author: NYE, Justice. SHARPE, Justice.

text:
    NATIONAL EDUCATORS LIFE INSURANCE COMPANY, Appellant, v. MASTER VIDEO SYSTEMS, INC., Appellee.
    No. 92.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 30, 1965.
    Two Motions for Rehearing Denied Jan. 27, 1966.

      Keys, Russell, Watson & Seaman, by M. W. Meredith, Jr., Corpus Christi, for appellant.

      Fischer, Wood, Burney & Nesbitt, by James R. Harris, Corpus Christi, for appel-lee.
   NYE, Justice.

Master Video Systems, Inc., appellee, brought suit against National Educators Life Insurance Company, appellant, for damages alleging conversion of certain personal property located in a motel owned by W. C. Price and wife Geraldine Price. Trial was before a jury. Both plaintiff and defendant moved for judgment on the verdict or for judgment non obstante vere-dicto. The trial court awarded judgment to the plaintiff in the amount of $16,633.18 as actual damages. Defendant has appealed from that judgment and both parties seek relief in this Court, the plaintiff by cross assignments of error. The various parties to the transaction giving rise to the dispute should, at the outset be clarified, because of the complicated fact situation involved.

W. R. Price and wife Geraldine Price decided to build a motel in Port Aransas, Texas. W. R. Price will hereafter be referred to as Price in this opinion. A corporation was formed by Price and others for purposes related to the motel. This corporation was called Paradise Isle Motor Hotel Corporation, hereinafter referred to as Motel Corp.

Price got in touch with Educators Industry, Inc., a building contracting firm, domiciled in Fort Worth, Texas, hereinafter called Industries, who agreed to construct a fifty-two unit motel for $350,000.00 and also agreed to obtain the interim and long term financing for Price.

Industries obtained the long term financing through National Educators Life Insurance Company, also a corporation domiciled in Fort Worth, Texas, and hereinafter called Nelico. Nelico was the defendant in this law suit and the appellant herein.

Motel Corp. purchased all of the furnishings for the motel including television sets, carpeting, air conditioning units, all equipment, supplies, furniture and fixtures, all of such property hereinafter called furnishings, from Master Video Systems, Inc., a Delaware corporation with offices in Port Washington, New York, hereinafter called MVS. The purchasing arrangement for the furnishings was such, that title was in MVS. Motel Corp. leased all of such furnishings from MVS on a monthly rental basis for a term of five years. The agreement gave Motel Corp. an option to purchase all of such furnishings at the end of the term for a nominal sum. MVS was the plaintiff in the trial court and appellee herein.

• Price defaulted on his note and Nelico foreclosed on the deed of trust and a chattel mortgage given Nelico by Price individually and joined therein by his wife. The crux of the law suit hinges on the question of whether or not Nelico had a valid mortgage on the furnishings. MVS says not and we agree.

The motel operation was never a success. After Price had operated the motel two years, Nelico advised Price that he was more than a year behind in his payments on his note, and that the note was then and there accelerated. Notice of foreclosure proceedings was given. After about three months of delay, Nelico foreclosed on the motel under its deed of trust and on a chattel mortgage. Nelico purchased the motel and furnishings at the foreclosure sale and went into operation of the motel in March of 1961, and continued operating the motel until the time of trial. At the same time Motel Corp. was likewise in default on its lease payments to MVS. Prior to the foreclosure sale on the furnishings, MVS notified Nelico of MVS’s superior right to the furnishings, however Nelico foreclosed on the furnishings anyway. MVS brought this suit against Nelico for conversion of its furnishings.

MVS claims title through its purchase and lease back arrangement with Motel Corp. Nelico claims title through the chattel mortgage executed by Price. MVS says that Nelico’s mortgage was from Price individually to Industries and from Industries to Nelico and that Motel Corp. and MVS were never parties to Nelico’s mortgage. Therefore, as MVS argues, Nel-ico has no claim of title under its mortgage, because Nelico’s assignor in title took from Price and wife, when the actual title to the furnishings or the right to mortgage the furnishings was in Motel Corp. or MVS. Nelico, on the other hand contends, that MVS agreed to a mortgage of their interest in the furnishings in favor of Nelico and that therefore Nelico had a superior lien on the furnishings at all times; (1) based on the written chattel mortgage; (2) based on a superior equitable mortgage; and/or (3) based on the fact that MVS’s security interest in the furnishings was taken with notice of a superior lien in Nelico.

Originally, Price was in the lumber business in Dallas, Texas. He and his wife decided they would build a motel in Port Aransas on Mustang Island. Price purchased and paid for a seven-acre tract in Port Aransas, Texas. In March of 1958, Price met with a Mr. Wm. R. Roberts, Jr., Executive Vice President of Industries, and with Roberts’ attorney, a Mr. Walter G. Cook. An agreement by letter form was made between Price and Industries concerning the construction of the motel. This letter agreement was dated March 25, 1958, and is hereinafter referred to as the “March 25th Agreement”. This agreement provided for Price to execute a mechanic’s lien or consent for a mechanic’s lien in favor of Industries for $350,000.00 as consideration for the building of the fifty-two unit motel. Price was to be responsible for furnishing all air conditioning window units, carpeting, furniture and furnishings for the motel at no additional cost to the contractor, Industries. Price further agreed to obtain letters or agreements from suppliers to the effect that they would subordinate their interest in the furnishings to the mechanic’s lien and any renewals and extensions thereof and that Industries was to have its mechanic lien rights converted into a first mortgage on such furnishings. Industries was to obtain the financing with a loan in the amount of $350,000.00 at 6% interest for a term of fifteen years to be repaid in monthly installments of $2953.54. The agreement obligated Price to create a corporation (Motel Corp.) and to place in the corporation land and assets belonging to Price individually in the amount of $80,000.00 and then have Motel Corp. pledge these assets to Industries as additional collateral for the loan. Motel Corp., when created, was authorized to mortgage its assets to Industries. Price, individually, further agreed to execute any and all papers that the loan company or contractor, Industries, might require to accomplish this transaction. Neither Nelico, Motel Corp., nor MVS was a party to this agreement.

During the time that the motel was being built, Price negotiated with a number of suppliers for the furnishings and finally made an agreement with MVS to finance and supply the furnishings for the motel. MVS paid for the furnishings from the various suppliers through Motel Corp. Motel Corp. took title from the suppliers, sold the furnishings to MVS, and then leased the furnishings back from MVS. In the two contracts dated April 30, 1958, hereinafter referred to as the “April 30th Agreement”, Motel Corp., in effect, sold $82,-500.00 worth of furniture and $10,800.00 worth of air conditioning equipment (the furnishings) to MVS, and MVS then in turn, by the “April 30th Agreement”, leased back all of the furnishings to Motel Corp. These April 30th agreements are identical except as to the description of the property. The jury found that the “April 30th Agreement” reserved title in the furnishings to MVS with the intent to secure the payment to the indebtedness on such items owned by Motel Corp. to MVS. There was sufficient evidence to uphold these jury findings. The effect of the “April 30th Agreement” and the jury findings placed the title to the furnishings in MVS. This was a security arrangement. Motel Corp. had, however, the right to mortgage the furnishings by the terms of the “April 30th Agreement”. In any event either MVS or Motel Corp. could have given a lien on the furnishings to Industries or Nelico.. Since the ownership of the furnishings and/or title was either in MVS or Motel Corp. at the time the furnishings were installed, and this fact is not in dispute, the question to be resolved is: Did MVS or Motel Corp. give a mortgage to Industries or Nelico at any time, so as to create a superior title interest in them over MVS?

