author: STONE, Judge.

text:
    O. H. BYBEE, Plaintiff-Appellant, v. Fred DIXON and Jennie Dixon, Defendants-Respondents.
    No. 8257.
    Springfield Court of Appeals. Missouri.
    June 18, 1964.

      Max H. Glover, Webb City, for plaintiff-appellant.
    Myers & Birk, Webb City, for defendants-respondents.
   STONE, Judge.

For materials alleged to have been purchased and work alleged to have been done in connection with the remodeling of a dwelling house, plaintiff O. H. Bybee sought a personal judgment for $1,164.93 with interest against defendants, Fred Dixon and Jennie Dixon, husband and wife, and a lien therefor upon “one square acre” on which the house was situate. Defendants’' counterclaim prayed damages of $10,000 for breach of an alleged oral contract by which (so it was alleged) plaintiff “agreed to furnish all labor and substantially all the materials” for the remodeling at a cost “of not more than $6,500.” Trial by the court sitting as a jury resulted in judgment for defendants on plaintiff’s petition and judgment for plaintiff on defendants’ counterclaim. This appeal is by plaintiff from the adverse-judgment on his petition. Since defendants, did not appeal, we are not concerned with the judgment on the counterclaim. Wilson v. Motors Insurance Corp., Mo.App., 349 S.W.2d 250, 251.

The two-story frame dwelling house under discussion (hereinafter referred to as-the house) was located on a twenty-acre-tract inherited by defendant Jennie Dixon (hereinafter referred to as defendant Jennie) in 1959 or 1960. During the Summer-of 1960, defendants talked with plaintiff, a carpenter for thirty years, about remodeling-the house. At first, defendants wanted to-take off the old roof and the second story, thus converting the house into a one-story structure. Later, they decided to remodel, but not remove, the second story. On the-ground level, the major items were to be a new bedroom, utility room and two-car garage, a new brick fireplace in the living-room, added closets, new windows, floors, and kitchen cabinets, and complete rewiring. These discussions resulted in defendants” employment of plaintiff to do the contemplated remodeling. Two other carpenters,. Holden and Tandy by name, who had worked for plaintiff on other jobs, were to< assist on this one, but plaintiff was to be “in charge on the job.” At the end of each, week, plaintiff, Holden and Tandy were to-be paid by the hour (at wage rates not shown in evidence) for work done during-that week. With respect to materials for the project, plaintiff testified that defendant Jennie “requested we get everything and store it in the barn * * * to have it ready to use when we got to it,” but the record discloses no agreement as to whether the suppliers should charge such materials to plaintiff or to defendants.

Defendant Jennie testified that, prior to entering upon the remodeling, plaintiff had assured her that the entire project “would not cost over $6,000 or $6,500.” Plaintiff conceded that his “first figures estimate” had been “about $5,000,” but he said that neither this nor any other total cost figure had been given to defendant Jennie because she had made changes in the project “before my [plaintiff’s] figures were turned in.” In fact, plaintiff insisted that at the outset defendant Jennie was interested only in “how much * * * it took to last until about the first of the year [1961]” when some funds would be distributed to her from an estate in probate, and that he estimated this interim monetary requirement at $1,500. In any event, there was no oral agreement upon a definite total cost figure, and there was no written contract covering any phase of the project.

Holden and Tandy began work on the project during the latter part of September 1960. Plaintiff himself moved to the project a short time later after finishing another job. Work proceeded until the latter part of March 1961, when defendants ran out of funds and (in plaintiff’s words) defendant Jennie “laid us off.” “She was supposed to tell us when she got the loan to proceed with the work, and then I checked * * * once or twice to see if they had gotten the loan, and they had not, and so * * * it just died down that way, and I [plaintiff] never did hear any more.” When plaintiff, Holden and Tandy were laid off, the project was (to adopt plaintiff’s estimate) “a little over half completed.” At that time, defendants already had expended on the project approximately $4,000 for labor and $4,800 for materials. Of the $4,800 for materials, $4,180.61 had been paid to Carl Junction Lumber Company which plaintiff said “belonged to me.”

Plaintiff’s lien account included (a) a multitude of bathroom and plumbing items (covering four pages of the transcript) furnished by Joplin Supply Company on twelve different dates from November 1, 1960, to February 22, 1961, billed by Joplin Supply to plaintiff for the aggregate sum of $730.89, and in the lien account rebilled by plaintiff to defendants for the aggregate sum of $924.18, (b) formica furnished by H & H Manufacturing Company on November 29 and December 6, 1960, and March 10, 1961, billed by H & H to plaintiff for the aggregate sum of $66.75, and in the lien account rebilled by plaintiff to defendants for the aggregate sum of $86.77, (c) a pilot burner for a hot water tank furnished by Nance Hardware Company on January 16, 1961, billed by Nance to plaintiff at $3.06, and in the lien account rebilled by plaintiff to defendants at 3.98, (d) “bricks” (quantity, quality and size not given) furnished by Carl Junction Lumber Company to plaintiff on a date and at a price not shown, and in the lien account rebilled by plaintiff to defendants at $55, and (e) “labor” (for “about 46 hours,” so plaintiff stated upon trial) billed in the lien account at $95. Both defendants testified that plaintiff had assured them that they were to have all materials at his (plaintiff’s) cost; but, denying that, plaintiff’s explanation of the prices at which materials were charged in the lien account was that “I get 25 per cent [additional] which is regular retail price * * * plus 5 per cent for installing it.”

Finding that “a material portion of the work done by the plaintiff was not done in a good and workmanlike manner” and that “not all the materials in the lien statement were used in the defendants’ house,” the trial court entered judgment for defendants on plaintiff’s petition. Both of the quoted findings were supported by substantial evidence. Defendants’ witness Allmendinger, an experienced residential contractor who had inspected the house after plaintiff, Holden and Tandy had been laid off, summed up his detailed testimony concerning specific items by stating that the quality of workmanship in the remodeling project had been very poor, that it was “all poorly constructed,” and that he had seen nothing which was “skillfully done, good workmanship.” Plaintiff himself conceded that most of the bathroom and plumbing items furnished by Joplin Supply Company, which (as we have noted) accounted for $924.18 of the $1,164.93 billed in the lien account, had not been actually used before he and his fellow-workmen had been laid off, and he likewise admitted that he had no personal knowledge as to whether those items had been incorporated into the house later.

The sole point on appeal complaining of refusal to grant a lien is that the trial court erred in such refusal “because only a small portion of the lien claim was for labor, the principal amount being for materials furnished; and when the defendants refused to allow the plaintiff to proceed to install materials on the job such action on the part of the defendants estops them from denying plaintiff a lien for the same.” No such theory of estoppel was pleaded either in plaintiff’s petition or in his reply, and no such point was included in plaintiff’s motion for new trial. With respect to pleading, nothing is suggested which would render inapplicable the general rule that estoppel must be pleaded. As for preservation of the quoted point, it is a fundamental and time-honored principle of appellate procedure that a trial court must be afforded an opportunity to review and correct its own errors before the aid of an appellate court may be invoked. Thus, the plain requirement of V.A.M.R. Rule 79.03 [see V.A.M.S. § 512.160(1)] that “[allegations of error, in order to be preserved for appellate review, must be presented to the trial court in a motion for new trial” is held to be mandatory [Arnold v. Fisher, Mo.App., 359 S.W.2d 602, 609; Gosnell v. Gosnell, Mo.App., 329 S.W.2d 230, 234(5); C & O Distributing Co. v. Milner Hotels, Mo.App., 305 S.W.2d 737, 738(1)]; and, excepting only those questions particularized and enumerated in Rule 79.03 (none of ’which is applicable to the quoted point under discussion), a party is precluded from urging on a civil appeal any allegation of error not presented to the trial court in a motion for new trial. Since the quoted point was not raised or presented in the trial court, it has not been preserved for our consideration.

We have not overlooked plaintiff’s argument (not presented or embodied in “points relied on,” as required by V.A.M.R. Rule 83.05 [e]), which runs along the line that the remodeling project was abandoned “by the fault” of defendants [36 Am.Jur., Mechanics’ Liens, § 72, loe. cit. 61] and that, therefore, plaintiff was entitled to a lien for the materials left on defendants’ premises which would have been used in the remodeling project if plaintiff, Holden and Tandy had completed it.. See Carroll Contracting Co. v. Newsome, 201 Mo.App. 117, 210 S.W. 114, 118(7). But we need not determine whether the remodeling project was abandoned by defendants’ “fault” or, if so, whether that would take the instant case without the holding in Davidson v. Fisher, Mo.App., 258 S.W.2d 297, 301(3, 5), that a materialman is entitled to a lien only for those materials which actually enter into the construction. For, on the record before us, plaintiff was not and is not entitled to recover anyway, because of a fatal failure of proof as to the reasonable value of the materials alleged to have been furnished. Williams v. Cass, Mo.App., 372 S.W.2d 156, 161, and cases there cited.

Plaintiff’s other point is that, even though he was denied a lien, he should have been granted a personal judgment against defendants. With plaintiff vigorously denying the existence of an express contract and earnestly contending that, if the judgment for defendants is affirmed, there will be “an unjust enrichment on the part of the defendants,” plaintiff’s theory of recovery obviously is that of quantum meruit, i. e., that of an obligation “founded upon the fundamental principle that no one ought ‘to enrich himself unjustly at the expense of another’ ” [Beckemeier v. Baessler, Mo., 270 S.W.2d 782, 787(8); Bailey v. Interstate Airmotive, Inc., 358 Mo. 1121, 1132, 219 S.W.2d 333, 338(4-6), 8 A.L.R.2d 710; Donovan v. Kansas City, 352 Mo. 430, 448, 175 S.W.2d 874, 884(17), 179 S.W.2d 108, appeal dismissed 322 U.S. 707, 64 S.Ct. 1049, 88 L.Ed. 1551] or, as otherwise stated, to recover “ ‘as much as he has deserved.’ ” Hoyt v. Buder, 318 Mo. 1155, 1168, 6 S.W.2d 947, 951; Rodgers v. Levy, Mo.App., 199 S.W.2d 79, 82(8); Adams v. Smith, Mo.App., 307 S.W.2d 525, 527(1). Indeed, where one at the request of the owner renders services or furnishes materials in connection with construction or repairing, without.an express, agreement as to payment, the promise implied by the law is that the owner will pay the reasonable "value of such services or materials. American Displays v. E. T. Swiney Motors, Mo.App., 240 S.W.2d 732, 735(4); Roper v. Clanton, Mo.App., 258 S.W.2d 283, 287(3)17 C.J.S. Contracts § 4c, p. 564.

