author: GREENHILL, Justice.

text:
    GREAT AMERICAN RESERVE INSURANCE COMPANY, Petitioner, v. SAN ANTONIO PLUMBING SUPPLY COMPANY, Respondent.
    No. A-10159.
    Supreme Court of Texas.
    April 21, 1965.
    Rehearing Denied June 23, 1965.

      Brundidge, Fountain, Elliott & Churchill, Dallas, for petitioner.
    LeLaurin, Chamberlin, Guenther & Mur-ry, Bettie J. Stock, San Antonio, with above firm, for respondent.

      . Emphasis throughout opinion is supplied.

   GREENHILL, Justice.

This is a suit by San Antonio Plumbing Supply Company, hereafter called SAPSCO, against Great American Reserve Insurance Company on a policy insuring the life of one of its officers, Sul Ross. Both parties filed motions for summary judgment. The trial court granted the motion of plaintiff, SAPSCO, and overruled that of defendant, Great American. Summary judgment was entered for the plaintiff. The Court of Civil Appeals reversed, holding that there was a disputed fact issue and that the trial court erred in granting the motion of SAPSCO. It also held that there was no error in overruling Great American’s motion. The cause was remanded to the district court for a trial. 378 S.W.2d 141 (1964). Both parties applied to this Court for writ of error, and both applications were granted. SAPSCO complains of the reversal of its judgment, and Great American contends judgment should be rendered in its favor. We hold that there is no genuine issue as to any material fact and that Great American is entitled to judgment as a matter of law.

In November, 1961, Sul Ross, Martin Reinhard, and two others were officers of SAPSCO. They decided to take out “key-man” insurance on their lives for the benefit of the company. All four men executed applications for life insurance which were furnished to them by Darrell Barnes as agent for Great American. Each application, which was made a part of the policies, contained the following language:

“That the policy hereby applied for shall not take effect unless the insured is alive at the time of its delivery to the insured provided that if this application is approved by the company and policy issued as applied for, and provided the first premium has been paid, the insurance * * ⅜ shall be effective from the date of this application * * * and, provided further, that in no event, shall the insurance * ⅜ * take effect unless the insured is in sound health at the time of making this application.”

Ross’s physical examination disclosed high blood pressure and excess sugar in his urine. Barnes, the insurance agent, sent the application and the results of the physical examination to Great American’s home office at Dallas. From this information, the home office “rated up” Ross’s policy. Four separate policies were prepared in Dallas and sent to Barnes with instructions to have each insured sign a declaration of no change in health as an amendment to the applications. These declarations read as follows:

* * * I hereby declare that since my statements to the Great American Reserve Insurance Company which formed a part of my application for insurance dated 12/5/61, I have not had nor have I needed any medical advice; that there has been no change in my physical condition ⅜ * *; that I have had no physical examination revealing any unfavorable physical condition and have received no adverse opinion as to my health or physical condition * * *.
“The foregoing declaration is an amendment to and is hereby made a part of my said application, and I hereby understand and agree that it is material to the risk and that the Company, believing it to be true, will rely and act upon it.
Witness Signature of Applicant
“This form must be properly completed and executed on any policy under which the full initial premium was not paid with the application. In event of change in health or occupation, the POLICY must be returned to the Home Office with this declaration.”

Barnes received the four policies from Dallas on January 19, 1962, but took no action that day. The next day, January 20, he discovered that Ross was in the hospital. He had had a brain stem hemorrhage and was unconscious. Barnes went to see his unit manager, Ken Wingfield, who advised him:

“Go out and get a check and if Mr. Ross is actually in the hospital, of course, you can’t let him sign the affidavit because he is not in good health * * *. We have got to hold the policy for instructions after he does get well and then we can go through the underwriting over again. Definitely get a check on these other fellows if they will give it to you and get their declaration signed.”

Barnes went to SAPSCO’s office and got its check for the total amount of premiums for all four policies. The officer who wrote the check signed a declaration of no change in his own health. The check had to be countersigned by Mr. Reinhard, the president, who was found at the hospital. He signed the check and a declaration as to his own health. There is some dispute as to when the third declaration was signed; but it was signed, and the three policies were later delivered. They are not in dispute. Ross, of course, did not sign a declaration; and he died the following day, January 21, 1962. Great American returned the premium on R'oss’s policy, never delivered the policy on Ross, and refused to pay the face value of the policy on Ross to SAPSCO.

The material fact question asserted in this case is whether SAPSCO knew that Great American had conditioned its offer to insure Sul Ross on his signing a declaration of no change in health. The Court of Civil Appeals said the issue of fact was whether the insurance agent Barnes accepted the check of SAPSCO conditioned upon the receipt of statement of no change in Ross’s health. In order to decide whether there is a genuine issue as to this material fact we must carefully examine the evidence. For this reason, it is necessary to set out the relevant portions of the depositions presented on the motions for summary judgment.

Barnes, the agent, gave his version of what he told Reinhard, the president of SAPSCO, at the hospital:

“Q. What did you tell these people when you went to get them to sign the declaration * * *?
«⅜ ⅜ *
“A. * * * this is an agreement that you are in good health and that your health has not changed since the day you applied for the insurance.
“Q. Would you tell them why they had to sign that?
“A. Well, to accept the policy to say that they were in good health.
“Q. Did you tell them that it was necessary for them to make this certificate before this policy would go into effect?
“A. I might not have said that it was necessary for them to make the certificate.
“Q. Well, did you tell them, though, that this is necessary part of putting the insurance into force?
“A. Yes. Well, I would put it this way, I would say that this was needed to make the insurance valid and to bind it.
“Q. Now, you didn’t tell them that the insurance was in force by reason o£ their payment of the premium on Sul Ross, did you?
“A. No, sir, I sure didn’t. * * * Well, I told them that I didn’t know the circumstances of how it would work out because I had never been in a situation like this before and that I would have to * ⅜ ⅜ have Mr. Ross to sign one of these forms.
“Q. In other words, did you make it clear to Mr. Reinhard that before the policy went into force on Sul Ross he would have to sign one of these?
“A. I tried to do so. ⅜ ⅜ ⅜ j don’t remember the exact words I did tell them, but in essence I did stress that they did have to have one of these signed by Mr. Ross, we needed his signature. Of course, I was hoping * ⅞ * he’d get well the next day or next week * * *. I told them I didn’t know exactly how the thing would work out, it would be up to the company. It was up to people far beyond me, it wasn’t for me to decide. ⅜ * * I don’t believe I told them that he was or that he wasn’t [insured]. * * * I told them that I had to have a signature on that.
“Q. Before the insurance would be in force?
“A. We didn’t talk about that. I told them that I had to have each one of those signed.”

Ken Wingfield, the insurance company’s unit manager, talked to Martin Reinhard by phone on the night of January 20. Wingfield’s testimony was:

“Q. Did you express your regret that the policy on Sul Ross was not in effect?
“A. I sure did. As a matter of fact I said something that went almost like this, I said, ‘Martin, I sure don’t want to be the type of fellow that says I told you so or anything like that, but I sure do wish you would have seen fit to give us a check that day in the office.’ Then, he said, ‘Well, Mr. Ross is not dead yet.’ And I said, ‘No, and I hope he is not going to die, but h might become disabled and if your insurance was in force like it ought to be, we would have paid for it.’ I said that paying for it doesn’t mean anything because Mr. Ross has no way of signing the declaration that his health has not changed. He said, T know you are going to do what you can.’ I said, ‘I am sure, as far as we are all concerned, we want the insurance to be in force, but as far as I can see, we will have to leave that up to higher powers.’ ”

Mr. Reinhard could recall very little about his conversations with Barnes and Wingfield. His deposition reads:

“Q. They never told you, did they, that this policy was in force on Sul Ross’ life?
“A. No, nor did they say that it wasn’t.
“Q. They made no representation about when it would go into effect, did they?
“A. No. Again, only on my assumption that when we were told that he [Ross] was accepted [by passing the physical] I assumed that we were all covered.
“Q. * * * When you gave Darrell [Barnes] this check for $222.90 did you ask him if this put the insurance in force or did he make any statement in that regard?
“A. No, Darrell didn’t make any statements to that effect. The fact that the company requested him to get the check, I assume that we were covered.
“Q. Did Darrell make any statement to you to the effect that he didn’t know what the status of the matter was, that it would have to he up to the company to decide that he was not able to do anything more than to accept the check and didn’t know what the effect would be on the insurance on Mr. Ross? Did he make such a statement to you at the hospital?
“A. Mr. King, I don’t remember. That is possible.
“Q. You would certainly not deny that he made some such statement, it is entirely possible that he did?
“A. It is entirely possible.”

