood, the property in the restricted area has become unsuitable for residential purposes and the restrictions should not be enforced.

Defendant admitted that he was not using the property as his residence; he also admitted that he is renting the living room, dining room and kitchen for $50.00 per month to a Mrs. Flynn who conducts a •commercial art business; that in one of the bedrooms he conducts his bookkeeping and accounting business and rents a portion of the room for $50.00 per month to a Mr. Wilsie, a manufacturer’s representative, and that since the date of the filing of this suit he had rented the remaining bedroom to his brother, a single man, who now lives in the room. In response to a request for admission, he also admits that the house is now being used by him for purposes other than .a "single family dwelling”. The evidence shows that there was a sign in the yard on which was printed the following: “Davis Bookkeeping Tax Service”, “M.R.L. North Texas”, “Art Studio” and a separate sign which read: “Office for Rent”.

In a trial before a jury, at the conclusion of the plaintiffs’ testimony, defendant Davis moved for an instructed verdict whidi was overruled by the court. At the conclusion of all the testimony both plaintiffs and defendant made motions for instructed verdicts or, in the alternative, that the court withdraw the case from the jury and render judgment. The Trial Court withdrew the case from the jury and rendered judgment for the plaintiffs, permanently enjoining defendant Davis from using said property “for any purpose other than a single family residence, except that the said Defendant, or any other person, if he uses said property as his residence, may carry on such business of his own as may be incidental to the primary or principal use of said property as a single family residence or dwelling. * * ” provided no noxious trade or activity is carried on upon the property.

By his first, second and third points of error, appellant contends that the Trial Court was in error in overruling his motion for instructed verdict, because there was no evidence, or at least insufficient evidence, to support the judgment for the plaintiffs in that there was no proof that the activity of the defendant was noxious or offensive, and further contends that since the restriction in the deed did not restrict the use of the premises but only restricted the type of structure that could be placed thereon, and that since he had not changed the type of structure to something other than residential, there was no evidence of a violation of the restriction. In the alternative, he contends that there is no evidence of a violation because, since his brother resides in one of the rooms it is being used as a residence.

It is true there was no proof in the record showing that the activity carried on on the premises was noxious or offensive, as such, and the appellees do not so contend. They do contend, however, that there is a definite violation of restriction No. 1, and they are being damaged thereby.

The solution to the problem will depend upon the interpretation to be given the restriction in question.

In 26 C.J.S. Deeds § 164(3) a considering restrictive covenants in deeds, the rule is said to be as follows:

“As employed in building restrictions, the words ‘dwelling house’ are, in the absence of anything to the contrary, to be construed in their ordinary sense as a house occupied as a residence, in distinction from a store, office, or other building. The term defines the use to which a building shall be put and not merely the form or character of the structure, and a provision restricting the erection of buildings other than dwelling houses or residences applies not only to the erection of the building in the first place, but likewise forbids the use of a building erected as a dwelling house or residence for other than residential purposes.”

The same authority also states that:

“Where the use of a building is restricted to a ‘private dwelling,’ the owner will not be allowed gradually to change the character of a building from a residence to a place of business.”

Where the restriction, as in the case at bar, restricts the use to a “single family dwelling”, the nature and extent of the use of his premises for purposes other than as a residence for the members of his family and his domestic servants will determine whether an injunction decree is to be entered against a particular defendant. If he operates a rooming or boarding house on the premises as a business, or is Using his dwelling house primarily as a source of financial gain rather than as a residence for himself and his family and domestic servants, that activity should be enjoined. The facts in this case show conclusively that appellant was using the residence primarily as a business in violation of the restriction and therefore there was no error in the Trial Court refusing to instruct a verdict in his behalf. Southampton Civic Club v. Couch, 159 Tex. 464, 322 S.W.2d 516, 520; Walker v. Dorris, Tex.Civ.App., 206 S.W.2d 620; Arrington v. Cleveland, Tex.Civ.App., 242 S.W.2d 400 (Er.Ref.); 14 Am.Jur. Sec. 246.

Obviously, the fact that appellant, after suit was filed, rented a room to his brother, who is a single man and who now lives in one of the rooms, does not serve to create a single family dwelling so as to comply with restriction.

Appellant’s points 1, 2 and 3 are therefore overruled.

By appellant’s fourth assignment he contends that the court was in error in rendering judgment for appellees because there were fact issues to be submitted to the jury on his pleaded defenses of waiver, laches, and on his alternative plea of change of conditions within the neighborhood to such an extent as to render the property unsuitable for residential purposes.

The evidence shows that appellant’s property fronts on Valley View Lane in the City of Farmers Branch; that the property is on the border of the restricted addition; that since the restriction was imposed the traffic on Valley View Lane has increased greatly; that the City of Farmers Branch has grown from 1600 to 18,000; that the subdivision in question is a rather large subdivision, containing many homes; that the subdivision is zoned as residential by the city; that within the area, but outside the restricted area, a shopping center, doctors offices and a core analysis lab have been constructed and that Buckner Insurance Agency is being conducted in a converted garage in connection with the home; that within the residential area, Bates Beauty Shop has been in operation three or four years in the garage of the family residence; that Deckard Beauty Shop has been in operation in the family residence for about two years; that from 1954 through 1956 La Monico Nursery for children was operated in a family residence; that from 1950 to 1955 Frances Gregg operated a beauty shop in her family residence. The evidence fails to reveal the extent or volume of the business being conducted.

In order to establish a waiver there must of course be some violation within the restricted area. A violation of a restrictive covenant, outside the restricted area, cannot be relied upon as a waiver of the restrictive covenants within the restrictive area. Abernathy v. Adoue, Tex.Civ.App., 49 S.W.2d 476, 477.

The only violations in the restricted area relied upon by appellant as constituting a waiver are the beauty shops and day nursery as set forth above. In construing similar restrictive covenants the courts have held that neither the operation of a beauty shop nor the practice of medicine in the home which was merely incidental to the use of the premises as a single family residence, amounted to a violation of the restrictive covenant. We have concluded that since the operations of the beauty shops and day nursery were merely incidental to the use as a single family dwelling or residence, same were not in violation of the restriction and would not constitute a waiver. Burkhart v. Christian, Tex.Civ.App., 315 S.W.2d 668; and Baker v. Brackeen, Tex.Civ.App., 354 S.W.2d 660.