Instant plaintiff contented himself with showing that he had purchased for intended use in the remodeling project the materials listed in the lien account, that such materials had been charged to him at the prices shown on the suppliers’ statements, and that the suppliers were looking to him for payment. (To the time of trial, plaintiff’s only payment on these accounts had been $3.06 to Nance Hardware Company.) But there was not a scintilla of evidence that plaintiff’s charges in the lien account were fair and reasonable, or for that matter that the charges in the suppliers’ statements (to which plaintiff added 25 per cent and then 5 per cent) were fair and reasonable. And certainly it could not be said that the reasonable value of the multitude of items listed in the lien account was a matter of common knowledge which the trier of the facts might have determined without the aid of evidence. Williams v. Cass, supra, 372 S.W.2d loc. cit. 161. Contrast Allmon v. Allmon, Mo.App., 314 S.W.2d 457, 462-463(8).

The burden rested on plaintiff to plead and prove that his charges were fair and reasonable [Adams v. Smith, Mo.App., 307 S.W.2d 525, 527(1); Fitzgerald v. Schaefer, Mo.App., 216 S.W.2d 939(3); Rodgers v. Levy, supra, 199 S.W.2d loc. cit. 82(8)] and his failure to prove the reasonable value of materials alleged to have been furnished and services alleged to have been rendered was fatal to his recovery in quantum meruit. Williams v. Cass, supra, 372 > m S.W.2d loe. cit. 161; Knoch v. Frye, Mo. App., 363 S.W.2d 737, 741(5); Hutchinson . Swope, Mo.App., 256 S.W. 134, 135(4). ee Wilson v. Berning, Mo.App., 293 S.W. 2d 151, 155(7) ; Cheek v. National Life Ins. Co. of U. S. A., 200 Mo.App. 533, 207 S.W. 882(2); Gillen v. Haley, 185 Mo.App. 23, 171 S.W. 638. The foregoing being dis-positive of plaintiff’s appeal, it becomes unnecessary to discuss other considerations which would dictate the same end result.

The judgment for defendants is affirmed.

RUARK, P. J., and HOGAN, J., concur.

      . McLain v. Mercantile Trust Co., 292 Mo. 114, 122, 237 S.W. 506, 508(2); E. C. Robinson Lumber Co. v. Lowrey, Mo.App., 276 S.W.2d 636, 641-642(9); Goodwin & McDowell Motor Co. v. St. Clair Auto. Finance Co., Mo.App., 253 S.W.2d 543, 545; Wilder National Tavern System, Inc. v. Wilder, Mo.App., 18 S.W.2d 114, 115(3); Berkshire v. Holcker, 202 Mo.App. 433, 444, 216 S.W. 556, 561(11); Marshall v. Hall, Mo.App., 200 S.W. 770, 776(12).

      . State ex rel. Morton v. Cave, 359 Mo. 72, 79, 220 S.W.2d 45, 49(4); Brown v. Thomas, Mo.App., 316 S.W.2d 234, 236 (3); Gover v. Cleveland, Mo.App., 299 S.W.2d 239, 243(12); Grapette Co. v. Grapette Bottling Co., Mo.App., 286 S.W.2d 34, 37(3); Fruit Supply Co. v. Chicago, B. & Q. R. Co., Mo.App., 119 S.W.2d 1010, 1011(4).

      . Mayor v. Mayor, Mo., 349 S.W.2d 60, 62-63(2); State ex rel. State Highway Com’n. v. Dockery, Mo., 340 S.W.2d 689, 695(8); Robbins v. Robbins, Mo., 328 S.W.2d 552, 555(4, 5); Arnold v. Fisher, Mo.App., 359 S.W.2d 602, 609 (10,11); Illinois State Bank of Quincy v. Pedersen, Mo.App., 350 S.W.2d 102, 110(8).

      . Tn this connection, see the discussion concerning Missouri cases in annotation 39 A.L.R.2d 394, 440-441, dealing with “Delivery of material to building site as sustaining mechanic’s lien.”


source: Caselaw Access Project

author: CULVER, Justice.

license: Public Domain

text:
    J. Sims McDONALD, Petitioner, v. NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Respondent.
    No. A-10025.
    Supreme Court of Texas.
    June 10, 1964.
    Rehearing Denied July 15, 1964.
    Harris, Salyer & Huebner, Bay City, Hill, Brown, Kronzer, Abraham, Watkins & Steely, A1 Taylor, Houston, for petitioner.
    Bryan & Patton, Julietta Jarvis, Houston, for respondent.
   CULVER, Justice.

Petitioner, McDonald, brought this action against New York Central Mutual Fire Insurance Company to recover for the destruction of his house located in Matagorda County under the terms of a policy of insurance issued by that company. The policy covered loss caused by wind and hurricane but excluded loss caused by tidal wave, high water or overflow, whether driven by wind or not.

The jury found that the winds of the •hurricane directly and proximately caused the loss and damage; that the loss was not caused by tidal wave, high water or overflow whether driven by wind or not and that the loss did not result from the combined action of the wind, tidal wave, high water or overflow. Based on this verdict the trial court entered a judgment in favor of McDonald and against the Insurance Company. The Court of Civil Appeals reversed and rendered judgment that McDonald take nothing, holding that the jury’s findings failed to be supported by the evidence. 374 S.W.2d 767. From a review of the record we reach a conclusion to the contrary.

Admittedly the house was totally destroyed at some time during the passage of Hurricane Carla through this area in September of 1961. It was one of the most destructive storms that has visited the Texas Coast so far as property loss is concerned. Mr. McDonald left his house on Saturday morning, • September 9th, and when he returned on Wednesday, the 13th, the house was gone. The evidence bearing on the loss is circumstantial. The only testimony was given by Mr. and Mrs. Jensen who lived nearby and rode out the storm in a concrete building. The remainder of the evidence consisted of maps and official records and reports.

McDonald’s house was located on Turtle Bay about 6 feet above water level at mean low tide and was supported on pilings approximately 4 feet above the ground. Turtle Bay, so-called, is a rather long, narrow inlet generally about a mile in width extending in a northeasterly direction from Tres Palacios Bay, a much larger body of water. Palacios Bay in turn forms a small and the upper part of Matagorda Bay, which is some IS miles in width. Between Turtle Bay and Tres Palacios Bay there extends- a long narrow peninsula almost the entire length of Turtle Bay. Mr. Jensen lived and grazed cattle on the land formerly the site of Camp Hulon west of the town of Palacios. McDonald’s house was located on the west side of Turtle Bay directly across from Camp Hulon.

On Sunday, September 10th, Jensen and his wife made several trips down this peninsula to move his cattle back from the water’s edge where they had drifted or were blown by the wind. On the morning of that day he went to the end of the long peninsula and found that the water level was 18 inches to two feet over mean low tide. At that time he could not see across the bay on account of the rain. In the afternoon he made two similar trips for the same purpose and found the conditions the same as they existed at the time of the first trip. In his opinion the wind was blowing from the northeast at the rate of 100 miles per hour. On the morning of the following day, Monday, September 11th, he drove his car out on the peninsula but could get no further than the narrowest part of the peninsula which was about a mile from the tip end. The elevation at that point is about the same as that across Turtle Bay where the insured property was located. At that time Jensen still could not see across the bay. According to him the wind velocity had increased to about ISO miles per hour. Between 3:00 and 4:00 o’clock that same afternoon he made another trip out on the peninsula. At that time the lull came and lasted for about 15 minutes. The rain ceased and he could see across Turtle Bay. McDonald’s house was gone and all he saw were the high line poles along where the house had stood. After the lull the water began to rise rapidly and he and his wife hurried back to the safety of the concrete refrigeration building. Mrs. Jensen accompanied her husband on his last trip on Monday and also looked across the bay approximately a half mile to the location of the house and saw nothing standing but the poles.

Introduced in evidence were various official reports, charts and maps from the United States Weather Bureau and the United States Corps of Engineers. It seems to be undisputed that at all times before the eye or center of the storm reached the Palacios area the wind was blowing from a northeasterly direction. After the eye passed inland, due to the counterclockwise motion of these hurricanes, the wind was reversed and in the Palacios area blew in the opposite direction. The data introduced in evidence showed that the leading edge of the eye reached Port Lavaca, some 20 miles southwest of the Palacios area between 3 and 4 p. m. Monday, the 11th. In advance of the eye many stations along the Coast that morning reported the highest recorded wind velocity. A peak gust of 170 miles per hour was estimated at Port Lavaca. Gusts of ISO miles per hour were estimated at other nearby points. Sustained winds were reported at more than 115 miles per hour at Matagorda, which is about IS miles east of Palacios.

The Insurance Company counters with a report from the Palacios Federal Aeronautics Authority station, which recorded that the wind was from the north and northeast on the 10th and that the highest wind observed on that day was up to 48 miles per hour. But the last observation was made at S :58 p. m. on that day and the station was abandoned shortly thereafter. The report did show that from the beginning of that day the wind was more or less steadily increasing in velocity.