This case is similar in many respects to Republic Nat’l Life Ins. Co. v. Hall, 149 Tex. 297, 232 S.W.2d 697 (1950). There the prospective insured sent in his application without filling in the amount of the premium because he and the insurance agent understood that he was overweight and would probably be required to pay a higher premium than normal. As expected the company rated up the policy and returned it to the agent. Before the agent delivered the policy, the applicant was killed in a plane crash. The company denied the existence of a contract. This Court held that the application was a mere invitation to the company to make an offer with a specified premium. The company made an offer, but it was not made known to the applicant and was never accepted. The law was stated to be:

* * * as in the case of all contracts, the offer and acceptance in insurance negotiations must be such as to evidence a complete agreement, or no obligations arise. ‘For acceptance by the insurer to constitute a completion of the contract, without action by the insured, such acceptance must be of the terms and conditions exactly as proposed by the application. If the insurer accepts the application only upon certain conditions being met, or proposes a new form of contract with new terms and provisions, that action of the insurer amounts to a rejection of the original proposition, and a counter offer which must be accepted by the insured in order to consummate the transaction.’ 12 Apple-man, Insurance Law and Practice, § 7151, p. 203.”

In this case, the insurance company made an offer to insure Ross at a premium of $113.80 provided his health had not changed. To accept this offer SAPSCO had to pay the premium and have Ross sign the declaration of no change in health. There is no doubt that Ross could not and did not sign such a declaration.

But SAPSCO contends that this was not the offer communicated to it because it did not know the offer to insure Ross was conditioned on his signing the declaration. The Court of Civil Appeals agreed with this contention when it said that Great American’s instruction to have each insured sign such a statement was in the nature of a secret instruction to its agents; and, therefore, SAPSCO would not be bound by them unless they were made known to its officers. Inherent in this conclusion is the proposition that Barnes, as agent for Great American, was clothed with apparent authority to bind the company by merely accepting the premium for the policy in question. We assume, without deciding, that this proposition is correct. The question (and a material fact) is whether the instruction from Great American to Barnes was communicated to SAPSCO.

This is a summary judgment case; and in answering the above question, we must follow certain rules laid down by this Court. Rule 166-A, Texas Rules of Civil Procedure, provides that summary judgment shall be rendered if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Tigner v. First Nat’l Bank, 153 Tex. 69, 264 S.W.2d 85 (1954); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). In other words, the evidence must be viewed in the light most favorable to the party opposing the motion. Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19 (Tex.Sup.1963); Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (1954). If the motion involves the credibility of affiants or deponents, or the weight of the showings or a mere ground of inference, the motion should not be granted. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286 (1957); Smith v Bolin, supra; Gulbenkian v. Penn, supra. Evidence which favors the movant’s position is not considered unless it is uncon-tradicted. If such uncontradicted evidence is from an interested witness, it cannot be considered as doing more than raising an issue of fact, unless it is clear, direct and positive and there are no circumstances in evidence tending to discredit or impeach such testimony. Cochran v. Woolgrowers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904 (1943). This exception is especially true where the opposite party has the means and opportunity of disproving the testimony, if it is not true, and fails to do so. Valley Stockyards Co. v. Kinsel, supra; James T. Taylor & Son, Inc. v. Arlington Ind. School Dist., 160 Tex. 617, 335 S.W.2d 371 (1960); Owen Dev. Co. v. Calvert, 157 Tex. 212, 302 S.W.2d 640 at 642 (1957); McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722 (1943); Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 136 S.W.2d 207 (1940). After all the evidence has been sifted in this manner, the Court must determine whether the movant is entitled to a judgment as a matter of law.

Wingfield’s telephone conversation with Reinhard on the night of January 20 cannot be considered because there is conflicting testimony as to whether it occurred before or after Reinhard signed the check. We must assume it was afterwards, and anything Wingfield said at that time would be immaterial.

Reinhard said, and we accept it as the truth, that they never told him the policy was or was not in force; they made no representation about when it would go into effect; and Barnes did not make any statement as to whether the check put the insurance in force. Barnes’ testimony lends support to Reinhard’s statement.

However, Reinhard’s testimony does not contradict all that Barnes said, and we must consider uncontradicted evidence for the movant. Barnes said he told Reinhard that Ross would have to sign a declaration and that he (Barnes) did not know how the thing would work out; that it would be up to the company. Even if Barnes is an interested witness, we may consider these statements because they are clear and positive and are not discredited by any circumstances in the record. Rein-hard had the opportunity to contradict this testimony and failed to do so. It is also uncontradicted that Reinhard, the president of SAPSCO, and at least one other officer signed declarations of no change in health either before or at the same time the check was signed. . The language in these declarations quoted on page 43, supra, compels the conclusion that its execution was a prerequisite to the completion of the insurance contract. We find nothing in the record which would warrant an assumption by SAPS CO that Ross was to be treated any differently from the other three men.

We hold that there is no genuine issue as to whether SAPSCO knew Great American’s offer to insure Sul Ross was conditioned on his signing a declaration of no change in health and that the home office would have to consider any waiver of that requirement. Great American is therefore entitled as a matter of law to a summary judgment. The judgments of the courts below are reversed, and judgment is here rendered that plaintiff take nothing.

      . Further omissions of questions and answers are not indicated in the interest of brevity.

      . Barnes was a third party defendant. At the time of the deposition he no longer worked for Great American. Eds wife is related to Bernhard’s wife.


source: Caselaw Access Project

author: GRIFFIN, Justice.

license: Public Domain

text:
    John L. DAVIDSON et ux., Petitioners, v. V. R. CLEARMAN, Respondent.
    No. A-10339.
    Supreme Court of Texas.
    April 28, 1965.
    On Rehearing June 16, 1965.

      Rawlings, Sayers, Scurlock & Eidson, Fort Worth, Gerald E. Stockard, Denton, for petitioners.
    Coleman & Whitten, Denton, for respondent.
   GRIFFIN, Justice.

This is a suit by respondent Clearman, as plaintiff, against petitioners John L. Davidson and wife, as defendants, to recover on a mechanic’s and materialman’s contract and the note given by the David-sons to Clearman to pay for the erection of a house on property belonging to the Davidsons. Clearman’s pleadings on which he went to trial declared upon the written contract and note. During the course of the trial, Clearman was permitted to file a trial amendment in which, in the alternative, he sought to recover on quantum mer-uit. No homestead question has been raised nor did plaintiff seek to foreclose a constitutional lien to secure the labor and material used by him in carrying out the mechanic’s and materialman’s contract. Plaintiff sought recovery of attorney’s fees as provided in the contract and note, and had no plea for recovery of statutory attorney’s fees under Art. 2226, Revised Civil Statutes, Vernon’s Ann.Civ.St. art. 2226.

A trial before a jury resulted in the court rendering judgment for plaintiff against the defendants for the reasonable value of the work performed and the materials furnished by plaintiff Clearman in constructing the house, less certain credits and plus interest and attorney’s fees and for foreclosure of the mechanic’s and material-man’s lien on the property. Defendants appealed to the Court of Civil Appeals, which affirmed the trial court’s judgment. 380 S.W.2d 836.

We modify the judgments of the courts below and, as modified, affirm judgment for plaintiff as hereinafter set out.

The material facts are as follows: After the execution of the mechanic’s and mate-rialman’s lien and its accompanying note for $28,750.00, Clearman began to construct the improvements.

The improvements were to be completed within one hundred twenty (120) days from August 26, 1961, and the note was due at the end of such one hundred twenty (120) days. Much discussion took place between the parties regarding Clearman’s compliance with the terms of the contract.

Defendants, Davidsons, moved into the house February 15, 1962, and continued to occupy the same, but refused to make any payment on the note — other than $4,000.00 theretofore paid — on the ground that Clearman had not performed his obligations under the contract and further payments were not due.

The jury found: (1) That defendants did not move into the house (February 15, 1962) and occupy it to the exclusion of plaintiff Clearman; (2) that there were defects and omissions in the house constructed by plaintiff other than those agreed upon by the parties; (3) that plaintiff did not substantially perform his contract; (4) that an agent of defendants prevented plaintiff from substantially performing his contract; (5) the reasonable value of the work and materials furnished by the plaintiff was $27,150.00; (6) and (7) that the difference in the value of the house in its then condition and its value if it had been constructed in accordance with the contract and without the defects and omissions was the sum of $2,000.00.

On these answers the trial court first rendered a judgment for the plaintiff on the contract. This judgment specifically set out the contract price plus the additions agreed upon between the parties. From this total the judgment specifically enumerated the credits under the contract and pleadings to which the defendants were entitled, subtracted these credits and the $2,000.00 damages from the enumerated charges and rendered judgment for plaintiff against the defendant for the balance remaining. This judgment also carried interest at the contract rate of 10% per an-num from February 15, 1962, plus $2,500.-00 attorney’s fees. The note provided for a reasonable attorney’s fee in the event suit was filed. It was stipulated that if an attorney’s fee were recoverable, the sum of $2,500.00 was a reasonable fee. The court ordered a foreclosure of the mechanic’s and materialman’s lien under proper order of sale and adjudged all the costs against the plaintiff Clearman.

