author: BATEMAN, Justice.

text:
    John OPRYSHEK, Jr., Appellant, v. McKESSON & ROBBINS, INC., Appellee.
    No. 16165.
    Court of Civil Appeals of Texas. Dallas.
    April 26, 1963.
    Brown & Elliott, George M. Elliott, Dallas, for appellant.
    Scott & Anderson, J. M. Anderson, Dallas, for appellee.
   BATEMAN, Justice.

Appellee sued appellant John Opryshek, Jr., and his son, J. H. Opryshek, on sworn account for merchandise allegedly sold and delivered to the defendants and recovered judgment against them, jointly and severally. Appellant recovered judgment over against his son for the same amount. The son has not appealed. Appellant urges reversal of appellee’s judgment against him on the ground that appellee failed to prove either that the merchandise was delivered or that the prices charged therefor were usual, customary or reasonable.

No findings of fact or conclusions of law were filed by the trial judge. The case having been tried to the court without the aid of a jury, we must determine whether there was any evidence to support the judgment and the implied findings of fact incident thereto, and in doing so will consider only the evidence most favorable, and disregard that opposed, to these issues. Renfro Drug Co. v. Lewis, 148 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114.

Appellant filed a sworn denial of the account sued on, which placed the burden on appellee to prove its case as at common law. Burtis v. Butler Bros., Tex.Civ.App., 243 S.W.2d 235, no wr. hist. J. E. Earnest & Co. v. Word, 137 Tex. 16, 152 S.W.2d 325. Essential elements of such proof are inter alia (1) sale and delivery of the merchandise and (2) that the amount of the account is just, or, in other words, that the prices charged are in accord with agreement or, in the absence of agreement, that they are usual, customary or reasonable.

By his first six points of error on appeal appellant urges that there is no evidence, and that the evidence is insufficient, to prove those two essential elements. The judgment must be affirmed if there is any evidence to support the implied findings that the merchandise was delivered and that the prices were usual, customary or reasonable. Our examination of the statement of facts reveals that there is at least some evidence, more than a scintilla, to support the former but none to support the latter.

FACTS

Appellant, a resident of Austin, Texas, and a retired oil company employee, bought a retail drug store in Dallas and installed his son J. H. Opryshek, who was a pharmacist, as manager. He turned $10,000 over to his son, of which about $7,600 was used to purchase the business. The son bought merchandise on credit from appellee, the balance at one time amounting to $4,-157.77, and made payments from time to time and merchandise was returned for credit from time to time. The amount sued for was $1,437.72. Appellant testified that his son was not authorized to buy merchandise on credit, as the balance of approximately $2,400 of the $10,000 was intended as working capital which would enable him to pay cash for all merchandise purchased. After about nine or ten months the business failed, the son left, and appellant operated the store for a short time. Attached as an exhibit to appellee’s petition was a voluminous account consisting of approximately 186 pages, duly verified in conformity with Rule 185, Vernon’s Texas R.C.P. As stated, appellant denied by his sworn answer that the account was just or true, in whole or in part. The account itself was never offered in evidence. At one point during the trial the attorney for the : m J. H. Opry-shek stated: “No question the bill is owed ; the question is who owes it.” Immediately thereafter, counsel for appellant reminded the court that he and his client had never agreed on any amount as being owed to ap-pellee, that he had “filed sworn pleadings to the contrary trying to determine if there is any amount owing and how much it is.” Additional detailed facts will also appear in the opinion.

OPINION

In the first place, the admission in open court by the attorney representing his son and co-defendant, that “No question the bill is owed, the question is who owes it,” is not binding on appellant and cannot be considered as any evidence against him on the controlling issues before us. Neither can it be said that appellant’s counsel acquiesced in such analysis by remaining silent, for he promptly spoke up and reminded the court that he was still demanding strict proof of the claim as against appellant.

Counsel for appellee called as his first witness the son J. H. Opryshek. After testifying as to the purchase of the store and his operation of same as salaried manager for his father and that he bought drugs from appellee from time to time, this question and answer followed:

“Q And of course this account is rather voluminous and has a lot of items, but from time to time, those drugs were delivered by McKesson and Robbins, is that correct ?
“A That is correct.”

We hold that this testimony is at least some evidence, sufficient to support the implied finding of delivery of the merchandise.

But a careful search of the entire record fails to reveal even a scintilla of evidence that the prices charged by appellee for the merchandise so delivered were either usual, customary or reasonable. In the absence of agreement by appellant to pay any particular price or prices, it was essential to appellee’s case against appellant to offer at least some slight bit of testimony on the point; but none was offered. Dodson v. Kemper Military School, Tex.Civ.App., 42 S.W.2d 288, err. dis.; Trice Contract Carpets & Furniture, Inc. v. Martin, Tex.Civ.App., 334 S.W.2d 554, no wr. hist. This necessitates our reversal of appellee’s judgment against appellant.

Our conclusion just stated renders unnecessary a discussion of appellant’s seventh and eighth points assailing the awarding of $300 attorney’s fee to appellee under Art. 2226, Vernon’s Ann.Tex.St. Having failed to obtain a valid judgment against appellant on the account, appellee is not entitled to recover its attorneys’ fee against him.

Appellee’s judgment against J. H. Opry-shek is affirmed. Its judgment against appellant is reversed, but feeling that justice would be best served thereby, it is remanded.

Affirmed in part and reversed and remanded in part.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Kenneth L. TILLEY et ux., Appellants, v. The CAPITAL NATIONAL BANK IN AUSTIN, Appellee.
    No. 11071.
    Court of Civil Appeals of Texas. Austin.
    April 17, 1963.
    Rehearing Denied May 8, 1963.

      Howard M. Wayland, Houston, for appellants.
    Clark, Thomas, Harris, Denius & Winters, Conrad P. Werkenthin, Austin, for ap-pellee.
   HUGHES, Justice.

This is a venue case in which the sole question presented is whether or not a written contract upon which the suit is based creates an obligation performable in Travis County, under Sub. 5, Art. 1995, Vernon’s Ann.Civ.St.

Appellants, Kenneth L. Tilley and wife, Sylvia J. Tilley, residents of Harris County, executed the following contract:

“CONTRACT OF SALE
“The undersigned Kenneth L. Tilley, hereinafter called Purchaser, purchases from Family Freeze, Inc., hereinafter called Seller, of the City of Houston, County of Harris, State of Texas, subject to the terms and conditions hereinafter set forth, the following described property, complete with standard attachments, accessories, and equipment, delivery and acceptance of which is hereby acknowledged by Purchaser, and hereinafter referred to as ‘chattel’, viz.:
Other “Article Model Make Serial No. Description
“Freezer FGD 220 Family Freeze, 2312465 Upright Inc.
“State Sales Tax 13.99
“For a purchase price of $699.50, payable as follows: $ 0 on or before delivery, leaving a deferred balance of $906.12, evidenced by my (our) note of even date, payable to Seller or order on demand, or if no demand is made, then in monthly installments as follows: The first installment is due and payable on the 5th day of April 1962, and one installment is due and payable on the 5th day of each month thereafter until this note is paid in full. This note is payable in Thirty six (36) monthly installments. I agree to pay Twenty five and 17/100 25.17 Dollars per month for the first'Thirty six (36) installments, and 0 Dollars for the last installment.
“It is expressly provided that the title to the above-described property is retained by and in Seller until the full payment of the above obligation by Purchaser; and if Purchaser shall fail to pay such obligation in full when due, or breach this conditional sale contract, or should Seller or his assigns feel themselves or said chattel insecure, or if any execution or writ be levied on any of Purchaser’s property, or a receiver thereof be appointed, or if a petition in bankruptcy be filed by or against Purchaser, the entire balance of said aforedescribed note, as therein set out, shall become due and payable at the election of the Seller or his assigns, and Seller or his assigns may, without notice or demand, by process of law or otherwise, take possession of said chattel, together with all attachments, with or without legal process, and wherever located, and sell the same and all of purchaser’s equity of redemption therein at public or private sale, and apply the proceeds, after deducting all expenses, liens, and a reasonable attorney’s fee paid or incurred by Seller or assigns, to the payment of said indebtedness; but in case such proceeds exceed the amount due upon such obligation and expenses, returning any balance to Buyer. Or in case of a deficiency, the Purchaser herein agrees to pay same with interest.
“Purchaser further promises not to use or permit said chattel to be used for hire or any unlawful purpose, and will not attempt to sell, assign or dispose of said chattel of any interest therein, without first obtaining the written consent of the Seller, or his assigns.
“Purchaser further agrees to take good care of said chattel, keep same insured for the benefit of the Seller or his assigns, and to be responsible for its loss by fire, theft, or other casualty, and not remove same from address shown beneath his signature below unless Purchaser first obtains written consent of the Seller or his assigns.
“This Contract of Sale may be assigned and/or said note may be negotiated without notice to Purchaser, and when assigned and/or negotiated shall be free from any defense, counterclaim or cross-complaint by Purchaser. Any suit brought on this Contract of Sale shall be brought in Travis County, Texas.
“This Contract of Sale constitutes the entire agreement; no waiver or modification shall be valid unless endorsed hereon in writing.
“The Purchaser hereby expressly represents and covenants that he (she, or they) is (are) under no legal disabilities imposed by law from entering this contract of sale.
“I (WE) HAVE READ AND UNDERSTAND THE FOREGOING INSTRUMENT AND ACKNOWLEDGE THE RECEIPT OF A TRUE COPY OF THIS CONTRACT OF SALE.
“IN WITNESS WHEREOF, the Purchaser has hereunto set his (their) hand(s) this the 16th day of February, A.D. 1962, at Houston, Texas
“WITNESS:
“X Kenneth L. Tilley “Purchaser-Conditional Vendee
“Frances McNeal “Salesman-Sign Here
“X Sylvia J. Tilley Address
“Hal Chapman
“4102 Gramercy Street, Houston “City and State

Appellee, the Capital National Bank in Austin, owner of the contract, sued to recover the amount due thereon and to foreclose the lien on the property therein described, alleged to be located in Harris County.