So far as the high tides and wind-driven water are concerned the Weather Bureau at Galveston gives a report on the peak flooding at various points along the Texas Coast. The information was collected from all available sources but mostly was obtained from the Army Corps of Engineers. According to this report the peak tide at Port Lavaca was 16.6 feet above mean sea level. Of course to determine the depth of the water above ground at any point the ground elevation must be subtracted. At Port O’Connor the peak was 14}4 and at Palacios 15.4. However, at these points the height of the tide was ascertained from an observation of the high-water mark. The report does not profess to determine when the peak was reached. Unquestionably, all of this area was flooded by hurricane-driven water, but we may reasonably infer from the evidence before us that the flooding of this area took place in the second phase of the hurricane after the center had reached the area and after the ensuing lull. Up until that time the wind was blowing from the northeast and was calculated to blow water from Turtle Bay toward the southwest and away from McDonald’s house. There were no bodies of water northeast. The Insurance Company lays much stress on the statement made by Jensen that on the occasion of his last visit down the peninsula to round up his cattle early in the afternoon on Monday and before the lull, he watched big waves in the bay “easily IS to 20 feet high”. Certainly he was not talking about any waves in the narrow Turtle Bay, but out into Tres Palacios and Matagorda Bays, Had those waves been sweeping toward the peninsula and toward the property in question, it would seem that Jensen and his wife and automobile would have been swept away. The Company argues that waves always go toward the shore, but with a gale blowing from the northeast at the rate of 100 or more miles per hour, it would naturally be inferred that the water was being blown upon the shores around Port O’Connor and the Matagorda Peninsula. The point where Jensen was standing when the wind ceased blowing and the rain stopped, and he could see across Turtle Bay, was about the same elevation as the location of McDonald’s house on the other side of Turtle Bay. In other words we believe the evidence to be conclusive that if on the day previous and at 4:00 o’clock on Monday afternoon the witness could have driven his car out on the peninsula to a point a little to the south of and about a mile from McDonald’s house, there had been no flooding or wind-driven waters up to that time which could have destroyed the house. We hold, therefore, that the foregoing jury findings are supported by evidence.

The insurer brings forward as a cross-point that, in the event we should agree that there is evidence to support the jury’s findings that the house was destroyed by wind and not as a result of wind-driven water, the cause should be remanded to the district court for a new trial since a finding of no evidence by the Court of Civil Appeals includes necessarily a finding of insufficient evidence. However, the insured does not raise in the Court of Civil Appeals the point of “insufficient evidence” to support the jury findings or the point that the findings are against “the great weight and preponderance” of the credible evidence. Its points are premised on the proposition that the Court erred in entering judgment on the jury’s verdict and correspond to the grounds appearing in its amended motion for new trial. The points are in the following form:

“The Court erred in overruling defendant’s motions for instructed verdict and judgment n. o. v. and in entering judgment on the jury’s verdict because there was insufficient evidence that the damage to plaintiff’s beach house was covered by the policy sued upon in that there was insufficient evidence that the damage was caused by the wind and insufficient evidence that it was not caused by water or the concurring action of wind with rising water and wind driven water.”

The points do not seek relief from the jury findings on the ground that they are not supported by sufficient evidence or that they are against the great weight of the evidence, but relate only to the type of judgment that the Court entered. They are not applicable to the granting of a new trial after the entry of a judgment. We therefore hold that the points in the Court of Civil Appeals above referred to only raised the legal sufficiency of the evidence or the point of no evidence. Houston Maritime Association v. South Atlantic & Gulf Coast District, I.L.A., Tex.Civ.App., 367 S.W.2d 705, no writ, 1962; Calvert, 38 Texas Law Review 361.

Further praying in the alternative that the cause be remanded, the insurer asserts that it specially pleaded the exclusion clause of the policy and therefore the burden of proving a loss from a hazard insured by the policy and not excepted by the exclusions should have been laid upon the plaintiff. Coyle v. Palatine, 222 S.W. 973 (Tex.Comm.App.1917); Shaver v. National Title & Abstract Co., 361 S.W.2d 867, (Tex.1962).

This has reference to the form of Special Issues 2 and 3, No. 2 reading as follows:

“Do you find from a preponderance of the evidence that tidal wave, high water, overflow, whether driven by wind or not, * * * directly and properly caused damages to plaintiff’s house on the premises in question on or about September 11, 1961?”

Number 3 followed the same form reading:

"Do you find from a preponderance of the evidence that the loss and damage to the house of the plaintiff, J. Sims McDonald, was a direct and proximate result of the combined action of the wind of Hurricane Carla and tidal wave, high water or overflow, whether driven by wind or not ?”

Rule 274 provides that the objecting party must point out distinctly the matter to which he objects and the grounds of his objections, and where the same are obscured or concealed by voluminous unfounded obj ections or minute differentiations, the objection shall be deemed to be waived. The matter will bear a somewhat extended discussion.

The first Special Issue read as follows:

“Do you find from a preponderance of the evidence that the winds of Hurricane Carla, on or about September 11, 1961, directly and proximately caused loss and damage to the house on the property in question?”

To this issue the insurer objected on ten numbered grounds:

“(1) Because there is no evidence to warrant or support the submission of Special Issue No. 1;
“(2) Because there is insufficient evidence to warrant or support the submission of Special Issue No. 1;
“(3) Because the submission of Special Issue No. 1 is against the great weight and preponderance of probative evidence adduced in this case;
“(4) Because such issue in its present form consists of a judicial comment on the weight of the evidence;
“(5) Because such issue is assumptive a:«d presumptive;
“(6) Because such issue amounts to a general charge in a special issue case ;
“(7) Because such issue is an irrelevant and immaterial issue in this case;
“(8) Because such issue in its present form puts an improper and onerous burden on the Defendant;
“(9) Because the pleadings as relied on by the Plaintiff do not warrant or support the submission of such issue;
“(10) Because the said Plaintiff, not having borne the burden, no fact issue of any kind has been made to go to the Jury, and the Court is again moved to sustain Defendant’s Motion for Instructed Verdict at the end of Plaintiff’s case and at the end of the whole case.”

The first three objections raised only the point of no evidence. Rule 279 provides that a claim that the evidence was insufficient to warrant the submission of an issue may be made for the first time after the verdict. As they relate to the first special issue the last seven objections, so far as we can observe, had no validity whatever. It could not be contended in good faith that this issue was on the weight of the evidence; that it was assumptive or presumptive; that it amounted to a general charge; that it was irrelevant and immaterial; that it placed an improper burden on the defendant or that it was not supported by the pleadings.

The same ten objections were leveled to Issues 2 and 3 as well as to Issues 4, S and 7 which inquired whether one Mc-Glathery had filed a sworn proof of loss with the Insurance Company; whether McGlathery was acting as agent for McDonald and what was the actual cash value of the property in question. In each of these issues the burden of proof was properly placed upon the plaintiff. The objection raised by the insurer indiscriminately to all issues was “because such issue in its present form puts an improper and onerous burden on the defendant”. Similar objections have been held by Courts of Civil Appeals to be too general to direct the trial court’s attention to any error in the charge. It certainly does not as clearly state the nature of the error as the insurer does in its brief filed here in the following language:

“The form of this issue as submitted places the burden of proof on the defendant, rather than on the plaintiff, and allows the jury to find, in effect, that the loss is covered by the policy if the evidence is equal.”

If the objection had been presented to the Court in those words there could have been no doubt as to its meaning. But whether or not the objection as presented is too general to merit consideration, we nevertheless say that it is obscured by many formal, unfounded and trivial objections. Rule 274.

The late Chief Justice Alexander, in speaking of the reason for the adoption of this rule, had this to say: “It is believed that an objection that is concealed in a mass of immaterial and untenable objections, is as effectively smothered and concealed as one that is counched in veiled and uncertain language.” Evidently counsel presented to the trial court the same set of stock objections to each and all issues without any consideration of pertinence or valid relationship. The great majority of them had no legal application and admittedly pointed out no error. In our opinion it does not appear that as to Issues 2 and 3 the trial court was made fully cognizant of the complaint that the burden of proof was cast upon the defendant rather than upon the plaintiff but nevertheless deliberately chose to submit the issue in the form which placed the burden upon the defendant.

For the foregoing reasons the judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.

      . Barker v. Coastal Builders, 153 Tex. 540, 271 S.W.2d 798.

      . Texas-Mexico Railway Co. v. Bell, Tex.Civ.App.1937, 110 S.W.2d 199, no writ; Parker v. Jones, Tex.Civ.App.1939, 130 S.W.2d 1072, no writ; Karotkin Furniture Co. v. Decker, Tex.Civ.App.1930, 32 S/W.2d 703, affirmed 50 S.W.2d 795.


author: HAMILTON, Justice.

text:
    CITY OF SWEETWATER et al., Petitioners, v. J. T. GERON, Respondent.
    No. A-9709.
    Supreme Court of Texas.
    June 3, 1964.
    Rehearing Denied July 15, 1964.

      Nunn, Griggs & Beall, Sweetwater, for petitioners.
    Mays, Leonard, Moore & Dickson, Sweet-water, for respondent.
   HAMILTON, Justice.

This case involves the validity of an ordinance of the City of Sweetwater establishing the maximum age limit at 65 for all employees of the City of Sweetwater. The City of Sweetwater is a home rule city in Nolan County, Texas. Since 1948 it has been subject to the provisions of the Firemen’s and Policemen’s Civil Service Act contained in Article 1269m, Vernon’s Ann. Tex.Civ.St. (All references hereinafter to “the Act” pertain to Article 1269m). The respondent, J. T. Geron, was a classified employee of the police department and performed the duties of a policeman. In 1961 the City Commission of the City of Sweet-water enacted an ordinance which provides that all city employees shall be retired at the age of 65. On the effective date of the ordinance, September 30, 1961, respondent Geron was over 70 years of age and was on that day removed from his employment solely because of that ordinance. Respondent brought suit in the district court of Nolan County seeking reinstatement and back pay. The City answered and both parties filed motions for summary judgment. The trial court granted judgment for petitioner City of Sweetwater and denied the relief sought by respondent. On appeal to the Court of Civil Appeals the action of the trial court was reversed and judgment entered for respondent. 368 S.W.2d 151.