Later the trial court rendered what was termed a corrected judgment. This judgment carried forward the interest, attorney’s fees and foreclosure provisions of the first judgment, but rendered judgment for plaintiff against the defendant for $27,150.-00, as found by the jury to be the reasonable value of labor and materials furnished by the plaintiff in constructing the improvements. Credit on this amount was limited to the $4,000.00 paid by defendants prior to filing suit. This corrected judgment was rendered on the plaintiff’s plea for quantum meruit, plus the contract attorney’s fee and interest. Defendants appealed from this judgment, but no appeal or cross-assignments were filed by plaintiff.

Defendants Davidson, as petitioners in this Court, have a number of errors assigned, but the controlling question in our opinion is that raised by defendants’ contention that since judgment was rendered on quantum meruit, plaintiff cannot recover under the contract for the attorney’s fees, the contract interest rate, nor for foreclosure of the mechanic’s and material-man’s lien.

The right to recover on quantum meruit does not grow out of the contract, but is independent of it. It is based upon the promises implied by law to pay for beneficial services rendered and knowingly accepted. Colbert v. Dallas Joint Stock Land Bank of Dallas, 129 Tex. 235, 102 S.W.2d 1031-1034 (1937); City of Sherman v. Connor, 88 Tex. 35, 29 S.W. 1053-1056, (1895); Childress v. Smith, 90 Tex. 610, 40 S.W. 389, l. c. 1st col. 391 (1897); Magee v. I. & G. N. Wood & Coal Co., Tex.Civ.App., 1954, 269 S.W.2d 498, writ refused n. r. e.; Paschall v. Pioneer Savings & Loan Co., 19 Tex.Civ.App. 102, 1898, writ refused, 47 S.W. 98, 100; Osage Oil & Refining Co. v. Lee Farm Oil Co., Tex.Civ.App., 1921, 230 S.W. 518, 521, writ refused; 13 Tex.Jur.2d 553, § 304; see also Woodard v. Southwest States, Inc., Tex.Sup., 384 S.W.2d 674-675 (1964); Dallas Electric Supply Co. v. Branum Co., 143 Tex. 366, 185 S.W.2d 427-429 (1945).

The case of Continental National Bank of Fort Worth v. Conner, 147 Tex. 218, 214 S.W.2d 928 discusses the question as to a foreclosure of a mechanic’s and mate-rialman’s lien upon a quantum meruit recovery. The Conners, original defendants, had made a mechanic’s and materialman’s lien and executed a mechanic’s and mate-rialman’s lien note to one Womack, a contractor, to secure the payment for certain improvements to be erected upon lots belonging to the Conners. The property was not a homestead. The work was to be completed October 21, 1945, and the note was payable the same date. October 15, 1945, six days prior to the maturity of the note, Womack borrowed $1000.00 from the bank and' pledged the mechanic’s and ma-terialman’s lien note as security for this loan. Womack also transferred the mechanic’s and materialman’s lien to the bank. November 10, 1945, the bank loaned Womack an additional sum of $400.00 which was likewise secured by the pledge of the note and lien. Womack died and did not complete the building contract. The jury found the contract had not been substantially complied with. On a jury verdict, the trial court rendered judgment for the bank for an amount representing the excess of the contract price over the total payments made by the Conners to Womack, Womack’s unpaid debts to workmen and materialmen and the jury’s estimate of the cost to the Conners of completion of the work after Womack’s default and death, and for foreclosure of the lien. On appeal, the Court of Civil Appeals held the bank could only recover what Womack could have recovered and that the bank was not a holder in due course, and reversed the trial court’s judgment and remanded the cause for retrial on the issue of quantum meruit.

This Court held the bank was a holder in due course for the $1000.00 advanced prior to the maturity date of the note and reversed and rendered judgment for the bank for $1000.00 and for foreclosure of the mechanic’s and materialman’s lien.

As to the $400.00 advanced after maturity, this Court held the bank occupied the same position as the original contractor, and affirmed the Court of Civil Appeals’ reversal for trial on quantum meruit. As to the right of the bank to foreclose its mechanic’s and materialman’s lien to secure the payment of the $400.00, this Court said:

“While the Texas cases denying foreclosure under such circumstance [quantum meruit recovery] seem to be all homestead cases and therefore not very persuasive against existence of the lien in the instant case (see, for example, Paschall et ux. v. Pioneer Savings & Loan Co., 19 Tex.Civ.App. 102, 47 S.W. 98), the prevailing view in other states denies the contractor the benefits of a mechanic’s lien even in the absence of homestead considerations, unless he has substantially performed the lien contract [citing authorities]. Since the bank, therefore, does not have a lien on the premises for what it may recover on its $400 claim in quantum meruit, there is no complication involved in a sale of the property under the $1000 judgment before final adjudication of the $400 claim.”

The contract in our present case, contains the following clause, relied upon by plaintiff to entitle him to a judgment foreclosing his contract lien:

“It is further agreed that a failure to complete said improvements, or failure to complete the same according to contract, shall not defeat said indebtedness and lien, but in such case the indebtedness and lien upon said premises and improvements shall exist in favor of said party of the second part, his heirs and assigns, for said contract price, less such an amount as would be reasonably necessary to complete said improvements according to the said plans and specifications.”

There are no jury findings as to the amount of money which would be required to complete the contract; therefore, this provision cannot be applied in this case. In addition and more important is the fact that the recovery was had under quantum meruit and not under the contract. Quantum meruit being a recovery outside of, and independent of the contract, there was no lien agreed upon between the parties to secure the payment of a quantum meruit recovery. For this reason, there is no lien to be foreclosed, and the courts below erred in ordering a foreclosure of the mechanic’s and materialman’s lien contract.

The same reasoning prevents the recovery of interest and attorney’s fees in accordance with the terms of the contract. No attorney’s fees can be recovered in this case on quantum meruit. The recovery of interest is not under the contract, but interest is allowed on the sum due as damages for failure of the defendants to pay to plaintiff the amount due for the labor and material furnished. In the case of Watkins v. Junker, 90 Tex. 584, 40 S.W. 11 (1897), this court discusses the law applicable to allowing interest on unliquidated demands. In determining that interest at the legal rate should he allowed from the date the money was due, this court, after stating that if interest is properly a measure of damages, it is such as a matter of law, said:

“ * * * We think that it is an inconsistency to say that a right exists, which a jury may or may not enforce as they may deem proper, and we believe that, practically, the courts have come to the proposition that, in all cases where the measure of recovery is fixed by the conditions existing at the time that the injury is inflicted, the person entitled to recover has also the right to have compensation for the detention of the money to which he is entitled by reason of the wrong done to him.”

The defendants having taken possession of the property on February 15, 1962, the money due to plaintiff, whatever the amount, was fixed as of that date. The jury has determined this amount to be the sum of $23,150.00 ($27,150.00 value of labor and material furnished less the $4,-000.00 credit). Plaintiff is entitled to recover interest on this sum from February 15, 1962, at the legal rate of 6%.

The cases of Kleiner v. Eubank, Tex.Civ.App., 1962, 358 S.W.2d 902, writ refused, n. r. e.; Harrop v. National Loan & Investment Ass’n, Tex.Civ.App., 1918, 204 S.W. 878, writ refused; and Galbraith-Foxworth Lumber Co. v. Long, Tex.Civ.App., 1928, 5 S.W.2d 162, writ refused, do not control this case. Each of those cases were cases where recovery was had under a written contract specifically providing for foreclosure, interest and attorney’s fees, and not recoveries under quantum meruit.

The judgments of both courts below are modified so as to eliminate the recovery of any attorney’s fees; the recovery of 10% interest on the amount due to plaintiff by defendants; and for the foreclosure of the mechanic’s and materialman’s lien on the property.

Judgment is here rendered that the plaintiff recover of and from the defendants the sum of $23,150.00 plus interest thereon at the rate of 6% per annum from February 15, 1962, until August 22, 1963, in the sum of $2,110.52, for a total sum of $25,260.-52. This last amount shall draw interest at the rate of 6% from and after August 22, 1963, until paid.

ON MOTION FOR REHEARING

Respondent’s motion to retax costs is granted. All costs in the trial court are taxed against Petitioner John L. Davidson, as set forth in the trial court’s corrected judgment entered August 30, 1963, as of August 22,1963.

The costs incurred in the Court of Civil Appeals and in this Court are taxed against Respondent V. R. Clearman. Rule 139, Texas Rules of Civil Procedure.

It has been suggested that our decision in this case conflicts with the recent decision of this Court in the case of Woodard v. Southwest States, Inc., Tex.Sup.1964, 384 S.W.2d 674. We have no point of error before us attacking respondent’s right to recover on his quantum meruit plea and therefore we do not decide this question.