It will be noted that “Travis County” is referred to only once in the contract, and in this sentence, “Any suit brought on this Contract of Sale shall be brought in Travis County, Texas.”

This provision of the contract is against public policy, and unenforceable. International Traveler’s Association v. Branum, 109 Tex. 543, 212 S.W. 630, LaSalle County Water Improvement Dist. No. 1 v. Arlitt, 297 S.W. 344, Austin Civ.App., writ dism. Being against public policy, it is void. Ziegelmeyer v. Pelphrey, 133 Tex. 73, 125 S.W.2d 1038.

Additional cases which follow Branum are: Atkins v. Wheeler, 307 S.W.2d 294, Austin Civ.App., writ dism., Bexar County Mutual Ins. Co. v. Ward, 245 S.W.2d 325, Eastland Civ.App., Super-Cold Southwest Co. v. Green & Romans, 185 S.W.2d 749, Fort Worth Civ.App., General Motors Acceptance Corp. v. Hunsaker, SO S.W.2d 367, Amarillo Civ.App., writ dism.

In Smith v. Hartt & Cole, 13 S.W.2d 408, Eastland Civ.App., opinion by Hickman, C. J., it was stated, “Venue is fixed by law, and any contract whereby it is agreed to change the law with reference to venue, is void.” citing Branum, supra.

Appellants’ obligation to pay, being the obligation upon which suit is brought, is not, perforce the contract, performable in Travis County as required by Sub. S, Art. 1995, in order to fix venue in such county. Hence, no exception is shown to exist authorizing this suit to be filed in a county other than in the County of the residence of appellants, and the Trial Court erred in not sustaining their plea of privilege.

The judgment of the Trial Court is reversed and remanded with instructions to transfer this cause to a court of proper jurisdiction in Harris County.

Reversed and remanded with instructions.


author: MURRAY, Chief Justice.

text:
    Edmund FIEDLER, Appellant, v. Sidney B. DENTON and Murray B. Denton, Appellee.
    No. 14042.
    Court of Civil Appeals of Texas. San Antonio.
    March 20, 1963.
    Rehearing Denied April 17, 1963.
    Darrell G. Lochte, Robert R. Barton, Kerrville, for appellant.
    Nicolas & Nicolas, Corpus Christi, for appellee.
   MURRAY, Chief Justice.

This suit was instituted in the District Court of Nueces County by Sidney B. Den-ton and Murray B. Denton, individually and as heirs at law of Mable Jackson, deceased, against Edmund B. Fiedler, to recover on three separate and unrelated written obligations, described by appellant in his brief as follows:

“(a) A certain promissory note in the original amount of $2,544.00, executed by Appellant and one Mable Jackson payable in installments solely to Appel-lee Sidney B. Denton in Corpus Christi, Texas, which will be referred to as the ‘Denton Note’.
“(b) A certain promissory note executed by Edmund B. Fiedler, in the principal amount of $4,500.00, payable to the order of Mable Jackson On Demand in Kerrville, Texas, which will be referred to as the ‘Mable Jackson note’.
"(c) A certain bank draft in the amount of $200.00, payable to the order of Mable Jackson, which will be referred to as ‘the Mable Jackson draft’.”

Appellant, Edmund B. Fiedler, filed a plea of privilege, in proper form, to be sued in Kerr County, Texas, the county of his residence. Appellees, Sidney B. and Murray B. Denton, filed their controverting plea seeking to retain venue as to all three obligations in Nueces County, under the so-called Middlebrook Doctrine, found in Middlebrook v. David Bradley Mfg. Co., 86 Tex. 706, 26 S.W. 935.

The effect of this plea was that inasmuch as the District Court of Nueces County had jurisdiction of obligation (a) under subdivision 5 of Art. 1995, Vernon’s Ann.Civ. Stats., appellees were entitled to join obligations (b) and (c) in the same suit in order to avoid a multiplicity of suits. This is a well-recognized doctrine. Parkhill Produce Company v. Pecos Valley Southern Ry. Co., Tex.Civ.App., 348 S.W.2d 208.

The trouble here is that this record shows upon its face that appellees are suing on obligations (b) and (c) as heirs of Mable Jackson, within the four-year administration period, without showing that there is no necessity for an administration upon her estate. The general rule is well stated in 20 Tex.Jur.2d, Descent and Distribution, § 40, p. 122, as follows: “An heir can generally maintain an action to recover property belonging to an estate * * * only on pleading and proof that there are no will, no administration, and no necessity for administration, when the suit is brought within the four-year administration period. Moore v. Blackwell (CA) 85 S.W.2d 980, err. dismd.; Elliott v. Elliott (CA) 213 S.W.2d 459, err. ref. n. r. e.; Daniel v. Mayer (CA) 213 S.W.2d 753 (wherein petition merely stated that there was no administration); Cox v. Campbell (CA) 257 S.W.2d 462, reh. den., err. ref.; Lyons v. Keith (CA) 316 S.W.2d 785, reh. den., err. ref., n. r. e.”

Here the appellees failed to prove that there was no necessity for an administration of the estate of Mable Jackson, deceased, and therefore the only proper party to bring a suit on obligations (b) and (c) would be an administrator or executor of the estate of Mable Jackson, deceased. 20 Tex.Jur., Descent and Distribution, § 41, p. 123; Youngs v. Youngs, Tex.Com.App., 26 S.W.2d 191; Dutchover v. Dutchover, Tex.Civ.App., 334 S.W.2d 569; Goss v. Phillips, Tex.Civ.App., 292 S.W.2d 700; Wilson v. Wilson, Tex.Civ.App., 216 S.W.2d 684; French v. French, Tex.Civ.App., 148 S.W.2d 930; Barton v. Warner, Tex.Civ.App., 142 S.W.2d 303; Ragsdale v. Prather, Tex.Civ.App., 132 S.W.2d 625; Cyphers v. Birdwell, Tex.Civ.App., 32 S.W.2d 937.

The record here affirmatively shows that appellees were not proper plaintiffs to bring and maintain this suit as to obligations (b) and (c), and therefore cannot maintain venue in Nueces County as to these obligations, under the Middlebrook doctrine. Finder v. Jenka Corp., Tex.Civ.App., 348 S.W.2d 236, 237.

The judgment of the trial court will be affirmed as to obligation (a), but will be reversed as to obligations (b) and (c), and the venue as to these two obligations will be transferred to the District Court of Kerr County, Texas. The clerk of the trial court in making the transfer will follow the procedure prescribed in Rule 89, Texas Rules of Civil Procedure.


author: CHADICK, Chief Justice.

text:
    Mary R. BERGFELD and Bertha Bergfeld Ahlschlager, Trustees under the Will of Rudolph L. Bergfeld, Deceased, Rudolph Pabst Bergfeld Cestui Que Trust, Appellants, v. Ellis CAMPBELL, Jr., District Director of Internal Revenue, Appellee.
    No. 7449.
    Court of Civil Appeals of Texas. Texarkana.
    April 16, 1963.

      Smith & Smith, Tyler, for appellants.
    Wm. Wayne Justice, U. S. Dist. Atty., Lloyd W. Perkins, Asst. U. S. Dist. Atty., Carolyn Just, Dept, of Justice, Lee A. Jackson, Chief Appellate Section, Louis F. Oberdorfer, Asst. Atty. Gen., Washington, D. C., for appellee.
    Henry Schwartz, Tyler, for the Cestui Que Trust.
   CHADICK, Chief Justice.

This is an appeal from an order sustaining a plea of privilege as to venue. The judgment of the trial court is reformed and as reformed is affirmed.

The underlying action is a suit by Mary R. Bergfeld and Bertha Bergfeld Ahlschla-ger, Trustees of a trust created by the will of Rudolph L. Bergfeld, Deceased, against Rudolph Pabst Bergfeld, the beneficiary thereof, for a construction of the trust provision of the will, as authorized by Article 7425b-24 of the Texas Trust Act, V.A.T.S. A determination of the law and facts currently applicable to the powers, responsibilities, duties and liability of the trustees of the trust estate is the object of action. Suit was filed in a district court of Smith County. After reviewing the pleadings and issues presented, the trial judge on his own responsibility directed that Ellis Campbell, Jr., Director Director of Internal Revenue, be joined in the action as a party defendant.

The court’s order requiring joinder was effectuated. The United States Attorney for the Eastern District of Texas filed a plea of privilege in Campbell’s behalf, alleging that Campbell was not a resident of Smith County at any time pertinent to the venue issue, and was at all pertinent times a resident of Dallas County, and asserted that no exception existed to exclusive venue of the action against Campbell in the county of Campbell’s residence. The plea of privilege was controverted by Mary R. Bergfeld and Bertha Bergfeld Ahlschlager, as Trustees, and by Rudolph Pabst Berg-feld, the Cestui Que Trust. The controverting affidavit alleged that venue of the action is prescribed by Article 7425b-24. The statute referred to provides that, “Where there are two or more trustees, * * * venue shall be in the county where the principal office of the trust is maintained”. Hearing was held and evidence upon the issues introduced and at its conclusion the judge conducting the hearing sustained the plea of privilege and ordered the case as to all parties transferred to a District Court in Dallas County.

The Bergfelds, in their trust relationships, proceeded on the theory, in the trial court and here, that venue is controlled by proof of the location of the Trusts’ principal office. They grouped and briefed as one their two points of error as follows:

“Point one: The Trial Court erred in sustaining the Plea of Privilege because the record shows conclusively that venue is properly fixed in Smith County, Texas, as a matter of law.
“Point two: The Trial Court erred in sustaining the Plea of Privilege because the record shows conclusively that venue is properly fixed in Smith County, Texas, as a matter of fact.”