But even so, before an alleged violation in the restricted area can be relied upon as a waiver, it must be shown that the violation materially affected the use and enjoyment of the properties as residences, and that the violation was more than trivial. Stewart v. Welsh, 142 Tex. 314, 178 S.W.2d 506; Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943; Barham v. Reames, Tex.Civ.App., 366 S.W.2d 257. The evidence fails to disclose such to be the case.

Having concluded that there was no evidence of probative force on the issue of waiver, no error is reflected by the Trial Court’s failure to submit the issue to the jury.

On the question of whether or not the evidence is sufficient to raise the question of laches on the part of the appellees toward the appellant, the evidence discloses that before appellant bought the property in December, 1961, he had the title checked by a title company and secured a title policy and that since the time of the purchase he has made no improvements thereon. There was no showing that appellees in any way misled the appellant in such a manner as to cause him any damage or injury. This suit was filed April 2, 1962, some ninety (90) days following the purchase of the property by the appellant.

In 30 C.J.S. Equity § 117, the rule is stated:

“It is not for a wrongdoer to impose extreme vigilance and promptitude as conditions to the exercise of the right of the person injured. So the doctrine of laches does not apply where defendant has acted in open and known hostility to plaintiff’s rights and has been misled by no apparent acquiescence on plaintiff’s part; the law does not demand the utmost exertion of diligence in repelling a hostile invasion of one’s rights deliberately undertaken with full knowledge of all the facts.”

As was pointed out by Judge Culver in Arrington v. Cleveland, supra, “In the recent Texas case of Shaffer v. Rector Well Equipment Company, Inc., 155 F.2d 344, 347, Judge Waller of the Fifth Circuit holds: ‘The burden of proof to establish the defense of laches is on the defendant and the failure of the defendant to prove injury or damage to itself—a vital element in the establishment of laches—would be fatal to such a defense, even if it had maintained that defense in other respects.’ ”

Appellant having failed to produce any evidence that neither the delay in the filing of suit nor any other act by appellees caused him any injury or damage, failed to discharge his burden of proof on the issues of laches and therefore no issue was raised for determination by a jury.

Appellant’s contention in his fourth point contending that there was a question of fact for the jury on the changed condition in the neighborhood rendering the property involved unsuited for residential purposes is overruled.

The condition existed when the appellant purchased his property a short time before suit was filed.

The fact that some of the adjoining or surrounding property is now used for business purposes does not in any way alter the residential character of the subdivision. The original plan for a residential subdivision has not been departed from within the restricted area, but the restrictive requirements have been generally enforced, and accepted by the owners thereof.

It is our belief that equity in such a situation is with the property owners who desire that their home district be confined to its original purpose, and not with one who seeks to violate those conditions because he chances to own the particular piece of property which was affected by changed conditions. The equities favoring one particular lot owner in a restricted area is only one facet of the judicial inquiry. Those equities must be weighed against the equities favoring the lot owners who depend upon the restriction to preserve the residential character of the area. It is a question of harm on the one hand and benefit on the other. The judgment must arise out of balancing of the equities. All of the reported cases on this question has, to a large extent, been decided upon equitable grounds. We think that the weight of authorities, as well as the equitable rights of adjacent property owners, are against appellant’s contention. Scaling v. Sutton, Tex.Civ.App., 167 S.W.2d 275, 280. We see no point in unduly extending this opinion by discussing the equitable considerations to be accorded the parties in these types of situations because the matter has already been thoroughly considered by the courts and decided contrary to appellant’s contention in Bethea v. Lockhart, Tex.Civ.App., 127 S.W.2d 1029, writ refused, and by the Supreme Court in Cowling v. Colligan, supra.

Since the proof presented on the issue of changed conditions would not as a matter of law be sufficient to support a finding or judgment based thereon the Trial Court was correct in refusing to submit the issue to the jury.

For the reasons stated, we overrule the appellant’s fourth point and its related assignments of error.

Judgment affirmed.


author: WILLIAMS, Justice.

text:
    C. D. WYCHE, Appellant, v. WICHITA ENGINEERING COMPANY, Appellee.
    No. 16300.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 17, 1964.
    Rehearing Denied Feb. 7, 1964.

      Yarborough, Yarborough & Johnson, Donald V. Yarborough, Dallas, for appellant.
    Carter, Gallagher, Jones & Magee and Morton A. Rudberg, Dallas, for appellee.
   WILLIAMS, Justice.

Wichita Engineering Company brought this action against C. D. Wyche in the nature of a verified account for services rendered and goods furnished, together with attorneys’ fees. Following jury trial judgment was rendered in favor of the plaintiff against Wyche for $588.34 plus attorneys’ fees. Wyche appeals, presenting five points of error, and having carefully considered them we are of the opinion that they should be overruled and the judgment of the trial court affirmed.

In view of the nature of appellant’s points it becomes necessary that we review briefly the pleadings, the jury findings, and a portion of the material testimony. Ap-pellee alleged that it furnished the goods and performed the labor to the appellant Wyche at the request of Wyche’s agent, one L. O. Hill, who was acting within the course and scope of his authority for Wyche. Wyche answered denying generally all of the allegations of plaintiff and specifically alleged that L. O. Hill was not his agent and had no authority to act for him in the transaction sued upon.

Wyche testified that he did own some leases in Wichita County and that in 1958 he entered into a verbal agreement with L. 0. Hill whereby Hill was to drill some wells on these leases. He admits that Hill incurred a number of obligations for him in connection with the drilling operations but that in the latter part of 1959 he had a falling out with Hill and went to Wichita Falls where he paid off everybody that said he owed them and then instructed them not to credit Hill with anything further. There is no evidence that such statement was made by Wyche to Wichita Engineering Company or any of its representatives.