The Court of Civil Appeals in effect held that the ordinance of the City of Sweetwater setting the maximum age limit for city employees was invalid in so far as it applies to policemen because it is in conflict with the Firemen’s and Policemen’s Civil Service Act, Article 1269m.

Section'5 of said article provides that the Civil Service Commission of the city adopting the Act shall make such rules and regulations for the proper conduct of its business as it shall find necessary and expedient and that:

“ * * * Such rules and regulations shall prescribe what shall constitute cause for removal or suspension of Firemen or Policemen, but no rule for the removal or suspension of such employees shall be valid unless it involves one or more of the following grounds:
“Conviction of a felony or other crime involving moral turpitude; violations of the provisions of the charter of said city; acts of incompetency; neglect of duty; discourtesy by said employee to the public or to fellow employees while said employee is in line of duty; acts of said employees showing a lack of good moral character; drinking of intoxicants while on duty, or intoxication while off duty; or whose conduct was prejudicial to good order; refusal or neglect to pay just debts; absence without leave; shirking duty, or cowardice at fires; violation of any of the rules and regulations of the Fire Department or Police Department or of special orders, as applicable.”

Section 16 of said article sets out in detail the procedure under which a policeman may be suspended or permanently dismissed from his position for violation of rules. It also provides:

“ * * * No employees shall be suspended or dismissed by the Commission except for violation of the civil service rules, and except upon a finding by the Commission of the truth of the specific charges against such employee.”
Section 16a states the purpose of the Act:
“It is hereby declared that the purpose of the Firemen and Policemen’s Civil Service Law is to secure to the cities affected thereby efficient Police and Fire Departments, composed of capable personnel, free from political influence, and with permanent tenure of employment as public servants. The members of the Civil Service Board are hereby directed to administer the civil service law in accordance with this purpose; * *

Admittedly the respondent policeman was not charged with the violation of any rule of the Civil Service Commission, he was not removed by the Civil Service Commission nor was he removed under the procedure set out in said Section 16. He was retired only by operation of the ordinance passed by the City Commission establishing an age limit for all city employees. Consequently, if such ordinance cannot be applied to the policemen because of the Firemen’s and Policemen’s Civil Service Act, then the respondent should be reinstated as prayed for by him in his suit. On the other hand, if the ordinance is valid as applied to policemen, then the City should prevail. In our opinion the Act does not prohibit the City from legislating with reference to maximum age limit for city policemen.

We have quoted the above provisions of the Firemen’s and Policemen’s Civil Service Act because it is those provisions which respondent contends take away from the City its authority to enact an ordinance providing for a maximum age limit for firemen and policemen.

The matter of maximum age limits for classified employees is not specifically covered in the Act. The Civil Service Commission is given no authority in this field, nor is the City specifically prohibited from exercising its authority in this field. While the State has pre-empted the field for removal of firemen and policemen for disciplinary reasons, it has not by this Act preempted the field of maximum age limits for classified employees.

Respondent argues that because the Legislature states the purpose of the Act is “to secure to the cities affected thereby efficient Police and Fire Departments composed of capable personnel * * * with permanent tenure * * * ” we are required to construe Section S as containing exclusive grounds for removal. Otherwise the cities would not have, in the police departments, personnel with permanent tenure. As will be demonstrated later in this opinion, the Legislature did not use the term “permanent tenure” in the absolute sense. Section 16a, which states the purpose of the Act, does not grant any additional power to the Civil Service Commission. While a statement by the Legislature of the purpose of an act is helpful in construing it, nevertheless the provisions designed to accomplish that purpose must fairly and reasonably do so. We must look elsewhere in this Act for authority of the Civil Service Commission to bring about permanent tenure of employees in the absolute sense. We do not find it elsewhere. While a rigid and fair enforcement of the rules and regulations promulgated by the Civil Service Commission within the limits prescribed by the Act may tend to create permanent tenure for classified employees, it does not accomplish that purpose without limitations. Although the broad powers granted to home rule cities by the Constitution, Article XI, Section 5, Vernon’s Ann.St., may be limited by acts of the Legislature, it seems that should the Legislature decide to exercise that authority, its intention to do so should appear with unmistakable clarity.

Respondent contends, and the Court of Civil Appeals has so held, that Section 5 of the Act sets out the exclusive grounds for termination of a classified employee’s tenure. An examination of that section reveals that it is disciplinary in nature. It is descriptive of specific acts of misconduct for which an employee may be suspended or discharged. Here it is conceded that we are not concerned with a disciplinary discharge. The termination of respondent’s services resulted wholly from the operation of the ordinance establishing a maximum age limit for city employees which was enacted by the City Commission to improve the efficiency and economy of governmental operation. While the disciplinary causes for discharge set out in said section are exclusive in so far as the Civil Service Commission has power to dismiss, the Act does not prevent the City from legislating in other fields which may cause the dismissal of employees.

The Act itself in Section 21 recognizes that Section 5 is not exclusive as to causes for dismissal. Section 21 provides that in the event any positions in the fire department or police department are vacated or abolished by ordinance and thereby employees are caused to be dismissed, those with the least seniority shall be dismissed first.

But, respondent says, Section 21 grants authority to cities to abolish or vacate positions. In this he is wrong. The section does not grant any authority to the City. It assumes the City has the authority. All that section does is to regulate and control the matter of demotions and dismissals that necessarily result from the action of the City in abolishing or vacating positions.

This court in the case of City of San Antonio v. Wallace, 161 Tex. 41, 338 S.W.2d 153, recognizes that legislative bodies of cities do have residual control over civil service employment other than those controls that are specifically defined in the Civil Service Act itself, but that such residual control must be exercised in good faith and for the betterment of municipal service.

The problem of whether the Legislature has, by passage of the Act, withdrawn all legislative authority from affected municipalities in all matters affecting employees of the city came to the attention of this court in the case of Glass et al. v. Smith et al., 150 Tex. 632, 244 S.W.2d 645. In that case classified employees of the City of Austin had circulated a petition and secured the proper number of signatures for the purpose of calling a public election by the initiative method. This election was to concern itself with certain classifications of policemen and firemen under the Civil Service Act with which we are here concerned. The City of Austin took the position that Article 1269m, Section 8, was exclusive in its application to classification of employees, and since the City Council had no authority to vary the terms of the Civil Service Act, no right of initiative existed. It refused to call an election. An action for mandamus was brought by the employees and the trial court ordered the election to be held. This result was affirmed by the Court of Civil Appeals and by the Supreme Court. At page 652 of this Court’s opinion the following language appears:

“* * * the City Commission in the Commission form of government has always been the primary repository of municipal legislative powers in this state. If the legislature had intended that the Civil Service Commission should supplant the City Council in the exercise of any legislative power it could and should have made that intent known in clear and unmistakable language. Civil Service Commissions are usually regarded as administrative agencies exercising only purely administrative powers. It has been said that ‘The fact that the commission (Civil Service Commission) is authorized by statute to make rules does not authorize it to divest the city council of its legal rights as governing body of the city’. Jazwinski v. City of Milwaukee, 253 Wis. 17, 33 N.W.2d 224, 226.”

Respondent Geron relies heavily on the case of Ellis v. Holcombe, Tex.Civ.App., 69 S.W.2d 449, 1934, writ refused. That case does not involve any statute of the state. It does involve different provisions of the charter of the City of Houston. In 1913 a charter amendment placing certain employees under civil service was adopted. The amendment set up a system for removal of classified employees for cause. At the time of the amendment the charter already contained a provision which provided that any city employee could be removed by the mayor at will and without cause. Acting under this provision the mayor undertook to remove without cause a classified employee to make room for one of his political supporters. The Court of Civil Appeals held that the amendment setting up the system for removal of employees for cause was repugnant to the prior provision providing for removal without cause, and that the amendment in effect repealed the prior provision in so far as classified employees were concerned. We find nothing in the opinion which compels us to hold that an ordinance providing for a maximum age limit of 65 years for policemen and firemen is repugnant to the provision in Article 1269m providing for a system of removal for classified employees for disciplinary reasons.

At the time this suit arose the Legislature had not enacted any general law with reference to maximum age limits which would affect employees of a city. Subsequently, however, in 1963, the Legislature did pass such a statute, Article 6252-14, V.A.C.S., the pertinent parts of which are here quoted:

“Sec. 2. No agency, board, * * *, nor any political subdivision of the State of Texas, shall establish a maximum age under sixty-five (65) years * * *; provided, however, nothing in this Act shall be construed to prevent the imposition of minimum and maximum age restrictions for law enforcement peace officers or for fire-fighters; sK :fc % »

We are not citing this statute in support of our holding in this case, for, as stated, it did not become effective until after this case arose, and admittedly it could not control. However, it is interesting to note that when the Legislature did legislate in this field of maximum age limit for employees of state agencies and political subdivisions, it was careful to place no limitation on the authority of municipalities to establish maximum age limits for peace officers and fire fighters.

We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.


author: PER CURIAM.

text:
    H. L. LONG et al., Petitioners, v. HUMBLE OIL & REFINING CO. et al., Respondents. John BATON et al., Petitioners, v. HUMBLE OIL & REFINING CO. et al., Respondents. W. O. DAVIS, Jr., et al., Petitioners, v. HUMBLE OIL & REFINING CO. et al., Respondents. ELBA CORPORATION et al., Petitioners, v. HUMBLE OIL & REFINING CO. et al., Respondents. BURK ROYALTY CO. et al., Petitioners, v. HUMBLE OIL & REFINING CO. et al., Respondents. NORTEX OIL & GAS CORP. et al., Petitioners, v. HUMBLE OIL & REFINING CO. et al., Respondents.
    Nos. A-10177-10182.
    Supreme Court of Texas.
    June 17, 1964.
    Rehearing Denied July 15, 1964.