The parties’ briefs do not make an issue of the nature of the points of error. However, notice must be taken of their differing character in discussing the questions they present. The first point casts upon appellants the burden of showing that the evidence or some provision of law conclusively established venue of the case in Smith County. The second point presents the question of no evidence to support the judgment rendered. See Calverts “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas Law Review 361.

The following instrument recorded in the office of the County Clerk of Smith County was offered in evidence, to-wit:

“DESIGNATION OF PRINCIPAL OFFICE OF TRUSTS
“THE STATE OF TEXAS I KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DALLAS j
“THAT WHEREAS, Rudolph L. Bergfeld, Deceased, created, by virtue of his will which was probated in the Probate Court of Dallas County, Texas, being No. 48681-P on the docket of that Court, three trusts; one for his wife, Mary R. Bergfeld, one for his son, Rudolph Pabst Bergfeld, and one for his daughter, Bertha Bergfeld Ahlschlager, and designated the undersigned, Mary R. Bergfeld and Bertha Bergfeld Ahlschlager as Co-Trustees thereof, and
“WHEREAS, it is desirable and convenient inasmuch as there are two trustees to designate the principal office and address of each of the trusts.
“NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES, we, the undersigned, Mary R. Bergfeld and Bertha Bergfeld Ahlschlager, Co-Trustees of the trusts created under the will of Rudolph L. Bergfeld, Deceased, do hereby designate the principal office of such trusts as 61S Citizens First National Bank Building, Tyler, Texas, and further designate the mailing address of the same to be % Kelley Smith, Resident Agent, P. O. Box S, Tyler, Texas.
“IN WITNESS WHEREOF, we have executed this instrument this the 31st day of March, 1960.
“/s/ Mary R. Bergfeld
“MARY R. BERGFELD
“/s/ Bertha Bergfeld Ahlschlager
“BERTHA BERGFELD AHLSCHLAGER
“Co-Trustees of the Trusts Under the Will of Rudolph L. Bergfeld, Deceased”.
(acknowledgments omitted)

The instrument, the will of the deceased, and its provisions creating the Trust and appointing two trustees to administer it, the trustees’ acceptance and active administration of the Trust, together with the testimony of Mrs. Ahlschlager that the Trust had no employees except its legal counsel, referred to as agent in the instrument reproduced above, and the clerical employees of the agent in the agent’s law office is the evidence relied upon to prove conclusively that the Trust maintained its principal office in Smith County.

Neither the Trust Act, Article 7425b-l et seq., nor any other statute brought to the attention of the court refers to or provides for a written designation of a trust’s principal office or makes an ex parte designation controlling in any sense. Therefore, no rule of law is found that conclusively locates the principal office of the Trust in Smith County.

The language of the Act leaves the location of the principal office an open question to be answered by the proof made in a particular case. The evidence relied upon by the Trustees, mentioned in the second paragraph above, is not conclusive that the Trust’s principal office is located in Smith County because there is other evidence, yet to be detailed, supportive of a contrary finding. It follows that the first point must be overruled, because neither by rule of law nor by the written designation of a principal office and the evidence mentioned in connection therewith, is it conclusively shown that the Trust maintained its principal office in Smith County.

In order to determine the evidence questions, it becomes necessary to determine what constitutes a trust’s principal office as the term is used in the Trust Act. The term is not defined by the Trust Act, and does not have a specialized meaning in law. Numerous decisions of Texas Courts and from other jurisdictions have undertaken to define the term “principal office”. See 33 Words and Phrases, pp. 619-621. With few exceptions the cases consider the term in connection with incorporated organizations, and efforts to determine the principal office of a corporation and the decisions reached are necessarily dictated by statutes pertaining to corporations. See Ward v. Fairway Operating Company, Inc., Tex., 366 S.W.2d 194, 6 Texas Supreme Court Journal 218; (Court of Civil Appeals opinion 358 S.W.2d 143). Art. 2029 in its provision for service of citation on corporations under certain circumstances uses the term “principal office” without defining it. With reference to this article, Art. 2029, it has been held, “The principal office of the •corporation * * * is the place where the principal affairs, business and otherwise * * * are transacted, and where the officers and agents of the company are expected to be in the performance of their duties * * * during office hours”. Boze-man v. Arlington Heights Sanitarium, Tex.Civ.App., 134 S.W.2d 350, W/R. Such definition transposed to trusts comports with the popular meaning of the words of the term, and is adopted as the definition of a trust’s principal office.

On examination of the record it is found that in addition to that previously mentioned the following evidence was introduced. The deceased, Rudolph L. Bergfeld, at the time of his death, was domiciled in Dallas County and his will was probated there. Mary R. Bergfeld, surviving wife of Rudolph L. Bergfeld, and Bertha Bergfeld Ahlschlager, the co-trustees, are both residents of Dallas County. Mrs. Bergfeld and Mrs. Ahlschlager both are active in managing the Trust’s affairs. Mrs. Ahlschlager testified that she relied upon the advice of her legal counsel and weighed his recommendations, but reserved to herself final decisions on investments and management decisions and policy concerning Trust property. Mrs. Ahlschlager also employs a part-time secretary who reports for work at Mrs. Ahlschlager’s home in Dallas County three days per week and assists her in keeping the Trust’s books writing checks, letter of instruction, etc., in handling the Trust’s business. Trust property, such as stocks and bonds constituting about one-half of the Trust’s assets, when not in the keeping of a brokerage house, are kept in safety deposit boxes in Dallas County; the bulk of the Trust’s real property is located in Dallas County, and Mrs. Ahlschlager handles the negotiations of leases on it, etc.

The facts related next above constitute evidence of probative value that the Trustees maintained in Dallas County a headquarters where the principal business affairs of the Trust are normally transacted, and where the Trustees of the Trust could ordinarily be found during office hours. The second point is overruled.

Overruling both points of error on the basis indicated makes it unnecessary to discuss other counterpoints advanced by the appellee to sustain the trial court action. However, the broad terms of the trial court’s order transfers to Dallas County the original action by the Trustees against the Beneficiary, as well as the impleaded party, Ellis Campbell, Jr., Director of Internal Revenue. All parties agree that Campbell is not a necessary (indispensable) party to the suit. The order should have been limited in such way that the suit between trustees and beneficiary remained on the trial court’s docket in Smith County, and the suit between the original parties and Campbell transferred to Dallas County. Rule 89 V. A.T.R. The trial court judgment is reformed to so do, and as reformed is affirmed.


author: WILSON, Justice.

text:
    Oscar MARK et ux., Appellants, v. BELROSE CORPORATION, Appellee.
    No. 4091.
    Court of Civil Appeals of Texas. Waco.
    April 25, 1963.
    Rehearing Denied May 9, 1963.

      Horace F. Brown, Gay C. Brinson, Jr.,’ Houston, for appellants.
    Baker, Botts, Shepherd & Coates, and Finis Cowan, Houston, for appellee.
   WILSON, Justice.

Summary judgment was rendered for defendant landlord in plaintiff-tenants’ action seeking damages for personal injuries resulting from the landlord’s failure to repair the rented premises after an agreement to do so.

Lessor answered that plaintiffs had superior knowledge of the condition of the premises, knew the risks attendant to their use, and that recovery was precluded by assumption of risk and voluntary exposure to known danger. It alleged the tenants’ conduct in these and other respects was negligent. The pleadings, the depositions of plaintiffs and the realty agent of defendant comprised the record considered.

The record raised a genuine issue as to the following facts, or made them undisputed: Five years before the accident, defendant Belrose Corporation employed a commission realty agent to manage and rent its properties. The agent made an oral agreement with plaintiffs, Mark and his wife, for a cash rental month-to-month tenancy of the two upper floors of an apartment-hotel. The tenants were to give a month’s notice to quit. The occupancy continued until after the date of injury. It was agreed plaintiffs would live in the building and sublet eleven other apartment units on these floors, operate them; and “do the minor routine interior repairs, paint and maintenance work; nothing like plastering or anything that would run into money.” Any repairs “of a substantial nature” including “keeping the roof in repair, were the responsibility of the landlord.”

Shortly after plaintiffs’ possession began, the agent and defendant’s president and major stockholder received actual notice that the roof of the building was leaking, resulting in damage to the plaster ceiling in several units. Mark continued to make complaints to the landlord of this condition, and having some building and construction experience, made several temporary repairs to the roof himself. On one occasion he was injured when plaster fell from the ceiling of an apartment at the opposite end of the floor, and was compensated by the corporation for his damages. On another occasion, the tenant testified, plaster fell over the staircase; and he had removed sagging or wet plaster from the ceiling of five apartments. The “management of the place was entirely in the control” of plaintiffs. The tenant testified the roof and plaster ceilings “leaked and dripped the whole five years”.

Three or four months before the accident,- — upon plaintiffs’ complaint the apartments were being vacated by subtenants because of wet ceilings, plaintiffs’ own threat to abandon the premises, and insistence of the agent — the landlord expressly agreed to replace the roof in consideration of the continued occupancy, payment of rental by plaintiffs, and the agreement by the tenant to thereafter re-plaster the ceiling in return for a credit on unpaid rents. The landlord had unsuccessfully attempted to induce a contractor to undertake less expensive repair of the existing S0-year-old asphalt and gravel roof, and agreed to replace the roof, “right away.” Defendant knew the roof leaked and that “some plaster had actually fallen; some chunks of plaster.” The roof was replaced after the accident.

