author: CLAYTON, Justice.

text:
    Elizabeth Monroe KIRBY, Appellant, v. Alberta McKain BROWN and Amanda McKain Reaves, Appellees.
    No. 5669.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 9, 1964.
    Rehearing Denied Oct 28, 1964.
    Brewster & Hoy, El Paso, for appellant.
    Pearson & Speer, El Paso, for appellees.
   CLAYTON, Justice.

This is a will contest. The decedent, Jeannette McKain Monroe, died on March 12, 1962. Shortly thereafter Elizabeth Monroe Kirby, a foster-daughter, filed application for the probate of a purported will of decedent dated August 10, 1960, which left all the property of decedent, including Government bonds, to the applicant and named her Independent Executrix of the estate. The applicant is herein designated as the Proponent of said will and appellant here. A contest of said purported will was filed by Mrs. Alberta McKain Brown and Mrs. Amanda McKain Reaves, sisters of decedent, herein designated appellees and Contestants, who claimed lack of testamentary capacity of, and undue influence exerted upon, the decedent at the time of the execution of this will and asked for the probate of a prior will dated March 24, 1958. The prior will provided for an essentially equal distribution of the estate between the foster-daughter and the two sisters, with all Government bonds to go to the person named in each bond as payee upon death of the testatrix. In the County Court at Law of El Paso County, Texas, where the contest was heard, judgment was entered for Proponent and the 1960 will was admitted to probate. Appeal was taken to the District Court of El Paso County, where trial was to a jury. Undue influence was not raised by the evidence, and in answer to a single issue the jury found that the testatrix, at the time she executed the 1960 will, lacked testamentary capacity. Judgment was then entered for Contestants of this will and the 1958 will was admitted to probate; from which judgment Proponent brought this appeal. Before judgment was entered it was conceded that the earlier will was entitled to be probated in the event that the later will was not established as the valid will of the decedent.

Appellant presents six points of error. The first point urges error on the part of the court in overruling Proponent’s motion for an instructed verdict at the close of Contestants’ case. Appellant’s position is that as Proponent of the 1960 will she had established a prima facie case for admission to probate of said will, and that Contestants had failed to meet their burden of proof or to rebut Proponent’s case, and that there was no evidence, or insufficient evidence, to show the lack of testamentary capacity on the part of the testatrix, and therefore no issue of fact was presented for submission to the jury.

The second point cites error in overruling Proponent’s motion for an instructed verdict at the close of all the evidence because of the absence of any evidence of probative force, or sufficient evidence, to show lack of testamentary capacity, whereas Proponent had established by the undisputed evidence, and by the great weight and preponderance of the evidence, that the 1960 will was entitled to probate.

The third point complains of the overruling of Proponent’s objection to the submission of the sole issue of testamentary capacity to the jury, and the fourth point relates to the overruling of Proponent’s Motion for Judgment Non Obstante Veredicto.

All of these points are “no evidence” points; 38 Texas Law Review 361, “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error” (1960), Robert W. Calvert, at page 362. See also Great Atlantic & Pacific Tea Company v. Giles, 354 S.W.2d 410 (Tex.Civ.App., 1962; Ref., N.R.E.):

“At the outset appellees object to our consideration of appellant’s ‘insufficient evidence’ points, contending that a motion for instructed verdict and a motion for judgment notwithstanding the verdict do not raise questions of sufficiency or weight of the evidence but only raise questions of ‘no evidence’. We agree that this is the law. 4 Tex. Jur.2d § 769, p. 279; In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; Galveston, H. & S. A. Ry. Co. v. Cook ( [Tex.] Civ.App.), 214 S.W. 539. Accordingly, we will consider all of appellant’s points as ‘no evidence’ points. Glens Falls Insurance Company v. Vetrano, Tex.Civ.App., 347 S.W.2d 769; Shapiro v. Edwards, Tex.Civ.App., 331 S.W.2d 242.
“In passing upon 'no evidence’ points we must be governed'by the well-established rule that if an issue of fact is raised by the evidence, it must go to the jury even though a verdict based on such evidence would have to be set aside as not supported by sufficient evidence. Wallace v. Southern Cotton-Oil Co., 91 Tex. 18, 40 S.W. 399. An issue of fact is raised if discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff.” (Citing cases). ,

The fifth point of error is based upon the overruling of Proponent’s Amended Motion for New Trial assigning therefor that the verdict of the jury was not supported by the evidence and was so contrary to the great weight and preponderance of the evidence as to be wrong and unjust. This is an “insufficient evidence” point. 38 Texas Law Review, supra, at page 365.

These points require a careful examination of the entire evidence and a brief statement thereof to explain our determination of these points.

The testatrix suffered a stroke on May 6, 1960 and was confined to a hospital. On May 9th an application was filed in probate court for the 'appointment of Proponent as Temporary Guardian of testatrix’ estate, the heading of the application reading “In the Guardianship of Jeannette Monroe, an Incompetent”. The application was filed under the provisions of the Texas Probate Code, V.A.T.S., which, in Part 1 of Chapter VI provides for “Temporary Administration in the .Interest of (A) Estates of Decedents, 'and (B) Persons or Estates of Minors and Incompetents”. The word “Incompetent” also appears in the heading of various other instruments filed in connection' with the guardianship, both before and after the will of August 10, 1960 was executed by testatrix. Proponent, on May 10, 1960, and in connection with her appointment as Temporary Guardian, signed a $10,000.00 bond' describing her ward as “Jeannette Mon"roe, an Incompetent, and a person of unsound mind”;- and an oath reciting the ward was “a person of unsound mind”. The ' Texas Probate Code, Chapter 1, section 3 (p), provides that “ ‘Incompetents’ or ‘Incompetent persons’ are persons non compos-mentis, idiots, lunatics, insane persons, common or habitual drunkards, and other persons who are mentally incompetent to care for themselves or. to manage -their property and financial affairs.” Section 3(y) provides : “ ‘Persons of unsound mind’ are persons non compos mentis, idiots, lunatics, insane persons, and other persons who are mentally incompetent to care for themselves or -to manage their property and financial affairs.” (Emphasis supplied).

On August 12, 1960, two days after the execution of the proffered August 10th will (which allegedly was signed for testatrix by an attorney), Proponent filed her application , for appointment as Permanent Guardian of the estate of Jeannette Monroe. In this application no mention is made of an “incompetent”, but in other papers filed in connection therewith the word “incompetent” is used. Furthermore, Section 114 of Chapter V of the Probate Code, relative to the appointment of a guardian, reads as follows: “114. Facts Which Must Be Proved. Before appointing a guardian, the court must find: (a) That the person for whom a guardian is to be appointed is either a minor, a person of unsound mind, an habitual drunkard, or a person for whom it is necessary to have a guardian appointed to receive' funds due such person from any governmental source. * * * ”

It must be presumed that the court found, on August 29, 1960, when it ordered the appointment- of Proponent as guardian, that the law had been given compliance and the only appropriate requisite — that the ward was of unsound mind — had been proved. And we feel this must be so notwithstanding the recital in the exhibit and accounting signed by Proponent on September 3, 1960 that “The ward, Jeannette Monroe, remains a bed-ridden invalid and completely paralyzed. Her mind, however, remains very keen so that as a practical matter she, the said Jeannette Monroe, directs the actions of this representative”. On September 27, 1960, in the heading of another instrument filed in the cause and signed by the guardian, the ward was still being described as “an incompetent”.