      Gordon Wellborn, Houston, Phenix, Keeling & Wilder, Henderson, Fred Eris-man, Longview, Wynne, Jaffe & Tinsley, Lynne, Blanchette, Smith & Shelton, Robert T. Gowan, Dallas, for petitioners.
    Frank L. Heard, Jr., and Dillard Baker, L. J. Moore, Houston, Jack W. Flock, Tyler, for respondents.
   PER CURIAM.

The question common to all the above causes is whether or not an appeal lay to the Court of Civil Appeals from an order sustaining a motion for change of venue predicated upon the provisions of Rule 257 of the Texas Rules of Civil Procedure. The Court of Civil Appeals held in Long v. Humble Oil and Refining Co., 377 S.W.2d 844, that the order was interlocutory and non-appealable. By appropriate orders the decision in the Long case was made applicable to the other causes set forth in the-caption to this opinion.

The decision of the Court of Civil Appeals is contrary to that of the Amarillo Court of Civil Appeals in City of Irving v. Luttrell, 351 S.W.2d 941, no writ history (1961).

We have jurisdiction to determine whether or not the Court of Civil Appeals has jurisdiction of the interlocutory orders from which the appeals were attempted. McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957).

We hold that it does not. ,We are in agreement with the decisions of the Court of Civil Appeals in the present causes, Rule 483, Texas Rules of Civil Procedure. The applications for writs of error are refused.

      . “A change of venue may he granted in civil causes upon application of either party, supported by his own affidavit and the affidavit of at least three credible persons, residents of the county in which the suit is pending, for any following cause:
      “(a) That there exists in the county where the suit is pending so great a prejudice against bim that lie cannot obtain a fair and impartial trial.
      “(b) That there is a combination against him instigated by influential persons, by reason of which he cannot expect a fair and impartial trial.
      “(c) For other sufficient cause to be determined by the court.” [Rule 257]


text:
    RAILROAD COMMISSION of Texas et al., Petitioners, v. SHELL OIL COMPANY et al., Respondents.
    No. A-9759.
    Supreme Court of Texas.

    May 27, 1964.
    Rehearing Denied July 15, 1964.

      Waggoner Carr, Atty. Gen. of Texas, Austin, Joseph Trimble and Linward Shivers, Asst. Attys. Gen., for Railroad Commission and others.
    Walter R. Koch, Hart & Hart, Hough-ton Brownlee, Jr., Austin, for C. A. Green & R. J. McMurrey.
    R. H. Whilden and James R. Connor, Houston, Dan Moody, Jr., Powell, Rauhut, McGinnis, Reavley & Lochridge, Frank Douglass, Austin, with above firm, Robert J. Stanton and H. D. Bushnell, Tulsa, Okl., C. F. Heidrick and E. M. Cage, Dallas, for Shell Oil Co. and others.
   CULVER, Justice.

This suit was brought by Shell Oil Company, Amerada Petroleum Corporation, and Sun Oil Company, challenging the validity of an order of the Railroad Commission prorating the production in four separate oil reservoirs on the Quitman structure in Wood County on the basis of 50% per well and 50% on the acreage assigned to the well. The owners of two separate tracts, C. A. Green and R. J. McMurrey, intervened seeking to have the Commission’s order upheld. C. A. Green owns a. one-acre tract on which one well was drilled in December, 1960, and McMurrey has a well on a 2.03-acre tract drilled in June of the same year. The district court held that the order was not reasonably supported by substantial evidence and was therefore arbitrary, unreasonable, capricious and confiscatory. Accordingly, the order was set aside and enforcement enjoined. The Court of Civil Appeals affirmed. 369 S.W.2d 363.

Each of the four fields involved in this suit is a separate and distinct hydrocarbon reservoir not in communication with one another or with other reservoirs. All four are located on what is known as the Quit-man structure. In accordance with its usual practice the Railroad Commission has assigned to each reservoir a new field designation, and has consistently treated each one as a field separate and distinct from any other on the same structure or elsewhere. These fields are designated as the Southeast Quitman (Kirkland), the Southeast Quit-man (Rhodessa), the Southeast Quitman Goldsmith (Kirkland), and the Southeast Quitman Goldsmith (Rhodessa) Fields.

The contention of Shell and the other respondents is that the field proration order fails to protect their correlative rights and results in great uncompensated drainage from their leases to the small tract wells owned by the petitioner-intervenors, depriving them of the reasonable opportunity of producing their fair share of oil from the reservoirs, thus dispossessing them of their property without due process of law. In our opinion these contentions are well taken and we accordingly affirm the decision of the Court of Civil Appeals.

The basic position taken by the Commission and the two aligned intervenors is that Shell and the other respondents, in the light of their conduct from the time of the discovery of oil production on the Quitman structure in 1942, are barred by unreasonable delay, laches and estoppel from seeking to have the proration order of the Railroad Commission adjudged null and void. They rely principally upon the statement made in the Nor'manna casewherein we said:

■ “We are in agreement with the reasoning of the courts in the Humble and ■Standard Oil Company cases in holding that where producers have acquiesced in and have failed to complain of the Commission’s proration orders for a long period, during which time other operators have expended vast sums in exploration and drilling operations, such producers should not-be heard to complain.”

This statement is not applicable to the facts in this case for there has been on the part of Shell and the other respondents no acquiescence in or failure to complain promptly, much less for a long period of time, of the proration order here under attack. Moreover, the Commission and inter-venors do not take issue with the evidence introduced on the trial .that the intervenors, have already recovered frpm the wells located on their two small tracts greatly more than the recoverable reserves which originally underlaid those tracts;, that each well has returned & net income substantially in excess of its original cost and that any future .production would be generated by uncompensated drainage from other-tracts.

During the years following the initial' disr covery in the Quitman area, further devel-. opment revealed the fact that the subsurface area is divided into a number of separate oil-producing horizons at depths varying from 4200 to 8500 feet. The Railroad Commission has, during the history of oil production from the Quitman structure and prior to the discovery of the fields here involved, adopted field rules providing for an allocation formula of 75% acreage and 25% per well in these various reservoirs or fields where it appeared that there were no tracts entitled to separate development' of less than the standard size proration unit of 40 acres; but where there were smaller tracts within the probable productive limits of a particular reservoir, the Commission adopted a proration formula of 50% acreage, and 50% per well'. -.

There are four of these reservoirs (each considered a separate field) on the Quitman structure for each of which the Railroad Commission had, after due notice and hearing, adopted a 50-50 formula. From none of these orders did Shell or the other respondents appeal, nor did they appeal from, the orders fixing the formula in other reservoirs at 25% per well — 75% on acreage.

The four fields dealt with here were discovered in the latter part of 1959 and in January and February of 1960. After the expiration of the discovery allowable period, the Commission took under consideration the matter of adopting field rules for these reservoirs. -Hearings and rehearings were conducted but no final order was entered until June of. 1962 which provided that in. each field the allocation of allow-ables should be on the basis of 50% per well and 50% on assigned acreage. Within the 15-day period allowed by the rule's of the Commission, Shell and the other 'respondents duly filed motions for rehearing asking that the Commission rescind the 50-5.0 allocation formula and adcfpt as a part of the field rules applicable to each of- these four fields an allocation formula which they alleged would afford to them, and to all others so interested, a reasonable opportunity to recover their fair share of the hydrocarbons in the fields. On July 18, 1962, those motions were denied by the Commission. This suit was filed thereafter on August 8, 1962.

Intervenors argue that since respondents had not appealed from the orders affecting other reservoirs or fields in the Quitman area but had in fact recommended to the Commission in some instances the formula that was subsequently adopted, their wells were drilled on the justified belief that the 50-50 formula would be adopted in these newly discovered fields. This does not follow at all. If petitioners were correct then obviously there would have been no point in holding the several hearings conducted by the Commission in order to determine what rules should be adopted. It certainly was not a foregone conclusion that the Commission would necessarily adopt the same formula that it had in the past for other fields. It cannot be logically said that •Shell's right to appeal promptly from the first orders affecting newly discovered fields would be foreclosed, which orders, were thought to be unjust and not based on substantial evidence. The fact is that Shell and the others acted with due diligence. Under the Commission’s rules of procedure Shell and the other respondents moved promptly -to request hearings and rehearings and, when hearings were called and set by the Commission, Shell timely presented evidence to show the foreseeable injury that would be imposed upon it by the proposed 50-50 allocation and urged the adoption of what they deemed to be a more equitable formula.

We recently held that the law contemplates that the Railroad Commission will treat and regulate reservoirs separately, which are physically separate and not connected, even though they may underlie the same tract of land. Benz-Stoddard et al. v. Aluminum Company of America, Tex., 368 S.W.2d 94. The contention of petitioners would be at variance with this rule of separate reservoirs. The rights of the parties are to be determined on the basis of what the facts are and what has occurred in respect to the field under consideration and not what has previously taken place in other fields although they may be located nearby and possess similar characteristics in some respects.

Since Shell and the other respondents cannot be charged with unreasonable delay or laches, the facts here bring this case squarely within the purview of the principal holding in Normanna. We there held invalid the proration order adopted by the Commission which would allow a well on a .3-acre tract to produce at a rate many times greater per acre than one drilled on the standard unit of 320 acres. We said the evidence did not justify such a wide discrepancy; the order did not come close to compelling ratable production nor did it afford each producer in the field a fair chance to recover his proportionate share of the hydrocarbons in the reservoir.

Here the Green one-acre tract was shown to have had originally recoverable reserves of about 9,000 barrels of oil but the well thereon had produced some 40,000 barrels prior to june 1, 1962. Under the 50-50 formula it was estimated that from this well in the future the owner would recover approximately 130,000 barrels which would necessarily be drained from under other tracts lying within the productive area. Substantially the same facts exist with respect to the McMurray two-acre tract. The evidence further shows without dispute that from 80 to 90% of this uncompensated drainage will flow from the tracts leased by Shell and the other respondents. The conclusions reached in Normanna are equally applicable to these facts.