Mrs. Mark entered one of the apartments, just vacated, to get a rug which the subtenant had borrowed. She knew the ceiling plaster was water-spotted. She testified she had not known that plaster had fallen in other apartments, but she was familiar with the condition of the roof, and the fact her husband had removed plaster from another ceiling; that she had mopped apartment floors wet from leaks after rains; that the plaster was not sagging; that she had told lessor’s president that plaster from one ceiling had to be removed “or it would have fallen down”, and that the building was structurally affected and “weakened by this water”; that it had rained hard the night before, and she went to retrieve her rug because water was leaking down on it. She did not consider the ceiling was unsafe, and didn’t “foresee or expect that the ceiling was going to fall”; she did not look up at it. As she reached to pick up the rug the ceiling cracked, and plaster, an inch thick covering an area of three feet, fell on her, resulting in injury.

Mr. Mark narrated his continuing complaints to the landlord as to the condition of the roof and ceilings during his five-year occupancy. He knew the plaster was “exceedingly heavy”, having “taken down quite a bit.” He testified: “I knew it was going to fall in the apartments I wouldn’t attempt to rent,” and “you take and let old patent plaster like that get wet, mister, it is only a matter of time until it’s going to fall.” He examined the ceiling where the accident occurred just after it was vacated, when the subtenant notified him the roof was leaking, and saw a damp spot in the plaster, 12 or 14 inches in diameter. It was not sagging. He testified he did not think it was serious or that there was danger of the plaster falling. He planned to close the unit, however, without renting it further.

Marks testified he and his wife “probably knew more about the premises there” than did “anyone else during the time” he rented them. He testified he had told lessor’s president that the “entire third floor was a hazard” and “the roof was leaking so badly that there was no telling when plaster would collapse.” He knew plaster had fallen over the stairway several months before. He had previously removed ceiling plaster from five other units, one of which was in the same wing where his wife’s injury occurred. He had told the landlord that if the roof wasn’t taken care of he “wasn’t going to stay there” and that he “wasn’t going to be responsible.” He testified “patent plaster, once it gets wet begins to deteriorate; and the more water that is added, the faster the deterioration, until it just simply rots and there is nothing to it.”

The landlord defends the summary judgment on the grounds (1) that the tenants, having exclusive control of the premises, had equal or superior knowledge of the danger and ability to foresee and avert harm; (2) that lessor breached no duty to the tenants, the danger being open and obvious; and (3) the tenants voluntarily exposed themselves to a known danger so as to be contributorily negligent as a matter of law.

The landlord further urges its promise to replace the roof was unilateral or gratuitous, creating no contractual obligation; and “the evidence concerning it is too vague, conflicting and uncertain to evidence a contractual obligation.” We reject the latter contention, (a) because there was at least a genuine issue of fact both as to the making of the agreement, the existence of consideration and the other essential elements of contract, and (b) because the tenancy was from month to month, and (if the original agreement to repair is ignored), there is adequate evidence to show the landlord’s specific agreement to replace the roof was made prior to the beginning of the monthly term or period in which injury occurred. Bachrach v. Estefan, Tex.Civ.App., 184 S.W.2d 640, 641; Sellers v. Spiller, Tex.Civ.App., 64 S.W.2d 1049, 1051; McKibbin v. Pierce, Tex.Civ.App., 190 S.W. 1149; 32 Am.Jur., Secs. 72-73, pps. 87, 88; McAdam, Landlord and Tenant (5th ed.) 148.

Although we have undertaken to fairly summarize both undisputed and issuable facts which the parties emphasize without applying the familiar guides governing authorization of summary judgments under Rule 166-A, Texas Rules of Civil Procedure, the following are the material facts as to which there is at least a genuine issue raised: (1) Lessor was under a contractual duty to repair the defective roof. (2) Lessor had notice of the defective condition of roof and plaster ceiling, and that it rendered use of the property unreasonably dangerous. (3) Lessor negligently failed to repair the defect, proximately resulting in the injuries complained of. These facts standing alone, we think, would preclude rendition of the summary judgment. Harvey v. Seale, Tex.Sup., 362 S.W.2d 310, 312; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 618; see 3A Thompson, Real Property (1959) Secs. 1239-1248; I American Law of Real Property (1952) Sec. 3.79, p. 3521; 2 Restatement, Torts (1934) Sec. 357; and the judgment may only be sustained by one or more of the enumerated grounds relied on by appellee.

We think the landlord’s contention that it owed the tenant no duty by virtue of a condition which was open and obvious is foreclosed against it. The landlord “will not be heard to say that she voluntarily exposed herself to the danger, and that he owed her no duty”, said the Supreme Court in Harvey v. Seale, Tex.Sup., 362 S.W.2d 310, 313. Justice Walker there delineates the distinction between absence of duty arising ex delicto in the relationship of owner and invitee where the latter has knowledge of the danger (as in McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391) and existence of such duty arising ex contractu in the relationship between landlord and tenant, with the attendant right of use.

As in each of the latter cases, the determinative factor in the present case, after the “duty” question, is simply whether the defensive issues of the tenants’ negligence as a proximate cause of the damages are established against them as a matter of law. To hold they are, lessor relies primarily on Pollack v. Perry, Tex.Com.App., 235 S.W. 541. There the tenant knew there was a sunken place in a covered floor, knew of its defective and dangerous condition, but “she had forgotten about it.” She reported the “sunken or sagging condition” to the landlord, and “considered it dangerous”. She even “set a hatrack over it,” which someone removed, although the cost of repair was small. It was “open and obviously apparent”. It was held failure to inspect, failure to repair, failure to use substantial means of avoiding the defect, “combined with her failure to ‘notice this place’ and to ‘pay any mind to it’ ” manifested a lack of care constituting contributory negligence as a matter of law. In that case there was an undisputed recognition and appreciation, not only of condition, but of danger. Ours, we think, is not quite such a case.

In order that the tenants’ conduct may be held contributory negligence as a matter of law it must be so opposed to the dictates of common prudence that it may be said, without hesitation or doubt, that no careful person would have so acted under the circumstances. Lang v. Henderson, 147 Tex. 353, 215 S.W.2d 585, 587; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 621, 23 A.L.R.2d 1114; Texas & New Orleans Railroad Co. v. Day, 159 Tex. 101, 316 S.W.2d 402, 406. Here, knowledge of the condition is not enough. It must further be said that plaintiff, appreciating the danger of voluntary exposure to it so as to make the conduct the result of an intelligent choice, did that which no person of ordinary prudence would have done, and as to which reasonable minds could not differ. Although we recognize the admissions of plaintiffs make this a case difficult of decision, that very difficulty leads us to conclude that after every reasonable intendment deducible from the evidence in this case is given effect, it may not be said there is no genuine issue of fact.

Reversed and remanded.


author: MASSEY, Chief Justice.

text:
    Elmer ATKINS et al., Appellants, v. T. M. GRAVES, Individually and as Next Friend of Bradley Graves, a Minor, Appellees.
    No. 16416.
    Court of Civil Appeals of Texas. Fort Worth.
    April 19, 1963.
    Rehearing Denied May 10, 1963.

      Kelly, Morris & Walker and Jearl Walker, Fort Worth, for appellants.
    Harris & Ball, and Chester Ball, Arlington, for appellees.
   MASSEY, Chief Justice.

From a judgment for plaintiff, individually and as next friend for his minor son Bradley Graves, defendants Atkins and his driver have appealed.

Judgment reversed and cause remanded for another trial.

At the outset we are confronted with Graves’ motion to dismiss the appeal. Foundation of the contention that the appeal should be dismissed lies in Texas Rules of Civil Procedure, rule 329b, “District and County Court Cases”, as amended effective January 1, 1961. Prior to the effective date of the amendment subdivision 3 of Rule 329b read as follows: “3. All motions and amended motions for new trial must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, unless by written agreement of the parties in the case, the decision of the motion is postponed to a later date.”

As amended subdivision 3 of Rule 329b reads as follows: “3. All motions and amended motions for new trial must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, unless by one or more successive written agreements of the parties in the case filed with the clerk of the court the decision of the motion is postponed to a day certain specifically set out in any such agreement. Any such day certain shall not be more than ninety (90) days after such original or amended motion is filed.”

In the instant case the parties entered into a written agreement, filed with the clerk of the court, reading as follows: (The parties) “ * * * acting under the authority provided by subdivisions 3 and 4 of Rule 329-b, Texas Rules of Civil Procedure, as promulgated and amended by the Supreme Court of Texas, agree that the Defendants’ Original Motion For New Trial, filed on April 26, 1962, in the above cause in behalf of the Defendants, may be presented, hearings held thereon, and same may be determined by the trial court at any time up to and including the 15th day of Jtdy, 1962." (Emphasis supplied.)

Two hearings on the motion for new trial took place during the month of June, 1962. On July 11, 1962, the judge rendered and signed an order overruling the motion. It is observable that such determination of the motion was made 4 days prior to July 15, 1962, the date mentioned in the parties’ written agreement. Steps taken to perfect the appeal were pursuant to a “time table” based upon the date of July 11, 1962, when the motion for new trial was overruled. The appellate “steps” were timely if such was proper to be done. Except for the propriety so to do the record in the case would not have been filed in this court in time and we would not have acquired jurisdiction. It is the contention of Graves’ motion to dismiss the appeal that the agreement was a nullity because it was not in compliance with provisions of the rule (T. R.C.P. 329b) and that the motion should have been treated as one overruled by operation of law at a much earlier date, calculation from which day would demonstrate that the record was not filed in time and this court never acquired jurisdiction. A dismissal of the attempted appeal would be the only proper order to be entered in the case if Graves’ interpretation is correct.

We have no precedent since amendment of the Rule. This is evidently the first expression of opinion by an appellate court on the Rule as amended in connection with the question presented. There is no doubt but that the Rule is mandatory and controlling of appellate jurisdiction. Yet we must remember that under both statutes and Rules regulating appeals, a record before the court will be liberally construed in favor of the right of appeal. Hunt v. Wichita County Water Improvement Dist. No. 2, 1948, 147 Tex. 47, 211 S.W.2d 743.