On October 2, 1961 the Proponent signed and swore to a petition for her discharge as guardian and for the close of the guardianship in which she prayed “that upon final hearing hereof the said Jeannette Monroe be held by the Court to be of sound mind * * Pursuant to this petition, on October 16, 1961 the court entered its order reading in part as follows: “* * * and it further appearing to the court * * * from the allegations of the applicant and from the evidence that said ward is of sound mind is not doubtful, and that she is now a person of sound mind * * * it is accordingly ordered, adjudged and decreed that the said ward has been and is now restored to her right mind and is now a person •of sound mind * * * she is hereby, discharged from guardianship * *

The applicant also alleged that the ward had “recovered her strength and ability of movement to such a degree that she is now able to handle, manage and protect her own estate * * * ”, but there was no finding to this effect, and on the same date as the order closing the guardianship, the ward, by her “X” mark, executed a “full, unlimited and universal power of attorney” to the applicant covering all of the ward’s property and estate, although the ward, as testatrix in the 1958 will, had signed her full name thereto.

The foregoing has been set out in perhaps greater than necessary detail, but is intended to be illustrative, but definitely not all-inclusive, of the documentary evidence presented by Contestants to the jury. There is certain testimony presented in the record which should be mentioned. Part of the testimony of Mr. Morris Raney, attorney for the decedent and also in the probate proceedings described as attorney for the guardian (Proponent), is illuminating. On direct examination by counsel for Proponent, Mr. Raney testified:

“Q All right. As a result of your numerous conversations, that you testified to, in regard to making the Will and buying and selling the property and so forth, do you know what Mrs. Monroe’s opinion of, or what she thought of the Proponent in this Will Contest and the two Contestants in this Will Contest?
“A Well, Mrs. Monroe was very fond —Now you are speaking of Mrs. Kirby as the Proponent?
“Q As the Proponent—
“A And I believe it is Mrs. Brown and Mrs. Reeves, isn’t it?
“Q As the Contestants, yes.
“A As the Contestants. Well, she • was very fond of all three of them. She would, as I say, Mrs. Monroe was a very strong-will person, and on some occasions she would become offended at Elizabeth and she would comment that she ought to change her Will, that she ought to just leave everything to her Church and leave, leave Elizabeth’s part to the Church. Then on other occasions she had made the same comment in - connection with her sisters, both of them. She has become, at times I have heard her make remarks about being offended at Mrs. Kirby’s husband and she thought maybe she ought to change her Will. Well, when these kind of things occurred I always recommended to Mrs. Monroe that she deliberate on this a little bit and see if possibly she shouldn’t leave her Will like it is. And ordinarily that is what happened. She did. And where these changes were, these Wills that I am speaking of up through the 1958 Will were all pretty general, the same type of Will. By that I mean that the properties were left by her — Well most of her properties were left in specific bequest and she left her Will — Her Will would provide that she leave some of her properties to Elizabeth and some to each of her sisters and then the rest and residue of her estate, I believe in most instances, as I recall, was left to the three of them to share and share a-like. Now I may be wrong there. She might have changed that residue portion of her estate later on. But she was very fond of all three of these persons with the exception of a periodic spell of anger which Mrs. Monroe was capable of forming to anyone * *

At another point in the testimony, Mr. Raney described the circumstances relating to the execution of the 1960 will by the testatrix. He had testified that on August 9, 1960 he had been called to come from his home in Van Horn, Texas to El Paso where the testatrix was still confined to the hospital as the result of her stroke in May, 1960. The testatrix was at that time paralyzed and apparently had great difficulty in speaking. Mr. Raney learned from her that she wanted to “change will”. Having her entire file with him, he took out the 1958 will and “went down the line on that with her”. He testified (emphasis supplied) : “I went down the list to each piece of property and asked her if she wanted to change that property so that it would go to Elizabeth [Proponent], and she would indicate ‘yes’ * * * She wanted all of the property to go to Elizabeth and wanted Elizabeth independent executrix of her estate. She didn’t tell me this. By questions she gave me affirmative and negative aiv-swers from which I determined what she wanted.” Mr. Raney then re-drew the will in accordance with what he states were her indicated desires and the next day (August 10) returned to the hospital room and in the presence of Dr. William R. Gaddis, her attending physician (whom he had invited to serve as a witness), and perhaps Mrs. Antonia Sandoval, a special nurse (another witness), read the will to the testatrix, who at that time was some 76 years of age. He describes the occasion as follows:

“A * * * during the time I was-reading the Will to Mrs. Monroe,. I visited with her for a few minutes and kind of got her to talking or to making her talk in a noise so that I could understand her and to assure myself that she could understand me, and I read the Will to her, verbatim, and after each paragraph asked her if that is what she wanted to do, if that was her Last Will, and she indicated that it was after each occasion or upon each question that way. And then I told her, ‘Now, Mrs. Monroe, you cannot sign your name. Do you want me to-sign it for you?’ She said, ‘Yes.’' So then the nurse and Dr. Gaddis, and the Notary Public from downstairs came into the room. And I asked Mrs. Monroe if she wanted to execute, this was her Last Will and Testament, and she indicated that it was. This is before all of these people. And I asked her if she understood the contents of this instrument and it did what she wanted it to do and she said, ‘Yes,’ or indicated in the affirmative. And then I asked her if she wanted me to execute the Will for her, to sign her name to that Will for her, to do the signing for her, and she said, ‘Yes.’ And I asked her if she wanted to execute this Will publicly and declare this Will as her Last Will and Testament before these witnesses and she indicated she did. And did she wish them to sign it as witnesses and she indicated that she■ did.” (Emphasis supplied).

Dr. Gaddis, as a witness to the 1960 will, also testified on cross-examination that on August 10 the testatrix had difficulty talking:

“Q And on that day that this Will was signed not a word came forth from her mouth, is that right?
“A No, I don’t believe that is correct.,
“Q Did she talk — ?
“A She stated words, ‘yes’ or ‘no.’
“Q You are definite about that?
“A As definite as I can be at this time, two and a half years later.”

He had previously testified:

“Q ‘Then were there occasions when she would just mumble, that is not talk plain ? A. That is right. Q. Now I believe you have stated to Mr. Hoy that on the date that this Will was signed that she nodded ? A. That is true. Q. And that she did not speak forth, could that be true? A. I can’t say definitely. She may have nodded and spoke both, but I do know that she just nodded her head, nodding it an ascenting manner. Q. Nodding her head, moving her head forward like she was talking in sense, is that correct? A. That is correct. Q. Did you hear' her say anything there that day? A. I can’t recall that I did, sir.’ ”

However, in contradiction of this testimony regarding the vocal difficulties of the testatrix, Mrs. Sandoval, the other witness to the August 10, 1960 will, testified to the following having occurred on that date between her and the testatrix:

“Q Following the execution of the Will did you have any conversation with her when the two of you were then alone?
“A Yes, after Lawyer Raney had left and Dr. Gaddis and the other lady, I asked her, ‘Did you know what happened?’ She said, ‘Yes’. I said, ‘Do you want to talk about it?’ She said, ‘Yes.’ I said, ‘Go ahead.’ She said, ‘Well I just signed my Will to Elizabeth, my daughter.’ And I asked her if that was the way you wanted and she said, ‘Yes.’ So I asked her again. I said, ‘Are you sure ?’ She said, ‘Yes. Why do you keep asking me so much?’ I said, ‘Well, I just wanted to be sure that you know what you are doing.’ She said, ‘Sure, I know what I am doing. You don’t think I am crazy, do you?’ Those were her words. Those were exactly her words.”

The 1960 will recites: “I have two sisters, Amanda McKain Reeves and Alberta McKain Brown, who have means of their own, and who I have purposely left out of this will and it is my intent that they or neither of them take anything of my estate.”