Except as to the reapportionment of the court costs above set out, all motions for rehearing are overruled.


author: WOODLEY, Judge.

text:
    Roy Lee PAYNE, Appellant, v. The STATE of Texas, Appellee.
    No. 38241.
    Court of Criminal Appeals of Texas.
    June 2, 1965.
    Davis & Bevers by Denzil Bevers, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., J. Monty Bray, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is passing as true a forged instrument in writing; the punishment, 3 years.

The instrument set out in the indictment is a check drawn on Western Way Homes, Inc. in the sum of $176.78, payable to the order of Howard E. Kindred, upon the face of which is the word “FORGERY”.

Appellant correctly, we think, contends that the instrument set out in the indictment could not be the subject of forgery or of passing a forged instrument because it shows on its face to be a forged instrument. Bagley v. State, 63 Tex.Cr.R. 606, 141 S.W. 107; Green v. State, 63 Tex.Cr.R. 510, 140 S.W. 444; Rollins v. State, 22 Tex.App. 548, 3 S.W. 759.

The check identified as that passed and which was introduced in evidence without objection is identical with the check set out in the indictment according to its tenor. The state concedes that the jury “could certainly draw a logical inference that the word ‘Forgery* was not on the check at the time it was passed.”

Assuming that the check stamped “Forgery” could be the subject of forgery and that a conviction for passing it as true could be sustained, and further assuming that the word “Forgery” was not on the face of the check at the time it was passed, then this conviction cannot stand because of the variance between the check identified and introduced as that passed and the check set out in the indictment. Strong v. State, 143 Tex.Cr.R. 641, 160 S.W.2d 923; Harvey v. State, 132 Tex.Cr.R. 213, 104 S.W.2d 26.

In the Harvey case the records of this court, including the state’s brief confessing error, reveal that the check set out in the indictment had stamped or printed thereon the word “BOGUS,” and the evidence showed that “BOGUS” was placed on the check after it had been passed.

When an alleged forged instrument is set out in the indictment in its tenor, the strictest proof is required, and this is furnished only by an exact copy. Simmons v. State, 133 S.W. 687, 61 Tex.Cr.R. 7; Hurd v. State, 99 Tex.Cr.R. 388, 269 S.W. 439; Strong v. State, supra.

We note also a variance between the allegation of the indictment that the check was endorsed “Howard E. Kinded” and the evidence showing such endorsement to be Howard E. Kindred.

For the reasons stated, the conviction cannot stand.

The judgment is reversed and the prosecution upon the present indictment is ordered dismissed.


author: MORRISON, Judge.

text:
    Jackie F. ANDERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 38255.
    Court of Criminal Appeals of Texas.
    May 12, 1965.
    Rehearing Denied June 16, 1965.
    Norman Kinne (on appeal only), Mike Barclay (on appeal only), Dallas, for appellant.
    Henry Wade, Dist. Atty., Neil English, James B. Zimmermann and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is burglary; the punishment, ten years.

The Cooper store in Garland was broken into on the June night in question, and a safe set in concrete was removed therefrom. Entrance was gained by means of breaking a hole through the roof. Mr. Cooper identified the safe returned to him by the police as being the one taken from his store.

Officer Husketch of the Garland Police, while on patrol at 3:45 a. m. on the same night, was parked in a well lighted park when he observed an automobile approaching him from the north with its lights off. When it reached a point some two hundred feet from the police car, it stopped, backed into a driveway, turned around, and started back in the direction from whence it had come. The officer gave chase and brought the automobile to a halt. During his pursuit of the automobile he could observe two people seated therein, but when he brought it to a halt, only the driver was visible. The driver of the automobile got out, came toward the officer and exhibited his driver’s license, at which time the officer “asked him who he had with him.” Upon objection, the cautious trial judge excluded the driver’s answer. The officer approached the automobile, and when he looked into the same, he could see appellant lying on the back seat with a glove on his right hand and a brown satchel with two “prybars” protruding therefrom. On the front seat another man was lying with his head toward the driver’s side. He also observed two “walkie-talkie radios”. At this juncture, the officer instructed the driver to tell the other men to get out, and he radioed for assistance. Other officers arrived, and a search of the automobile followed. The Cooper safe, two revolvers, a quantity of burglar tools and blasting caps were discovered on the floor board in the rear portion of the automobile where appellant had been lying. The driver of the vehicle in question was given a ticket for driving without lights.

The sole question presented by scholarly brief and in argument is the existence of probable cause authorizing the search of the automobile without a warrant.

We have here a far stronger case than was before this Court in Rochelle v. State, 107 Tex.Cr.R. 79, 294 S.W. 860. In that case the officers approached a white man seated in an automobile with a number of Negroes gathered around it. The automobile was parked in front of a house where a Negro dance was in progress. The officers inquired what “was the excitement”, and, as they did so, they saw a carton containing some fruit jars between the seats of the automobile. Judge Hawkins observed that the officers violated no one’s constitutional rights when they made their approach, inquiry and observations and that these facts constituted probable cause authorizing the officers without a warrant to examine the contents of the automobile.

In Ybarra v. State, 160 Tex.Cr.R. 487, 272 S.W.2d 374, the officers saw appellant drive without lights and make certain motions with his hands as if to break something. We held that even though the officers admitted that they did not intend to give the accused a ticket for driving without lights and did not do so, the accused’s conduct authorized the search of the pickup after it came to rest in his front yard.

Clearly the officer without a warrant was authorized to arrest the driver for violation of Section 109 of Article 6701d Vernon’s Ann.Civ.St. After the arrest he saw tools commonly used by those in the burglary business and two men lying on the seats of the automobile below the window level.

In the recent opinion of the Supreme Court of the United States in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, citing Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, stated: “This right to search and seize without a search warrant extends to things under the accused’s immediate control * * * and, to an extent depending on the circumstances of the case, to the place where he was arrested.” Surely, the driver’s “place” of arrest was the automobile he was driving, and the search was lawfully made.

It is appellant’s contention that the rules relating to search following lawful arrest do not apply to an arrest for a traffic violation because there are no “fruits of the crime or instrumentalities used in the commission of the crime.” We are unable to agree that such contention applies to the case at bar. It was only because appellant’s companion violated a traffic law, plus the fact that appellant or his companion attempted to conceal himself from view that the officer was able to discover the fruits and instrumentalities of a crime which had just been committed.

The court charged on the law of principals and on circumstantial evidence, and the evidence is sufficient to sustain the conviction.

No reversible error appearing, the judgment is affirmed.


text:
    Vernon David BLAKELY, Appellant, v. The STATE of Texas, Appellee.
    No. 38325.
    Court of Criminal Appeals of Texas.
    June 2, 1965.
    No attorney of record on appeal.
    Henry Wade, Dist. Atty., Jim Zimmer-mann, Neil English and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is felony theft; the punishment, 4 years.

The witness Fry testified that he parked his 1964 Oldsmobile sedan at a parking lot near where he was working in the morning of May 20, 1964, and that upon his return to the lot in the afternoon it was missing. He stated that it was returned to him by the police on May 26, 1964, and that he found the spare tire, the jack, the hub caps and a volt tester were missing, and instead, he found therein two shirts and a pair of khaki pants which did not belong to him.

Mr. Witherspoon, the parking lot attendant, testified that appellant, who was not the man who had parked the automobile, came on his yard at 3:45 p. m. on May 20, got in the 1964 Oldsmobile and drove it over the curb without saying anything to him, and that on May 26, 1964, he identified appellant in a police lineup as being the man.

Patrolman Orsburn of the Dallas Police testified that in the morning of May 26, he stopped appellant for driving through a red light and ascertained from his stolen car record that the 1964 Oldsmobile was a stolen car, whereupon, he arrested appellant, who was the driver, and his companion, Tobar.

Tobar, testifying for appellant, stated that he met appellant in a bar in Fort Worth on the night of May 25, that they drank together there, and that after they arrived in Dallas, they met a colored man whose name he did not know and subsequently rented an automobile from an unknown colored couple for the night and were on the way to return the automobile at the time of the arrest.

Wanita Roth testified that appellant had spent some time in her apartment prior to May 20, that she had laundered his clothes for him, and that the clothes identified by the witness Fry did not belong to appellant and that she had never seen him drive a 1964 Oldsmobile.

The jury resolved what conflict there was in the evidence against the appellant, and we find the evidence sufficient to support the conviction.

No formal bills of exception appear in the record, and our attention has not been called to any informal bills which reflect error.