As applied to the circumstances in this case we construe the intent and provisions of the rule relative to “a day certain” to mean the last day on or before which the party may agree that a motion for new trial may be affirmatively acted upon, or be treated as the day on which it would be overruled by operation of law.

Under such construction appellate “steps” in perfecting the appeal before us. were timely and our jurisdiction properly invoked. Although not material to the decision, note should be taken of the provisions; in subdivision 4 (of Rule 329b) relative to-when a motion for new trial is to be treated as having been overruled by operation of law where no affirmative action is taken by the court, in instances where the decision' on the motion has been postponed by written, agreement as provided by subdivision 3.

The motion to dismiss is overruled.

Judgment for damages in this case grew out of a pedestrian-motor vehicle collision which occurred October 8, 1957. Bradley Graves, a minor, then 6 years of age, son of T. M. Graves, ran across a highway south of the City of Arlington, Texas and was struck hy defendants’ truck. It was contended that he sustained serious and permanent injuries as the result. Suit was filed in 1959.

The day of the collision the child was; carried to a doctor and then to a hospital* in Fort Worth where he remained overnight. He was unconscious or semiconscious for about 16 hours. While in the hospital he was attended by a Dr. Smith,. Dr. Brentlinger, and Dr. Hardey. There is no evidence in the record of any medical! care of the child after he left the hospital and prior to the time suit was filed. This-suit was filed on October 7, 1959. On October 18, 1959, he was sent by the Graves’1 attorney to Dr. Gerald King of Fort Worth: for an examination. X-rays were taken. They were negative. Audio tests were performed and the child’s hearing was found' to be good. Visual acuity in the right eye was 20/70 and in the left eye 20/25. He-was found unsteady in the balancing tests. His speech showed some pathological changes in that he tended to slur some of’ his words and phrases. Dr. King deemed him “unusually nervous and fidgety” for an; 8 year old boy.

Dr. King referred the child to a Dr. Gardiner with the request that an electroencephalogram examination he made. An electroencephalogram is a test made of brain waves. In making the test electrodes are placed in different areas over the head. From the test a qualified examiner can tell if there is brain damage, tumor or some disease of the brain. The test on young Graves was run by the Terrell Laboratories and “read” by Dr. Gardiner. A written “report” containing Dr. Gardiner’s “interpretation” of the finding as result of the test was prepared. This electroencephalogram report was mailed to Dr. King. It read as follows: “ ‘This is a moderately well organized record with a dominant frequency of about 10 per second. There is, however, considerable random and irregular slow wave activity of from 3 to 8 per second frequency present throughout the tracing in all leads. Some hemisphere asymmetry is noted in the record in the frontal leads and also in the temporal leads with the greater amount of irregularity being in the right hemisphere leads. There are some generalized runs of high amplitude sharp waves and some increased amplitude slow activity intermixed. These runs are of to 1½ seconds in duration. There is a definite build-up on hyperventilation with an increase in the amount of high amplitude slow wave activity with long runs of 3 to 4 per second slow waves appearing in all leads. These do not have the appearance of definite paroxysmal discharges. There is a fairly rapid return to the basic pattern of the tracing following hyperventilation.' With the exception of the previously described right hemisphere irregularity, there is no definite area of focal abnormality noted in the tracing.’ * * * ‘This is considered to be a mildly abnormal EEG. There are no definite diagnostic findings present, but some findings are suggestive of a gener- . alized paroxysmal type of convulsive disorder.’ ”

During the course of interrogation of Dr. King he testified based upon his findings concerning the physical condition of Bradley Graves as of the time of his examinations on October 18, 1959, November 30, 1959, January 28, 1962, and based upon the electroencephalogram. He was of the opinion that the subject suffered at the time of the accident “a cerebral concussion with cerebral edema and that he is having a typical syndrome that we call post-concussion syndrome”. He further stated his opinion that said condition, and the child’s accompanying headaches, would be permanent or at least would persist for a long period of time.

Such testimony was objected to on the ground that the opinion was based upon unauthenticated data constituting “hearsay”. The objection was overruled. There was no assignment of error presented to the trial court based upon the reception of Dr. King’s testimony and no point of error founded thereon. The assignment of error was to the court’s admitting into evidence the written report itself, upon which Dr. King in part based his opinion as to the disability of Bradley Graves. This was the assignment upon which the point of error was based. The reception of the report was prior to the stage in the introduction of the testimony of Dr. King where his opinion was given. The objection to it was that it was an unauthenticated statement of findings and opinion on the part of a third person, constituting hearsay. Such it was in our opinion and such it unquestionably remained, since it was never authenticated and proven either as applied to the findings upon the electroencephalogram examination or as applied to Dr. Gardiner’s opinion based thereupon.

Evidence of a statement made out of court, when such evidence is offered for the purpose of proving the truth of such previous statement, is inadmissible as hearsay. McCormick & Ray, Texas Law of Evidence, 2nd Ed., p. 559, “The Hearsay Rule (The Nature of Hearsay)”, sec. 781, “Statement of the Rule”. When a document offered in evidence contains a written assertion by someone not a witness, the principle having application is the same as though it was testimony of said third person’s oral assertion. The two chief obstacles, want of oath and cross-examination, remain the same. Consequently a written statement as to the existence of some fact, as, for example, a medical or other treatise, is not admissible to prove that fact. McCormick & Ray, Texas Law of Evidence, 2nd Ed., p. 574, “The Nature of Hearsay”, sec. 790, “Writings — Statements in Writings”. A very recent case in which the rule was applied, and in which it was held to be reversible error for the trial court to allow one physician to read in evidence a medical report of another, was Cross v. Houston Belt & Terminal Railway Company, 1961 (Tex.Civ.App., Houston), 351 S.W.2d 84, writ refused, n. r. e.

From the brief of Graves it appears that his contention is that the error, which seems to be admitted, does not amount to reversible error in view of T.R.C.P. 434, “If Judgment Reversed”, wherein it is provided that no judgment shall be reversed on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. In this respect Graves contends that the electroencephalogram report was favorable to Atkins and his driver and had a mild and sustaining effect helpful to them in light of Dr. King’s insistence that the injury was severe and permanent.

We cannot agree. Dr. King stated an opinion relative to young Graves’ disability which to a learned person would perhaps appear more serious than the electroencephalogram and Dr. Gardiner’s opinion thereupon would warrant, yet we believe that the lay personnel making up at least the greater part of the jury would not have so concluded. Dr. King testified that his opinion was based in part thereon. The report contained some medical terms which would be rather frightening to one without any special training in medicine, particularly when the examination made involved a study of “brain waves” to determine “brain damage”, and when the medical terms were generally unexplained. This was true in the case before us. Furthermore, we have the testimony of two jurors, on the hearings held on the motion for new trial, to the effect that in arriving at the amount of damages for which their verdict was returned they took into consideration, among other things, the electroencephalogram. We are of the opinion that the error is reversible error even under the application of tests to be made under the provisions of T.R.C.P. 434.

We have examined the additional points of error presented to us. As to one we would sustain the contention that as applied to “future medical expenses” the judgment is excessive in that the maximum amount supported by the evidence was $825.00, while the amount found and awarded by the judgment is for a much greater amount. We deem the error immaterial, however, for there must be another trial in view of what we have heretofore stated. All other points of error are without merit and are severally overruled. Were our opinion to the contrary the matters that are contended to amount to error are not such as will be likely to occur in a subsequent trial.

Judgment is reversed. The cause is remanded for a new trial.


text:
    CENTRAL SURETY AND INSURANCE CORPORATION, Appellant, v. The FIRST NATIONAL BANK OF FORT WORTH, Appellee.
    No. 16405.
    Court of Civil Appeals of Texas. Port Worth.
    March 15, 1963.
    On Rehearing April 19, 1963.
    Rehearing Denied May 10, 1963.

      Strasburger, Price, Kelton, Miller & Martin, and Royal H. Brin, Jr., Dallas, for appellant.
    Richard Owens, Fort Worth, for appellee.
   MASSEY, Chief Justice.

The appeal is from an order overruling the plea of privilege of Central Surety and Insurance Corporation, hereinafter termed Central Surety, to the cross-action of The First National Bank of Fort Worth, hereinafter termed bank.

There are no findings of fact and conclusions of law in the record. We believe the following to constitute fact. Individuals, whom we will refer to as A, B and C, were sisters. Certain realty stood in the name of A and B. C, in need of funds, prevailed upon B to join in the execution of a note and deed of trust to the realty. C signed the name of A to the note and deed of trust. C prevailed upon a notary public to complete the certificate on the deed of trust, under seal certifying that A, known to her to be the person whose name was subscribed to the deed of trust, personally appeared and acknowledged the fact of execution. On May 5, 1959, C presented the note and deed of trust to The First National Bank of Fort Worth, which loaned her the sum of $10,000.00. The deed of trust was accepted as security for the loan. In the early part of 1960, A was legally adjudged to be non compos mentis. B was appointed as A’s guardian. Shortly thereafter B, as guardian' for A. and individually as applied to her own interest, sold the real estate. Of the-proceeds from the sale $10,230.00 was delivered to the bank in repayment of the-loan, plus interest. Fifty per cent of this sum, or $5,115.00, represented money which, properly belonged to the estate of A.

Not long thereafter B ceased to be guardian for A. A new guardian was appointed. The new guardian filed suit against B and her bondsman, C, and the bank for $5,115.00.