The testimony showed that Mrs. Reaves, a widow who was 73 years old at the time of the trial, was employed as hostess at an ante-bellum home in Natchez, Mississippi, from which she received a salary which netted her $139.40 per month. Her only other income wás $40.00' a month from rental of her late husband’s law office. Mrs. Brown, also a widow, was 70 years old at the time of the trial. She had been employed as manager óf a school lunch-róom until her doctor advised her to quit work. She lives in New Mexico. She receives $40.00 a month from Social Security and $60.00 from a pension of her deceased son.

Mrs. Evelyn George, one of the special nurses attending the testatrix, testified to the following:

“Q * * * Did you discuss the Will, do you recall, with her in the hospital ?
“A Yes, I think — Yes, I did.
“Q What was that discussion?
“A Well she tried to explain why she had willed everything to' her daughter.
“Q How did she explain it?
“A She said that her, she knew that she was going to be sick a long time and was going to take a lot to take care of her and it cost a lot to take care of her, and she wanted to be sure us girls got our pay and- she could depend on Elizabeth to look after things and that is why she wanted her to have everything.
“Q 'Did she have' anything to say ■ about her sisters ?
“A Well she said her sister went off and left her when she was sick and needed her most. And at another time she told me about them talk- • ing about her in the room when they thought she was unconscious.
“Q . And she told you about them talking about.'her?
“A Yes..
“Q What was that?
“A Well she said that they, said that . it .would be better, if she died then and. so there would be something left.
“Q She said the sisters said that?
“A Yes, she said they were talking about her.
“Q When they were in her room?
“A In her room, yes.
“Q And what was her condition at that time?
“A Well, at the time they thought she was unconscious I guess but she was apparently coming out of the coma because she remembered what had been said.
“Q She told you about this ?
“A She told me about it.
“Q Do you recall when she told you ?
“A No, not. having—
“Q Was it after she left the hospital?
“A She did that part of it, yes. She told me about that after she left the hospital.
“Q After she left the-hospital.
“A But at the hospital she told me about making a Will because she wanted Elizabeth to have it so that she would' be sure" that we were paid -and she would have something to take care of her with.” • ■

It is contended that the above-quoted statements' ascribed to testatrix further evidenced on her part an irrationality and lack of testamentary capacity. It is asserted that' the statements regarding the devise to Elizabeth so she could have enough to pay the nurses and also to look after testatrix might be interpreted as reflecting the belief that the will would take, effect at the time it was executed. Naturally, the sisters emphatically denied in their testimony that they had ever expressed the thought that it would be better if testatrix died while there was something left of her estate. Furthermore, the record shows that both sisters were attentive to and considerate of the testatrix during her illness. Mrs. Reaves, who had contrived to visit her sister each summer, testified that as soon as she heard of her sister’s stroke she came to El Paso and stayed in the hospital room with her day and night until she had to return to work by the first of the following month. Mrs. Brown had lived with testatrix from 1906 to 1914, when Mrs. Brown married, and again in 1946 until 1951. She arrived in El Paso two days after her sister suffered the stroke, on May 6, 1960, and stayed in the hospital room with her, after Mrs. Reaves left, until July 10, 1960, sleeping on a cot in her sister’s room. She left, she testified, when Dr. Gaddis and others advised her to because of the strain on her. She stated that private nurses were employed when she left.

We have refrained here from outlining the testimony of Proponent’s witnesses as to testamentary capacity of the testatrix, having followed the rule set out in Great Atlantic & Pacific Tea Company v. Giles, supra, as to “no evidence” points. The first four points of error are overruled.

As to Point No. Five, the “insufficient evidence” point, having examined the entire evidence in this cause, we are again guided by the rule set out in 38 Texas Law Review, supra, at pages 367 and 368:

“If there is evidence of probative force tending to prove the existence of a vital fact and evidence tending to disprove its existence, and the point of error is that the finding is against the great weight and preponderance of the evidence, the rule by which a Court of Civil Appeals should be guided in passing on the point is simple even if the conclusion to be reached in a particular case is difficult. If the finding of the existence of the fact, considering all of the evidence, is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust, the court should sustain the point and order a new trial; otherwise, the court should overrule the point and affirm.

We are of the opinion that there is ample evidence in the record to support the jury’s finding of lack of testamentary capacity at the time the 1960 will was executed by testatrix, and that therefore such finding was not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust. We accordingly overrule appellant’s fifth point of error.

The sixth point of error attacks the trial court’s ruling that all costs incurred be paid by appellant-proponent individually. Appellant’s position is that since “she was appointed in a fiduciary capacity, both in the will of August 10, 1960, and by the Probate Court, and in offering said will for probate and resisting the contest filed thereon, she was fulfilling a requirement and duty imposed upon her by law and, therefor, said costs should not be taxed against her in any capacity or in any event, said costs should be taxed against her only in her fiduciary capacity and, therefore, paid by the estate * * * ”, citing McCannon v. McCannon, 2 S.W.2d 942 at page 951 (Tex.Civ.App., 1927; dism.).

Section 243, Chapter 7, Texas Probate Code, provides as follows:

“When any person designated as executor in a will, or as administrator with the will annexed, defends it or prosecutes any proceeding in good faith, and with fust cause, for the purpose of having the will admitted to probate, whether successful or not, he shall- be allowed out of the estate his necessary expenses and disbursements, including reasonable attorney’s fees, in such proceedings.” (Emphasis supplied) .

In the case of Casseb v. Sweeney, 252 S.W.2d 209 (Tex.Civ.App., 1952; Ref., N.R.E.), the appellant offered a will for probate, but his attorneys were unsuccessful, and another will was probated. Appellant filed suit for attorneys’ fees against the executor who qualified under the probated will. After an adverse judgment, appeal was taken. The appellate court held:

“Before appellant could recover in this case it was necessary for him to allege and prove that in offering the will for probate he acted in good faith.” (Emphasis supplied). (Citing McCannon v. McCannon, supra).

The court went on:

“Appellant had the burden of proving and soliciting a favorable finding from the jury to the effect that in offering the will for probate he acted in ‘good faith,’ as well as a finding of the reasonable value of the services rendered by the attorneys who represented him in the matter.”

It is believed that the reasoning behind this holding is expressed in Huff v. Huff, 132 Tex. 540, 124 S.W.2d 327 (1939), wherein it is stated:

“ * * * By virtue of Article 3696 the costs were taxed against J. H. Huff. The terms of the will were favorable to him, and detrimental to the other heirs not named in the will. If he had succeeded, his share under the will would have been much larger than it was without the terms of the will; and if the will had been probated, it would have deprived the other heirs not named in the will of their share of the •estate. He was defeated in his effort to probate such will, and the court costs were taxed against him by reason thereof. The effect of permitting him, after such defeat, to be reimbursed for costs and attorneys’ fees, would be to cause the heirs not named in the will, although they prevailed, at their own expense, in establishing their rights in the estate, to have to pay not only the costs of such suit, but the attorneys’ fees also, incurred by the executor in his effort to probate such will; while the named executor would pay nothing, although he was the loser in such suit.”

Further:

“We think that the executor could have had submitted to the jury, along with the other issues, the question of good faith on his part in offering the will for probate; and if the jury had found that, under all the circumstances, he had acted in good faith, then he would have been entitled to judgment for such attorneys’ fees and court costs. This was not done; and the judgment became final. We do not think the rule should be extended further than this, in order to let him recover in a subsequent proceeding.”