The terms of the “April 30th Agreement” provided that MVS was to purchase, and Motel Corp. was to sell the subject furnishings when said furnishings were actually installed in the motel. The agreement provided that: Such furnishings shall be deemed to have been installed in said motel when MVS received written notice by Motel Corp. to that effect and such notice shall state: “ * * * that there is no vendor’s or mechanic’s lien or other encumbrances on said furniture (equipment) other than a mortgage, or an agreement to execute a mortgage in favor of National Educators Life Insurance Company (Nelico), Fort Worth, Texas, in the principal amount of $350,000.00 to the extent that said mortgage is secured by the furniture (equipment) described in Schedule ‘A’. (2) that said furniture is, in all respects, satisfactory.” The jury found that MVS recognized that Motel Corp. by the “April 30th Agreement” had a right to give a mortgage to Nelico and that by the “April 30th Agreement” Nelico was to have a first mortgage on the equipment.

On or about November 4, 1958, the motel building was completed and the furnishings were installed. Motel Corp. gave the required notice to MVS that such furnishings had been installed. The letter of notice tracked the language of the “April 30th Agreement”, that is, that: There were no other incumbrances, etc., against the furnishings “other than a mortgage, or an agreement to execute a mortgage in favor of National Educators Life Insurance Company (Nelico). * * . * ”

On November 18, 1958, the closing date of the security transaction between Industries and Price, Price and his wife, as individuals, executed a promissory note, a deed of trust and a chattel mortgage in favor of Industries.

The chattel mortgage was executed in duplicate, one signed by Price and wife and the other signed by Price and wife with a provision for MVS to execute as mortgagor with Price. MVS did not sign the chattel mortgage, nor were they required to by the terms of the “April 30th Agreement”. Thereafter, Industries, through their attorney, prepared a subordination agreement for MVS to sign along with the Prices. However, :it was not signed by MVS.

A series of negotiations took place between Industries and MVS concerning the chattel mortgage. Attorney Carroll, representing MVS, in a letter dated January 6, 1959, to Roberts, Vice President of Industries, stated that the furnishings were the absolute property of MVS. However, the letter went on to say that MVS recognizes that some or all of such furnishings may be subject to the lien of a first mortgage on the property in which the furnishings were installed. However, the letter stated that “the agreement (April 30th Agreement) is designed so that it does not purport to abrogate any rights which such a first mortgage may have to the security represented by such furniture and equipment.” The letter went on to recite the terms of the “April 30th Agreement.” Industries wrote the attorney for MVS requesting MVS to send Industries a copy of what they would be willing to sign, recognizing that the furnishings were to be subject to the first mortgage held by Industries. Industries stated: “We consider it essential that we have some warranty from you that our interest in these properties is a first and prior mortgage.” The copy of this letter introduced into evidence by appellant had the date of January 16, 1959. However, the original letter was later introduced in evidence by appellee, and it showed that it was dated January 20th, 1959, instead of January 16th. On January 18, 1959, two days before the original letter was dated, Industries assigned and transferred to Nelico all its right and interest in and to the chattel mortgage signed by Price and wife as mortgagors. On January 24, 1959, the attorney for MVS wrote Roberts, Vice President of Industries, to the effect that MVS’s agreement with Motel Corp. did not obligate MVS to prepare any additional papers or yield any security rights in the furnishings. The letter further states: “However, my letter of January 6 describes the extent to which Master Video’s interest in the furniture in Paradise Isle (Motel Corp.) is or may be subordinated, and you are therefore in a position to prepare and submit to us for our consideration whatever papers you feel may be necessary and appropriate.” The jury found that the attorney for MVS admitted that Nelico had a right to a mortgage on the furnishings by virtue of the “April 30th Agreement”; however, nothing further was submitted by Industries or Nelico to MVS for their consideration or signature, nor did Industries obtain, or attempt to obtain, a written chattel mortgage from Motel Corp. on the furnishings, to them or to Nelico.

Nelico assigns six points of error complaining (1) that the trial court erred in rendering judgment for MVS because Nel-ico had a superior lien on all furnishings based upon its written chattel mortgage; (2) that Nelico had a superior equitable mortgage on all the furnishings and that MVS was estopped from claiming that its rights were superior; (3) that Nelico’s claim was based on chattel mortgages taken with notice of a superior lien in Nelico on all furnishings; (4) that Nelico on its counter claim, was entitled to the value of the television equipment; (5) the trial court erred in submitting special issues as to waiver of Nelico or Industries’ requirement of a first mortgage on the furnishings, and (6) that the court erred in overruling Nelico’s objections to the deposition testimony of Price because such questions were leading and suggestive and called for legal conclusions and the testimony was in violation of the parol evidence rule.

On November 4th, the sale, purchase and lease of the furnishings between Motel Corp. and MVS was consummated. No written chattel mortgage to anyone was in existence at that time. The only documentary evidence of a mortgage was Price’s contract of March 25th with Industries, wherein he agreed to give Industries a mortgage. Neither of the parties to this law suit were parties to that agreement. The jury found that MVS did not have notice before signing the contracts of April 30th that Nelico was to have a first mortgage on the furnishings. Roberts, Executive Vice President of Industries, testified that to his knowledge MVS did not have any knowledge of Industries’ agreement with Price at the time they furnished the motel. Price confirmed this, stating that he did not recall ever delivering a copy of the “March 25th Agreement” to MVS. We hold there was ample evidence to support such finding. The March 25th Agreement itself cannot be construed as a mortgage of the furnishings from Motel Corp. to Nelico, because neither Motel Corp. nor MVS were parties to the agreement between Price and Industries. See 13 Tex. Jur.2d, Contracts, § 9, p. 122 and cases cited therein.

MVS agreed to accept title (on November 4th) to the furnishings, subject to a mortgage (if one existed) or subject to an agreement by Motel Corp. to mortgage the furnishings to Nelico. However, it is clear to us from the evidence in the record that no mortgage existed on the furnishings from Motel Corp. to Nelico.

Nelico says that a contract giving a lien on chattels is a chattel mortgage, citing Leonard v. Burton, 11 S.W.2d 668 (Tex.Civ.App.1928) and Shwiff v. Dallas, 327 S.W.2d 598 (Tex.Civ.App.1959, n. r. e.), and that a valid chattel mortgage may be created on property to be acquired in the future as contemplated by the agreement of March 25th, citing Richardson v. State of Washington, 88 Tex. 339, 31 S.W. 614 (1895) and Texas Farm Products Company v. Burrus Feed Mills, Inc., 337 S.W.2d 203 (Tex.Civ.App.1960, n. r. e.). As between the parties to the contract this might be true. In this case, however, the chattel mortgage and the contract to give a mortgage, relied on by Nelico, was executed by Price and wife (chattel mortgage) and by Price individually (the contract) to Industries. Industries assigned the chattel mortgage to Nelico. Neither Motel Corp. nor MVS were parties to the chattel mortgage or the contract.

Nelico argues that the furnishings were conveyed to Motel Corp. subject to the lien in Nelico relying on the April 30th Agreement and the notice of November 4th. Nelico says that those instruments conveyed the furnishings to MVS subject to or with prior notice of Nelico’s lien, which in effect made MVS a junior lien-holder. Of course, this position is without merit because Nelico had not come into existence as far as the security transaction is concerned, and they did not do so until some two weeks later (November 18, 1958). It is undisputed that there was no agreement, contract or mortgage between MVS and Nelico. The jury found that the provisions concerning Nelico in the “April 30th Agreement” were not inserted for Nelico’s benefit.

Nelico then argues that on November 18th when the security transaction was closed, Price executed the deed of trust, note and chattel mortgage to carry out his agreement of March 25th. Nelico contends that Price exhibited the April 30th Agreement to Industries as evidence that Nelico would have a first mortgage on the furnishings. Nelico argues that since Price was President of the Motel Corp. and general manager, he had the power to execute the chattel mortgage instrument on behalf of the Motel Corp. and that Price just dealt for the corporation for convenience as his “alter ego”. However, the facts are undisputed that no chattel mortgage was ever executed by Motel Corp. to Industries or Nelico. In fact, Nelico argues in its brief that they did not believe that such a chattel mortgage was necessary. This failure to obtain a written chattel mortgage from Motel Corp. in favor of Industries or Ne-lico prevented Nelico from having any rights to the furnishings superior to MVS. MVS only agreed that such furnishings would be subject to a mortgage in Nelico from Motel Corp. or a right to a mortgage from Motel Corp. to Nelico. This never did take place.