By petition in cross-action the bank sued B as former guardian and individually, B’s bondsman, C, and the notary public whose name was signed to the certificate of acknowledgment on the deed of trust. All' these cross-defendants were residents of the county of suit. The bank also sued' Central Surety as a joined cross-defendant. Central Surety was the surety on the statutory bond of the notary public. Premise of the bank’s cause of action against Central Surety was that it was a necessary party to the suit against the notary in the establishment of its liability to the bank along with the liability of the principal on its bond, contingent upon the newly appointed guardian establishing his right to recover against the bank in the original suit.

Liability sought to be imposed by the original suit was alleged to have resulted by reason of the wrongful delivery of $5,115.00 of A’s estate to the bank. In this transaction was involved the fraud of B for the benefit of C, with no act of the' notary seemingly involved. The bank’s, theory of recovery on cross-action lay in the contention that it would not have loaned its money in the first instance but for the-fraud of C, in which the participation of the notary figured, and which fraud seems, to have been ratified by B. Further, that the bank would never have been placed in the position of a wrongful receiver of a part of A’s estate but for the fraud of C and the notary, for it would not have loaned any money in the first instance and there would have been no loan to be repaid.

Central Surety filed its plea of privilege •to be sued in Dallas County. The bank con-troverted the plea, adopting its pleadings made in cross-action, and set up its right to maintain venue as applied to Central Surety •under Exceptions 4, 23 and 29a to V.A.T.S. 1995, “Venue, general rule”.

On the hearing there was no direct evidence that A, who was adjudged a non compos mentis subsequent to the time the bank took the note and deed of trust, was of unsound mind at that time. The only direct evidence relative to the authority of ■C to act for A came from C, interested adversely to the bank but appearing as its witness. She testified that she had her sister’s •oral authority to act in the execution of the deed of trust. No loan officer for the bank testified. The reason and occasion for the deed of trust having been delivered to the bank as a part of the loan transaction was unexplained. There was direct •evidence to the effect that the purported signature of A was placed on the deed of trust by C, that A never appeared before the notary public who executed the certificate •of acknowledgment, and that the notary did not know A and had never seen her, but bad signed the certificate and affixed her seal upon the assurance from C that everything was “all right”.

We believe that the cause of action plead by the newly appointed guardian was severable and distinct from that asserted by the bank on the cross-action against its codefendant C, the notary, and Central Surety. Therefore, right to hold Central Surety is controlled by the venue provisions •applicable to the bank’s cross-action alone and must be treated as an independent suit. The averments of the newly appointed guardian in his petition, existence of which was the basis of the bank’s cross-action, •could not be treated as factual for the purposes of any test of Central Surety’s plea •of privilege, although the claim of both the plaintiff and the cross-plaintiff grew •out of the same or closely related transactions. Sherrod v. Ruud Mfg. Co., 1942 (Tex.Civ.App., Amarillo), 158 S.W.2d 351; 1 McDonald, Texas Civil Practice, p. 425, “Venue”, § 4.39, “Venue Effect of Cross-Claims and Third-Party Claims”.

In our opinion the essence of any cause of action enuring to the bank in the circumstances and against any resident defendant would lie in the fraud of C and the notary. We do not believe that the circumstances of the separable transaction wherein the bank received funds properly belonging to the estate of A, non compos mentis, through an improper act by B, as guardian, created any right in the bank to a cause of action against either C or the notary. Requisite elements of the bank’s case on its cross-action, therefore, would necessarily include the necessity to plead and prove that one or more of the resident defendants made or was connected with the making of false representation that the deed of trust constituted valid security for its loan of $10,000.00, was made to induce the bank to make the loan, that in reliance thereon the bank did make the loan, and that as result thereof it sustained (or was liable to sustain) a loss or injury.

Neither the pleading nor the proof affirmatively presented an issue as to whether the false representation was made to induce the bank to make the loan nor whether the loan would not have been made but for its reliance upon the false .representation or its belief that the deed of trust constituted valid security. For these reasons we have concluded that the bank did not prove a prima facie cause of action against a resident defendant. The bank seeks to maintain venue against Central Surety as a nonresident cross-defendant under Exception 4, “Defendants in different counties” to V.A.T.S., Art. 1995, the venue statute. In order that this may be done it would be essential that a cause of action jointly alleged as against a resident and nonresident, or causes so intimately connected that both should be treated as joint and joined under the rule intended to avoid a multiplicity of suits, be proved as against a resident defendant. Stockyards Nat. Bank v. Maples, 1936, 127 Tex. 633, 95 S.W.2d 1300. Not having made such proof the bank may not hold Central Surety in the county of suit under the exception.

The bank contends that it is entitled to maintain venue against Centra] Surety under Exception 23, “Corporations and Associations”, to the venue statute. The circumstances of the case were such that venue could be .retained under the exception only in the event the bank made proof that there was an agent or representative of Central Surety in the county of the suit at the time the bank’s cross-action was filed. Of this there was no proof. See Clark, Venue in Civil Actions, Ch. 23, p. 121, “Corporations and Associations”, and the texts thereunder on proof necessary to sustain venue under the exception.

The bank further contends that it is entitled to maintain venue against Central Surety under Exception 29a, “Two or more defendants”. The exception may be invoked only in cases where no defendant (cross-defendant in this case) resides in the county of the suit. Clark, Venue in Civil Actions, Ch. 29a, p. 176, “Two or More Defendants”, § 2, “Construction of the Exception”. Several cross-defendants reside in the county of the suit. The bank does not have the right to maintain venue as against Central Surety under the exception.

Judgment of the trial court is reversed. It is ordered that the bank’s cause of action as against Central Surety be transferred to an appropriate district court of Dallas County, Texas, the county of its residence for purposes of this suit.

ON MOTION FOR REHEARING

The judgment of the trial court having been one overruling the insurance company’s plea of privilege, when, if we are correct, it should have been a judgment which sustained the plea of privilege, it necessarily follows under the decision of Jackson v. Hall, 1948, 147 Tex. 245, 214 S.W.2d 458, that the case should be treated by us as having not been fully developed and tried under a wrong theory by the court below as well as by the bank’s attorney, for “otherwise the trial court would have transferred the cause”.

The Jackson v. Hall case was one in which the plaintiffs who filed a controverting affidavit, predicated the same upon that portion of Subdivision 23 of V.A.T.S. 1995 that the bank predicated (in part) its controverting affidavit in the instant case, and where on the trial the said plaintiffs wholly failed to show either that they resided in the county of the suit or that a cause of action or part thereof arose in said county. We feel that we are controlled by the decision in that case despite our concern with the theory of liability advanced by the bank’s pleadings.

Accordingly we have concluded that it would be proper to remand the cause to the trial court for another hearing rather than to order the same transferred.

It is accordingly so decreed. In so far as our original opinion renders our judgment it is withdrawn and our order of remand substituted therefor.

ON SECOND MOTION FOR REHEARING

On the former rehearing we directed a remand of the case for further development, if within the power of the bank. Central Surety has in turn filed its motion for rehearing in which it levels a strenuous attack upon our interpretation of Jackson v. Hall, 1948, 147 Tex. 245, 214 S.W.2d 458, and insists that our original judgment of reversal and rendition in its favor should be reinstated.

It is to be noted that the Supreme Court’s action in Jackson v. Hall was taken pursuant to its having granted leave to file a petition for mandamus against the Justices of the Court of Civil Appeals to compel a judgment of remand upon reversal of a trial court’s judgment overruling a plea of privilege, rather than the rendition by which the case was ordered transferred.

Our interpretation of the holding in Jackson v. Hall is that as applied to appeals in general, and those from orders overruling pleas of privilege in particular, any proper judgment of an appellate court which reverses the judgment of the trial court should be one which incorporates therein an order remanding the cause to the trial court, rather than one of rendition, when the reversal is occasioned by a lack of evidence in support of the judgment of the trial court, — unless it clearly appears that the case was fully developed, i. e., unless it clearly appears that there was no evidence available to be introduced in the trial court which would have supplied such “lack”.

Motion for rehearing is overruled. No additional motion for rehearing will be entertained.


author: McDONALD, Chief Justice.

text:
    Edward A. HILL, Appellant, v. Mrs. Ed McCAA, Appellee.
    No. 4116.
    Court of Civil Appeals of Texas. Waco.
    April 18, 1963.
    Rehearing Denied May 9, 1963.

      Young, Young & Daggett, Allen J. Dag-gett, Houston, Miller & Allen, J. K. Allen, •Columbus, for appellant.
    John B. McNamara, Jr., Waco, for ap-pellee.
   McDONALD, Chief Justice.

Plaintiff McCaa instituted this suit against defendant Hill for cancellation of .a written lease contract of real estate in Houston, Texas; and for reasonable rent for use and occupancy of the premises for the period defendant occupied the premises after cancellation. Defendant answered by general denial.

Trial was before the court without a jury, which after hearing, entered judgment ■cancelling the lease contract as of August 1, 1959 and awarding plaintiff $1950. as reasonable rental for the time defendant ■occupied the premises after date of can■cellation.

Defendant appeals, contending:

1) The Trial Court erred in not considering invited counterproof for the purpose of explaining the 1 month’s delay rental.
2) The Trial Court erred in rendering judgment for plaintiff as there was no evidence sufficient to authorize forfeiture and cancellation of the written lease.

Plaintiff leased the premises to defendant in writing on January 31, 1957, for a period of 5 years. Such lease provided 'that defendant pay “$75.00 per month in •advance upon the conditions and covenants following. * * * It is further agreed by and between the parties hereto that Lessee shall have 10 days from the date any monthly lease payment is due to pay same, and in the event Lessee defaults in the payment of the said monthly lease payment after the expiration of the full 10 days, then and in that event this lease and agreement shall become null and void, and Lessee shall forfeit (the premises) and the Lessor shall become the legal owner of same.”

It is undisputed that defendant failed to pay the rental payment for the month of August, 1959 by the 10th of August 1959. It is undisputed that defendant remained in possession of the property for some 13 months thereafter, and that the reasonable rental value of the property was $150. per month, and defendant himself so testified.