We believe the stated principles are applicable here, even though in the Huff case he, as the named executor, was found guilty of undue influence upon the maker of the will — a situation not present here. In the instant case there was no pleading by the Proponent of the 1960 will alleging “good faith” and “just cause”, and while there may be nothing shown to the contrary, the evidence does not affirmatively establish these matters, nor is there any showing of the amount of costs or attorney’s fees owing, and no issue was requested or submitted to the jury on these elements.

In the light of the foregoing authorities, we are constrained to overrule Point of Error No. Six.

All points of error having been considered and overruled, the judgment of the trial court is accordingly in all things affirmed.


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    LILAC VARIETY, INC., et al., Appellants, v. DALLAS TEXAS COMPANY et al., Appellees.
    No. 16408.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 25, 1964.
    Rehearing Denied Oct. 23, 1964

      Locke, Purnell, Boren, Laney & Neely and Larry M. Lesh, Dallas, for appellants.
    Goldberg, Fonville, Gump, Strauss & Hauer, Dallas, for appellee.
   DIXON, Chief Justice.

Lilac Variety, Inc. and T G & Y Stores, a Corporation, have appealed from a summary judgment in favor of Dallas Texas Company, a Corporation. By its judgment the court in effect construed a lease contract so as to hold that under the undisputed facts appellants were not entitled to cancellation of the agreement. Both sides had filed motions for summary judgment.

On May 12, 1958 Holaday Development Company, owners and developers of a suburban shopping center, entered into a lease agreement covering a period of 15 years with T G & Y Stores whereby the latter company leased premises for the operation of a retail store. The present controversy revolves around the interpretation to be given to the provisions of the fourth section of the contract. Material portions of said section are as follows:

“CONSTRUCTION. 4 It is further understood and agreed that the Lessor shall at its sole expense furnish, install and construct the leased premises and the shopping center in accordance with the plans, Exhibit ‘A’; specifications, Exhibit ‘B’; and plat plan, Exhibit ‘C’; attached hereto and made a part of this contract.
“It is further understood and agreed * * * that Eighty (80%) percent of the completed building area shall be occupied by reputable tenants, and they 'shall be doing business within one hundred twenty (120) days from the time of Lessee’s opening for business, and said tenants shall include:
“Supermarket — A.C.F. Wrigley Stores
“Department Store — W. T. Grant Co.
“Drug Store — Ward Drugs
“Auto Supply — Western Auto Supply Co.
“It is the agreement and understanding of the parties hereto that all buildings shown on Exhibit ‘C shall be and remain in existence at all times during the term of this lease of any extension thereof, and that the supermarket, department store, and other major tenants shall remain as tenants and located as per proposed location on Exhibit ‘C’ at all times during the term of this lease or any extension thereof.
“In the event Lessor fails to comply with any of the above provisions, Lessee shall give immediate written notice of such default to Lessor, and in the event that Lessor fails to cure said default within sixty (60) days from the date of such written notice, the Lessee, at its option, may cancel this lease.”

On September 6, 1958 T G & Y Stores subleased the premises to appellant Lilac Variety, Inc. which company thereafter began operation of a retail store. Within the 120-day period specified in the lease A.C. F. Wrigley Stores, having leased adjoining premises, opened and began operation of a supermarket.

Shortly prior to April 26, 1962 A.C.F. Wrigley Stores closed the doors to its leased premises and discontinued operation of its supermarket. The said premises have since remained vacant except for use by A.C.F. Wrigley Stores for storage of the fixtures formerly used by the company in the operation of its supermarket.

On May 3, 1962 appellants by letter notified Holaday Development Company, Inc. that A.C.F. Wrigley Stores had discontinued operation of its supermarket and that Holaday was therefore in default of the fourth section of the lease with appellants. The letter was sent in compliance with the sixty-day notice required by the lease.

On August 27, 1962 Holaday by letter informed appellants that on August 15, 1962 Holaday had sold the entire shopping center to Dallas Texas Company, and all existing leases had been assigned to Dallas Texas Company.

On August 30, 1962 appellants notified George S. Klein, agent for Dallas Texas Company, of the alleged default in their lease agreement, enclosing a copy of their letter of May 13, 1962 to Holaday.

An exchange of correspondence subsequently took place between appellants and George S. Klein Company. Klein stated that every effort was being made to obtain a suitable supermarket for the location; and expressed the hope that appellants would continue to operate their store. In reply appellants reiterated their claim of default, but said that if Klein should secure “as a tenant a supermarket which would be an acceptable substitute,” they would be willing to consider waiving the requirement as to A.C.F. Wrigley Stores.

It is apparent from the record that no such substitute supermarket was obtained by Klein. The premises formerly used by A.C.F. Wrigley Stores for the operation of a supermarket remained vacant except for use for storage of the supermarket fixtures. Appellants submitted to Dallas Texas Company an instrument cancelling the lease, but appellees refused to sign said instrument or to cancel appellants’ lease.

Evidently A.C.F. Wrigley Stores is still bound by the terms of its lease agreement, for Wrigley has continued to pay its rent under its lease contract notwithstanding the fact that it discontinued operation of its supermarket some time prior to April 26, 1962.

This suit was filed by appellants April 4, 1963. Appellants pray for a declaratory judgment decreeing that “said lease is can-celled and of no further force and effect.” American National Insurance Company, holder of a mortgage against the shopping center, was also made á party defendant, but it filed a disclaimer and is not involved in this appeal.. • • .

OPINION

In two points on appeal appellants attack the court’s action in overruling their motion, for summary judgment and in sustaining that of appellee. In two counterpoints ap-pellees defend the court’s action.

The parties agree that the lease contract in question is unambiguous, yet they disagree as to its meaning. Appellants say it means that a supermarket operated by A.C.F. Wrigley Stores shall remain in existence in the shopping center throughout the term of the lease. Appellee, on the other hand, says that the lease means merely that A.C.F. Wrigley Stores shall remain as a tenant without necessarily continuing to operate a supermarket.

We agree with appellants. In our opinion the language of the lease permits of no other interpretation. It provides that, the area shall be occupied by reputable tenants who shall be “doing business” within 120 days from the time of lessee’s opening for business, and that said tenants shall include "Supermarket A.C.F. Wrigley Stores”. We think the next paragraph is especially significant, for it expressly and explicitly provides that “the supermarket, department store and other major tenants shall remain as tenants and located as per proposed locartion 011 Exhibit C at all times during the term of the lease * * * ” (Emphasis supplied).

A cardinal rule in the interpretation of contracts not alleged to be ambiguous is to ascertain and give effect to the intention of the parties as revealed by the language used in the contract itself. Furthermore the court will view the agreement as of the time it was made. Ervay, Inc. v. Wood, Tex.Civ.App., 373 S.W.2d 380; Richker v. Georgandis, Tex.Civ.App., 323 S.W.2d 90, 98; Orr v. Vandygriff, Tex.Civ.App., 251 S.W.2d 573, 574. The words used in the contract will he given their ordinary and accepted meaning. J. R. Gray Company v. Jacobs, Tex.Civ.App., 362 S.W.2d 167, 171; Dilger v. Dilger, Tex.Civ.App., 271 S.W.2d 169, 172; Pardo v. Southampton Civic Club, Tex.Civ.App., 239 S.W.2d 141, 143, 149.

Webster’s New World Dictionary defines supermarket as “A large food store or market in which shoppers serve themselves from open shelves, and pay for their purchases at the exit.” See also Rosen v. Pustilnik, Sup., 204 N.Y.S.2d 222, 223.