The witness Howell, a representative of Wichita Engineering Company, testified that Hill had ordered some work done by his company on a piece of equipment known as a mud pump in October, 1959 and that the invoice was sent to Wyche. He testified that he went to see Wyche who paid the invoice after Hill approved the same. On that occasion he said that he specifically asked Wyche if Hill represented him in his oil business and Wyche said: “Yes, he is my representative”. He further said that Wyche told him on that occasion that Hill “was his tool pusher in his oil operations and they were drilling a lease between Burkburnett and Electra, Texas, and that any bills that Hill signed or incurred against Wyche that he would take care of them and would pay those particular bills * * * Howell said that in his conversation with Wyche the question of future repairs to the mud pump came up and Wyche told him he owned the pump in question. He asked Wyche how he wanted to handle the account whereupon Wyche said: “Anything that Mr. Hill signs for Wyche Oil Company I will take care of it and don’t worry about it”. Howell testified that subsequently the company did do other work for Wyche, including work on the mud pump, and that the account was okayed on the strength of what Wyche had told him.

Appellee’s vice-president, Brown, testified that the invoice made the basis of ap-pellee’s claim against Wyche was made out to “Wyche Oil Company” rather than C. D. Wyche. He said that he did not know exactly why the invoice was made out in this particular manner but that his company had no account or customer other than that account referred to as the C. D. Wyche or Wyche Oil Company account. He said that the company did not know anyone in connection with this transaction other than C. D. Wyche. The work and material furnished in connection with this claim involves a mud pump and Brown testified that his company had done work on this pump for Wyche on more than one occasion. One time the invoice was made to C. D. Wyche and another to Wyche Oil Company, but both accounts were with reference to the same mud pump.

Another of appellee’s employees, Breed, testified that in June of 1960 he contacted Wyche by telephone concerning the charges made the basis of this claim and that Wyche told him that he would pay the invoice. Breed testified that he later personally contacted Wyche in July of 1960 concerning the unpaid invoice and that Wyche again agreed that he would pay the same, never protesting that he did not owe it.

Wyche testifying on his own behalf vehemently denied all of the testimony, in-detail, given by appellee’s witnesses.

The jury, in answer to special issues found (1) that L. O. Hill bought the goods- and services from Wichita Engineering" Company; (2) that such goods and services-were contracted by Hill while acting within the course and scope of his employment as-an agent for C. D. Wyche; (3) that L. O. Hill did not buy the goods and services in question as the apparent agent of C. D. Wyche; (4) that the items of goods and services set forth in Plaintiff’s Exhibit No. 3, attached to plaintiff’s petition, were delivered to L. O. Hill on or about the time of the transaction involved in this suit by Wichita Engineering Company; (5) that the market value of such goods and services was $588.34; (6) that L. 0. Hill, in making the transaction with Wichita Engineering Company, did not do so for Wyche Oil Company; (7) that on the occasion in question Wyche was not doing business under the name of Wyche Oil Company; (8) that $235.00 would be a reasonable attorneys’ fee.

By its first point appellant contends that the jury having found that appellant was not doing business under the name of Wyche Oil Company, and since the uncon-troverted evidence shows that the goods and services, made the basis of this suit, were for Wyche Oil Company, the trial court should not have rendered judgment against the individual Wyche. The point assumes that the evidence is uncontroverted that the goods and services were rendered to Wyche Oil Company and not to C. D. Wyche. The record does not support appellant in this regard. While it is true that the invoice attached to appellee’s petition, and introduced in evidence as Plaintiff’s Exhibit 3, does show that it was made to “Wyche Oil Company”, there is some testimony in the record that the goods and services were rendered to L. O. Hill acting as agent for C. D. Wyche, and the jury so found. There is also testimony in the record, as above demonstrated, that C. D. Wyche agreed to pay the invoice on one or more occasions, regardless of the fact that it was made to Wyche Oil Company. We do not believe that the designation of Wyche Oil Company on the invoice is controlling over the evidence introduced in the record. From our reading of the entire record it is obvious that there was some confusion in the office of Wichita Engineering Company concerning the issuance of invoices to Hill and Wyche but such confusion is explained by Brown’s testimony. There being conflicting evidence on the question of who the goods were furnished to and services performed for, the answer of Special Issue No. 7, to the effect that C. D. Wyche was not doing business under the name of Wyche Oil Company, is not controlling of the judgment in this case. This is especially true in the light of the finding of the jury in answer to other issues submitted. We therefore overrule appellant’s first point.

By his second, third and fourth points appellant contends that there was no evidence or insufficient evidence to support the answer of the jury to Special Issue No. 2 wherein the jury found that Hill bought the goods and services in question while acting within the scope of his employment as an agent of C. D. Wyche. We have carefully reviewed the entire record in this case in considering these “no evidence” and “insufficient evidence” points and having done so in the light of the rule announced by our Supreme Court in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, we find evidence in support of the jury’s finding that Hill was acting as the agent of C. D. Wyche when he bought the goods and services made the basis of this suit. Furthermore, we cannot say that the evidence is insufficient nor that the findings were contrary to the great weight and preponderance of the evidence. As demonstrated above, the issue was sharply contested. There was evidence both pro and con concerning Hill’s relationship and authority to act for Wyche. The jury saw and observed the witnesses and decided the issues adversely to Wyche’s contention. We cannot say that the jury findings were wrong. Accordingly, we overrule appellant’s second, third and fourth points.

By his fifth point appellant says that: “The court committed fundamental error in rendering judgment for attorneys’ fees, it being apparent from appellee’s first amended original petition that it was a corporation and its suit was for services rendered to an individual, namely, C. D. Wyche”. Appellant admits that it did not raise this point in its motion for new trial before the trial court but seeks relief by contending that such is fundamental error and may be raised for the first time on appeal. We doubt that this question may properly be presented here as fundamental error. In the case of Schafer v. Stevens, Tex.Civ.App., 352 S.W.2d 471, Chief Justice Dixon, speaking for our court, presented an elaborate and comprehensive review of the authorities relating to fundamental error and pointed out that if the appellate court was required to look into the statement of facts to ascertain the question presented same could not be fundamental error. In this case the pleadings reflect that appellee is a corporation and seeks to recover attorneys’ fees for goods furnished and services performed, yet one must resort to the statement of facts to ascertain the actual services performed and goods furnished. As a matter of fact, appellee did not recover the total amount for goods furnished and services performed which had been pleaded.

Even if we should be mistaken, and if it should he held that the matter is properly raised as fundamental error, we would be constrained to overrule appellant’s point. While it is true that Art. 2226, Vernon’s Ann.Civ.St. refers to “any person” it is likewise true that Art. 23, V.A.C.S., Sec. 2, provides that in construing words used in statutes the word “person” includes a corporation.