Defendant’s first complaint is of the action of the trial court in not permitting him to introduce evidence to prove various equitable and legal defenses. Such defenses were not raised by the defendant’s answer, such answer being a general denial only. Since defendant did not plead any equitable defenses of waiver or estoppel, nor any matters in avoidance, the trial court properly excluded testimony concerning same. Stevenson v. Lohman, Tex.Civ.App., Er.Ref., 218 S.W.2d 311; 8 Tex.Jur. 10 Year Supp. 316; 25 Tex.Jur.2d p. 518.

Defendant’s 2nd contention is that the record will not support the harsh remedy of cancellation and forfeiture.

It is undisputed that defendant failed to pay the August, 1959 rent prior to August 10th. The parties by written instrument specifically contracted that if monthly rent be not paid by the 10th, forfeiture would follow. Plaintiff stands on the agreement and seeks forfeiture.

We agree with defendant that the courts do not favor forfeiture, and when proper equities are shown to exist, equity will intervene and will deny unjust enforcement of the naked legal right to forfeiture. On the other hand, when parties enter into a contract providing that either should forfeit his rights thereunder upon default of a specific provision, it becomes the burden of the party resisting such forfeiture to plead and prove such facts as would justify a court of equity in preventing his adversary from doing that which otherwise, under the law, he has a right to do. Stevenson v. Lohman, Tex.Civ.App., Er.Ref., 218 S.W.2d 311; 25 Tex. Jur.2d p. 518.

Plaintiff asserted the right of forfeiture and cancellation which defendant contracted for. Defendant plead no defenses, legal or equitable, in bar.

Defendant’s points are overruled, and the judgment of the trial court is Affirmed.


text:
    MOTION PICTURES MACHINE OPERATORS LOCAL NO. 330, Appellant, v. J. E. PIPPIN, Appellee.
    No. 16418.
    Court of Civil Appeals of Texas. Fort Worth.
    April 12, 1963.
    Rehearing Denied May 17, 1963.
    Mullinax, Wells, Morris & Mauzy, L. N. D. Wells, Jr., and George Schatzki, Dallas, for appellant.
    Ernest May, Fort Worth, for appellee.
   MASSEY, Chief Justice.

The appeal is from an order granting a permanent injunction to restrain union picketing of a theatre where the owner had discharged his union motion picture projection machine operators and begun performing all theatre operations in person and through members of his family.

A decision of this state which we consider of paramount importance in the determination of propriety of the injunction order is that of International Union of Operating Engineers Local No. 564 v. Cox, 1949, 148 Tex. 42, 219 S.W.2d 787. The law of labor relations applicable in Texas may be used to have declared illegal even peaceful picketing by a union, or members thereof, of the premises of an individual being occupied and used in the prosecution of his business activities, where there exists no labor dispute.

The term “labor dispute” is defined at two places in the Texas Statutes. Under V.A.P.C., Title 18, “Labor”, Ch. 10, “Interference with Labor or Vocation”, Art. 1621b, “Preventing others from engaging in lawful vocation; attempts; labor dispute, unlawful assemblage near place of”, the term (for purposes of the Act) is “any controversy between an employer and two (2) or more of his employees concerning the terms or conditions of employment or concerning the association or. representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment.”

Under V.A.C.S., Title 83, “Labor”, Ch. 2, “Labor Organizations”, Art. 5154f, “Secondary strikes, picketing and boycotts prohibited”, a “labor dispute” (for purposes of the Act) is “limited to and means any controversy between an employer and the majority of his employees concerning wages, hours or conditions of employment; provided that if any of the employees are members of a labor union, a controversy between such employer and a majority of the employees belonging to such union, concerning wages, hours or conditions of employment, shall be deemed, as to the employee members only of such union, a labor dispute within the meaning of this Act.” In connection with the term “labor dispute” as so defined it is important to see International Union of Operating Engineers Local No. 564 v. Cox, supra.

In the several places of 29 U.S.C.A., “Labor”, where “labor dispute” is defined, it is stated that the term “includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.”

We believe that the most material question for decision on the appeal is: “Do the circumstances occasioning the dispute of the parties exhibit the existence of a labor dispute ?”

The circumstances giving rise to the controversy between the parties were as follows : In late 1960 Mr. Pippin went into the motion picture business. He leased a theatre which had been closed and proposed to the representative of the Motion Pictures Machine Operators local union that there be a “ninety day try-out period”, in which he would test out his business operations to determine the feasibility of operating the theatre; that no usual union contract be entered into during that time; but for purposes of the test one union operator would be employed to operate the projection machine 50% of the time, with Pippin to operate it 50% of the time.

Agreement was made by the parties on the proposed basis, and Pippin apparently had a measure of success in his enterprise. The number of “showings” per week increased with a proportionate increase of the work and earnings of the union operator. Another theatre was leased by Pippin and an additional union operator employed on the same percentage basis. Pippin was then operating two theatres. There was some fluctuation in the number of “showings”.

No controversy arose over the percentage question and no contract of the usual character was entered into. The delay thereof seems to have been occasioned by Pippin’s plea for more time in which to estimate his degree of success. This continued until the fall of 1961.

In October of 1961, Pippin asked for a conference with the union representative of the operators. Thereat he proposed a reduction in the number of “showings” or “shifts” at each of the theatres where the union operators would be running the projection machines. His proposal was that he and other members of his family would operate the machines the greater part of the time with considerably less than 50% of the time allotted the union employee operators. The union and the employees refused. They made a counter offer which Pippin refused, stating that if the union and the employees would not work in accordance with his proposed plan he would institute operations wholly without the aid of employees, i. e., with the work being done by himself and members of his family. An impasse was reached. The parties could not agree. Pippin then discharged the two employees who were members of the union and instituted operations without employees. Within a few days the union caused the two theatres to be picketed. They carried signs reading. “This Theatre is Unfair— Moving Picture Machine Operators Local No. 330 — AFL-CIO—LOCKED OUT— Please Do Not Patronize”.

Pippin employed counsel. Suit was filed. A temporary restraining order was issued, ultimately ripening into a permanent injunction following a hearing on the merits.

We have concluded that no distinction is to be made between a picketing former employee who was discharged because he went on strike — and a picketing former employee who was discharged because he refused to agree to a reduction in the number of hours worked and corresponding reduction in wages to be received. In either case a labor dispute would exist as a matter of law, — absent demonstration of any additional circumstance which would alter its character,- — affording reasonable grounds for picketing. International Union of Operating Engineers Local No. 564 v. Cox, supra. Here was not a case where there was a union contract terminating at a time certain, after which it might be arguable that the employer would be entitled to conduct his business without employees in the same manner as though he had never been an employer. Here was required an affirmative act to discontinue services on the one hand and employment on the other and an occasion therefor existent in the dispute about hours to be worked as a condition of the continuation of the employment. The discharged employees, or the union in their behalf, instituted picketing action without delay.

Additionally arisen is the question of whether the fact that the employer, or former employer, began to conduct his business without the aid of employees and solely through members of his family, etc., would effect a change inhibiting the character of the dispute as a “labor dispute”.

We do not believe that institution of business operations without employees would effect any change. Such was the only additional circumstance apparent in the instant case. The discharged persons were employees at time of their discharge. For purposes of the questions under consideration their “employee” status persisted. International Union of Operating Engineers Local No. 564 v. Cox, supra. It would therefore be immaterial whether the employer (whose status as such would likewise persist) hired employees in the place and stead of those discharged or not. The character of the dispute originated and continued to be a “labor dispute” as a matter of law, giving rise to the complainants’ undoubted legal right to picket in publication of the existent controversy. That being the case the trial court erred in the entry of permanent injunction prohibiting the peaceful picketing.

Judgment is reversed and rendered.


author: PHILLIPS, Justice.

text:
    Truman C. RICE et ux., Appellants, v. Tom COOK et al., Appellees.
    No. 11088.
    Court of Civil Appeals of Texas. Austin.
    April 24, 1963.
    Rehearing Denied May 15, 1963.
    Elwood Gaus, Yoakum, for appellants.
    Prentice Wilson, Dallas, Fred Erisman, Longview, for appellees.
   PHILLIPS, Justice.

This suit was brought in trespass to try title by Truman C. Rice and wife, appellants in this court, against W. L. Pickens and Tom Cook, appellees.

In 1929, appellants conveyed by mineral deed a certain interest to W. L. Pickens, which instrument was recorded in DeWitt County, Texas. In 1936, W. L. Pickens conveyed a portion of the interest he had received under the deed from appellants to Tom Cook. This deed’ was also recorded in the deed records of DeWitt County.

Appellants are now trying to set aside the abovementioned conveyances on the theory that the following description of the land used in both of the abovementioned conveyances is legally insufficient under the statute of frauds to properly describe the land and is void as a matter of law. Art. 3995, Vernon’s Ann.Civ.St.

“ * * * that certain tract or parcel of land situated in the County of De-Witt, State of Texas, and described as follows: A part of the L Dunbar League being the same land leased by T. C. Rice and wife to J. S. Edgar, Jr., and containing seventy-two acres and reference is here made to said lease above mentioned for all purposes.”

Appellants made a motion for summary judgment, which motion was overruled and after a trial to the court without a jury, the court granted judgment for the defendants or the appellees here.

Appellants assign error to the court’s overruling their motion for summary judgment and in holding that the abovemention-ed description was sufficient to pass title to the appellees. We hold that the judgment of the trial court is correct.

There is no dispute over the chain of title involved in this lawsuit and the following is a summary of the chain necessary to this decision.