In 55 C.J.S. p. 784 it is said that the “term ‘market’ conveys the idea of selling, and it assumes the existence of trade and implies competition, and also implies the existence of supply and demand, for, without the existence of either factor, no market is shown.” See also State v. Penniman, 224 La. 95, 68 So.2d 770, 773; Sitzes v. Raidt, 335 S.W.2d 690, 699 (Mo.App.); Mottolla v. United States, D.C., 149 F. Supp. 189, 194.

We think it is common knowledge that the volume of pedestrian traffic at the site of a retail merchandising business is a factor which affects the gross sales potential of the business. That being so the purpose and the importance to appellants of the lease provisions with reference to a supermarket are obvious. Plainly the parties intended that a supermarket should be in operation during the term of the lease. We find it impossible to believe that when the parties entered into this lease agreement it was intended that the particular lease provision in question would be satisfied if A.C.F. Wrigley Stores should continue to pay rent on an idle store building after discontinuing operation of the supermarket.

It is true, as appellee says, the lease contract does not in exact words stipulate that A.C.F. Wrigley Stores will not discontinue operation of the supermarket during the term of the lease, but we believe such a provision is necessarily implied from the plain language of the agreement.

Our Supreme Court has said, “A contract includes not only what is expressly stated but also what is necessarily to be implied from the language used; and terms which may clearly be implied from a consideration of the entire contract are as much a part thereof as though plainly written on its face.” Freeport Sulphur Co. v. American Sulphur Royalty Co. of Texas, 117 Tex. 439, 6 S.W.2d 1039, 1042, 60 A.L.R. 890. See also Roseborough v. Loftus, Tex.Civ.App., 13 S.W.2d 950, 952 and Marvin Drug Co. v. Couch, Tex.Civ.App., 134 S.W.2d 356, 361.

Appellee argues that if we imply an agreement for the continuing operation of a supermarket, we would also have to imply the terms of the agreement in respect to hours of operation, number of employees and amount of inventory, as well as whether temporary cessation of operation would be allowed for holidays, remodeling, restocking, etc., and if so, the permissible length of such temporary cessations.

We see no merit in appellee’s argument as above stated. We are not confronted by any issues pertaining to temporary cessation. The only question before us is whether the total and permanent discontinuance of the operation of the supermarket entitles appellants to a cancellation of their lease contract. We think it does.

Appellants’ two points on appeal are sustained.

Ordinarily when a summary judgment is reversed on appeal the cause is remanded to the trial court for trial on the merits. However, our Supreme Court has held that when both parties file motions for summary judgment and one such motion is granted, the Court of Civil Appeals should determine all questions presented. If reversible error'is found the court should render such judgment as the trial court should have rendered. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400; see also Rule 434 Texas Rules Civil Procedure.

We therefore reverse the judgment in this case and render judgment in favor of appellants decreeing that the lease agreement is cancelled.

Reversed and rendered


author: FRASER, Chief Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Wilson DUNN, Appellee.
    No. 5661.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 23, 1964.
    Rehearing Denied Oct. 21, 1964.
    Max N. Osborn, Thornton Hardie, Jr., Turpin, Kerr, Smith Dyer, Midland, for appellant.
    Warren Burnett, Bill Alexander, Odessa, • for appellee.
   FRASER, Chief Justice.

This is a Workmen’s Compensation case wherein appellee obtained a judgment for maximum benefits under the law as the result of findings by the jury that he had sustained total and permanent incapacity from accidental personal injuries.

Appellant presents two points for our consideration, the first being that the trial court erred in excluding evidence that the plaintiff-appellee’s witness, designated by appellant as a “before and after” witness, had been convicted of a felony involving moral turpitude. The second point alleges error on the part of the trial court because it excluded evidence that this same witness was biased and prejudiced because he had a compensation suit of his own pending at the time he testified.

With regard to the first point ap-pellee maintains that the conviction, sought to be introduced in an effort to impeach the credibility of witness Thomas B. Burk, was too remote to entitle it to be admitted in evidence, which is what the trial court held. We must agree with the position of appellee. The witness Burk had been convicted in 1954 for committing what he termed “burglarizing”. He apparently served a year and seven or eight days. This matter is set forth in a Bill of Exception, which shows that he admitted the conviction and the punishment, and also that he had been convicted once before some nine years previously, which appellant computes to have been when he was about 18 years of age. This first conviction was also for some sort of breaking in, for which he received a suspended sentence in the State of Oklahoma. There is no dispute but that the conviction of an individual of a crime involving moral turpitude can be admitted for the purpose of impeachment or to attack the credibility of a witness, but such is not admissible if it is too remote. The cases we have examined all indicate that this is a matter resting largely on the discretion of the trial court, which must take into consideration all the facts and circumstances present at the time the testimony is proffered. His decision to admit or exclude the testimony because of remoteness, being one of judicial discretion, will not be disturbed unless it is evident that the trial judge abused his discretion in the ruling made. Some courts even go farther and say that in a case where there is any doubt of the propriety in admitting the evidence of the conviction, the trial court should exclude it. Since witness Burk’s release, there is no evidence except that he himself, in the Bill of Exception, testified that he had been picked up a few times for drinking too much and fighting. According to appellant’s calculation, he was 27 years old at the time of the second offense.

We think this question is satisfactorily discussed, reviewed and disposed of in the following cases: Adams v. State Board of Insurance, Tex.Civ.App., 319 S.W.2d 750; United Benefit Fire Insurance Co. v. Stock, Tex.Civ.App., 344 S.W.2d 941. The above cases review the preceding decisions touching on this matter, and in the Adams case the court there says as follows:

“The admissibility of a conviction with regard to its remoteness is a matter which rests within the sound discretion of the trial court. 45 Tex.Jur. 234, Sec. 317; Carr v. De Witt, Tex.Civ.App., 171 S.W.2d 388, ref. want merit; York v. Glenn, Tex.Civ.App., 242 S.W.2d 653, no writ history; Bunch v. Texas Employers’ Ins. Ass’n., Tex.Civ.App., 209 S.W.2d 657, no writ history; Dillard v. State, Tex.Cr.App., 218 S.W.2d 476; Shipp v. State, 104 Tex.Cr.R. 185, 283 S.W. 520.”

The United Benefit Fire Insurance Company v. Stock case, supra, cites the Adams case, among others, and says as follows: “Whether or not under the facts of this case such conviction was too remote to be admissible was a question for the Trial Court in the exercise of its sound discretion.” We should like to point out that this decision specifically states, as do others, that the problem depends largely on the facts of the case in question, as noted in the quotation above. The Texas Court of Criminal Appeals, in Lott v. State, 123 Tex.Cr.R. 591, 60 S.W.2d 223 (1933) states that the trial court should carefully ascertain and consider the available facts and circumstances and if, after having done so, there should be left any doubt on the propriety of admitting the evidence, it should be excluded. We have reviewed the record here and do not find that the trial court abused the broad discretion vested in him in a matter of this nature..' It- must be remembered that this matter concerned a witness — not a party— nor was his mind being explored as to his qualification for jury duty. He was one of several witnesses, including a doctor, and while his testimony was perhaps the strongest of any lay witness, his was not the only lay testimony, the record showing that one Cox, the appellee’s wife, and one James E. Morris also testified in plaintiff’s behalf and in support of plaintiff’s claim.