Neither should we apply the doctrine of strictissimi juris to the statute. Art. 10, Sec. 8, V.A.C.S., is express in telling us that the rule of the common law that statutes in derogation thereof shall be strictly construed shall have no application to the Revised Statutes; but the said statutes shall constitute the law of this state respecting the subjects to which they relate; and the provisions thereof shall be liberally construed with a view to effect their objects and to promote justice.

This identical question was presented to the 5th Circuit Court of Appeals in the case of United States for Use and Benefit of Caldwell Foundry & Machine Co. v. Texas Construction Co., 237 F.2d 705. The contention that a corporation could not recover for personal services was overruled by the court, relying upon the opinion of the United States Supreme Court in Missouri, Kansas & Texas Ry. Co. of Texas v. Cade, 233 U.S. 642, 34 S.Ct. 678, 58 L.Ed. 1135. The United States Supreme Court in that case said:

“It is insisted that the benefits of the act are conferred upon natural persons only; but this we cannot concede, in the absence of a decision by the courts of the state, giving to it a construction thus limited.”

No Texas case has been cited, and we have found none, directly holding that Art. 2226, V.A.C.S. prohibits a corporation, as such, from recovering attorneys’ fees in a proper case.

The judgment of the trial court is affirmed.

Affirmed.


author: MASSEY, Chief Justice.

text:
    Lynn MALLOW et al., Appellants, v. The STATE of Texas ex rel. CITY OF DENTON, Texas, Appellee.
    No. 16475.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 3, 1964.
    Rehearing Denied Jan. 31,1964.

      Shirley W. Peters, Denton, for appellants.
    John Lawhon, County Atty., of Denton County, and Lee E. Holt, Denton, for ap-pellee.
   MASSEY, Chief Justice.

In the case of Ewing v. State ex rel. Pollard, 1891, 81 Tex. 172, 16 S.W. 872, was decided the law of Texas that where a suit in the nature of Quo Warranto is brought on the theory that a purported municipal corporation is truly nonexistent because it had never been legally incorporated, and that the individuals assuming to compose the governing body should for that reason be ousted from their “pretended” capacities as officers thereof, — a trial court obtains jurisdiction as to parties as well as subject matter by merely serving only the aforesaid individuals to the extent that it may, in a proper case, render a judgment which both ousts the individuals in said “pretended” capacities and dissolves the corporation.

But on the instant appeal a new question has been added. What is the authority of the trial court in such a case where, prior to any trial, all the individuals alleged to have said “pretended” capacities disclaim any right, title, interest or authority in or under the purported municipal corporation as such? Our conclusion is that such occurrence would have no effect upon the court’s authority to render a judgment dissolving the corporation.

Before the case was tried on its merits the State obtained a summary judgment in the district court where the case was filed. That judgment was reversed by this court on the single ground that said form of judgment was improper because of the existence of a fact issue. See Mallow v. State, ex rel. City of Denton, 1962 (Tex.Civ.App., Fort Worth), 356 S.W.2d 705, writ ref., n. r. e. At time of the summary judgment Lynn Mallow was the mayor (allegedly only “pretended”) of the purported town of Mayhill in Denton County, Texas, and Glen Wood-ford and Donald Gabbert were the commissioners (allegedly only “pretended”) of the same town.

By the time the case was reached for trial on its merits there had been effected a change of officials, actual or “pretended”, in the purported town of Mayhill. The new mayor (actual or “pretended”) was C. E. Carruth. The new commissioners (actual or “pretended”) were Roy Bentley and Estella Woodford. A few days before the time scheduled as trial date, Mallow, Gab-bert and Glen Woodford each filed his disclaimer, showing that each of them “neither claims nor asserts any right, title, interest or right of possession in or to * * * office * * * of the Town of Mayhill, Texas, and neither claims the authority, duty or right to exercise any of the functions or duties * * These parties were sued as individuals and not in any official capacity in accord with propriety according to the Ewing case.

Upon the call of the case for trial the named defendants, Mallow, Woodford and Gabbert, urged their pleas in abatement based in part upon the ground that there was a want of necessary parties, to-wit: all the other residents and incorporators of the Town of Mayhill (naming them). The pleas were overruled.

Then the State and Mallow, Woodford and Gabbert proceeded to stipulate that neither Mallow, Gabbert, nor Glen Wood-ford were officers of the Town of Mayhill, but that it was Carruth, Bentley and Estella Woodford who were claiming to be the officers of said town. Also stipulated were the records and orders of the County Judge of Denton County pursuant to which the Town of Mayhill was purportedly incorporated. Further stipulated was the fact that at all material times the number of inhabitants residing within the boundaries of the municipality purportedly incorporated was more than 200 inhabitants and less than 400 inhabitants. Introduction of evidence then proceeded, devoted to a successful attempt by the State to establish that at the material time the area of the purportedly incorporated municipality was more than two (2) square miles. The State’s object by this showing was to establish that there was too much land for the requisite number of inhabitants to qualify them to cause it to actually be incorporated as a municipality within the authority of law. Only one witness testified. Mallow, Gabbert and Glen Woodford tendered no evidence. The jury found that the area in question exceeded two square miles. Based thereon judgment of ouster was entered and also judgment decreeing that the proceedings purporting to incorporate the Town of Mayhill were null and void.

Our investigation turned up the interesting case of State v. Village of Bradford, 1859, 32 Vt. 50. It was a Quo Warranto proceeding in which the State of Vermont sought to have it established that the purported incorporation of the Village of Bradford was void. Named as defendants in the proceeding were the “pretended” officers of the purported municipality. These defendants filed an affidavit disclaiming any purpose of exercising the functions of the offices to which they had been elected. The judgment in the case decreed a dissolution of the de facto Village of Bradford (because it was not incorporated in accordance with provisions of law) and the ouster of the “pretended” officers thereof. As to costs, however, particularly as to those incurred from and after the individual defendants filed their disclaimers, such were assessed against the relator upon whose information the State initiated the suit. In the opinion it was stated that the reason costs were not allowed (against the individual defendants) was because there was no distinct evidence that they participated in any illegal or improper proceedings in effecting the organization under the charter. See also 74 C.J.S. Quo Warranto § 52 Costs, p. 280, notes 73 and 74.