The written mortgage which Ne-lico relies upon was signed by Price and his wife as individuals; the wife separate and apart from her husband. This does not indicate to us that Price was executing such instrument on behalf of the corporation. A corporation acts as an entity with a personality distinct from other persons who compose it. 14 Tex.Jur.2d § 10. There were no pleadings, issues or jury findings to support the theory of Nelico that the corporate veil had been pierced. As stated in Wells v. Hiskett, Tex.Civ.App., 288 S.W. 2d 257, n. r. e.: “ * * * A corporate entity may not be disregarded simply because it stands as a bar to a litigant’s recovery * * Price never at any time received title to the furnishings. Motel Corp. never gave a mortgage to Industries or Nelico. MVS agreed that its furnishings at the time title passed would be subject to a mortgage which never was accomplished. Nelico argues that Price warranted to Industries that he had the right to give a mortgage on the furnishings. It may be that Nelico has a good cause of action against Industries and/or Price but Nelico was not in privity with either Motel Corp. or MVS.

Nelico takes the position that Industries under its agreement of March 25th held an equitable mortgage on all furnishings that were to be placed in the motel and that MVS was estopped from claiming that its rights were superior. MVS testified that their contracts were for the most part, form contracts, because at times the primary lender required a subordination of the ownership rights in the furnishings to the primary lender. In anticipation of this situation MVS created a power in Motel Corp. whereby Motel Corp. could mortgage MVS’s interest in the furnishings and if Motel Corp. had created a mortgage at the time title passed, MVS’s interest would have been subject to such mortgage. MVS’s attorney testified to the effect that the agreement was drawn so that if the first mortgage holder should have to foreclose on the motel property they would be in a position to operate with the furnishings and at the same time MVS’s rights would be protected. Stating it another way, the President of MVS stated that “we permitted the life insurance company to have the comfort that we weren’t going to yank this furniture out if something went wrong.” Industries’ Vice President testified that the first time they knew that MVS was involved was just a few days prior to the installation. He freely admitted that although he knew that MVS was going to furnish the motel, Industries never, to his knowledge, furnished MVS with any documents which gave notice of Industries’ agreement with Price. The evidence shows that MVS was willing to live up to its original agreement of April 30th, but that it did not want to enlarge or change the agreement that it had with Motel Corp. The cases cited by Nelico all concern situations in which an agreement, usually oral, was entered into between the parties, so that a party to a contract will not be permitted to take a position inconsistent with the provisions of the agreement to the prejudice of another. The fallacy of Nelico’s contention is that Nelico and MVS were never parties to any contract to give a mortgage, and MVS has never taken any position inconsistent with the agreements to which it was a party. In fact Nelico and Motel Corp. were never parties to any agreement. The jury properly concluded that all that Nelico was to have under the agreement was a “right to mortgage.” This right would have to be matured in conformity with the “April 30th Agreement” by which Motel Corp. would have had to execute a mortgage on the furnishings to Industries or Nelico. There was no such mortgage nor was there any evidence that either Industries or Nelico attempted to secure such a mortgage.

Nelico’s position that MVS’s claim is barred by the doctrine of estoppel does not apply where the transaction necessary to give Nelico its rights was never consummated. Coleman v. Kettering, Tex.Civ.App., 289 S.W.2d 953; 22 Tex.Jur.2d, Estoppel, § 3, page 662. Appellant’s first three points are overruled.

The jury found that Nelico and Industries by their conduct waived the requirement of a first mortgage on all furnishings. The trial court properly used the definition of waiver in the Supreme Court case of Ford v. Culbertson, 158 Tex. 124, 308 S.W. 2d 855.

Nelico and Industries had offices in Fort Worth and all legal work on the transaction was handled by their attorney, Mr. Cook. Industries built the motel for an agreed cost of $350,000.00. Price owned the 7.8 acre tract at Port Aransas and executed the note individually. He further agreed to create a corporation, pledge over $80,000.00 of his properties to Motel Corp. and then pledge these same assets of Motel Corp. to Industries. Roberts of Industries knew that MVS installed the furnishings on November 4th, 1958. Price showed Roberts the agreement between Motel Corp. and MVS and attorney Cook had ample opportunity to examine the “April 30th Agreement” prior to the closing on November 18, 19S8. The evidence shows that Nelico had full knowledge of all of the material facts. Industries knew that the contract for the furnishings was between MVS and Motel Corp. The evidence shows that Industries and Nelico did quite well financially and had adequate security, at least $430,000.00 for a $350,000.00 motel. Roberts, acting for Industries testified that he saw the “April 30th Agreement”, but he never testified that he requested Price to obtain any letters that would require MVS to subordinate their interest to Nelico. There was ample time between the completion of the motel and the closing of the real estate transaction to have permitted Industries and/or Nelico to have obtained a proper mortgage from Motel Corp. to them, or to have required MVS to execute a chattel mortgage or subordination agreement prior to the final closing of the transaction. Industries and/or Nelico, if they really wanted a chattel mortgage from Motel Corp., could have refused to have delivered possession of the premises, until they were sure that all the necessary legal documents were executed to their satisfaction. Motel Corp. agreed with Industries in the “March 25th Agreement” to pledge all its assets and to execute all necessary instruments to accomplish this result. Motel Corp. could have given a chattel mortgage at any time, but there was no evidence that Industries requested Motel Corp. to do this. Later Nelico recognized MVS’s security interest in the furnishings. The attorney for Nelico and Industries testified to the effect that when Price was as much as $15,000.00 behind in his installments to Nelico, Price would call and say, “I have $5,000.00. Shall I send you all the five, or Master Video’s people are pushing me so hard, may I send them a little ?” Attorney Cook stated that his client Nelico would say to him: “O.K. Let Master Video have some of the money. Go ahead and send us half of the money.” If Nelico thought that they had a first and superior mortgage on the furnishings, we do not believe that Nelico would have split the $5,-000.00 with MVS, when their mortgage was three and a half times greater than MVS. Even after the loan had been closed and the chattel mortgage had on January 18th been assigned to Nelico there was no evidence that Nelico attempted to secure any additional instruments from either Motel Corp. or MVS. We believe and so hold that there was ample evidence that Nelico waived its right or requirement to a chattel mortgage on the furnishings from Motel Corp. Neli-co recognized the superior right of MVS, and from the evidence had decided against their original desire for a first mortgage on the furnishings. The provisions of the “April 30th Agreement” as the jury so found were not inserted in the “April 30th Agreement” for the benefit of Nelico as far as MVS was concerned. Appellant’s fifth point is overruled.

After the default in November of 1960, and prior to the foreclosure by Nelico in March of 1961, Price and Motel Corp. resisted the foreclosure, first, by filing suit in state district court for an ir junction against Nelico and second, by suit filed in Federal District Court for an arrangement proceedings to provide for a restraining order against Nelico and its substitute trustee. The state court suit was dismissed. The Federal Court’s interlocutory order provided for additional time to permit Price to try and find a buyer for the motel property. This order provided that after thirty days, and if at that time no sale had been consummated Price and Motel Corp. were to surrender possession of the realty and furnishings to Nelico. Nelico argues that this Federal court order perfected title in Nelico. Appellant’s point is overruled. MVS was not a party to the suit. The order was interlocutory in nature and of course the court could not determine MVS’s interest in the property without them being a party. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Smith v. Stark Trucking, Inc., D.C., 53 F.Supp. 826.

Nelico did not seek a mortgage in Federal Court from Motel Corp. on the furnishngs, and none was given to Nelico. Nelico did not rely on this court order to perfect its lien on the furnishings and there is no evidence that any acquittance was given by Motel Corp, to Nelico. Nelico did not file suit to foreclose on any mortgage,-but Nelico proceeded and did foreclose by private sale, under the terms of the written chattel mortgage given by Price to industries which was subsequently assigned to Nelico. This Federal Court order, in effect placed the furnishings in the hands of Nelico subject to the interest of MVS.