It is now well settled that the Railroad Commission is vested with the power and charged with the duty of regulating the production of oil and gas for the prevention of waste as well as for the protection of correlative rights. Marrs v. Railroad Commission, 142 Tex. 293, 177 S.W.2d 941 ; Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73; Atlantic Refining Co. v. Railroad Commission, 162 Tex. 274, 346 S.W.2d 801; Halbouty v. Railroad Commission, Tex., 357 S.W.2d 364.

Petitioners offered in evidence the transcript of the written testimony given by Shell at the hearing by the Railroad Commission to consider the adoption of field rules for the Quitman Northwest (Kirkland Field), for the purpose, they say, of showing what Shell Oil Company thought about the fairness and reasonableness of a 50% well allocation formula as applied to a •Kirkland reservoir in all respects substantially identical in physical characteristics and production mechanism to the two Kirkland reservoirs which are involved in this suit. The trial court did not err in excluding this testimony. As said earlier this evidence would not tend to establish the asserted defenses of laches and unreasonable delay in so far as the fields herein involved are concerned. In the Quitman Northwest (Kirkland) there were 12 wells, each located on the standard unit of 40 acres, one well on 36.5 acres and one well on the smallest tract in that reservoir, namely, 34.3 acres. There could be little complaint of drainage made in this field no matter what formula might have been adopted since all of the drilling tracts were of approximately the same size.

The intervenors, Green and McMurrey, assert that none of the respondents have made to them any offers to pool their tracts which would have afforded them a fair chance to recover the oil in the reservoirs beneath their tracts. They urge that under a statement made in Halbouty v. Railroad Commission, Tex., 357 S.W.2d 364, in the absence of a fair pooling offer, the Railroad Commission should allow the holder of a Rule 37 permit to recover a sufficient amount of oil or gas-to repay drilling and production costs, plus a reasonable profit. That contention, whether valid or not, is immaterial here because these parties have already recovered a net income substantially in excess of their original drilling costs.

Petitioners argue that if the Commission were to impose a 100% acreage allocation formula in these reservoirs neither of their wells would be able to produce a sufficient amount of oil to pay current operating expenses so there would be no alternative to the abandonment of these wells. As to that we say that the. issue here drawn is not whether the 50-50 or 100% acreage formula be adopted. The evidence does not show that any formula short of the 50-50 pro-ration order would not produce a sufficient amount of oil to pay intervenors their operating expenses and compel a shut down and an abandonment of their wells.

The right of a landowner to a permit to drill on his tract no matter how small, as an exception to Rule 37, is predicated on the premise that he is entitled to a fair chance to • recover the oil and gas in and under his land or the equivalent thereof and to prevent confiscation of his property. Railroad Commission v. Williams, Tex., 356 S.W.2d 131. But in determining the validity of a field-wide proration order the landowner is not wholly restricted to a recovery of the amount of reserves underlying his land. The test in that case is whether he has an opportunity to produce his fair share of the gas in the reservoir. See Atlantic Refining Co. v. Railroad Commission, Tex., 346 S.W.2d 801. Article 6008, Section 10, declares as a matter of policy that the statute is enacted for the protection of public and private interests by prohibiting waste and compelling ratable production. Section 10 imposes upon the Commission the duty to prorate and regulate production from each common reservoir so as to prevent waste and adjust correlative rights. Section 13 sets forth a number of factors that the Commission shall take into account in determining the daily allowable production, and Section 22 vests in the Commission a broad discretion in the administering of this comprehensive regulatory act.

We also said in Benz-Stoddard, supra:

“ * * This right to control the rate of flow in order to prevent waste also enables the commission to offset the advantage obtained by one who is given an exception to the spacing rule by limiting his allowable production to the extent necessary to overcome this advantage. * *

We do say that the 50-50 formula results in the uncompensated drainage of an unreasonable amount of oil from beneath respondents’ tracts, thus preventing them from a fair 'chance to recover their proportionate share in the reservoir. The order adopting that formula is not supported by substantial evidence. The Commission is not enjoined from adopting any formula which provides less than a 50% well factor and which in its judgment and discretion would be more nearly equitable to all parties.

The judgments of the courts below are affirmed.

      . Atlantic Refining Co. v. Railroad Commission, 162 Tex. 274, 346 S.W.2d 801.


author: GRIFFIN, Justice.

text:
    Myrle O. BURTON et al., Petitioners, v. Helen W. BELL et al., Respondents.
    No. A-9790.
    Supreme Court of Texas.
    June 10, 1964.
    Rehearing Denied July 15, 1964.

      Baker, Botts, Shepherd & Coates, Robert J. Piro, with above firm, Houston, for petitioners.
    Fountain, Cox & Gaines, Joe G. Roady, with above firm, Houston, for respondents.
   GRIFFIN, Justice.

The above cause in this Court is a consolidation of two causes below.

Roy W. Bell, Sr. and Helen W. Twilli-gear each about 55 years of age, were married January 1, 1955. At the time of the marriage each had children by a former marriage and each owned property, both real and personal. Mrs. Twilligear, hereinafter referred to as Mrs. Bell, owned the Helena Motel in the City of Houston, bank deposits in the Bank of the Southwest, a sum of money in cash, and a lake house referred to as El Lago, and had three children. Mr. Bell owned as his separate property the Bell Apartments in Pasadena, Texas, and had deposits of money in two banks, was working on a salary for Reed Roller Bit Company of approximately $8,-000.00 per year and had two children.

The parties lived together as husband and wife until April 24, 1958, when Mr. Bell was killed in an automobile accident. During-their marriage, they moved into the lake property and made improvements on it so as to make it a more comfortable home. Also, extensive improvements were made to the Helena Motel and Bell Apartments. These improvements were paid for by unquestioned separate funds of Mrs. Bell and by income from the Helena Motel. Mrs. Bell claimed this motel income as her separate property by virtue of a written prenuptial agreement between her and Mr. Bell and by virtue of a gift by Mr. Bell of his one-half interest in this income from Helena Motel to Mrs. Bell, thus making this income her separate property. Mr. Bell’s children filed a suit against Mrs. Bell and Helena Motel, Inc. for reimbursement of one-half of the monies expended in improving Helena Motel and El Lago, on the claim that the income from Helena Motel during the existence of the marriage of Helen W. Bell and Mr. Bell was community-property used to enhance the value of Mrs. Bell’s separate estate. Mrs. Bell filed a cross-action for an undivided one-half interest in the Bell Apartments, and in the alternative for reimbursement of her separate funds plus the income from Helena Motel used in improving and enhancing the value of the Bell Apartments.

The other suit originated in the probate court in an action brought by Mrs. Myrle O. Burton to probate a duly executed will of Roy W. Bell. This will was signed and witnessed in 1948, which was prior to his marriage to Mrs. Twilligear, and named Mrs. Burton as executrix.

Mrs. Bell contested the probate of the 1948 will on the ground that Mr. Bell had revoked it by a later holographic will. The probate court refused probate of the 1948 will and the probated holographic will. Mrs. Burton appealed to the district court and there upon motion of all parties the two suits were consolidated to form the cause now pending before us.

The case was tried by the district court without a jury and judgment rendered holding that Bell’s 1948 will had been revoked by the later holographic will and the 1948 will was denied probate. The trial court held that the instrument undisputably in the handwriting of Mr. Bell and offered for probate by Mrs. Bell did not show testamentary intent, and refused to probate this instrument. This resulted in a holding that Mr. Bell died intestate. On the matter of the accounting between the estates, the trial court held the income from Helena Motel was community property, and Mr. Bell’s children should recover for one-half of the amount allocated to the community expended in improving and enhancing the Helena Motel and El Lago. Recovery was awarded for one-half of the community funds on hand at Mr. Bell’s death. Total recovery was for $21,124.50. The trial court ’ further awarded Mrs. Bell an undivided one-half interest in the Bell Apartments, but denied her any recovery by way of reimbursement for any funds spent in improving the Bell Apartments.

Mrs. Bell and Helena Motel, Inc., the defendants below appealed to the Court of Civil Appeals.

That court reversed the judgment of the trial court and held (1) that the 1948 will was still in full force and effect and should be probated; (2) that plaintiffs Roy W. Bell, Jr. et al. were estopped by the actions of their father to claim that any funds spent in improving the Helena Motel and El Lago were community funds and therefore the Bell children should not recover for any reimbursement; (3) reversed and remanded the whole case for a new trial. 370 S.W.2d 18.

Both parties are asking that the Court of Civil Appeals’ judgment be reversed in so far as it denies to each the recovery claimed by them.

On the day Mrs. Twilligear and Mr. Bell were married they entered into a written prenuptial agreement which attempted to preserve to each the property owned by each prior to marriage, and to make the income arising during the marriage the separate property of the owner of such property. The prenuptial agreement provided Mrs. Bell should go into district court and have her disabilities removed so she could handle her property without his joinder, consent or advice. After the marriage she and Mr. Bell joined in filing the necessary papers to have this done and a proper judgment was entered. The prenuptial agreement was invalid under Art. 4610, Vernon’s Texas Civil Statutes in that it undertook “to alter the legal order of descent [etc.].”

We sustain Mrs. Bell’s assignment of error that the Court of Civil Appeals erred in not holding that the two-year statute of limitations barred plaintiffs’ claim for reimbursement.

Mr. Bell died April 24, 1958. Plaintiffs Roy W. Bell, Jr' and his sister filed their original petition May 16, 1961, against Helen W. Bell, a feme sole (the widow) seeking only a money judgment for their share of the community income from Helen Bell’s separate property during her marriage with Roy W. Bell; also to remove the cloud on Bell Apartments (which were separate property of Roy W. Bell) cast by Mrs. Bell’s claim of ownership of an undivided one-half interest in the Bell Apartments. Plaintiffs allege no administration and no need for one.

June 7, 1961, Mrs. Bell filed her original answer consisting only of a general denial.