We see no actual distinction to be made between the Village of Bradford casé and the case before us in connection with the effect thereupon occasioned by the disclaimers filed by “pretended” officers. We believe that a judgment of ouster of such parties is proper despite such disclaimers. That the trial court might take cognizance that other and different parties were in fact “pretended” officers at the time of the trial would not foreclose propriety of a judgment of ouster of those who were the “pretended” officers at an earlier time. Neither would this require an abatement of the suit.

It appears that in Vermont it is (or was) proper in a case such as this to name as a party defendant the de facto or purported municipal corporation, as well as the “pretended” officers thereof. State v. Village of Bradford, supra. Not so in Texas. Ewing v. State, supra. In Ewing it was held that where the theory of the information upon which the trial proceeded was that there was no such corporation as that purported, there would be a distinction to be made between it and those cases in which the objective of the suit was to dissolve an actually pre-existing corporation for nonuser or misuser, or to oust it from franchises not conferred by its charter, and that, unlike the propriety of naming the corporation as a party in the latter type cases, it was not necessary to name or bring in, as a party to the suit, a purported corporation which the plaintiff contended was nonexistent.

It does not do violence to the rules of law to do what we consider to be justice in this particular case and hold that the trial court had jurisdiction and authority to decide that the Town of Mayhill was not incorporated under provision of law, and to decree that the proceedings purportedly incorporating it were null and void. Accordingly, we overrule the points of error which so contend.

The State, through its attorneys, argues that the holding made is supported under the theory that its suit qualified as a class action under the provisions of Texas Rules of Civil Procedure, rule 42, “Class Actions”. The material parts of the Rule are taken from Federal Rule 23. Thereunder it was held that where a plaintiff’s pleading does not bring his suit under the rule, but instead pleads an individual suit, a holding that it constituted a class suit would require that the court rewrite his petition for him, something the court may not do. In other words, the holding was that he who would bring a class suit must plead the elements of the Rule which would make his case such. Bell v. Preferred Life Assur. Soc. of Montgomery, 1942 (Court of Appeals, 5th Cir.), 131 F.2d 516. The decision in this case was reversed on other grounds at 320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15. Other cases to be found annotated under the Federal Rule are in accord. See also McDonald, Texas Civil Practice, p. 269, “Parties”, § 3.34, “Class Actions”. In the case before us the State’s case under its pleadings does not qualify as a class action and may not be treated as such.

Having held that the procedure in the trial court was regular and effective we reach the merits of the controversy. It is contended that the holding of the trial court, absolutely prerequisite to the decision invalidating the incorporation of the Town of Mayhill, had no basis in our statutory law. Specifically, the contention is that Vernon’s Ann.Texas St. Art. 971, “Territorial boundaries”, which provides: “No city or town in this State shall be hereafter incorporated under the provisions of the general charter for cities and towns contained in this title with a superficial area of more than two square miles, when such town or city has less than two thousand inhabitants, * * ”, has not such application as to inhibit the original incorporation of the Town of Mayhill.

Premise of the contention is that while Art. 971 relates to incorporations of cities and towns under Title 28, “Cities, Towns and Villages”, and Chapter 1 thereunder, “Cities and Towns”, Art. 961 et seq., it had no relation and was without application to incorporation of towns and villages under Chapter 12 thereunder, and in particular to Art. 1155 et seq. Ergo, it is reasoned that the incorporation of the Town of Mayhill is not effected by Art. 971 since the Legislature has not by legislation extended the provisions of the Article to towns and villages, etc., incorporated under any of the provisions of articles in and under Chapter 12.

We believe that the matter is not an open question and that it is settled law that the inhibitory language of Art. 971 (which we have taken occasion to quote) applies to all cities, towns and/or villages attempting to incorporate under any of the general law articles of Title 28 without respect to the Chapter thereunder which incorporation is attempted. Richardson v. State, 1946 (Tex.Civ.App., Dallas), 199 S.W.2d 239, 244, writ, ref., n. r. e. It has been contended that the notation of the Supreme Court, “no reversible error”, did not stamp any seal of approval on the holding in the case since the application for writ of error did not include complaint of it. However this may be, the Supreme Court apparently approved the holding in Beyer v. Templeton, 1948, 147 Tex. 94, 212 S.W.2d 134, 139. See also Spurlin v. State, 1908, 51 Tex.Civ.App. 266, 115 S.W. 128.

Finally, it is contended that even though we might reach the conclusions aforestated, the provisions of Chapter 40 of the Acts of the 57th Legislature, First Called Session in 1961, validated the incorporation of the Town of Mayhill, and that the trial court erred in refusing to so hold. Mallow, Gabbcrt and Glen Wood-ford obviously place considerable reliance upon this contention, having made it their first point of error.

The Act did purport to do as is contended. It was effective as of August 26, 1961. It is to be found in Vernon’s Texas Statutes as Art. 974d-9. The quo warranto suit was filed on November 17, 1960, and was pending for trial on August 26, 1961. By such suit the validity of the incorporation was cast in question and was in litigation. Section 5 of the Act provides: “This Act shall not be construed as validating the adoption of any charter if the validity of the charter adoption proceedings or of the charter is involved in litigation on the effective date of this Act and such litigation is ultimately determined against the validity thereof.”

The appellants, Mallow, Gabbert and Glen Woodford, have constructed an argument in substantiation of their contention that Section 5 of the Act, quoted above, though applicable to exclude home rule charters and proceedings involved in litigation on August 26, 1961, was otherwise inapplicable by construction proper to be made of the section in light of the entire Act, and therefore that the Act did validate the incorporation of the Town of Mayhill despite that fact that such validity was then involved in litigation.

We reject the argument and overrule the contention. We hold that Section 5 of the Act excepted from its validating provisions that class and character of incorporation proceedings by which the Town of Mayhill was sought to be incorporated.

Judgment is affirmed.


author: HIGHTOWER, Chief Justice.

text:
    The STATE of Texas, Appellant, v. George M. GIST et al., Appellees.
    No. 6496.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 9, 1964.
    Rehearing Denied Deb. 5,1964.

      W. G. Walley, Jr., Frank M. Adams, Beaumont, for appellant.
    Earl Black, Port Arthur, for appellees.
   HIGHTOWER, Chief Justice.