Nelico’s attorney, in drawing up the chattel mortgage on November 18th, failed to list the television and related equipment in the schedule of equipment attached to the chattel mortgage. Just prior to the foreclosure MVS made demand on Nelico for the return of all the furnishings including the television and related equipment. In compliance with the demand, tender of the television sets was made by Nelico without waiving any priority of the claim of Nelico to the television and related equipment. Nelico complains that the trial court erred in failing to render judgment for Nelico on its counter claim for the value of the television equipment. In view of our holding herein that Nelico had no mortgage on the furnishings, including the television equipment, its point of error number four is overruled.

Price’s deposition was taken prior to the time of trial by both Nelico and MVS. During the trial, attorneys for MVS and Nelico each offered portions of Price’s deposition in evidence. Both attorneys objected on the grounds that the depositions were leading and suggestive and called for legal conclusions and because some of the testimony violated the parol evidence rule. The trial court overruled all objections of both parties to the offered testimony of Price. Nelico in its sixth point complains of the trial court’s ruling on the portion of the testimony of Price that was offered by MVS. The deposition itself is not in the record before us and all objections to the testimony were made as to page and line from Price’s deposition. There is no correlating page and line numbers in the statement of facts as to the testimony and it is impossible for use to determine as to which particular question was objectionable. At one stage in the proceedings appellant’s attorney reminded the court that each of the opposing party’s attorneys objected to a part of the deposition of Price as leading and suggestive and reminded the court that the court had held it was not. Then Neli-co’s attorney admitted that it was a proper ruling. Appellant has set forth the evidence complained of and we fail to find that any of such evidence affects any of the defenses urged by appellant Nelico. Some of the objections came too late. Some were overruled which came within the province of the trial court’s discretion, and none of the evidence admitted, has been demonstrated to us as being prejudicial which caused or probably caused the rendition of an improper verdict. Rule 434, T.R.C.P., Appellant’s point number six is overruled.

Appellee MVS has filed several cross-points complaining of the trial court in failing to grant judgment for MVS in the amount of $26,538.80 which the jury found was the value of the furnishings. The trial court, in response to a jury finding, deducted $5,823.00 as being the value of the furnishings that were attached to the building of the motel on the date of the foreclosure. In addition the trial court reduced plaintiff’s recovery by an additional $4,082.62, representing the amount paid by Nelico to the taxing agencies as taxes on the furnishings to prevent foreclosure of tax liens by the taxing agencies.

There was evidence from several expert witnesses that the air conditioning units installed in holes in the wall, carpet which was installed on the concrete floor, and certain kitchen and back bar equipment which was bolted to the walls and which passed through the roof of the motel, were fixtures attached to the realty. The jury found from the testimony that the value of such items was $5,823.00. There was no evidence to the contrary, nor was it in dispute that these items were furnishings that were attached to the realty. See 25 Tex. Jur.2d Fixtures, § 20, p. 416.

The trial court found as a fact that by an agreement of the parties, that $4,082.62 was paid by Nelico to prevent the foreclosure of tax liens on the motel furnishings. The certificate of taxes clearly shows that the amount paid by Nelico was for taxes owed prior to the foreclosure. Nelico purchased the furnishings at the chattel mortgage sale and paid the back taxes to protect its interest in the property. As stated in the case of McDermott v. Steck Co., 138 S.W.2d 1106, writ dism.:

“ * * * where a purchaser buys land and takes a deed thereto, and subsequently pays a prior lien on the property which he is not primarily bound to pay, but which if not paid might cause him to lose his interest therein, he is subrogated to the rights and remedies of such prior lien, as against a lien which is superior to his title.”

There is no question that the taxes on the furnishings would have had to be paid by the legal or equitable owner of the furnishings to protect its interest. The trial court was correct in holding that Nelico was sub-rogated to the rights held by the taxing authorities under the tax lien when it paid the taxes due, prior to the foreclosure sale. Appellant’s cross-points of error are overruled.

The judgment of the trial court is affirmed.

SHARPE, Justice.

I concur in the result.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    TAMPICO OIL AND GAS COMPANY, Appellant, v. C’S LEASE SERVICE, Appellee.
    No. 11352.
    Court of Civil Appeals of Texas. Austin.
    Jan. 12, 1966.
    Austin & Dabney, Robert L. Dabney, Jr., Houston, for appellant.
    Slater & Slater, E. P. Slater, Luling, for appellee.
   HUGHES, Justice.

C’s Lease Service, appellee, is a partnership composed of W. A. Seay, Jr. and G. B. and R. R. Seay, and is engaged in the business of servicing oil wells in Caldwell County. In the fall of 1963 appellant, Tam-pico Oil and Gas Company, and appellee entered into an oral agreement by which ap-pellee was to service two oil wells owned by appellant on its Bronson-Francis-Slater Unit Lease in Luling, Caldwell County, Texas, for $75.00 per month. Appellee sued appellant alleging default in payments due under this contract as well as default in the payment for extra services performed by appellee at the request of appellant. The total amount sued for was $1,489.45, plus interest and attorney’s fees. Appellant answered and admitted the justness of the claim except for $442.74, as to which it denied liability. Appellant also filed a cross action for damages. The trial court, a jury being waived, denied any recovery on the cross action and rendered judgment for appellee for $1,091.34, interest, and attorney’s fees of $250.00.

' Neither party complains of the judgment rendered, except that appellant asserts error in not granting it recovery on its cross action, the partial effect of which would be to wipe out appellee’s judgment.

The trial court has made these pertinent findings of fact:

“(1) That in late August or early September of 1963 the Plaintiff and Defendant entered into an agreement under the terms of which Plaintiffs would furnish a pumper whose duties were to gauge daily Defendant’s storage tanks on its Bronson-Francis-Slater Lease in Luling, Caldwell County, Texas, and who was also to check Defendant’s two wells on such lease daily to see that they were operating properly; (2) That under the terms of said agreement Plaintiffs were to make repairs of a minor nature to said wells and to notify Defendant when major repair work was necessary; (3) That under the terms of said agreement Plaintiffs were to notify the McWood Corporation, the purchaser of the crude oil produced from said lease, as to when the tank batteries were full; (4) That some of the customary duties of a pumper in the oil and gas industry are to: (a) gauge storage tanks daily; (b) maintain accurate daily gauge reports ; (c) make minor mechanical repairs on lease equipment; (d) notify lease operator when major repairs are necessary; (e) notify crude oil purchaser or lease operator when storage tanks are full so that crude oil can be transported from lease by purchaser; (5) That URBAN SEAY was and has been at all times pertinent hereto an employee of Plaintiffs and the pumper who was furnished by Plaintiffs to service and Defendant’s Bronson-Francis-Slater Lease wells and tank batteries; (6) That the McWood Corporation agreed to purchase all the oil produced from said lease; (7) That Plaintiffs’ pumper, URBAN SEAY, or any other representative of Plaintiffs failed to be present each time when McWood Corporation would run the crude oil from said lease; (8) That URBAN SEAY nor any other employee of Plaintiffs gauged the storage tanks on such lease a number of days during the time the Plaintiffs serviced Defendant’s lease; (9) That such wells on said lease did not produce for a number of days in addition to the days they were shut-in due to repairs during the time the Plaintiffs serviced such lease; (10) That said wells on said lease were shut-in for repairs about 19 days during the time the Plaintiffs serviced such lease.
⅝ ⅝ ⅝ ⅜ ⅝ ⅝
That no act of Plaintiffs caused or contributed to the loss or reduction of oil production from Defendant’s oil wells situated on the Bronson-Francis-Slater lease at Luling, Caldwell County, Texas.
⅝ ⅝ ⅜ ⅝ ⅝ ⅝
That from August 1963 through April 1964 the Defendant’s wells were not consistently producing full allowable and such facts were known to Defendants; that the Defendant did not protest or indicate to Plaintiffs that the ' Plaintiffs’ charges made to the Defendants from August 1963 to April 1964 were unsatisfactory.”