On August 31, 1925, Milton L. Stapp and wife executed a deed to T. C. Rice conveying to him all of grantors’ right and title in and to a part of the Luvena Dunbar League of land in DeWitt County, Texas, the same being described by field notes in five separate tracts, tract no. 1 embracing one acre of land, tract no. 2 embracing ⅞⅛ of an acre of land, tract no. 3 embracing %oth of an acre of land, tract no. 4 embracing 1,000 square yards of land, and tract no. 5 embracing 70 acres, more or less, of land out of said survey. This deed was filed for record with the County Clerk of DeWitt County, Texas, on September 30, 1925, and is now of record in Volume 93, page 353 of the deed records of said county.

On January 4, 1926, Mrs. Dora Lewis et al. executed a deed of conveyance to T. C. Rice et ux. conveying to grantees all of grantors’ title in 17.14 acres of land (as surveyed December 3, 1925, by P. R. Otto, surveyor) out of the Luvena Dunbar League of DeWitt County, Texas. This deed was filed for record with the County Clerk on January 30, 1926, and is now of record in Volume 94, page 141 of the deed records of said county and state.

On January 29, 1926, T. C. Rice et ux., Ethel Rice, executed a deed to Mrs. Dora Lewis conveying to grantee 17.14 acres of land out of the Luvena Dunbar League of DeWitt County, Texas. The 17.14 acres was the same as surveyed December 3, 1925, by P. R. Otto, surveyor. This deed was likewise filed for record with the County Clerk of DeWitt County, Texas, on January 30, 1926, and is now of record in Volume 94, page 17 of the Deed Records of DeWitt County, Texas.

The deed from Mrs. Dora Lewis et al. to T. C. Rice et ux. recites a consideration of $350.00, and the deed from T. C. Rice et ux. to Mrs. Dora Lewis likewise recites a consideration of $350.00.

On May 27, 1929, appellants T. C. Rice and wife as lessors executed an oil and gas lease to J. S. Edgar, Jr. as lessee upon and covering 72 acres of land out of the L. Dunbar League of DeWitt County, Texas, which is described as follows:

“1st Tract: About 72 acres a part of the L. Dunbar league and being the same land described in deed from Milton L. Stapp et ux to T. C. Rice by deed of date Aug. 31, 1925 and recorded in Vol. 93, page 353 Deed Records De-Witt Co. Tex.
“2nd Tract: 17-14/100 acres a part of the L. Dunbar League and being the same land conveyed by Mrs. Dora Lewis et al to T. C. Rice by deed dated Jany 4, 1926, of record in Vol. 94, page 141 Deed Records of DeWitt Co. Tex. Less however the following land:
“17-14/100 acres a part of the L Dunbar league and being the same land conveyed by T. C. Rice et ux to Mrs. Dora Lewis by deed of record in Vol. 94, page 127, Deed Records DeWitt Co. Tex.”

The oil and gas lease to J. S. Edgar, Jr. was filed for record with the County Clerk of DeWitt County on June 12, 1929, and is now of record in Volume 2, page 114 of the Oil and Gas Records of DeWitt County, Texas.

The oil and gas lease executed by appellants to Edgar in part provides, “for the purpose of calculating the payments here-inabove provided for, the land is estimated to comprise 72 acres, whether it actually comprises more or less. All land owned by grantor in the above mentioned surveys is included herein, whether properly described above or not.”

On June 5, 1929, appellants Rice and wife executed a mineral deed and royalty transfer to appellee Pickens, whereby they conveyed to him an undivided interest in all of the oil, gas and other minerals of every kind and character, in, on and under that certain tract or parcel of land situated in the County of DeWitt, State of Texas, and described as follows:

“A part of the L. Dunbar League being the same land leased by T. C. Rice & wife to J. S. Edgar, Jr. and containing seventy two acres and reference is here made to said lease above mentioned for all purposes.”

This mineral deed and royalty transfer in part provided that “this conveyance is made subject to any valid and subsisting oil, gas and other mineral lease or leases on said land.” The mineral deed was filed for record with the County Clerk of DeWitt County on June 12, 1929, and is now of record in Volume 2, page 95 of the Oil and Gas Records of DeWitt County.

On November 27, 1936, appellee Pickens executed and delivered a mineral deed and royalty transfer to appellee Tom Cook, whereby he conveyed to said Cook an undivided Yi interest in and to all of the oil, gas and other minerals of every kind and character, in, on and under those certain tracts or parcels of land situated in the County of DeWitt, State of Texas, and described as follows:

“A part of the L. Dunbar League being the same land leased by T. C. Rice and wife to J. S. Edgar, Jr., and containing seventy-two (72) acres, and reference is here made to said lease above mentioned, for all purposes.”

The mineral deed and royalty transfer from Pickens to Cook likewise in part provided that “this conveyance is made subject to any valid and subsisting oil, gas or other mineral lease or leases on said land.”

The Pickens-Cook mineral deed and royalty transfer was filed for record with the County Clerk of DeWitt County, Texas, on December 17, 1951, and is now of record in Volume 42, page 300 of the Oil and Gas Records of DeWitt County, Texas.

Appellants’ original petition from which the case was tried described the same tracts of land described in the aforesaid oil and gas lease executed by appellants as lessors to J. S. Edgar, Jr. as lessee on May 27, 1929.

There is no dispute over the fact that appellants executed an oil and gas lease to J. S. Edgar, Jr. prior to their admitted execution of the mineral deed to appellee Pick-ens in 1929. There is no dispute that the oil and gas lease executed by appellants to J. S. Edgar, Jr. covered seventy-two acres of land out of the Luvena Dunbar League of DeWitt County, and being the home place and all of the land owned by the appellants in DeWitt County. There is no dispute in that the description in the deed from Milton L. Stapp and wife to appellant in 1925 covered the same seventy two acre tract of land leased to Edgar with the exception of the changes resulting from the 17.14 acre land trade with Mrs. Dora Lewis and others.

Under the description in the deed before us, a surveyor could take the instruments set out above, the same instruments referred to in the description, and identify the particular 72 acres of land intended to be described. Consequently, the description in question was legally sufficient to pass title.

Appellant has relied, primarily, on the cases of Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703, and Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, for his contention that the description of the land is insufficient. In Smith v. Sorelle the description in question reads as follows:

“ ‘[A] certain tract of land situated, lying and being in the County of Up-shur, State of Texas, described as follows : 100 acres out of Blocks eight and nine of the subdivision of Jose Maria Pineda Survey, which was patented to Adolphus Stern, Pat. 603, Vol. 2, three miles North of Gladewater, Texas.’ * * * ‘And said above described lands being now under an oil and gas lease originally executed in favor of W. M. Worley and now being held by W. M. Worley.’ ”

It will be noted that the mineral lease referred to in the royalty deed above described was to W. M. Worley. The lease offered in evidence at the trial was in the name of H. F. Worley. An affidavit correctly describing the land executed by the grantor was offered in evidence. This affidavit was made by the grantor due to a series of events not pertinent here. In this affidavit the lease from grantors to H. F. Worley referred to a deed from Republic Insurance Company to the grantor. No such document as a lease to W. M. Worley existed. No reference was made in the deed before the court to the H. F. Wcr-ley lease, or to the deed from the Republic Insurance Company to the grantor. The Supreme Court reversed the Court of Civil Appeals and affirmed the trial court which had refused to admit in evidence the lease to H. F. Worley and the deed from the Republic Insurance Company to the grantors of the mineral deed in question. The Supreme Court held that the grantees could not invoke the contents of the above-mentioned affidavit to aid the description in their deeds, because the affidavit did not exist at the time of the execution of their deeds, and could not be considered in connection therewith. The court held that inasmuch as the deed referred to had no data which could be used in aid thereof, the Court had to confine itself exclusively to the description contained in the mineral deed which was insufficient. The court then cited the rule that parol evidence cannot be introduced to vary or contradict the descriptive data of a deed. Here neither the writing itself, nor by reference to some other existing writing, could the data or means by which the particular land to be conveyed be identified with reasonable certainty. Morrison v. Daily, Sup.Ct. of Texas, 6 S.W. 426; Osborne v. Moore, 112 Tex. 361, 247 S.W. 498.

In Wilson v. Fisher, supra, a “brick duplex & garage apt located at 4328-30 Cedar Springs” was held an insufficient description to satisfy the statute of frauds in a suit for specific performance. Here the court said that the instrument did not indicate the owner of the property; the lot and block number and the amount of land is not given, nor is the property designated as any particular named tract or as situated in any city, county or state.

The Supreme Court stated the rules applicable to the case before us in Maupin v. Chaney, 139 Tex. 426, 163 S.W.2d 380, “The sole purpose of the description of property, as contained in a deed of conveyance, is to identify the subject matter of the grant. * * * Hence, it is a general rule of law that where the description specified a property intended to be conveyed, and the instrument furnishes other sufficient means of determining the particular property covered thereby, the description is legally sufficient. 14 Tex.Jur. 988. In other words, if there appears in the instrument enough to enable one by pursuing an inquiry based upon the information contained in the deed to identify the particular property to the exclusion of others, the description will be held sufficient. * * ⅜ It is a familiar rule that even though the description of the property contained in the conveyance, standing alone, would be insufficient, yet if it refers to another instrument, which contains a proper description of the property, such other instrument may be looked to in aid of the description.”

In the description before us we have, “being the same land leased by T. C. Rice and wife to J. S. Edgar, Jr. and containing 72 acres, and reference is here made to said lease above mentioned for all purposes.” Appellants’ lease to J. S. Edgar, Jr. was a matter of record in DeWitt County at the time of either conveyances in question. The land involved in the lease from appellants to Edgar is described by metes and bounds and further states “ * * * the land is estimated to comprise 72 acres, whether it actually comprises more or less. All land owned by the grantor in the above mentioned surveys is included herein, whether properly described above or not.”

While the description before us, standing alone, would be insufficient, it refers to another instrument which locates the land and identifies the subject matter of the grant with sufficient certainty.

Affirmed.