This is a highway condemnation case in which the State has appealed from a judgment in favor of appellees. In each instance the acreage referred to in this opinion varies fractionally with the actual acreage involved.

In response to the 3 issues submitted, the jury found the value of the 4 acres taken for highway purposes on October 10, 1960, to be $12,632.00. The value of the remainder of 200 acres immediately before the taking was found to be $407,678.00. The value of the remainder immediately after the taking was found to be $388,890.00. Thus a damage award of $18,788.00.

State’s first 2 points of error in substance urge the trial court erred in permitting two of appellees’ appraisal witnesses, Landry and Kelley, to testify to valuation based upon a projection ten years hence, rather than the value on the date of taking. State raises no contentions under any of the 9 points in its brief relative to no evidence or the sufficiency thereof to support the findings of the jury. For clarity, a brief statement of the history, location and description of the property is necessary.

In 1958 appellees purchased a tract of 257 raw acres in the City of Port Neches with the intention of developing it for residential and commercial purposes. The south boundary line of the property abuts the blacktopped Highway 347 for some 2100 plus feet — this being the area about which the parties’ contentions are primarily centered. The property was to be developed in stages from its least desirable portion, the northerly portion, by stages southerly up to Highway 347. This being a rather costly venture, the developers worked out a plan with the City of Port Neches whereby said City, by passage of a bond issue, supplied water and sewer lines at a cost of $80,000.00 up to the boundary of the northern 57 acres which was to be the first developed residential property. The City of Port Neches adopted and approved the plans of this subdivision in its entirety. On the date of taking, October 10, 1960, this northerly 57 acres was approximately 90% completed by the sale of lots and building of homes thereon. Water and sewer lines and blacktopped streets had been installed at the expense of the developers. Essentially it was the plan of the appellees to develop the remaining 200 acres by stages, as aforesaid, within a period of not more than ten years. The 4 acres condemned was a rectangular shaped tract fronting on Highway 347 for 2100 plus feet. The plans for the proposed 4-lane limited access highway called for an underpass from old Highway 347 to the remaining portion of appellees’ southern boundary. Although appellees purchased the entire tract at $750.00 per acre the record is clear that certain sections of it were much more valuable than others. The area zoned commercial by the City of Port Neches was the 2100 feet fronting on Highway 347 for a depth of 600 feet. This area, including the 4 acres condemned, comprised 28 acres. The rest of the property was zoned residential by the City. The chief issue as to the value of the property was occasioned by the opinion of State’s witnesses that the highest and best use of this commercial property would not be shopping center but would be some other various types of commercial purposes. On the other hand, appellees’ witnesses took the position that the highest and best use of the property in the foreseeable future would be commercial, as agreed upon by the other experts, but would be shopping center specifically.

Relative to State’s first 2 points of error as hereinabove stated, witness Landry testified :

“We project a ten years development for this land. We start out at the rear. We have had inclement weather, but we have been, in our opinion, successful in carrying out our plan. We are not behind in our program at all. We have sold out our first section at the present time. And we will, as soon as this litigation is over, start on our second section. It’s our opinion that within the ten-year period, we will have developed this property, with all the improvements, up to the commercial frontage on the highway. That is the basis we consider a reasonable length of time in which to develop a subdivision. You can’t do it over night. It takes years to develop first-class subdivisions.”

In explanation of how he arrived at his opinion of the value of the property, he testified:

“A. That’s the discounted figure. In other words, if you are taking property that in ten years will be worth fifteen thousand dollars, the present worth, the worth today is fifteen thousand dollars discounted by four percent over the ten year period. Q. Why do you say four per cent? A. That’s a safe rate of interest to be paid. If you take ten thousand a hundred and fifty dollars, and invest it in the savings and loan, it would, at the end of ten years, be worth fifteen thousand dollars.”

On such basis he then proceeded to give his opinion of the value of the 4 acres condemned and the before and after values of the aforesaid 24 acres zoned commercial as $42,664.00; $288,776.00; and $72,876,00, respectively. The essence of the basis upon which witness Kelley placed his valuations is so substantially the same as Landry’s that it is unnecessary to set it out. Suffice it to say we are inclined to agree that the admission of such testimony was improper. Standing alone it fails to apprise the trier of facts of a reasonable date within the said ten year period by which the project would probably be completed. Nor are we familiar with any precedent in our jurisprudence for the discount method which said witnesses used in computing their valuations, and we hold admission of the same to have been erroneous.

However, we are not of the opinion that such error was harmful to State. Thompson, another appraisal witness for appellees, testified that he used the customary market approach in arriving at his valuations. He referred to 18 or more acceptable comparable sales of other property in the near vicinity and as a result thereof he was of the opinion that the 4 acres taken was worth $27,513.00. He stated the before and after value of the remaining 24 acres of commercial property to be $161,487.00 and $20,358.00, for a total damage figure of $141,129.00. It was his opinion that within a five year period the residential property would have been fully developed up to the commercial property, thus creating a captive market for the planned shopping center. Although there are objections in the record to Thompson’s testimony as being conj ectural and speculative, we find no point of error in State’s brief preserving the same. Moreover, with reference to Landry’s testimony which we have heretofore held erroneously admitted, it appears that counsel for appellees, apparently suspecting that the basis and method used by Landry might have been of doubtful propriety, later on in the trial pursued the more reliable and established method of eliciting Landry’s opinion valuations. Thus, at the conclusion of said witness’ testimony while on re-direct examination he testified that in his opinion the market value of the 4 acres taken was $42,600.00; that the remainder of the 200 acre tract just prior to the taking was of the value of $629,000.00: that the value of the remaining 200 acre tract immediately after the taking was of the value of $413,-900.00. We find no objections in the record to this latter testimony. Also, though we have hereinabove observed that Kelley used the same ten year projection and discount method used by Landry, at the conclusion of his testimony we find this qualifying statement of his to have been admitted without any objection from State :

“A. No. They were talking about the next ten years. I said any time between the next ten years. Ten years is the maximum period of time for the development of this property. It might be 3 or 4. At the progress they have made to date, it isn’t unlikely to assume it will be within 5 or 6 years.”

Briefly the record compels the conclusion that due to long years of experience and success as real estate developers, appellees would have fully developed their residential property within a reasonably foreseeable time in the future in accordance with positive plans which on the date of the taking had already been, in part, successfully executed. State’s first 2 points of error are overruled.