The court further found that during the time appellee serviced the wells of appellant they produced 1819 barrels less than their allowable and the value of such oil not produced was $4,802.16.

Under these findings, and the undisputed evidence, it is the contention of appellant that appellee is shown to have breached its contract and that it is entitled to its damages. As to damages, there is evidence from which the trial court could have found that the two wells, if properly managed, could have produced their allow-ables except on days when they were shut in for repairs.

Appellant has ten points of error but we do not discuss them for the reason that it is our opinion that, under the facts and applicable law, appellant has waived its right to recover damages for appellee’s failure to fully perform its contract to service these wells.

Mr. R. R. Seay testified:
“Q Now, Mr. Seay, why did you stop working for Tampico?
A We did not receive payment as we should. We had paid, the majority of our hourly rate is for labor furnished and we felt it necessary to either receive payment or stop the services.
Q Did you send or did your office send Tampico statements each month for services you had performed?
A Yes sir.
Q Were those statements ever questioned ?
A No sir, not until we asked to receive payment on said balance.
Q Do you know about how long it was since they had paid when it was questioned?
A Two or three months, approximately before we received partial payment of about $500.00. Their balance was more then than what it is now and we received approximately a five hundred payment, I would say, two or three months before we stopped services.”

Appellant admitted that it had not paid appellee the $75.00 monthly payment for pumping these wells for the months of 9-15-63 through 4-15-64. In addition, it admitted it had not paid appellee other charges claimed owing by appellee.

Mr. C. Anthony Buckley, president of appellant corporation, testified:

“Q Mr. Buckley, I believe you testified that there were some 56 days of no production ?
A Yes, sir, * * *.
Q What did you testify as the basis on which you arrived at that conclusion? How did you determine the number of days that there was no production ?
A By checking the gauge reports.
Q Whose gauge reports?
A Gauge reports prepared by Urban Seay and the other people, I don’t know who they were.
* * * * *
Q You testified that you knew these two wells were capable of producing their allowable during all that time?
A Yes sir.
Q How do you know that?
A By the production.
Q By what ?
A By the production.
Q How many times were you on the lease?
A I would say six or eight times.
Q That is during this four or five or six months’ time?
A Yes sir.
Q By being on the lease that number of times you could unequivocally say that those wells could produce their allowable ?
A Not based on my visits to the lease, Mr. Slater, but based on my examination of the gauge reports.
Q Your gauge reports could indicate any number of things, could they not?
A The gauge reports would indicate the amount of production that was had.
Q It would indicate the amount of production was had but they indicate what the production could have been?
A I don’t follow you, Mr. Slater.
Q You say by a study of your gauge reports you can say that those wells could produce 20 barrels of oil each day; is that right?
A Yes sir.
Q That is by studying your gauge reports?
A Yes sir.
Q What is it on those gauge reports that would give you that type of information?
A Production figures for various days during that period, Mr. Slater.
Q Do the wells sometimes flow in heads or produce in heads, Mr. Buckley? One day produce more oil—
A There is a variation in the production of these wells from day to day. But it should be pretty stable.
Q Mr. Buckley, did C’s during all that period of time that they worked for you send the invoices each month ?
A Yes, I believe so.
Q When did you first complain about their services being rendered by C’s?
A I believe the first time I complained about the services being rendered was sometime in October 1963. I called Mr. Ray Seay and I told him that I was not at all satisfied with the way Urban Seay was conducting his gauging. I thought — it was my understanding that Ray Seay had agreed he was going to supervise Urban Seay’s work because Urban was relatively inexperienced. That was the only basis on which we were agreeable for Urban Seay’s being assigned the gauger to take care of our wells. I called Mr. Ray Seay on several different occasions and told him that the wells were not being gauged, that the reports were not being filled out properly, that there was some discrepancies in the reports and he assured me that he would take care of it.
Q You are talking about the gauges, I am talking about the work, these items that have been sued on, these seven exhibits of the plaintiff that you checked on.
A Yes sir.
Q When did you first complain about the work?
A I complained about several items, I think, back in November. I can’t specifically recall which ones, Mr. Slater, but I did tell Mr. Seay that I thought they were being a little bit unreasonable.
Q But you continued to use them, did you not?
A Yes sir, Mr. Slater. We found ourselves in an unfortunate position. We were at the mercy of C’s Lease Service. We were unable to find anyone else to take over this production. Mr. Seay gave me to understand in one telephone conversation that if I didn’t like the way they were handling it I knew what I could do. So we were looking for somebody to take over and we were unable to find someone until the latter part of April 1964.
‡ ‡ ‡ ‡ ‡ ‡
Q Didn’t you pay them for a considerable length of time without questioning those charges?
A I paid them for some of the work that was done in the early part of August and September and October, I believe. At that time most of the work that was done consisted of running rods and tubing, some of the workover units on our well, I never questioned any of those because I knew they were all right.
Q Wasn’t it actually several months after this that you owed them some money after delaying payment that you began to question them?
A No, we realized right from the start we were in an unfortunate predicament.
⅝ * * * * *
Q If Mr. Seay’s services were not satisfactory back there when you said that they were, why did you continue?
A As I said before, we were in an unfortunate position; we couldn’t find anybody to look after our wells. Mr. Seay told me in so many words ‘if you don’t like the way we are doing it you know what you can do.’
******
A * * * but the gauge reports will show whether or not there’s any production. If there’s no production the first thing you look for is to see if the wells are shut down for some reason or another. If the wells are not shut down then there’s no explanation for the loss of production, for the non-production, then it is up to the pumper. Either he misgauged the tanks or he didn’t gauge them or he is putting down a fake gauge.
Q You had all this information, did you not, Mr. Buckley? In your office?
A Yes sir.
Q The number of days shown that they were down here, the number of days according to your record they were not gauged, still you did not come down there to see about it but five or six times, did you not, Mr. Buckley?
A My brother was down here several times. Mr. Hamilton was down quite a bit. Frankly, we were very dissatisfied with the way things were going and that is the reason we were complaining to Mr. Ray Seay.
Q There was somebody down there pretty regularly, is that not true, Mr. Buckley ?
A Fairly regularly, yes sir.
Q Was somebody down there fairly regularly and knew what was going on?
A We were pretty much convinced that Mr. Urban Seay was not attending to his business.
Q But you knew about this work that was going on, did you not ? There was somebody down there.
A Some of these invoices were a surprise to us because we didn’t know it was going on and we had not authorized the work.
Q But you did not actually complain about it until March?
A No sir, I complained about it before.
Q But not to the extent of stopping their reoccurrences of it.
A The answer, as I say, we were placed in an unfortunate position. We could not find anybody to look after our wells and we were stuck.”

On March 4, 1964, Mr. Buckley wrote ap-pellee this letter:

“March 4, 1964. C’s Lease Service. P O Box 544, Luling, Texas. Gentlemen: In accordance with a telephone conversation of Monday, I am inclosing check in the amount of $500.00 to apply on our account with you. Our accountant has all of your invoices at his office and I have been unable to reach him to determine the exact amount we owe you. As soon as I can get squared away with him I will send you a check for the balance due.”

In Waul v. Hardie, 17 Tex. 553, the Court approved this instruction to a jury:

“If a workman is employed to do work, and, from the unskillful manner in which the work is done, damage result to the other party, the workman is responsible for it.”

That is the law, is not to be doubted. 56 C.J.S. Master and Servant §§ 77 and 79.

The law is equally well settled that an employer may waive his claim for damages occasioned by his employe.