The judgment is affirmed.


author: BELCHER, Commissioner.

text:
    M. D. CRYE, Appellant, v. The STATE of Texas, Appellee.
    No. 37727.
    Court of Criminal Appeals of Texas.
    May 5, 1965.
    Rehearing Denied June 16, 1965.
    Farmer, Maddin, Eichelberger and Walker by C. S. Farmer, Waco (on appeal only), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for felony theft; the punishment, five years.

The evidence reveals that the construction of a dam for a lake made it necessary for a railroad company maintaining tracks within the area to abandon and re-locate a portion of its tracks, including a four span bridge.

While testifying, George Shillings identified the appellant as the person who engaged him to haul some steel beams from a railroad bridge, and stated that at first he was unable to load them because they were wedged between the abutments of the bridge but after the appellant cut the beams he hauled them to the scales; that appellant met him there and paid for the weighing and then he hauled the beams to Rubel’s Junk Yard and that appellant paid him for the hauling.

Leo Rubel testified that the appellant was the person from whom he purchased some steel beams for $177.

The evidence of the state further reveals that the steel beams extending between abutments of the bridge forming one of the spans were removed; that they were of the value of more than fifty dollars and were taken without the consent of those in charge and possession of said property.

Testifying in his own behalf, the appellant admitted taking the steel beams from the railroad bridge and his testimony was substantially the same as that of the state, except that he stated that M. D. Godman gave him permission to take the steel beams. He further testified that he thought the U. S. Corps of Engineers had possession of the property and that Godman appeared to have and he believed he did have the authority to give him permission to take the steel beams, but he had been unable to locate him. In rebuttal the state offered proof that Godman was deceased.

For the first time, in his brief, the appellant contends that the indictment does not sufficiently describe the property alleged to have been stolen.

The indictment alleges that the appellant did “fraudulently take a railroad bridge span.”

The complaint as to the description of the property alleged in the indictment is not of such nature as would require a reversal when raised for the first time in this court, on appeal.

It is contended that there is a variance between the indictment and the evidence, in that the indictment alleges the property belonged to J. M. Lowry, whereas the evidence reflects the owner’s name to be John M. Lowrey. The variant names are idem sonans. Hence no error is presented. 1 Branch (2) 31, Sec. 39.

The evidence is sufficient to support the conviction and, no error appearing, the judgment is affirmed.

Opinion approved by the Court.


author: BELCHER, Commissioner. WOODLEY, Judge. MORRISON, Judge.

text:
    Nolan Joseph HAINES, Appellant, v. The STATE of Texas, Appellee.
    No. 37170.
    Court of Criminal Appeals of Texas.
    April 7, 1965.
    Rehearing Denied May 19, 1965.
    Second Motion for Rehearing Denied June 16, 1965.

      S. F. Mafrige, Bill Hilford, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Allen Stilley, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for burglary with three prior convictions for non-capital offenses alleged for enhancement; the punishment, life imprisonment.

Officer Lewis testified that at approximately 7 P.M., in response to a call resulting from a flash on a burglar alarm system, he took his “canine partner,” a German Shepherd dog, to the indicated furniture store, which they entered after an employee of the alarm system arrived and unlocked a door to the building; that after the dog — trained to use his sense of hearing and seeing — jumped in that direction, Officer Lewis saw a man in the cashier’s booth. He further testified that after the appellant had been apprehended in the building, the appellant told him he had taken several transistor radios and electric mixers from the shelves and piled them on a bedspread on the floor; that the appellant next showed him how he had entered the building, pointing to the transom window, about ten feet high, through which he had entered and then dropped to the floor.

The manager of the furniture store testified that the store was closed at the time the alarm flashed, and that he did not give anyone his consent to break and enter the store and take any property.

Jimmy B. Northrup, agent for the burglary alarm system, testified that he met Officer Lewis at the furniture store; that after entering the building he saw the appellant, who said he had been taking the merchandise and piling it upon the floor.

Proof was offered, in the instant case, of the prior convictions as alleged and the identity of the appellant as the same person who was convicted in each case. See Broussard v. State, Tex.Cr.App., 363 S.W.2d 143. Moreover, no objections were made to the introduction in evidence of the authenticated copies of the alleged prior convictions.

The appellant did not testify, hut recalled Officer Lewis, who testified that he did not examine the transom window or the merchandise on the floor of the store for fingerprints hut that fingerprints were a positive manner of identification.

The court charged the jury upon the law as applicable to circumstantial evidence.

Appellant contends that the trial court erred in permitting the state to read the enhancement allegations and make proof thereof before the jury on the ground that such procedure deprived him of due process and was unconstitutional. This contention was rejected in Crocker v. State, Tex.Cr.App., 385 S.W.2d 392. In the absence of a stipulation resolving the issues of the prior convictions, proof of them as alleged in the indictment was proper. Pitcock v. State, Tex.Cr.App., 367 S.W.2d 864; Ex Parte Reyes, Tex.Cr.App., 383 S.W.2d 804.

The evidence is sufficient to support the conviction, and no error appearing, the judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Judge.

It is well settled that Art. 63, P.C. is reformatory in nature and to invoke its provisions it is necessary that each succeeding conviction be subsequent to previous convictions both in time of commission of the offense and the conviction therefor. The indictment must so allege and the averments of the indictment must be supported by proof. 1 Branch’s Ann.P.C.2d, Sec. 698; Arbuckle v. State, 132 Tex.Cr.R. 41, 105 S.W.2d 219; Armendariz v. State, 163 Tex.Cr.R. 515, 294 S.W.2d 98; Rogers v. State, 168 Tex.Cr.R. 306, 325 S.W.2d 697; Rogers v. State, 169 Tex.Cr.R. 239, 333 S.W.2d 383; Cortez v. State, Tex.Cr.App., 314 S.W.2d 589; Hobbs v. State, 171 Tex.Cr.R. 607, 352 S.W.2d 836; Cowan v. State, Tex.Cr.App., 355 S.W.2d 521.

A re-examination of the statement of facts fails to disclose any evidence to sustain the allegation of the indictment that the offense for which appellant was convicted in Cause No. 75895 was committed after the judgment of conviction in Cause No. 65729, on January 25, 1952, or the judgment of conviction in Cause No. 62191 on December 19, 1949, became final.

Also no evidence is found to support the allegation of the indictment that the conviction in Cause No. 65729 on January 25, 1952, was for an offense committed after the conviction in Cause No. 62191 became final.

There is however ample evidence that appellant had been convicted of burglary in both such cases prior to the commission of the burglary charged in the indictment.

It follows that the indictment, evidence and findings of the jury are sufficient to invoke the provisions of Art. 62, P.C. which provide the maximum punishment for burglary in ordinary cases as the definite punishment for a second conviction for a non-capital felony of the same nature. Fairris v. State, 171 Tex.Cr.R. 416, 350 S.W.2d 935, 937, overruling Granado v. State, 168 Tex.Cr.R. 525, 329 S.W.2d 864; Gibbs v. State, concurring opinion, 169 Tex.Cr.R. 608, 336 S.W.2d 625; Madeley v. State, Tex.Cr.App., 388 S.W.2d 187.

The judgment and sentence are reformed to provide for appellant’s confinement in the Texas Department of Corrections for a term of 12 years.

As reformed, the judgment is affirmed and appellant’s motion for rehearing on other grounds is overruled.

MORRISON, Judge.

I concur in the overruling of appellant’s motion for rehearing and in the reformation of the judgment and sentence.


author: McDONALD, Presiding Judge.

text:
    William Edward BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 38303.
    Court of Criminal Appeals of Texas.
    June 2, 1965.
    No attorney of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The complaint and information charge appellant with unlawfully and wilfully injuring personal property belonging to the City of Lubbock, to-wit, a pair of handcuffs by cutting them with a hack saw, the extent of the injury inflicted on said property being under the value of $50.00. Upon a plea of guilty, the Court found appellant guilty and his punishment was assessed at a fine of $125.00.

The judgment recites that appellant pleaded guilty to the information herein, to-wit: “Unlawfully carry on and about his person a pistol.”

No brief has been filed by either the appellant or the state.

We have no statement of facts nor bills of exception.

The variance between the judgment and the information is fatal. Acosta v. State, Tex.Cr.App., 385 S.W.2d 394.

The judgment is reversed and the cause is remanded.


text:
    Walter Lee WHITE, Appellant, v. The STATE of Texas, Appellee.
    No. 38306.
    Court of Criminal Appeals of Texas.
    June 2, 1965.
    No attorney of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

This is an appeal from a judgment in County Court at Law No. 1 of Lubbock County convicting appellant of the offense of carrying on or about his person a pistol. The judgment was rendered upon a plea of guilty before the court to the information in Cause No. 36929 and a fine of $125.00 was assessed.

The complaint and information in said Cause No. 36929 in said court shown in the transcript allege the offense of injuring personal property as denounced by Article 1350(1) (b) Vernon’s Ann.P.C.

The variance between the judgment and the information is fatal. Acosta v. State, Tex.Cr.App., 385 S.W.2d 394.