April 16, 1962, plaintiffs filed their first amended original petition against Mrs. Bell and Helena Motel, Inc., a corporation. This elaborated on allegations of the original petition, giving the amount of money which was community income from Mrs. Bell’s separate property and used in improving Mrs. Bell’s separate property and asking for judgment against both defendants for specific sums of money plus interest, and for removal of cloud.

. April 23, 1962, Mrs. Bell filed her first amended answer consisting of a general denial, pleading a prenuptial agreement entered into between herself and Roy W. Bell, Sr., whereby all income from her separate property was to remain her separate income; that she was the owner of an undivided one-half interest in the Bell Apartments by virtue of an agreement between herself and Mr. Bell that if she would improve the Bell Apartments with her separate funds, she should own an undivided ■one-half interest therein. She alleged she did improve the Bell Apartments with her separate funds, and asked for judgment for such one-half interest; and asked for reimbursement for enhanced value.

April 25, 1962, plaintiffs filed an answer to Mrs. Bell’s original cross-action. This •consisted of a general denial and a pleading that the prenuptial agreement relied on by Mrs. Bell was wholly void and of no force and effect.

May 11, 1962, Helena Motel, Inc. filed its answer to plaintiffs’ suit against it. This consisted of a general denial, special pleas, and the two and four-year statutes of limitations.

July 13, 1962, Mrs. Bell in answer and cross-action to the above pleadings by plaintiffs filed her third amended original answer, in which she filed a general denial and the same pleadings as in her first amended original answer and cross-action dated April 23, 1962, less claim for reimbursement, plus pleading the two and four-year statutes of limitations, and that El Lago was the homestead of Helen and Roy W. Bell, and not liable for any sums spent in improving that property.

On the same date, plaintiff cross-defendants filed an answer to the above pleadings of Mrs. Bell. This answer is the same as their original answer to Mrs. Bell’s first pleadings of a cross-action.

Plaintiffs’ original petition was filed three years and twenty-two days after Mr. Bell’s death. Art. 5538 R.C.S., Vernon’s Ann. Civ.St. art. 5538, provides as follows: “In case of the death of any person against whom or in whose favor there may be a cause of action, the law of limitation shall cease to run against such cause of action until twelve months after such death, unless an administrator or executor shall have sooner qualified according to law upon such deceased person’s estate; in which case the law of limitation shall only cease to run until such qualification.” No executor or administrator qualified within the twelve months’ period, therefore, the statute of limitation was suspended for one full year.

The charge or equity which one estate has against the opposite estate for reimbursement of -all funds spent in enhancing the value of such opposite estate is only a claim for money and return of funds and not a right, -title or interest in the land. Curtis v. Poland (1886) 66 Tex. 511, 2 S.W. 39; Furrh v. Winston, 66 Tex. 521, 1 S.W. 527; Schmidt v. Huppman (1889) 73 Tex. 112, 11 S.W. 175; Hayworth v. Williams (1909) 102 Tex. 308, 116 S.W. 43, 132 Am.St.Rep. 879; Dakan v. Dakan (1935), 125 Tex. 305, 83 S.W.2d 620(24).

‘When the improvements were made, if made, as alleged, with community funds (on wife’s separate real estate), this gave no right, title or interest in or to the land to the community; and S. E. Waskom, Sr. (the husband) from the simple fact that the improvements were so made, could not have acquired title to any part of the land on which they stood; for, as said in Rice v. Rice, 21 Tex. [58,] 66, such improvements become ‘attached to the soil, and cannot, in the nature of things, be divisible in specie when one of the joint owners has no interest in the land upon which they have been erected. Hence results the rule that the community estate must be reimbursed for the cost of the buildings erected by joint labors or funds upon the separate property of one of the spouses, and, in effect, this vests the improvement in that spouse, and entitles the other to one-half of the cost.’ ” Furrh v. Winston (1886), 66 Tex. 521, 1 S.W. 527, 529. This proposition of law has become one well recognized by later decisions.

“Ordinarily, until dissolution of the community, as by death or divorce, or the similar effects which may be produced by a decree of separation of property, there is no matured right to reimbursement for expenditures of the sort here in question.” 54 A.L.R.2d 437. The expenditures spoken of were from the community funds to improve the separate property of one spouse. This note cites as authority the case of Smith v. Smith discussed next. See also Green v. Ferguson (1884), 62 Tex. 525(2), 528; 121 A.L.R. 1384. See Maxwell v. Maxwell (Tex.Civ.App., 1947), 204 S.W.2d 32, writ refused, n. r. e.

“Upon dissolution of marital relation, if property rights of interested parties! áre in- : volved, and one has contributed separate funds, or community funds have been applied to the enhancement of value of separate property of the other, reimbursement is required, not necessarily in kind or even to the full extent of such contribution or application, but in proportion as such contribution or application bears to the total enhancement occasioned thereby.” Smith v. Smith (Tex.Civ.App., 1945), 187 S.W.2d 116, no writ history.

“The death of the husband or wife has the effect of terminating not only the marital relationship but also the community estate.” 12 Tex.Jur.2d 270, § 40. See also 1 Tex. Jur.2d 357, Sec. 113.

Art. 5526, Vernon’s Texas Civil Statutes, insofar as material herein provides: “There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:

* * *
“4. Actions for debt where the indebtedness is not evidenced by a contract in writing.
«* $

In our cause, there was no written agreement for Mrs. Bell to repay Mr. Bell his one-half interest in the funds used in improving her separate estate. Assuming, without deciding that these funds were community funds, the right to recover for Mr. Bell’s one-half interest therein passed to the plaintiffs on Mr. Bell’s death. There being no matured right to recover these funds until the dissolution of the marital community, the statute of limitations did not begin to run against their recovery until plaintiffs had a right to sue for reimbursement. Art. 5538, V.T.C.S. tolled the statute of limitations for one full year thereafter. This suit was not filed by plaintiffs until two years and twenty-two days thereafter, and as a result the suit was barred by the two-year statute of limitations. Art. 5526, supra.

Plaintiffs rely upon such cases'as Spencer v. Pettit (Comm. of App., 1931), 34 S.W.2d 798; Born v. Bluestein (Tex.Civ.App., 1949, no writ history), 220 S.W.2d 345; and Boettcher v. Means (Tex.Civ.App., 1947, no writ history), 201 S.W.2d 255, as authority that after the death of Mr. Bell, Mrs. Helen Bell became a trustee of all of the community property, and therefore the four-year statute of limitations rather than the two-year statute would be applicable.

Those cases are not in point. Each of these were cases where the husband and wife owned community property and upon the death of one spouse, the other took charge of the whole community estate and managed and sold and reinvested such community estate as if it were the separate property of the survivor. We have no such case here. Mrs. Bell did not take charge of the community right to reimbursement. The property improved with community funds— granted they were community funds — was, and remained, Mrs. Bell’s separate property with no title in Mr. Bell or his heirs, the plaintiffs. The right of reimbursement was a claim for return of funds and upon Mr. Bell’s death it passed to his heirs. Mrs. Bell has not managed, conveyed or changed the character of this right. She was not and is not a trustee of such claim for reimbursement.

We next come to Mrs. Bell’s contention that although the prenuptial agreement may be invalid for the purpose of converting the income from Mrs. Bell’s separate property into her separate property, it was valid as a contract between her and Mr. Bell to make mutual wills. She alleges she made a will as required by the prenuptial agreement and that she has a right to demand that his estate be required to vest in her in accordance with the terms of the prenuptial agreement.

As to this feature of the case: Graser v. Graser, 147 Tex. 404, 215 S.W.2d 867, discusses whether a contract in violation of Art. 4610, R.C.S. may be the basis for suit to enforce an equitable contract to make a will. That case holds it cannot form such a basis. The facts in Graser are much stronger for an enforceable contract, than we have here. This Court said:

“Since, under our laws, spouses may, generally speaking, dispose of their property respectively by conveyance or by will, including mutual wills, in such manner as they see fit, without regard to ‘the legal orders of descent’ and even to the extent of disinheriting children, it would seem to be a legitimate inference that Art. 4610 is designed to apply to the case where an agreement to make a will or a mutual will or wills is not followed by actual effective execution of the necessary testamentary documents. In other words, if in the instant case, we enforce the terms of Mr. Graseras will against Mrs. eraser’s estate as her contract, to the prejudice of their sons, petitioners Henry and Ernest, we will be enforcing a contract in the teeth of Art. 4610. The terms of the contract obviously ‘alter the legal orders of descent’ as regards Henry and Ernest, who are here vigorously complaining of such alteration. * * "

In Gorman v. Gause (Comm. of App. 1933), 56 S.W.2d 855, 858, it was said:

“If the legislature is powerless to enact a law enlarging the wife’s separate estate beyond its constitutional limits, it is clear that the provisions of the organic law cannot be set aside and such enlargement accomplished by the mere agreement of the parties made in contemplation of marriage. Groesbeck v. Groesbeck, 78 Tex. 664, 14 S.W. 792.”

We hold that Mrs. Bell cannot recover on this count in her pleading.

We next come to Mrs. Bell’s claim that she is the owner of an undivided one-half interest in the Bell Apartments, as improved by virtue of the agreement between the two of them (proved by other testimony than that of Mrs. Bell).

Mr. and Mrs. Bell thought that by her paying for the improvements Mrs. Bell had received an undivided one-half interest in the Bell Apartments. However, no instrument conveying such one-half interest was ever executed by Mr. Bell.

It is further undisputed that there was spent the sum of $47,500.00 in improving these apartments. Mrs. Bell deposited all of this money in Mr. Bell’s Pasadena hank account. It was found by the trial court that $11,500.00 of this sum came from Mrs. Bell’s own personally-owned sources, and that she had withdrawn from the Helena Motel account the sum of $36,000.00, deposited this in her own personal bank accounts, as required by Mr. Bell and had then drawn checks against these accounts and which checks were deposited in Mr. Bell’s account in the Pasadena bank.