A case we consider directly in point is Clegg & Co. v. Gee, 2 Willson Civ.Cas.Ct. App. § 543, p. 487, (1885) opinion by Hurt, J. The entire report of the case follows:

“Appellee and appellants entered into a written contract, by the terms of which appellee was to serve appellants as a traveling salesman for $75 per month. It was stipulated in the contract that he should report to them each day by letter, or postal card, ‘his location,’ and that a failure on his part to do this forfeited his right to any salary that might be due him. Appellee failed to report almost from the commencement of his services to the termination thereof. Appellants knew of this failure, but made no complaint, but on the contrary, after appellee had been in their service a month, and failing to report according to his contract, he visited them at Galveston, and, with a full knowledge of his failure to report, they made no complaint about it, but sent him out again on his travels under the same contract, except that appellee, when starting out this time, informed appellants that he would only write to them when he sent orders. Appellants having refused to pay appellee his salary according to contract, he sued them therefor, and recovered judgment for the amount due him under said contract. Held: Appellants were es-topped by their acts from insisting on appellee’s breach of the contract, and such estoppel entitled appellee to recover upon the contract.”

In Kemerer v. Johnstown Bank and Trust Co., 120 Pa.Super. 173, 182 A. 74, the Court stated the applicable law in these words:

“It was entirely his (employer’s) business to determine whether he was obtaining what he wanted from the plaintiff, or even to waive any deficiencies in performance. It is, of course, elementary that a master may waive nonperformance, and that continuance by him of an employee in his service, with knowledge of a breach of the employment contract, constitutes a waiver. 39 C.J. 169. Thus an employee may recover wages, when he is retained in his employment, although he is lazy (Hobbs v. Riddick, 50 N.C. 80), or incompetent (Ferry v. Henderson, 32 App.D.C. 41), or even unfaithful to his trust (Kirk v. Hodgson, 3 Johns. Ch. [N.Y.] 400).”

If appellant is correct in his assumptions of law and fact, these results would follow:

The two wells were at all times capable of making their total allowable of 40 barrels per day. This oil was worth $2.64 per barrel. Appellee produced 8,201 barrels of oil for appellant of a value of $21,650.00. Since appellant could find no one else to service and operate these wells they would have been shut in if appellee had been discharged and appellant would have lost the value of the oil produced. Knowing that appellee was not producing these wells to their capacity, appellant could discharge him with the above consequences or he could permit him to produce $21,650.00 of oil which appellee would otherwise have lost, and then force appellee to pay it $4,-802.16 for oil which he failed to produce, less $525.00 service charges. This latter course is the one chosen by appellant.

We follow the just rule of law stated in the above authorities. We hold that appellant was not entitled to- recover on its cross action and that the judgment of the trial court should be, and it is, affirmed.

Affirmed.


author: GRISSOM, Chief Justice.

text:
    Faith Marilyn MABIE, Appellant, v. Paul David MABIE, Appellee.
    No. 3999.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 12, 1966.
    Robert G. Coltzer, Galveston, for appellant.
    T. W. Youngblood, Jr., Markwell, Stubbs, Decker, Dalehite & Youngblood, Galveston, for appellee.
   GRISSOM, Chief Justice.

In a divorce case, Paul David Mabie was granted a divorce from his wife and custody of their three children. Mrs. Mabie has appealed from the custody award. Her first point is that, by giving physical possession of the children to the mother from February 25, 1965, through June 15, 1965, and for two months each summer, the court, as a matter of law, has found that the mother is a fit and proper person to have their custody; that there was an adjudication of split custody and, since the mother was a fit person to have custody, the court abused its discretion in splitting custody. Appellant’s second point is that, the court abused its discretion in awarding custody to the father.

Appellee’s answer to said points are that awarding custody to the father and providing the visitation rights of the mother was not splitting custody and that the court having expressly found that the mother was not fit to have custody there can be no presumed finding of her fitness and that the court did not abuse its discretion in awarding custody to the father.

The court awarded the care, custody and control of the children to their father. The judgment provided the mother should have the right of visitation two months each summer, commencing in 1966. The judgment did recite that the oldest child being then in school it was to its best interest that the mother should retain possession of the children until the end of school, on June 16, 1965, subject to the care, custody and control awarded the father.

The court found many acts of misconduct by the mother. It is not necessary to repeat them here. It concluded that appellant was not a fit person to have custody and that it was to the best interest of the children to award custody to their father, who was expressly found to be a fit and proper person. The specific findings of fact authorize, if they do not compel, said conclusion.

Appellee contends, and the record seems to support his contention, that there was not an award of split custody by leaving physical possession with the mother until the end of the 1965 school term, because such order was subject to the custody and control expressly awarded to the father and that, otherwise, appellant was merely permitted to take physical possession of the children during her two months period of visitation each summer because the parents would not reside in the same community. The court made it clear that even during the time the children were physically with their mother the father was charged with their care, control and custody. In some cases where it has been held error for the court to divide custody such an award to the mother has been construed as implying her fitness for custody. There can be no such implied finding here in the face of express findings to the contrary. The award of custody of a six year old child to its father, subject to the mother’s right to possession three months of each year, was held not reversible error under a similar fact situation in Fasken v. Fasken, Tex.Civ.App., 260 S.W. 698, 113 Tex. 464, 260 S.W. 701. It has been repeatedly held by the courts of Texas, including our Supreme Court, that the trial court has a wide discretion in awarding custody of children and that an award will not be reversed unless an abuse of discretion is clearly shown. See Ex parte Eaton, 151 Tex. 581, 252 S.W.2d 557, 560; Brillhart v. Brillhart, Tex.Civ.App., 176 S.W.2d 229, 231, (Writ Ref.); Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299, 304; Watts v. Rutledge, Tex.Civ.App., 211 SW. 2d 995; Son v. McConnell, Tex.Civ.App., 228 S.W.2d 290; Valentine v. Valentine, Tex.Civ.App., 203 S.W.2d 693; Train v. Train, Tex.Civ.App., 209 S.W.2d 212; Wallace v. Scrogum, Tex.Civ.App., 369 S.W.2d 531, affirmed Tex., 372 S.W.2d 941.

Article 4639, Vernon’s Ann.Civ.St., expressly provides that the court shall have the power in divorce suits to award custody of the children to either the father or mother as it shall deem right and proper. Realizing that it has been held that, ordinarily, split custody of small children should not be awarded, nevertheless, the award of custody here finds ample support in this unpleasant record.

We think reversible error in the admission of evidence is not shown. See Crawford v. Crawford, Tex.Civ.App., 256 S.W. 2d 875; Williams v. Guynes, Tex.Civ.App., 97 S.W.2d 988; Welch v. Welch, Tex.Civ.App., 369 S.W.2d 434. After careful consideration of the record, we conclude that reversible error is not shown. The judgment is affirmed.


text:
    Herbert A. SAWYER, Appellant, v. Gerald L. GETZ et al., Appellees.
    No. 4005.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 3, 1965.
    Rehearing Denied Jan. 14, 1966.

      Fulbright, Crooker, Freeman, Bates & Jaworski, Alton F. Curry, and David C. Musslewhite, Houston, for appellant.
    R. Richard Roberts and Otto A. Yelton, Jr., Houston, for appellees.
   GRISSOM, Chief Justice.

Gerald L. Getz and others sued Herbert A. Sawyer to enforce a restrictive covenant in a subdivision providing for a twenty foot set back from the sidelines of any lot. Sawyer almost completed construction of a house and garage. His garage extended to within eight feet of the west sideline of his lot. Getz and others, who owned lots and residences in said addition, after virtual completion of the garage, sought a mandatory injunction compelling removal of the twelve feet of Sawyer’s garage which extended into the restricted area. Sawyer asserted the defense of laches and undue delay. Upon a hearing for a permanent injunction to compel removal of said portion of the garage, Getz and others filed a motion for a summary judgment enjoining Sawyer from violating the twenty foot set back restriction and ordering him to permanently remove that part of the garage which extended into the restricted area. The court granted said motion, enjoined Sawyer from violating the twenty foot set back restriction and ordered that part of his garage that extended into the restricted area removed. Sawyer has appealed.

The substance of appellant’s points is that the court erred in granting said motion for a summary judgment because fact issues were raised as to whether appellees were guilty of laches and undue delay.