There is considerable discussion in the briefs as to when the time relating to the remoteness of the crime should be computed, some courts holding that the remoteness should begin at the time of his incarceration or conviction, others holding that it should begin to run only upon his release from confinement. We do not think that a definite rule can be laid down as to that point; and, in any event, the matter before us involves only the difference of a year and seven days whichever way the matter is computed. Also, by the same token, we feel that there cannot be any definite number of years set up as a time limit defining “remoteness”. This matter is discussed by some of the decisions and, we feel, correctly disposed of in the two cases cited above which state that the trial judge, in exercising his discretion, should take all of the facts and evidence into consideration. We therefore do not believe, as appellant would urge, that any conviction less than ten years remote from the proffered testimony should be admitted, as this would set an inflexible cutting-off point, which we do not think could or should exist where the trial court is endowed with so much discretion and is, in fact, obligated to exercise it.

Turning now to appellant’s cases, it will be noted that many of the cases cited are decisions of the Court of Criminal Appeals and involve an actual party or defendant, rather than a witness. For example, in his reply brief the appellant cites Couch v. State, 158 Tex.Cr.R. 292, 255 S.W.2d 223 (1953), wherein the Court of Criminal Appeals says: “It is now well settled that the time of release from confinement rather than the time of conviction shall control in determining the question of remoteness.” However, examination of that case reveals that the court relied on, or at least cited, only one case as authority for the statement above set forth. This was the case of Toms v. State, 150 Tex.Cr.R. 264, 200 S.W.2d 174. It involved an appellant appealing from a conviction of murder. The decision recites that he was once before convicted of murder, but this case (which is the one case cited in support of the above quotation), while holding that “remoteness” should be computed from time of release, also states in its own language: “While there is no set rule in years in determining the remoteness of a previous conviction for a felony or crime involving moral turpitude * * *.” Even in this case cited by the Court of Criminal Appeals in Couch v. State as authority for its holding cited above, the court specifically says there is no set rule. And of course there couldn’t be if the trial judge is vested with broad discretionary powers. Appellant also cites a decision by this court — to-wit, Texas Employers’ Insurance Ass’n v. Curry, Tex.Civ.App., 290 S.W.2d 767—and includes in its brief the following quotation from said case: '

“The law is well settled in Texas and elsewhere that where a witness in a civil case has been legally charged by indictment with an offense involving moral turpitude, and has been legally convicted of such offense in a court of competent jurisdiction, such matters are admissible as evidence touching his credibility as a witness.”

We have no fault to find with that statement of law; but in that particular case the facts were considerably different than arc the facts present in the case before us. In the Curry case the appellant offered the record, or records, of the two convictions of Curry, including the indictments and the sentences. Curry was not a witness, but was a party, and he had testified contrary to what the records revealed to be the true facts. In other words, he testified that he had been convicted of murder without malice in the one case, when, in truth and in fact, he was indicted for murder with malice; and in the other case he testified that it was only a misdemeanor, because the stuff was only worth $7.50 that he stole, but the indictment alleged the material to be worth $300.00. So, in the Curry case, we have a party testifying contrary to the actual court records. We therefore do not feel that that case has any application to the matter before us. The only consideration that we have to dispose of here is the matter of remoteness; and, as we have said above, having examined the record we do not think the trial judge abused his discretion in excluding evidence of the witness’ prior conviction. Appellant’s first point is therefore overruled.

Appellant’s second point charges the trial court with error in excluding evidence offered to show bias or hostility, to the effect that this same witness had a pending compensation suit. The Bill of Exception reveals that this suit was in Montague County, and that witness was represented by an attorney from Wichita Falls, Texas. It is also, we think, worth noting that the witness himself, during his testimony, stated as follows:

“Q You don’t know how he could get along doing that kind of work, do you?
“A No, sir. Like I stated, I don’t believe he could do it, but I have no doctor’s knowledge, you know.”

This testimony, of course, doubtless went into the trial court’s consideration of the matter. Here again it must be noted that Burk was not a party, only a witness, and counsel was not exploring his mind as a prospective juror. Then, too, the trial court permitted the witness to testify only as to what he knew based on his observation of the plaintiff-appellee, rather than opinion. In his testimony relative to appellant’s second point contained in the Bill before us, he states as follows:

“Q I appreciate the fact that he knows about it, but you are trying to help each other in the matter. Is that right?
“A Well, no, I just came to tell the truth.”

We include these excerpts only to illustrate what the trial judge heard. Apparently he chose to believe these statements, and they undoubtedly played a part in the rulings that he made and, of course, must have influenced him in exercising the discretion vested in him with regard to the said rulings. Of course the fact that a witness has a similar suit pending is not a disqualification, and appellant cites us no cases to that effect in its brief, but relies on quotations from the textbook of McCormick & Ray. These quotations are all to the effect that a witness may be impeached by a showing of interest, bias, prejudice or other motive which tends to affect his credibility. Examination of the record and the Bill of Exception does not show that the appellant was successful in showing any bias or prejudice, and we therefore feel that no reversible error was committed in excluding this matter under the circumstances and based on the record itself. We do not wish to take the position that such testimony is inadmissible. We think it generally is admissible, but we don’t think its exclusion here was reversible error because, again, after hearing the testimony contained within the Bill, the trial court was vested with discretion in deciding whether this testimony was admissible or sufficient, or useful, in impeaching or attacking the credibility of the witness. Appellee cites the following cases as authority for the statement that the trial court must, in his discretion, decide whether or not the mere fact that the witness had filed a claim or suit for Workmen’s Compensation was strong enough evidence to form the basis of an inference of hostility or partiality: Texas Employers Insurance Ass’n. v. Spivey, Tex.Civ.App., 286 S.W.2d 197 (n. r. e.); Texas Employers Insurance Ass’n. v. Garza, Tex.Civ.App., 308 S.W.2d 521 (n. r. e.). The information presented to us here does not indicate that the trial court did abuse his discretion, and we so hold. Appellant’s second point is therefore overruled.

It must also he noted that the testimony from the witness Burk was cumulative; for, as we have pointed out, there were other lay witnesses and strong medical testimony. All of these things, of course, went into the matter of discretion by the trial judge.

Appellant’s two points of error having been overruled, the decision of the trial court is in all things affirmed.


author: DUNAGAN, Chief Justice.

text:
    Don L. FAVER, Appellant, v. O. P. LEONARD et al., Appellees.
    No. 81.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 15, 1964.

      Glenn Faver, Jasper, B. R. Reeves, Palestine, for appellant.
    Robert Stahala, Garrett, Hodges & Sta-hala, Fort Worth, R. E. Swift, Palestine, for appellees.
   DUNAGAN, Chief Justice.

DESIGNATION OF THE PARTIES

The Appellant is Don L. Faver, the Plaintiff in the Trial Court. The Defendants in the Trial Court, O. P. Leonard et al.,- are the Appellees.

NATURE OF THE SUIT

Appellant, Don L. Faver, who resides in Palestine, Anderson County, Texas, is engaged in" contract hauling of sand and gravel", brought this suit against Obie P. Leonard, Jr., Obadiah Callaway, Margery Ann Hodges and husband, Leland A. Hodges, Martha Jane Anthony and husband, James E. Anthony, and R. W. Leonard, seeking judgment for services rendered the Appel-lees for gravel hauled and delivered by Appellant "to Appellees’ ranch in Anderson County from February 18, 1963, until May 24, 1963, inclusive, aggregating the total sum of SIXTY EIGHT HUNDRED DOLLARS ($6,800.00).