Mrs. Bell claims an equitable title to a one-half interest in Bell Apartments. We hold she has no title to the Bell Apartments, but only a claim for reimbursement, if pleaded and subject to the plea of limitation, to the extent of the enhancement in value of Mr. Bell’s one-half interest therein. Dakan v. Dakan (1935), 125 Tex. 305, 83 S.W.2d 620(24); Rice v. Rice (1858) 21 Tex. 58; Furrh v. Winston (1886) 66 Tex. 521, 1 S.W. 527, 529.

There being no written conveyance from Mr. Bell to Mrs. Bell of the half interest in the Bell Apartments, no title, legal or equitable, vested in Mrs. Bell. Allen v. Allen (1908) 101 Tex. 362, 107 S.W. 528; Hooks v. Bridgewater (1921), 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216.

The title to the Bell Apartments having vested in Mr. Bell long prior to the making of the improvements by Mrs. Bell, no constructive trust could arise in her favor. Allen v. Allen, supra, p. 529; 42 Tex.Jur. 616 § 15, idem p. 677 § 68.

Mrs. Bell, having paid for the improvements of the Bell Apartments, is relegated to her claim for reimbursement of her own money which she spent making such improvements to the extent that the value of Bell Apartments was enhanced. Dakan v. Dakan, supra. Lindsay v. dayman (1952) 151 Tex. 593, 254 S.W.2d 777, 780, 781.

Mrs. Bell has no claim for reimbursement in her third amended original answer filed July 13, 1962, and on which pleading she went to trial.

Without pleadings and proof of the amount of enhancement of Mr. Bell’s separate property — The Bell Apartments — by funds spent in making such improvements, Mrs. Bell cannot recover for these expenditures. Lindsay v. Clayman, 151 Tex. 593, 254 S.W.2d 777(6), 1952.

No complaint is made by any of the parties to this litigation of the trial court’s finding No. 27 to the effect that there was on hand as accumulations since Mr. Bell’s death the sum of $9,000.00 of which $2,-000.00 belonged to Mrs. Myrle O. Burton and the remaining $7,000.00 to be divided 50% to the plaintiffs Roy W. Bell, Jr. and his sister, Mrs. Boettcher and 50% to the defendant, Mrs. Bell.

This brings us to the probate phase of this case.

THE PROBATE PROCEEDINGS:

In 1948 Roy W. Bell, Sr. executed with all the formalities required by law a valid will in which Mrs. Myrle O. Burton, his sister, was named executrix. At the time of his death this will had not been revoked, unless it was by the writing discovered after Mr. Bell’s death, and wholly in his handwriting, and which we will discuss. The district court held this holographic instrument did not contain testamentary intent, but that it was sufficient to revoke the 1948 will and that Roy W. Bell, Sr., died intestate. The Court of Civil Appeals held that the holographic instrument was not a will, neither did it revoke the 1948 will, and ordered the 1948 will admitted to probate.

The holographic instrument above referred to was, according to all parties, wholly in the handwriting of Mr. Bell. After his death it was found in a box of stationery on a desk used by Mr. Bell at El Lago. Mrs. Bell testified that some three or four weeks prior to Mr.. Bell’s death they were having some company visit with them, and in straightening up Mr. Bell’s desk, she gathered up some loose papers and “stuffed” them in this stationery box. She did not then notice this writing, but found it after Mr. Bell’s death. It contained certain interlineations and corrections, and is as follows:

“Last Will & Testament of Roy Wheeler Bell
State of Tex. 1 Know all men by Co of Harris J these presents
That I, Roy Wheeler Bell, of Harris Co. Tex being of sound disposing mind memory, do make this my last will & testament, hereby revoking any & a'1 other wills heretofore made by me.
1st
That my wife Helen W. Bell has pat invested cash for development in approximate of value at time we were married (Jan 1st—19SS) of the following property. Lt 24 & E SO' of lot 23 of Jackson place 3rd section a subdivision of Pasadena Tx as per map recorded of deeds & Records of Harris Co. I therefore 4&ela-re 4he above prop-es?ty 4© fee eommuaity property. This property has been and is now in my name. I wish to hereby declare this to be community property owned equally by she her & myself.”

It will be noticed that it is not dated, nor is it complete, nor signed at the end.

However, the first part of the sentence, “That I, Roy W. Bell, etc.” being in Mr. Bell’s handwriting, is a sufficient signature for a holographic will. Lawson v. Dawson’s Estate (Tex.Civ.App., 1899, writ denied), 21 Tex.Civ.App. 361, 53 S.W. 64.

This instrument is not effective as a will because it does not make any disposition of Mr. Bell’s property.

It cannot be admitted to probate as Mr. Bell’s last will and testament. Brackenridge v. Roberts (1924), 114 Tex. 418, 267 S.W. 244, rehearing overruled 114 Tex. 418, 270 S.W. 1001; Hinson v. Hinson (1955), 154 Tex. 561, 280 S.W.2d 731; Adams v. Maris (Comm. of App., 1919), 213 S.W. 622; Page v. Barnes (Tex.Civ.App., 1924, writ dismissed), 258 S.W. 264; Maxey v. Queen (Tex.Civ.App., 1947, writ refused, n. r. e.), 206 S.W.2d 114; Poole v. Starke (Tex.Civ.App., 1959), 324 S.W.2d 234, writ refused n. r. e.

We hold this holographic instrument did not revoke Mr. Bell’s 1948 will, and that the 1948 will should be admitted to probate upon proper proof.

Section 63 of the Probate Code, V.A.T.S., provides that “No will in writing, and no clause thereof or devise therein, shall be revoked, except by a subsequent will, codicil, or declaration in writing, executed with like fonnalities * * (All emphasis herein is that of the writer).

It is clear under the above statute and it has been so held, that if there is a separate writing, showing an intention to ■revoke the will, which does comply with the necessary formalities, the will is revoked. 3 A.L.R. 836.

In discussing the formalities required of a written instrument to revoke a will it is said in 3 A.L.R. 836:

“The court in Re Backus (N.Y.) supra, (1900, [49 App.Div. 410] 63 N.Y.Supp. 544), dealing with a revocation in a deed of trust, says that ‘the statute permitting a revocation of a will by “some other writing,” and requiring that it should be executed with the same formality as a will, is not to be construed as meaning that the other writing, which is not a will, should erroneously be characterized as such by the person executing it. In other words, it would be an unreasonable construction to give the statute, to hold that every literal and verbal expression required in the publication of a will should be applied to other paper writings, when it is evident that such language, when so used, would be an untrue statement, and not applicable or germane as indicative of the character of such other writings * * * What is evidently meant by the statute is that the formality required in the making of a will shall be applied to a paper of revocation, so far as the latter, from its nature and character, is susceptible of having the same formality observed.’ ”

In Griffin v. Griffin (1790) Ves.Jr. 197, note, 31 Eng. Reports Reprint 101, a paper begun by the testator several days before bis death — and when the testator was capable of transacting business — was held not to be a revocation. The contents of the written instrument were not shown in that ■case, but the court states that the presumption of law is that he never meant to finish the paper, or that it was intended only as a draft for consideration.

Page on Wills, Lifetime Ed. Vol. 1, Sec. •459, p. 824 says:

“Even where a will may be revoked by a subsequent writing other than a will or codicil, a will or codicil which contains a revocation clause together with dispositive provisions, and which is executed so as to be a sufficient ‘writing’ but not so as to be a valid will, does not operate as a revocation, unless the instrument shows affirmatively that testator intended that such revocation clause should take effect without' regard to the validity of the remaining provisions of the will. This rule is an application of the doctrine ■of dependent relative revocation, and rests in reality, in most cases, upon the reason that testator intended to revoke the first will only to dispose of his property by the second will; and that if the second will is inoperative, such mistake of law prevents the revocation clause from taking effect.”

See also 57 Am.Jur. p. 328 § 470 ; 95 C.J.S. Wills §§ 269, 272, pp. 40, 44.

On Sunday before Mr. Bell died the following Thursday, he told his sister, Mrs. Burton, “that he had not made another will; that he probably should make one, because his children had grown up, and because he was married again, but he had not made another will yet.” This statement was made when it is undisputed that the holographic instrument was in existence.

Under all the facts and circumstances of this case, we find there is no evidence to sustain a finding that this instrument was intended by Mr. Bell to be a revocation of his 1948 will. The paper on its face, at best, shows that it was not intended to be a revocation of this 1948 will, but was only a memorandum of a proposed will to take the place of the 1948 will. The memorandum is incomplete and does not show that Mr. Bell intended to die intestate. His statement to his sister that he should make another will, but had not done so, shows no intent to revoke the 1948 will.

The judgment of the Court of Civil Appeals reversing the judgment of the trial court and remanding the cause to the district court is hereby reversed.

The probate proceedings are severed from the consolidated cause, and are remanded to the district court for proceedings not inconsistent with this opinion, and for compliance with Rule 338, Texas Rules of Civil Procedure.

The judgment of the trial court that plaintiffs Roy W. Bell, Jr. and Mary Bell Boettcher have and recover a portion of the escrow fund arising from the sale of the Bell Apartments is hereby modified so as to award recovery of the entire escrow fund to the plaintiffs Roy W. Bell, Jr. and Mary Bell Boettcher, subject to the provisions of the 1948 will of Roy W. Bell, Sr., as probated.

That portion of the trial court’s judgment awarding plaintiffs Roy W. Bell, Jr. and Mary Bell Boettcher the sum of $21,-124.50 is hereby reversed.

That part of the trial court’s judgment awarding $2,000.00 to Myrle O. Burton out of the $9,000.00 distributable estate, and awarding 50% of the remainder of $7,000.00 to Roy W. Bell, Jr. and Mary Bell Boet-tcher, and awarding 50% of $7,000.00 to Helen W. Bell is affirmed.

The trial court’s judgment as modified herein is affirmed.

Costs are taxed one-half against Mrs. Bell and one-half against the plaintiffs herein.