The Winshire Addition, wherein Sawyer constructed his garage, is a small subdivision in the City of Bunker Hill. It consists of only one short street with a cul-de-sac at the end. The street intersects Bunker Hill Road. There are only eighteen lots in the Addition. Sawyer purchased his lot on December 12, 1962. The restrictive covenants were not in his deed but the deed contained a statement that the conveyance was subject to restrictive covenants affecting the property. Two architects and designers were ordered to draw the plans. The plans were submitted to seven builders. One of the builders was Vaglienti, an appellee herein. Appellant’s plan was submitted to him on June 19, 1964. They were substantially the same as the final plans under which the garage was built extending twelve feet into the restricted area. Appellee Vaglienti did not mention the restriction or make any objection to the plan. The plans were also submitted to Bierschwale, the developer of the Winshire Addition and the common grantor of all parties to this suit. The plans submitted to him included the extension of the garage twelve feet into the restricted area. Bierschwale made a bid for construction of the house and garage and approved the plans and specifications, which included the extension of the garage twelve feet inside the restricted area. Bier-schwale did not mention the restrictions. Clearing of the lot for the buildings started in the first part of July, 1964. Slabs for the house and garage were placed on the lot about July 17th. At that time forms were placed so that they showed the actual location of the garage. Concrete for the foundation was poured from August 6th to the 8th, 1964. A day or two thereafter the superstructure of the house and garage was begun. The superstructure of the house and garage were up about August 20th to 22nd. During this time appellant had no actual knowledge of said restriction and he proceeded with the construction in good faith. On August 31st, 1964, when the garage was 99 per cent completed, ap-pellees for the first time notified appellant that the placing of the garage violated said restriction and that they objected to it. At that time it would have taken only $125.00 plus twelve hours labor to complete the garage. The only thing remaining to he done was some trimming on the inside of the garage. The house and the garage were in open view. The location of the garage was open and obvious. The outline of the garage, at location objected to, was shown from July 15th to 18th and thereafter. There was a meeting of appellees relative to complaining of said violation by appellant in the middle of August. There was evidence that appellant’s house and garage is the most expensive in the addition and, despite said violation, that they are assets to the addition. This is the substance of the evidence from which appellant says a fact issue was raised to support the defense pleaded by appellant. The established rules relative to granting summary judgments is correctly stated by appellant substantially as follows:

(1) The sole purpose of the summary judgment proceeding is to determine whether there are genuine issues as to any material facts. Gulbenkian v. Penn, [151 Tex. 412] 252 S.W.2d 929 (Tex.Sup.1952).
(2) The trial court cannot weigh evidence or resolve conflicts in the testimony. That responsibility lies with the trier of the facts alone and not with the trial court on the summary judgment hearing. Gulbenkian v. Penn, [151 Tex. 412] 252 S.W.2d 929 (Tex.Sup.1952); Ditto Investment Co. v. Ditto, [Tex.Civ.App.] 293 S.W.2d 267; Rattan v. Kirker, [Dicker] [Tex.Civ.App.] 373 S.W.2d 306.
(3) The reason for the rule that the trial court cannot weigh evidence or resolve conflicts in the testimony on a summary judgment proceeding is that the proceeding is not intended to deprive litigants of a full hearing on the merits of any issues of fact. Gulbenkian v. Penn, [151 Tex. 412] 252 S.W.2d 929 (Tex.Sup.1952) and Trammel v. Trammel, [Tex.Civ.App.] 290 S.W.2d 324 (Waco Civ.App.1956) ref. n. r. e.
(4) The trial court must be exceedingly cautious and careful in granting a summary judgment. Gibler v. Houston Post Company, [Tex.Civ.App.] 310 S.W.2d 377, ref. n. r. e.
(5) The burden is on the party seeking a summary judgment to show that there is no question as to any material fact. Gulf, Colorado and Santa Fe Railway Co. v. McBride, [159 Tex. 442] 322 SW.2d 492 (Tex.Sup.1958); Franklin Life Insurance Company v. Rogers, [Tex.Civ. App.] 316 S.W.2d 116, ref. n. r. e.; Jindra v. Jindra, [Tex.Civ.App.] 267 S. W.2d 287, ref. n. r. e.
(6) All doubts as to the existence of an issue as to a material fact must be decided against the party moving for a summary judgment. Gulbenkian v. Penn, [151 Tex. 412] 252 S.W.2d 929 (Tex.Sup.1952); Trinity Universal Insurance Company v. Horton, [Tex.Civ.App.] 363 S.W.2d 376.
(7) Conversely, the party opposing the summary judgment is entitled to every possible inference in his favor, and the trial court must view the evidence in the light most favorable to such party. Womack v. Allstate Insurance Company, [156 Tex. 467] 296 S.W.2d 233 (Tex.Sup.1956); Labbe v. Carr, [Tex.Civ.App.] 369 S.W.2d 952, ref. n. r. e.;
(8) In viewing the evidence, the trial court must give credence to that which is most favorable to the party opposing the summary judgment, and all evidence to the contrary must be disregarded. Crews v. Cooley, [Tex.Civ.App.] 308 S.W.2d 162; Frazier v. Glens Falls Indemnity Co., [Tex.Civ.App.] 278 S.W. 2d 388, ref. n. r. e.; and Webster v. Webster, [Tex.Civ.App.] 293 S.W.2d 820, ref. n. r. e.

Ordinarily, the defense of laches, and undue delay present fact issues, not law questions. It would be impracticable and would extend this opinion to an unreasonable length to quote, or state in detail, all the evidence which, in our opinion, would support a finding of laches and undue delay by appellees. See Gillingham v. Timmins, Tex.Civ.App., 104 S.W.2d 115 (Writ Dis.) ; Barksdale v. Allison, Tex.Civ.App., 210 S.W.2d 616; Hall v. Stevens, Tex.Civ.App., 254 S.W. 610.

Viewing the evidence in the light most favorable to appellant, we conclude there was a genuine issue of fact raised as to the defense asserted. The judgment is reversed and the cause is remanded for a trial on the merits.


author: WALTER, Justice.

text:
    M. E. MARBURGER, Appellant, v. M. T. RAMSEY, Appellee.
    No. 3989.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 19, 1965.
    Rehearing Denied Jan. 14, 1966.
    Wade, Davis, Callaway & Marshall, Clyde Marshall, Jr., Ft. Worth, for appellant.
    Crutchfield & Rhodes, A. L. Rhodes, Abilene, for appellee.
   WALTER, Justice.

Dr. M. T. Ramsey filed suit against M„ E. Marburger on a promissory note dated July 12, 1961, in the amount of $6,682.56. Based on a verdict, judgment was rendered for Ramsey against Marburger. Marbur-ger has appealed and presents fifty-one points of error. The parties will be designated as they were in the trial court. The parties had been partners in the ranching business for a number of years prior to this law suit.

Defendant pleaded failure of consideration and that the note was signed and delivered with the understanding that it would have no force or effect until Ramsey rendered a complete accounting of the partnership operations to Marburger; that the note was executed under a mistake of fact relative to payment of $3,000.00; that the note was blank as to the due date and that Ramsey inserted the due date after it was signed. The defendant further pleaded that the parties entered into a partnership cattle venture in 1947, which continued until on or about October 1, 1959 at which time it was dissolved by mutual consent; that in 1950 Ramsey fraudulently induced him to execute and deliver two promissory notes in the amount of approximately $11,000.00, representing to the defendant that the books showed that he was indebted to him in such amount and promising him that if he would execute the notes that he, (Ramsey), would deliver to him records to substantiate such indebtedness; that such representations were false and were made to induce defendant to execute the two notes. The defendant further alleged that in 1952, after making the two original notes that the plaintiff and the defendant verbally agreed that Mar-burger would be entitled to a salary of $200.00 per month from the partnership; that the note sued upon by plaintiff was given in replacement of a note for a like amount dated the 1st day of October, 1959; that such note of October 1, 1959, was given’ by defendant to plaintiff in connection with the dissolution of the partnership and in replacement of the notes of the early 1950’s so that the fraud, invalidity and want of consideration for such original two notes was carried forward into the note sued upon; that in connection with the execution of the note sued upon Ramsey induced defendant to sign the same upon the false and fraudulent representations, then and there made, that the two notes executed in the early 1950’s were still outstanding and unpaid; that payment thereof had not been accomplished by credits due defendant in the partnership operations, that such two original notes were valid debts due by Mar-burger to Ramsey, and that plaintiff thought that with adjustment of all partnership accounts, taking into consideration the assets set aside to the respective parties and all credits due M. E. Marburger, said defendant would still owe plaintiff $6,682.56 on such original two notes, but that if defendant would sign a note in said amount, plaintiff would merely hold it as a memorandum of his estimate of the sum due him upon dissolution of the partnership until he should render defendant a full and complete accounting of all partnership operations and afford them an opportunity to inspect and audit the partnership accounts and records, and until such time as adjustments thereby necessitated had been made said note would have no force or effect; that defendant relied upon all of such representations in signing the note of October 1, 1959.