By points 3, 4 and 5 State complains of the trial court’s permitting appellees’ aforesaid witnesses Landry, Thompson and Kelley to state to the jury the sums of money which they considered as damages to the remaining property after the taking by considering only a portion of the same. In arriving at their figures each witness testified that he considered only the 28 acres of commercial property fronting on Highway 347 as aforesaid. Excluding the 4 acres taken, they gave damage figures to the remaining commercial acreage of $215,-900.00, $141,129.00, and $120,926.00, respectively.

Under these points State again, as under its first 2 points, urges that the method by which these witnesses arrived at their valuations was too speculative and conjectural. Secondly it contends that inasmuch as there was no disunity of use between the commercial property and the rest of the 200 raw acres, the allowance of the testimony was harmful error. We pretermit further discussion of the first contention under these points except to state that we adhere to our construction- of the record and our conclusions under the first 2 points of error.

Nor do we agree with State’s second contention under these points. Each of these witnesses was emphatic in his opinion that the taking of the 4 acres occasioned no damage to other property than that zoned commercial. On this score, all of State’s witnesses were not inclined to disagree. It was the opinion of tthe witnesses for appellees, by reason of the limited access to and from the new highway and the commercial property, that as a practical matter appellees would have to stand the loss of another 100 feet of their remaining highway frontage in order to build a service road to their commercial property. The loss of the value of that 100 feet together with the cost of road construction, bridges and culverts, was alone estimated as being well in excess of several times the sum awarded appellees as damages by the jury. It was not improper under the facts of this record for the trial court to have allowed the testimony of damages to the remaining commercial property only when, in fact, no damages resulted to the rest of the property. Tennessee Gas Transmission Co. v. Dishman, Tex.Civ.App., 303 S.W.2d 471, N.R.E. Nevertheless, in an abundance of caution, the trial court inquired of the jury, by the 2nd and 3rd special issues submitted, the value of the whole of the remaining 200 acres immediately before and after the taking, and it was simply a matter of mathematical calculation for the jury to have taken witness Thompson’s testimony alone to have arrived at a damage figure in excess of that actually awarded. The cases of City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808; American Guaranty Life, Health & A. Ins. Co. v. State, Tex.Civ.App., 332 S.W.2d 135; and Minyard v. Texas Power & Light Co., Tex.Civ.App., 271 S.W.2d 957, relied upon by State in support oí its contentions being distinguishable on the facts, State’s 3rd, 4th and 5th points of error are overruled.

Under its 6th point of error State attacks the qualifications of Landry as an appraisal witness and says the trial court erred in permitting him to so testify. We find no such objections in the record and the point is overruled.

By its 7th and 8th points of error State attacks the qualifications of witness Kelley to testify to land values in Jefferson County. It further urges that certain comparable sales testified to by him were inadmissible as hearsay.

Inasmuch as we have heretofore, in our discussion under State’s first 2 points, held such witness’ testimony to have been erroneously admitted, we pretermit a lengthy discussion under these points 7 and 8. We sustain said points, however, with the observation that Kelley’s testimony was not calculated to cause the rendition of an improper judgment. Kelley’s knowledge of the 4 comparable sales of which he testified was gained entirely from information received from Landry and Thompson, and from his investigation of the deed records and revenue stamps. Clearly this testimony was inadmissible as hearsay, absent qualifying instruction of the court limiting the same to the purpose of showing the basis for his value opinion. State of Texas v. Oakley, 163 Tex. 463, 356 S.W.2d 909. Nevertheless, his testimony of comparables was only cumulative of 4 among the 18 or more testified to by Thompson as herein before stated. As to such comparable sales his testimony was simply repetitious and harmless.

Excluding argument which State has heretofore made in support of its first 8 points, the substance of its last point is to urge error of the court in permitting Landry to testify to what profits appellees expected to make from the sale of their property at a later date.

We forego a desire to further extend this opinion by a discussion of this contention. If error occurred in such connection, which we do not concede, we consider it to have been harmless.

Judgment affirmed.


author: DAVIS, Justice.

text:
    Roy W. DAVIS et al., Appellants, v. L. S. GREENWOOD, Appellee.
    No. 7518.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 31, 1963.
    Rehearing Denied Jan. 28, 1964.
    Norman C. Russell, Atchley, Russell, Hutchinson & Waldrop, Texarkana, Thompson & Stripling, Nacogdoches, C. M. Kennedy, Texarkana, for appellants.
    Sidney Lee, Texarkana, for appellee.
   DAVIS, Justice.

This is a suit to recover $3,000.00 escrow money by L. S. Greenwood against Roy W. Davis. Davis filed a cross-complaint against Mrs. Althea Hart, Guardian of the Estate of Maxey Wayne Hart, a minor, and Maxine Hart Thompson and her husband, John Pack Thompson. Maxine Hart Thompson was divorced from her husband, John Pack Thompson, and has remarried Raymond E. Prewitt. Greenwood filed an amended petition on November 26, 1962, in which he sued Davis and the Harts for the money. The escrow money was paid to Davis, as Real Estate Agent, on a contract between Mrs. Hart, as guardian, and Greenwood, for the sale of 1480 acres of land situated in Miller County, Arkansas, for a total consideration of $51,800.00. The $3,000.00 was paid by Greenwood as a part of the purchase money for the tract of land. An additional $24,800.00 cash was to be paid at the delivery of the deed, and the execution of a Note by Greenwood in the sum of $24,000.00. Mrs. Hart, as seller, agreed to furnish an abstract of title, and Greenwood was to have ten days after the delivery of the abstract in which to make any written objections to the title to the property. The contract was dated February 8, 1957.

Davis and the Harts answered and plead the two and four year Statutes of Limitations.

The abstract was delivered to Greenwood the latter part of February, 1957, and Greenwood did not file any written objections to the title to the property. The last of May, or the 1st of June, 1957, Greenwood contacted Davis and demanded his money back. Davis refused.

At the trial, Greenwood filed a trial amendment in which he alleged the contract was void because of the lack of description. The property was described in the contract as follows:

“Lying and situated in the County of Little River, State of Arkansas. All or a part of Sections Sixteen (16), Seventeen (17) Twenty-one (21) Twenty-Two (22) and Twenty-Three (23) Township Thirteen (13) Range Twenty-Seven (27) West, containing 1480 Acres or less (known as J. R. Burrus and Smith Property).”