The judgment is reversed and the cause is remanded.


author: DICE, Commissioner.

text:
    Bob Granville POINTER, Appellant, v. The STATE of Texas, Appellee.
    No. 36347.
    Court of Criminal Appeals of Texas.
    June 2, 1965.
    Orville A. Harlan (On Appeal Only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Joe C. Shaffer and Daniel P. Ryan, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant’s conviction for robbery, with punishment assessed at life imprisonment, was affirmed by this court on December 18, 1963. Rehearing was denied on February 12, 1964. Pointer v. State, Tex.Cr.App., 375 S.W.2d 293.

Petition for writ of certiorari was granted by the Supreme Court of the United States and in an opinion delivered April 5, 1965, the judgment of this court affirming the conviction was reversed and the cause was remanded for further proceedings not inconsistent with the opinion of the Supreme Court. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, April 5, 1965.

The holding of the Supreme Court of the United States requires that the conviction be reversed by this court and the cause remanded.

It is so ordered.

Opinion approved by the Court.


text:
    Wesley S. SIMS, Appellant, v. The STATE of Texas, Appellee.
    No. 38012.
    Court of Criminal Appeals of Texas.
    May 12, 1965.
    Rehearing Denied June 16, 1965.
    John W. Flanagan, Sam Houston Clinton, Jr. (amicus curiae brief), Austin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

Appellant was convicted in the Corporation Court of the City of Austin of the offense of loitering. Appeal was taken to the County Court at Law Number 2, of Travis County, the trial before a jury resulting in a finding of guilt and the imposition of a fine of $200.00.

The statement of facts in the record certifies that it is “essentially the evidence adduced in the trial of this cause, and that it is expressly agreed that the said attached statement of facts is correct insofar as it could be taken from the recordings of said trial, except for those obvious omissions in the text apparent in the continuity of the reading of same”. This certificate clearly shows that the statement of facts does not contain all of the evidence adduced upon the trial. The informal bills of exception, several being presented by appellant, cannot be appraised without a complete statement of facts. Booker v. State, 171 Tex.Cr.R. 667, 352 S.W.2d 752. For like reason the question of the sufficiency of the evidence to sustain the conviction is not before us.

Appellant complains that the trial court erred in overruling his various motions to quash the complaint. We have examined them with care and find no exception to the trial court’s order overruling any of them. Under Art. 760e, Vernon’s Ann.C.C.P., the motions to quash cannot be considered in the absence of an exception to the trial court’s order overruling them. Crawford v. State, 165 Tex.Cr.R. 147, 305 S.W.2d 362; Castaneda v. State, 170 Tex.Cr.R. 323, 340 S.W.2d 489.

Appellant makes an exhaustive attack upon the constitutionality of the ordinance under which his prosecution was brought and conviction obtained. The ordinance in question reads as follows:

“It shall be unlawful for any person within the corporate limits of the city to be in the nighttime in or about public or private buildings or premises, where he has no right or permission to be, under suspicious circumstances, and without being able to give a satisfactory account of the same.”

The complaint, omitting the formal parts, charges that appellant

“then and there under suspicious circumstances and without being able to give a satisfactory account of the same and in the nighttime did unlawfully go into and about private premises and a private building, not his own, located at 1000 Block East 12th Street in the City of Austin, Texas, where he had no right or permission to be, contrary to Section 21.8 of the Austin City Code of 1954.”

We do not agree that such ordinance as applied to private premises places an unreasonable restraint upon personal liberty in making it unlawful for one to be or to go into and about private premises and a private building, not his own, where he had no right or permission to be, in the nighttime, under suspicious circumstances and without being able to give a satisfactory account of the same. The net effect of appellant’s contention is that a city cannot make it unlawful for a loiterer or “Peeping Tom” to be upon the writer’s premises or in the writer’s home at nighttime without consent. As here applied the ordinance is definite because it requires that the act must be at nighttime on private premises and a private building one has no right to be on or upon where one has no consent to be. We feel it not unreasonable to assume that a loiterer knows when he loiters upon private premises of another when he does not have consent. We think the municipalities of this state have perhaps thwarted citizens from taking the law into their own hands by enacting such ordinances in an area where our Legislature has not acted. Such ordinances are wholesome. It is clear to us that nighttime is not indefinite as appellant argues. Art. 1396, Vernon’s Ann. P.C. (under the burglary section) defines daytime as being from thirty minutes before sunrise until thirty minutes after sunset. Substantially the same definition is contained in other statutes. We do not feel that appellant’s position is well taken. To us the ordinance as here applied is not indefinite. It is a reasonable exercise of the police power and is not unconstitutional.

While appellant relies heavily upon the case of Ex Parte Mittelstaedt, 164 Tex.Cr.R. 115, 297 S.W.2d 153, we do not think that case to be in point with the case at bar. The ordinance in Mittelstaedt’s case provided that it was unlawful for any person to loiter within 250 feet of any public or private school or any public building. This Court, on motion for rehearing, held:

“The ordinance is not in conflict with the vagrancy statute but is ineffectual and invalid as an unreasonable restraint upon personal liberty.”

We were there dealing with a different set of facts in that the ordinance restrained the movement of individuals within 250 feet of any public or private school or any public building. Here we are dealing with the movement of individuals into and about private premises without the limitation of 250 feet. We feel that an individual such as appellant, who comes within the terms of an ordinance as he has here done, loses none of his individual rights merely because he might be able to extricate himself from the position that he has placed himself in by merely giving a satisfactory explanation or account of his presence. Any member of the public not an intruder would readily disclose his identity to a private property owner rather than to get shot as a burglar or a prowler. We think it not unreasonable to impose such a requirement in the application of an ordinance of this type.

Finding no reversible error, the judgment is affirmed.


text:
    Ellis GARRETT, Appellant, v. The STATE of Texas, Appellee.
    No. 38274.
    Court of Criminal Appeals of Texas.
    June 2, 1965.
    ■ Gilbert M. Spring, Lufkin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

Appellant was found guilty and assessed a fine of $100 in a trial upon complaint and Information filed September 30, 1963, which appears to have been drawn under Sections 31 and 32(d) of Art. 6701h Vernon’s Ann. Civ.St. which then provided:

“Section 31. Any person whose license or registration shall have been suspended as herein provided, or whose policy of insurance or bond, when required under this Act, shall have been canceled or terminated, or who shall neglect to furnish other proof upon request of the Department shall immediately return his license and registration to the Department. If any person shall fail to return to the Department the license or registration as provided herein, the Department shall forthwith direct any peace officer to secure possession thereof and to return the same to the Department.”
Section 32(d) provides: “Any person willfully failing to return license or registration as required in Section 31 shall be fined not more than Five Hundred Dollars ($500) or imprisoned not to exceed thirty (30) days, or both.”

The information was not attacked by motion to quash or exception and need not be set out. We observe, however, that there was no allegation that the suspended license and registration were not returned immediately.

We are in accord with appellant’s contention that the quoted Section 31 is vague and uncertain as to the time in which the suspended license and registration must be returned, and that Section 32(d) construed with Section 31 is invalid as a penal statute. Guerra v. State, 155 Tex.Cr.R. 306, 234 S.W.2d 866. See also Attorney General Opinion No. C-341 dated November 3, 1964, where a similar conclusion was reached as to Section 31 as amended, the opinion concluding with the following summary:

“By the force and authority of Guerra v. State, supra, and the inhibitions of the Constitution and Penal Code of the State of Texas, until Article 6701-h, Section 31 V.C.S. is amended or the term ‘immediately’ has been determined, measured, defined and reduced to a reasonable certainty capable of common and ordinary understanding, Article 6701-h, Section 32(d), V.C.S., construed in connection with Article 6701-h, Section 31, V.C.S. is manifestly unconstitutional and void on its face for indefiniteness and uncertainty of those particular acts or omissions which constitute the offense set forth therein.”

The judgment is reversed and the prosecution is ordered dismissed.


author: CADENA, Justice.

text:
    Joe MEDINA, Appellant, v. R. L. (Bob) SHERROD, Jr., Appellee.
    No. 14385.
    Court of Civil Appeals of Texas. San Antonio.
    May 26, 1965.

      Benjamin D. Lucas, Oliver & Oliver, San Antonio, for appellant.
    Sawtelle, Goode, Troilo & Leighton, Les Mendelsohn, San Antonio, for appellee.
   CADENA, Justice.

Joe Medina, plaintiff below, appeals from a summary judgment denying him any recovery from defendant, R. S. (Bob) Sher-rod, Jr., for personal injuries allegedly sustained by plaintiff as a result of defendant’s negligence.