Appellant, in his Third Amended Original Petition upon which he went to trial, alleged that he was

“ * * * engaged in contract hauling of sand and gravel * * *. That the defendants, O. P. Leonard, Obie P. Leonard, Jr., Margery Ann Hodge Hodges and husband Leland A. Hodges, Martha Jane Anthony and husband James E. Anthony, and R. W. Leonard, as aforesaid are resident citizens of Ft. Worth, Tarrant County, Texas, and own and operate many farms and ranches in Texas, Arkansas, Missouri and New Mexico, and are the owners and operators of a farm or ranch known as the Anderson County, Ranch, on the Trinity River in Anderson County, Texas, and has at all times and places incident and pertinent to this suit retained Obadiah Callaway as their ranch foreman or manager of the Anderson County Ranch located in Anderson County, Texas, as aforesaid alleged, and the said Obadiah Callaway had the responsibility of the control, management and direction of the said Anderson County, Ranch, and, whereas because of the rains and because of the condition of the terrain, it became necessary for gravel to be spread in the lots and on certain roads located on said ranch, and the said Obadiah Callaway, pursuant to his duties and within the course and scope of his employment for his then employers, O. P. Leonard, Obie P. Leonard, Jr., Margery .Ann Hodges, and husband Lelana A. Hodges, Martha Jane Anthony and husband James E. Anthony and R. W. Leonard, retained Don L. Faver, * * to haul and place'gravel on the premises of the Anderson County Ranch, in Anderson County, Texas. That on or about October 16, 1961, the defendant Obadiah Callaway, as superintendent and general manager of the Anderson County Ranch, entered into a contract or agreement with Don L. Faver whereby the said Don L. Faver agreed to and assumed the responsibility of hauling gravel to said Anderson County Ranch * * * for a period of approximately two years, and after a series of hauls of gravel were made, the said Obadiah Callaway, who was on the scene of said Ranch and inspected the hauling of said gravel and likewise supervised the spreading of said gravel and in general supervised and controlled said work, would mail to said defendants in Ft. Worth, Texas, a form of authorization for payment by the other defendants to Don L. Faver for the services rendered in the gravel hauling.
“That said gravel was hauled at the instance and request of defendant Obadiah Callaway as ranch foreman for the other defendants who were the owners of said Ranch, * * * for which he was paid the contract price therefor, to the satisfaction of all parties.
“That, * * * this relationship prevailed to the complete satisfaction and approval of all parties up until February 18, 1963, and during the interim of time from the beginning until February 18, 1963, there was no complaint registered by Obadiah Callaway and/or the other defendants. That during this interim of time the said Obadiah Callaway * * * at various intervals mailed in authorization for payments for the gravel hauled. * * which services were rendered by Don L. Faver in keeping with and pursuant to the contract or agreement entered into with Obadiah Callaway and the other defendants, for which Obadiah Callaway in all his activities herein was acting within the course and scope of his employment for his employers, the other defendants herein, and who was under the course and supervision of the other defendants at all times and places pertinent to this suit, * * *.
“That each and all of the aforesaid hauling of gravel to the Anderson County Ranch from February 18, 1963 to May 24, 1963, was done and performed in Anderson Countyt, Texas, and was done and performed at the instance and request of Obadiah Calla-way and the other defendantw, and was done and performed in a workmanlike manner * * *. That said work was done and performed under the direct supervision and direction of Obadiah Callaway * * * and and after said work was completed as per his instructions, he then mailed an authorization of purchase order to the other defendants in Ft. Worth, Texas, requesting that indebtedness of SIXTY EIGHT HUNDRED DOLLARS be in all things paid and then for the first time the other defendants failed and refused, and still fail and refuse, to pay said indebtedness of SIXTY EIGHT HUNDRED DOLLARS, though often requested to pay same.
“That on or about March 28, 1963, the plaintiff became concerned about the non-payment for his services rendered as per contract agreement, and on said date he drove out to the Anderson County Ranch or Anderson County Farm of defendants for the purpose of picking up his machinery and equipment and discontinuing further pursuit of the job, and on said occasion he saw defendant Obadiah Calla-way and advised him of his intention of such discontinuation of his work,.f and thereupon said Obadiah Callaway insisted that he continue said gravel hauling; that they absolutely had to have additional gravel on the Ranch and that if plaintiff would continue hauling said gravel until the contract was completed, he, Obadiah Callaway, would personally pay plaintiff for his services rendered in hauling the gravel that had already been delivered and for the additional services to be rendered by plaintiff at the completion of the job, and that upon such representation by the said Obadiah Callaway that he would personally pay for said items,' plaintiff continued to haul the gravel as per contract until on or about May 24, 1963, and the said Obadiah Calla-way thereby became jointly obligated to pay said items, as aforesaid, and but for such misrepresentation and personal agreement on the part of defendant Obadiah Callaway to pay said items the said plaintiff would have removed his equipment and discontinued further pursuit of the job. Though often requested, defendant Obadiah Calla-way and all the other defendants herein, have failed and refused to pay said items in the sum of SIXTY EIGHT HUNDRED DOLLARS, * * * ”

Plaintiff prays that upon a final hearing he have judgment against Defendants jointly and severally for the sum sued for.

Appellees filed their Pleas of Privilege seeking to have the cause of action against them transferred to Tarrant County, Texas, the place of their residence.

To summarize the pleadings, the principal action is a suit by Appellant against (1) Appellees, one or more of whom own a farm situated in Anderson County, Texas, and (2) Obadiah Callaway, the manager of the farm who resides in Anderson County, Texas. Appellant’s claim is for sums allegedly due for gravel hauled to the farm. Appellees’ contention is that Appellant charged for more gravel than was delivered.

After service of citation, Appellees duly and properly filed their Pleas of Privilege to be sued in Tarrant County, the county of their residence. Appellant filed a Controverting Plea alleging that the exception to the general venue rule provided by Subdivision 4, Article 1995, Vernon’s Ann.Rev.Civ.St., was applicable, necessitating that he prove a cause of action against Callaway. Appellant in his original petition and his first and second amended original petitions, allege that Callaway “guaranteed” his debt. Later, Appellant amended his petition claiming that Callaway “personally promised” to pay the debt, but alleged no consideration for such a promise.

A hearing was had on the Pleas of Privilege, after which the Trial Court entered an order sustaining the same and transferring the cause as to Appellees to the 48th District Court of Tarrant County, from which the appeal was taken.

Appellant requested the Court to make findings of fact and conclusions of law. The Court found, in part, that

“Plaintiff is engaged in contract hauling of sand and gravel in Anderson County, Texas. Defendant Obadiah Callaway at all times material to this hearing was in the employ of the other defendants in Anderson County, Texas, as their ranch foreman or manager. As such manager and agent for the other defendants, he contracted with the plaintiff for the said plaintiff to haul gravel to their Anderson County Ranch. That under said contract plaintiff hauled gravel for these defendants over a period of approximately two years, and until on or about March 28, 1963, he being paid for all gravel hauled prior to February 18, 1963.
“On or about March 28, 1963, Plaintiff not having been paid for any gravel hauled since said February 18th, went to the Leonard Ranch to pick up his equipment and discontinue hauling gravel for defendants. On said occasion, he saw the defendant Obadiah Callaway, and advised him of his intention to quit. Obadiah Callaway at this time insisted that plaintiff continue to haul gravel to the Leonard Ranch, stating to the plaintiff that it was essential that they have this additional gravel, and that if he the plaintiff would continue hauling gravel until the contract was completed, he, the said Obadiah Callaway would personally pay plaintiff for all gravel hauled since February 18, 1963, and would personally pay him for all additional gravel hauled. Acting upon this promise and representation of Obadiah Callaway, the plaintiff continued to haul and deliver gravel to the Leonard Ranch until on or about May 24, 1963 — and had it not been for the promise and representation of the said Obadiah Callaway, the plaintiff would not have hauled additional gravel after March 28, 1963.
“Obadiah Callaway in all his dealings with Don L. Faver, plaintiff, and in those dealings and agreements out of which the law suit arises, was acting within the course and scope of his employment for defendants, as their agent, and that he was authorized to employ plaintiff to haul this gravel for the defendants other than himself during all of the period that said plaintiff did haul same.
“Plaintiff during the period from February 18, 1963, to May 24, 1963, both dates inclusive, hauled and delivered gravel to the Leonard Ranch, for which he was entitled to be paid the sum of $6800.00; that this amount, and no part of same, has been paid to the plaintiff, and that plaintiff is the legal owner and holder of said claim.”