The contract is probably void because of a lack of description, but that is not material to a decision of this case.

In Greenwood’s amended petition in which he sued Davis and the Harts he alleged, in part, as follows:

“After the plaintiff discovered on or about June 1, 1957, the falsity of the representations which the defendant Davis had made to him concerning the identity of the land being offered for sale, it_ boundaries, and as to its being subject to overflow, he disaffirmed the said contract of February 8, 1957; and on or about May 16, 1958, the plaintiff and defendant Althea Hart, the latter acting in her capacity of Guardian as aforesaid agreed to rescind said contract of February 8, 1957, and to release each other therefrom. In conformity with such agreement the plaintiff and the defendant, Althea Hart applied to the Probate Court of Little River County, Arkansas, which had theretofore appointed the said Defendant, Althea Hart foreign guardian of the estate of defendant, Maxine Hart Thompson, then Maxine Hart, and Maxie Wayne Hart, for permission to execute a release ‘wherein the estate of said minors and L. S. Greenwood release each other from the contract of sale dated February 8, 1957’, which permission was by said Court granted by its order dated May 19, 1958.”

In tliis allegation, he alleged that he dis-affirmed the contract on June 1, 1957, and later stipulated such fact. Greenwood took the position that the contract was void from the beginning.

There was no evidence that Mrs. Hart executed a release, and no judgment was offered in evidence of the action of the Probate Court of Little River County, Arkansas.

About June 1, 1957, Greenwood refused to purchase the property. On or about July 25, 1957, Mrs. Hart tendered to Greenwood a Warranty Deed duly executed, and a Note for Greenwood to sign. Greenwood refused the Deed, refused to pay the cash consideration involved, and refused to execute the Note. The suit was filed against Davis on August 1, 1961. The amended petition was filed on November 26, 1962. The trial was commenced on November 26, 1962.

At the conclusion of the evidence the parties stipulated the following facts:

That Greenwood did not return the abstract of title with written objections thereto within ten days after receipt of said abstract ; That Mrs. Hart, Guardian as aforesaid, on or about July 25, 1957, tendered the Warranty Deed conveying the property to Greenwood, and with such tender did likewise tender a Note for his execution; that Greenwood refused to accept said property, refused to accept the deed, refused to pay any other part of the cash consideration, and refused to execute the Note for the credit portion of the consideration.

They made further stipulations, but they are not necessary to be enumerated for a decision in this case. If the contract was void because of a lack of description, the two year statute of limitation is applicable. The two years commenced running on February 8, 1957, or at the time Greenwood demanded his money from Davis and Davis refused to give it back to him. 34 Am.Juris. 140, Trusts, Secs. 175 to 179; 37 T.J.2d 127, Sec. 30; 37 T.J. 2d 141, Sec. 37, 54 C.J.S. Limitations of Actions § 182, p. 167. If such is the case, then more than two years had elapsed before the suit was filed. Art 5526, R.C.S., and cases cited thereunder.

In the event the contract was not void because of a lack of description, then the four year statute of limitation is applicable and commenced running at the expiration of ten days after the abstract was delivered to Greenwood, or at the date that Greenwood demanded his money back from Davis and Davis refused to pay it back to him, or June 1, 1957, at the time that Greenwood refused to accept the property, or on July 25, 1957, when Greenwood refused to accept the deed, refused to pay the additional cash consideration, and to execute the Note therefor. Art. 5527, R.C.S., and cases cited thereunder.

After all the evidence and stipulations were tendered, Davis and the Harts filed motions for judgment under the two and four year statutes of limitations. The motions were overruled. Certain special issues were submitted to the jury, but they are immaterial. Judgment was entered in favor of Greenwood for the $3,000.00, and in favor of Davis against the Harts for an amount that the jury found to be a reasonable commission. Davis and the Harts have perfected an appeal and bring forward several points of error. They both complain that the trial court erred in denying their motions for judgment under the two. and four year statutes of limitations.

Davis was holding the money as a part of the consideration paid for the property, out of which he was to keep his commission. His position as trustee expired at the time that Greenwood demanded the money back and Davis refused to pay it to him. According to the contract, Greenwood was liable for the purchase of the property. If Davis is still holding the money as trustee for anyone he is holding it as trustee for the Hart Estate, less his commission.

In Texas a probate court can not execute a release pertaining to the contract for the purchase or sale of real estate under any theory of reasoning. The Arkansas law was not pleaded or proved. Greenwood swore that a release was executed by the probate court on May 19, 1958. There was evidence that the probate court gave Mrs. Hart, as guardian, permission to execute a release, but no release was ever executed. This being a probate matter entered into for the purpose of conveying the property, it does not seem that such would be tantamount to tolling the statute of limitation.

In the event the contract is void because of a lack of description, the two year statute of limitation is applicable. In the event the contract is not void, Greenwood having breached the contract by refusing to file his written objections to the title within ten days after the abstract of title was delivered to’ him, demanding his money back from Davis and Davis refusing to pay the money back to him, refusing the property on June 1, 1957, because of alleged false representations, he breached the contract, and Greenwood refusing to accept the deed, pay the balance of the cash consideration and execute the note on July 25, 195/, ho continued to breach the contract, and the four year statute of limitation is applicable. Suit not being filed against Davis until August 1, 1961, and against the Harts until November 26, 1962, then the four year statute of limitation is applicable.

The points of error based upon the two and four year statute of limitations are sustained.

Mrs. Hart raised a point of error that Davis , should be bound by the reasonable commission based upon the jury’s findings. Under the pleadings and the record in the case, the point is without any merit save and except the judgment in the amount rendered will have to be reversed. To that extent only the point is sustained.

There were other points raised by Davis and Mrs. Hart, but they become immaterial and are overruled.

The judgment of the trial court in favor of Greenwood is reversed, and judgment is here rendered that Greenwood take nothing. The judgment in favor of Davis against the Harts as to the reasonable commission is reversed. Judgment is here rendered that Davis recover $2,590.00 against the Hart, Estate out of the escrow money. Judgment is here rendered that the Hart Estate recover $410.00 out of the escrow money. All costs are taxed against Greenwood.