Defendant’s motion for summary judgment was based on a written release executed by plaintiff. The motion was supported by the affidavit of defendant, reciting the execution of the release and full performance by defendant of his obligations thereunder, and by the affidavit of Joe Lara Ortega, plaintiff’s brother-in-law, reciting that the affiant was personally present at the time plaintiff executed the release, and that both affiant and defendant correctly read the contents of the instrument to plaintiff before he signed it.

On the date set for the hearing of the motion, plaintiff, without obtaining leave of court, filed his first supplemental petition in which he sought to avoid the release on the ground of fraud. At the same time, plaintiff filed a sworn reply to the motion for summary judgment and incorporated therein the allegations of the supplemental petition, which was attached to the reply. The allegations in the supplemental petition were, in substance, that part of the consideration for the execution of the release was defendant’s promise to re-employ plaintiff as soon as plaintiff was able to return to work, that defendant had not fulfilled his promise, and that at the time defendant made the promise he had no intention of re-hiring plaintiff.

The judgment of the trial court granting defendant’s motion for summary judgment recites that, in passing on the motion, the court did not consider plaintiff’s first supplemental petition, and that no controverting affidavit by plaintiff was before the court.

In affirming the judgment below, we hold as follows:

1. Plaintiff’s sworn reply to the motion for summary judgment is insufficient as an opposing affidavit because (1) it was not filed within the time prescribed by Rule 166-A(c), Texas Rules of Civil Procedure, and (2) it does not show affirmatively that the affiant was competent to testify as to the matters therein stated, as required by Rule 166-A(e), T.R.C.P.

2. The trial court properly refused to consider plaintiff’s first supplemental petition, which was not filed until the date of the hearing, because plaintiff failed to obtain leave of court for the filing thereof as required by Rule 63, T.R.C.P.

3. The plaintiff’s sworn reply, even if considered as an opposing affidavit, failed to raise any genuine issue as to any material fact.

I.

The trial court did not err in refusing to consider plaintiff’s sworn reply as an opposing affidavit. In the first place, Rule 166-A(c), supra, provides that opposing affidavits may be filed “prior to the day of hearing” on the motion for summary judgment. Here plaintiff did not file his reply until the date of the hearing. An opposing affidavit filed on the date of hearing does not comply with the requirements of the Rule. General Motors Acceptance Corporation v. Musick, 379 S.W.2d 297 (Tex.1964). In Lawyers Surety Corp. v. Investors Mutual of Nueces, Inc., Tex.Civ.App., 353 S.W.2d 882, wr. ref., n. r. e., the situation was the same as here. This Court, speaking through Chief Justice Murray, said:

“The supporting affidavit filed by ap-pellee was not replied to or contradicted by any opposing affidavit filed by appellant. * * * Appellant contends that its sworn answer filed on the day the motion for summary judgment was heard, was sufficient to contradict the supporting affidavit, was sufficient to show that there were fact issues to be decided, and that summary judgment was therefore improper. We do not agree. Rule 166-A, T.R.C.P., requires in effect that opposing affidavits must be served prior to the day set for the hearing of a motion for summary judgment. The amended answer filed by appellant on the day of hearing came too late to be regarded as an opposing affidavit.”

In the second place, the sworn reply is fatally defective in that it does not affirmatively state that affidavit is competent to testify to the matters stated therein, as required by Rule 164-A(e). “It has often been held that a compliance with Rule 166— A(e) is necessary if affidavits are to be given consideration in a summary judgment proceeding.” Watson v. Druid Hills Company, Tex.Civ.App., 355 S.W.2d 65, 68, wr. ref., n. r. e. See also Youngstown Sheet and Tube Co. v. Penn, 363 S.W.2d 230 (Tex.1963); Lawyers Surety Corp. v. Sevier, Tex.Civ.App., 342 S.W.2d 604, no wr. hist.

II.

Nor did the trial court err in refusing to consider plaintiff’s first supplemental petition, filed on the date set for the hearing of the motion for summary judgment. Rule 63, T.R.C.P., provides that an amended pleading, offered for filing within seven days of the date of trial, shall be filed only after obtaining leave of court. In Leche v. Stautz, 386 S.W.2d 872, wr. ref., n. r. e., the motion for summary judgment was set for hearing on March 12, 1964. On March 11, 1964, the opponent to the motion, without obtaining leave of court, filed a first amended, original petition. A motion to strike because of noncompliance with Rule 63 was granted by the trial court, and the Austin Court of Civil Appeals affirmed. See also, McCormick v. Stowe Lumber Co., Tex.Civ.App., 356 S.W.2d 450, 458, wr. ref., n. r. e.

III.

Even if we consider plaintiff’s sworn reply, which attempted to incorporate by reference the allegations in his supplemental petition, as an opposing affidavit, it was insufficient to preclude the entry of summary judgment in favor of defendant. Failure to perform a promise to do an act in the future constitutes fraud only when it is proved that the promisor, at the time he made the promise, did not intend to perform. Mere proof of nonperformance will not support an inference of fraudulent intent. Collier v. Bankston-Hall Motors, Tex.Civ.App., 267 S.W.2d 898, no wr. hist.; Johnston v. Bracht, Tex.Civ.App., 237 S.W.2d 364, no wr. hist.; Urso v. City of Dallas, Tex.Civ.App., 221 S.W.2d 869, wr. ref.; Cassel v. West, 98 S.W.2d 437, wr. ref.

Considering plaintiff’s sworn reply and supplemental petition together, the only material statements of fact relating to fraud are to the effect that defendant made a promise, that plaintiff relied on such promise, and that defendant did not perform. Concerning the state of mind of defendant at the time the promise was made, plaintiff merely swore that defendant, at the time he made the promise in question, had no intention of performing. There is no statement of any facts known to plaintiff that might circumstantially reveal defendant’s intent at the time the promise was made. The intent not to perform, which is an indispensable element of the fraud on which plaintiff relies, is supported only by the bare assertion of plaintiff as to defendant’s state of mind at the time the promise was made.

Since a person’s state of mind cannot be established by the direct testimony of others, a witness cannot testify as to the intent or motive of another. Robertson v. Gourley, 84 Tex. 575, 19 S.W. 1006. The. rule is stated and applied in Dean v. Dean, Tex.Civ.App., 214 S.W. 505, 508, wr. dism., as follows:

“ * * * The intent with which a party does an act is known to him, and he is a competent witness to testify as to such fact. * * * Had his wife been alive, she could not have testified that such was not his intention; for she could not have known such fact. Had she so testified, it would have been only the statement of her opinion, and not the statement of a fact.”

It is apparent, then, that the bare assertion that, at the time the promise was made, defendant had no intention of performing, amounts to no more than a statement of plaintiff’s opinion or conclusion concerning defendant’s state of mind. Statements of opinion and conclusions are insufficient, even if sworn to, to raise an issue of fact. “A conclusion sworn to is still a conclusion, and is not evidence sufficient to raise an issue of fact as to whether there was any fraud * ⅜ Williamson v. Lewis, Tex.Civ.App., 346 S.W.2d 957, wr. ref.

There being no error, the judgment of the trial court is affirmed.


author: MURRAY, Chief Justice.

text:
    BUSINESS AIRCRAFT CORPORATION, Appellant, v. ELECTRONIC COMMUNICATIONS, INC., Appellee.
    No. 14380.
    Court of Civil Appeals of Texas. San Antonio.
    April 28, 1965.
    Rehearing Denied May 26, 1965.
    Jack H. Kaufman, San Antonio, for appellant.
    H. Maxwell Parker, San Antonio, for ap-pellee.
   MURRAY, Chief Justice.

This is a suit by Electronic Communications, Inc., the assignee of a non-negotiable promissory note, against Business Aircraft Corporation, the payor of the note. The note was payable in four equal annual installments, the first of which fell due on December 27, 1963, was not paid. Thereafter, on May 18, 1964, the holder of the note declared all four installments due, placed the note in the hands of an attorney, and suit was filed on May 20, 1964, for the full amount of principal, interest and attorney’s fees provided for in the note.

The trial court granted plaintiff’s third motion for a summary judgment for the full amount, as prayed for, and the defendant has prosecuted this appeal.

Appellant’s first contention is that appellee could not legally accelerate the payment of the note and file suit without first presenting the note for payment and giving appellant a chance to pay the installment due. We do not agree. This note is not a negotiable note, and is not governed by the Uniform Negotiable Instruments Act, Arts. 5932-5948, inclusive, Vernon’s Ann.Civ. Stats., but by the common law governing non-negotiable notes. 10 C.J.S. Bills and Notes §§ 24, 345, pp. 431, 847.

It is true that here the note was payable in San Antonio, Bexar County, Texas, at no particular place, and if it had been a negotiable note it would have been payable at the place of bsuiness of the payor, and presentment for payment there would have been required in the absence of a waiver, before there would have been any default, Faulk v. Futch, 147 Tex. 253, 214 S.W.2d 614 (1948); 5 A.L.R.2d 963, but, being a non-negotiable note, containing no provision for a presentment or demand for payment, no such presentment or demand was required. McDougall v. Hazelton Tripod-Boiler Co., 6 Cir., 88 F. 217; 8 C.J. 528.