The Trial Court concluded as a matter of law that

“The promise made by Obadiah Callaway being a promise within the Statute of Frauds, and the consideration therefor, the hauling of the gravel by plaintiff, in an ordinary case would be a sufficient consideration; however, in a case involving the statute of frauds said consideration is not sufficient as there is no new and independent consideration flowing to Obadiah Callaway. ‘In order to take his promise out of the statute, he must be bargaining for a consideration that is beneficial to himself and that constitutes his primary objection of desire. So the court holds that where there is a new and independent benefit or detriment to the promisor, then the statute of frauds is no defense; but where there is no new and independent benefit or detriment, the promise is unenforceable as a violation of the statute of frauds.’ * * *”

At the time of the hearing on the Plea of Privilege, Callaway had filed his verified answer denying under oath the account, denying that he had made any promise to pay anyone’s indebtedness, and alleging that there was no consideration flowing to him for any promise and that such purported promise being oral, same was not and had never been enforceable under the Statute of Frauds, Article 3995, Subdivision 2, R.C.S.

The question before this Court is: was there sufficient consideration in law to remove the promise of Callaway from the Statute of Frauds.

The Statute of Frauds, Article 3995, R.C.S., provides as follows:

“No action shall be brought in any court in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized:
“ * * *
“2. To charge any person upon a promise to answer for the debt, default or miscarriage of another; or,
«* *

The answer to this question is controlled by Gulf Liquid Fertilizer Company v. Titus, 354 S.W.2d 378, Supreme Court of Texas, wherein the Court said:

“The next inquiry is whether there was sufficient consideration to support Titus’s promise to pay Stracner’s note. Muller v. Riviere, 59 Tex. 640 (1883). There must of course be sufficient consideration to make any promise a binding and enforceable one. 1 Corbin, Contracts (1950 ed.), § 110. * * *
“There is a difference between adequacy of consideration in law and the sort of consideration which the courts say is necessary to take the promise out of the Statute. Professor Corbin explains this difference:
“‘It should be noted in the beginning that a consideration may be sufficient to satisfy the requirements of the common law of contracts without being sufficient to satisfy the “leading object” rule and take the promise out of the statute- of frauds. A promise is not out of the statute merely because there is a consideration for it. * * * The statute is applicable to promises to answer for the debt of another for which there is some sufficient consideration. It appears, however, that certain kinds of consideration will prevent a promise from being one “to answer for the debt of another” and will make the promisor a debtor on his own account.’
2 Corbin, Contracts, (1950) ed.) 279, § 367.
Corbin continues:
“ ‘The “leading object” that is sufficient to take a promise out of the statute must be found in the consideration for the promise and not in the promise itself or in the result of its performance. The promise is itself a promise to a creditor to pay a debt due to him from a third party; if it is not such a promise, it is certainly not within the statute. The performance of the promise will clearly benefit the creditor; and it will benefit the debtor too by discharging his duty to that creditor. * * * The promisor is not in the least benefited by the performance of his own promise. In order to take his promise out of the statute, he must be bargaining for a consideration that is beneficial to himself and that constitutes his primary object of desire.’

The Court further said:

“The ‘leading object’ or ‘main purpose’ rule has been adopted by the American Law Institute in its Restatement of the Law of .Contracts, Section 184. This rule was announced by this court in Lemmon v. Box, 20 Tex. 329, (1857), where it said:
“ ' * * * that wherever the main purpose and object of the promisor is, not to answer for another, but to subserve some purpose of his own, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing the liability of another.’ ”

In the case at bar the leading object of the Appellee Callaway was not to subserve some purpose of his own. He was merely an employee of the other Appellees on a monthly salary. He did not own any interest in the property upon which the gravel was being spread. The evidence reveals that he left his employment on August 1, 1963.

Appellant did not plead that there was any consideration flowing to Callaway for his promise. Appellant did not offer any proof at the hearing of any benefit that would result to Callaway if Appellant continued to haul gravel or any detriment that would result to Callaway if Appellant refused to continue hauling gravel.

The Courts have used two or more of the following tests to determine whether an oral promise is outside of the Statute of Frauds: (1) the promise was made to subserve some main purpose of the promis- or; (2) the promisor agreed to become primarily liable for the test of the debtor, and not simply or only to act as a guarantor or surety; and (3) the promise was supported by consideration. Whatever test is used the promise must be supported by consideration. It is now settled that the-“main purpose” doctrine is applicable in this state. Gulf Liquid Fertilizer Company v. Titus, supra.

Other authorities supporting this rule of law are: Housley v. Strawn Mdse. Co. (Tex.Com.App.) 291 S.W. 864; Lemmon v. Box, 20 Tex. 329; Higginbotham-Bartlett Co. v. Dickey, (Tex.Civ.App.) 27 S.W.2d 248, writ dismissed, and McDonald v. Trammel, Tex.Civ.App., 351 S.W.2d 89, affirmed by Supreme Court, 356 S.W.2d 143.

The Appellant does not challenge the findings of fact, but only the conclusion of law. We think the Trial Court reached the proper conclusion.

Appellant’s pleadings do not contain any allegation that there was any consideration flowing to Callaway for his promise to pay any indebtedness. No evidence was offered at the hearing of any consideration of any kind or nature flowing to or beneficial to Callaway for his purported promise. As pointed out above, Appellant sought to retain venue in Anderson County under Subdivision 4 of Article 1995, R.C. S. Continuously since the case of Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, Supreme Court, it has been necessary for the Plaintiff to both plead and prove a bona fide cause of action against the resident Defendant in order to retain venue against the non-resident Defendant. The burden is on the Plaintiff to prove each and every element of his cause of action against the resident Defendant. This venue fact is based upon the proposition that the Plaintiff should satisfy the Court upon the venue hearing that he had not sought to defeat Defendant’s Plea of Privilege by fraudently joining a local Defendant in fictitious allegations which he cannot prove. Park v. Wood, 146 Tex. 62, 203 S.W.2d 204, Supreme Court; Stockyards Nat. Bank v. Maples, supra; Richardson v. D. S. Cage Company, 113 Tex. 152, 252 S.W. 747, Supreme Court. The Plaintiff must introduce competent evidence sufficient to prove a cause of action against the resident Defendant under the allegations relied upon. Tunstill v. Scott, (Tex.Civ.App.) 1938, 120 S.W.2d 274, no writ history; Fester v. Locke, (Tex.Civ.App.) 1955, 285 S.W.2d 239, no writ history; Fikes v. Bogle, (Tex.Civ.App.) 1964, 376 S.W.2d 392, no writ history. The Trial Court having correctly found that Appellant failed to allege or prove any new and independent consideration flowing to Callaway, Appellant has not proved a cause of action against Callaway, the resident Defendant. It therefore necessarily follows that Appellant cannot maintain this action. as against Appel-lees in Anderson County, Texas.,

The Trial Court’s order transferring the cause of action against the Appellees to the 48th District Court of Tarrant County, Texas, is affirmed.