The first installment fell due on December 27, 1963, and suit was not filed until May 20, 1964. In the absence of proof to the contrary, it will be presumed that during this period of over four months appellant was given ample opportunity to pay this past due installment. McDougall v. Hazelton Tripod-Boiler Co., supra.

This being a ñon-negotiable note, it is governed by the law of contracts and, under the facts here, it was the duty of the payor to fulfill his contract to the holder of the note to pay this first installment in some way. 10 C.J.S. Bills and Notes § 24, page 431.

However, the appellant would be permitted to show as a matter of defense that he had sufficient funds on hand, and had been ready and willing to pay this first installment on its due date, and every day since, but was prevented from doing so by the conduct of the payee. The proof of the above facts would show, in effect, a continuous tender of payment of the full amount, and therefore the payor would not be in default, but the burden would be upon him to show these things as a matter of defense. 8 C.J., Bills and Notes, § 741, p. 527; 10 C.J.S. Bills and Notes § 345, p. 848.

Here the only showing made by appellant is that on August 24, 1964, more than seven months after the due date of the installment and some two months after suit had been filed, it tendered the amount of the installment into court. This tender came too late, and appellee had a right to refuse it.

Appellant has not shown itself entitled to any equitable relief. It tries to bring itself within the holding of such cases as Parker v. Mazur, Tex.Civ.App., 13 S.W.2d 174. In the Parker ease there was a negotiable note with a waiver of the necessity of presentment of payment, but Mazur was able to show that the day the note came due he had the money ready to make payment, but payee did not ask for payment, and without any notice, almost immediately, accelerated the due date of the series of notes and sought foreclosure. Mazur acted promptly and came into court, established that the holder had acted' harshly, and that as a matter of equity he should be permitted to pay the amount due. Justice Fly there held that Mazur had equity on his side and should not, as a matter of equity, be treated as the payee of the note was attempting to treat him. Appellant here has not plead nor offered to prove any such facts as were established by Mazur.

Here we have a non-negotiable note, with no provisions for demand for payment, and it had been past due for more than four months before the note was placed in the hands of an attorney. After suit was filed, appellant waited more than two months before making any tender of the amount due. Under the circumstances, appellant did not show itself entitled to any equitable relief, and the trial court properly granted the summary judgment.

The judgment of the trial court is affirmed.


author: WALTER, Justice.

text:
    L. F. BOYDSTON et al., Appellants, v. Mary Page CHILDRESS et vir et al., Appellees.
    No. 3983.
    Court of Civil Appeals of Texas. Eastland.
    May 7, 1965.
    Rehearing Denied May 28, 1965.
    R. J. Balch, Seymour, Don Burdette, Amarillo, for appellants.
    McMahon, Smart, Sprain, Wilson & Camp (Bob J. Surovik), Abilene, for ap-pellees.
   WALTER, Justice.

In Boydston v. Childress, 378 S.W.2d 730, this court dismissed the appeal stating “The judgment concludes with a recital that it is without prejudice to the rights of any party to subsequently litigate any additional matters not precluded thereby. There is no order of severance in the record. The cause of action asserted by plaintiffs against said non-appealing defendants is not shown to be disposed of by said judgment, or by any order in the record. We conclude that the judgment is not final. We have jurisdiction only to dismiss the appeal.”

After the appeal was dismissed and on May 14, 1964, plaintiffs filed a motion in the trial court to dismiss and sever wherein they said: “Plaintiffs pray and move, in order to make final the Summary Judgment previously entered by the Court in this matter, that the cause of action against the Defendant, Fort Worth Fountain and Hotel Supply, be dismissed; that the cause of action against Defendant Brunswick Automatic Pinsetter Corporation, as well as all other causes of action except that certain cause of action set forth in Plaintiffs’ Motion for Summary Judgment, be severed and tried separately from said cause of action set forth in Plaintiffs’ Motion for Summary Judgment against Defendants Boydston, Shaw, Bartley, Porter and Nicholson and in the Summary Judgment entered herein — .”

On May 25, 1964, the court entered the following order:

“It is therefore ORDERED, ADJUDGED AND DECREED that the cause of action against the Defendant, Fort Worth Fountain and Hotel Supply be, and the same is, hereby dismissed; that the cause of action against Defendant Brunswick Automatic Pinsetter Corporation, as well as all other causes of action except that certain cause of action set forth in the Plaintiffs’ Motion for Summary Judgment, be, and the same are, hereby severed and ORDERED to be tried separately from the cause of action against Defendants Boyd-ston, Shaw, Bartley, Porter and Nicholson, as set forth in the Plaintiffs’ Motion for Summary Judgment and the Summary Judgment of the Court; and that the Summary Judgment heretofore entered be incorporated by reference as though fully set forth herein and made a part hereof, and that such Summary Judgment be, and the same is, hereby made final as to the cause of action disposed of therein.” Defendants filed their motion for a new trial on June 4, 1964.

On January 11,1965, the court entered an order reciting that it was without jurisdiction to take any further action on defendants’ motion to set aside the order entered on May 25, 1964, because said motion had been overruled by operation of law forty five days after it was filed and “that the summary judgment previously entered has become final.” To which order the defendants excepted and gave notice of appeal. This notice of appeal was filed January 13, 1965.

The appellants did not perfect an appeal from the final judgment of May 25, 1964, in that they failed to file an appeal bond within the time required by Rule 356, Texas Rules of Civil Procedure. The bond of Shaw and Boydston was filed February 8, 1965, and the bond of Bartley, Porter and Nicholson was filed January 29, 1965. Their bond should have been filed within thirty days after their motion for a new trial was overruled by operation of law. We are therefore compelled to dismiss the appeal. It is so ordered.


author: STEPHENSON, Justice.

text:
    Glenn F. HAMMAN, Appellant, v. Lloyd HAYES et al., Appellees.
    No. 6772.
    Court of Civil Appeals of Texas. Beaumont.
    April 15, 1965.
    Rehearing Denied May 12, 1965.

      Keith, Mehaffy & Weber, Beaumont, for appellant.
    Cary Young, Black & Provost, Port Arthur, for appellee.
   STEPHENSON, Justice.

This is a suit in the form of a declaratory judgment brought to determine the legality of the appointment of the Director of Police for the City of Port Arthur. Plaintiff is the former Chief of Police, but brought this action as a taxpaying citizen against the City of Port Arthur, the Mayor and the Director of Police. Trial was before the court and judgment was one of dismissal for want of jurisdiction. The parties will be referred to as they were in the trial court.

The sole question involved in this appeal is whether or not such action must be brought as a “quo warranto” proceeding in which the State of Texas is a party. Plaintiff alleged in his petition that he has the right as a taxpayer to challenge the illegal expenditure of public funds under a contract which is void or illegal. Plaintiff further alleged that the void or illegal contract is the one of employment of the Director of Police because he is not qualified under Section 14, par. D of Art. 1269m, Vernon’s Ann.Civ.St., which reads as follows :

“No person shall be eligible for appointment as Chief or Head of the Fire or Police Department of any city coming under the provisions of this Act who has not been a bona fide fire fighter in a Fire Department or a bona fide law enforcement officer for five (5) years in the State of Texas.”

Plaintiff contends he is not bound exclusively by the quo warranto procedure under Art. 6253, V.A.C.S., inasmuch as he is not directly seeking to determine the “right” of the Director of Police to hold office. Plaintiff also alleged that he would have continued to hold the office of Director of Police, but for the illegal appointment of the present director.

Plaintiff cites cases to the court which are authority for the proposition that a taxpaying citizen has a right to challenge the illegal expenditure of public funds. Terrell v. Middleton, Tex.Civ.App., 187 S.W. 367; Osborne v. Keith, 142 Tex. 262, 177 S.W.2d 198. However, the court did not have to pass upon the qualifications of a person to hold office, either elective or appointive, in any of the cases cited.

The authorities in this State indicate that a proceeding in quo warranto is the exclusive legal remedy afforded to the public by which it may protect itself against the usurpation or unlawful occupancy of a public office by an illegal occupant. Williams v. Castleman, 112 Tex. 193, 247 S.W. 263; Willborn v. Deans, Tex.Civ.App., 240 S.W.2d 791; McFarlin v. State ex rel. Barnard, Tex.Civ.App., 272 S.W.2d 630. However, apparently there was no contention made that public funds were being illegally expended in any of these cases.

We hold that this case, in which the court must first determine whether or not the Director of Police is legally qualified to hold public office, before it can determine whether or not public funds are being illegally expended, must be brought as a proceeding in quo warranto.

Affirmed.