The special issues submitted to the jury and the jury’s answers thereto are as follows:

“SPECIAL ISSUE NO. 1: Do you find from a preponderance of the evidence that plaintiff Ramsey and Defendant Marburger agreed that the notes sued upon would have no force and effect between them until plaintiff Ramsey had rendered a complete accounting of the partnership operations to Marburger? — No.
SPECIAL ISSUE NO. 2: Do you find from the preponderance of the evidence that the plaintiff Ramsey promised defendant Marburger that he (Ramsey) would deliver an accounting to defendant of the operations of Ramsey and Marburger as a partnership? — Yes.
SPECIAL ISSUE NO. 3: Do you find from a preponderance of the evidence that defendant Marburger relied upon plaintiff Ramsey’s promise to render an accounting, when he executed the note sued upon? — No.
SPECIAL ISSUE NO. 4: Do you find from the preponderance of the evidence that the promise of plaintiff Ramsey, to render a subsequent accounting was a material inducement to the defendants in signing the notes sued upon? — No.
SPECIAL ISSUE NO. 5: Do you find from the preponderance of the evidence that plaintiff Ramsey has failed to render an accounting of all of the operations of the partnership of Ramsey, Marburger ? — No.
SPECIAL ISSUE NO. 6: Do you find from a preponderance of the evidence that the plaintiff Ramsey and defendant Marburger, agreed that the note sued upon would be adjusted in accordance with an accounting of partnership operations to be there after rendered by plaintiff Ramsey? — No.
SPECIAL ISSUE NO. 7: Do you find from the preponderance of the evidence that the plaintiff Ramsey and defendant Marburger agreed that the note dated October, 1,1959 would be adjusted in accordance with an accounting to be thereafter rendered by plaintiff Ramsey? — Yes.
SPECIAL ISSUE NO. 8: Do you find from a preponderance of the evidence that at the time of the execution of the note sued upon, both the plaintiff, Ramsey, and defendant, Marburger, were laboring under a mutual mistake of fact as to the correctness of the partnership books and records? — No.
SPECIAL ISSUE NO. 9: Do you find from a preponderance of the evidence that the principal amount recited in the note sued upon is incorrect as a statement of the amount owing by the defendant, Marburger, to plaintiff upon dissolution of the partnership because of a failure to reflect a $3000.00 credit for payment on a note by defendant, Marburger? — No.
SPECIAL ISSUE NO. 10: Do you find from a preponderance of the evidence that the note sued upon by plaintiff was blank as to the due date, at the time, the defendants signed the same? — No.
SPECIAL ISSUE NO. 11: Do you find from a preponderance of the evidence that the defendant Ramsey inserted a due date without the consent of defendant after the execution of the note sued upon? — No.”

Horace Condley testified substantially as follows:

I am a Certified Public Accountant. I have been practicing public accounting since about 1922. From 1947 to 1959 I kept the partnership accounting records for the partnership of Dr. M. T. Ramsey and M. E. Marburger. From 1947 to 1959 I consulted with Dr. Ramsey regarding the business of the partnership. I also consulted with Mr. Marburger. I prepared the partnership tax returns. I sent the partners an accounting of the partnership business at the end of each year which was a copy of the partnership tax return. The tax return reflects income and expenses and reflects the business of the partnership during the year in a summary form. Mr. Marburger never requested a report from me that I didn’t give him so far as I can remember. I talked to his accountant on the telephone on occasions and answered specific questions. I prepared the final analysis of the dissolution of the partnership. I mailed Mr. Marburger a copy of it.

“Q Would you explain to the jury how this analysis was arrived at and how the final figure of Six Thousand and some odd dollars was arrived at? You may refer to your books and records if you need to.

A. Well, I can tell you in a general way, without referring to them. We took the capital accounts at the time they agreed to liquidate the partnership and we charged each partner with the things that they were going to keep out of the partnership assets. For instance the cattle and the implements, were divided and were charged to one or the other of the partners, in the final partnership distribution.”

Dr. Ramsey testified substantially as follows :

Plaintiff’s exhibit number 1 is a note dated July 12, 1961 in the amount of $6,682.56, signed by M. E. Marburger in my presence. Nothing has been paid on this note. This note was given in renewal of another note dated October 1, 1959 for $6,682.56. The 1959 note has a notation on it “Interest paid and Principal Renewed.” The note represents the amount due me on dissolution of the Ramsey-Marburger partnership. Marburger and I formed a partnership in 1947. Our books were kept by Horace Condley, a Certified Public Accountant. Marburger and I both wrote checks on our account. I spent some of my weekends at the ranch. During harvest season I would spend a week or ten days out of my office at the ranch. Neither of us drew a salary. In arriving at the amount of the note on dissolution of our partnership, we used the figures given us by our accountant. The books of the partnership were always available to Marburger as Mr. Condley was his Certified Public Accountant the same as he was mine. Marburger agreed on him when we employed him.

M. E. Marburger testified substantially as follows: I live at Chico, Texas and have been in the ranching business since 1939. Dr. Ramsey and I formed a partnership in 1947. My job was to do the buying and selling and look after the cattle. Dr. Ramsey was to look after the business end of the partnership. In 1952, we had an agreement that I would draw a salary of $200.00 per month. I was never paid a salary. “I just told him, at the time, he had this note and stuff that he claimed that I owed him, that whenever we settle the partnership that we would settle it then.” I have been in Mr. Condley’s office and looked at some of our records but I don’t know anything about the books. I remember signing the note which is the basis of this suit. The note was mailed to me and I signed it and returned it and my other notes were mailed to me by Dr. Ramsey. I never did ask Mr. Condley for an accounting. I knew where the books were kept and I knew Mr. Cond-ley was keeping the books for the partnership. I have never checked our records. Mr. Marburger was asked the following questions and gave the following answers:

“Q. by Mr. Marshall: Well, what, if anything, did Doctor Ramsey tell you, he would do on the note, if your checking showed any errors; checking the books and records?

A. Clyde, I don’t believe that we discussed that at the time, because we were—

Q. Were you relying upon any errors being corrected in the adjustment figure between you and him, as partners, when you signed those notes?

A. I was sure there had to be some.

Q. Well, what did Doctor Ramsey tell you in that regard?

A. I don’t remember. * * *

Q. Let me ask you another question, Sir. You state in your petition that at the time you signed this renewal note, this note of— that Doctor Ramsey told you if you would sign this note that he would merely hold the same as a memorandum of his estimate of the sum due him?

A. What was that note now?

A. That’s the last note that you signed?

A. In 1961?

A. Yes.

Q. Did he state that to you?

A. State that again. I didn’t follow you.

Q. He says that Plaintiff said that he would merely hold the same as a memorandum of his investment?

A. No. Not on this last 1961.

Q. He didn’t tell you that then?

A. No, sir. If I did, I made a wrong statement. Back when he first signed the notes, he told me that. No. He was collecting his interest on that. That had all changed.

Q. So, he didn’t tell you that?

A. Not on this last note. Certainly he didn’t. * * *

Q. Are you still saying, according to your petition that he fraudulently induced you to do certain things; are you still saying he fraudulently induced you to sign anything?

A. Well, yes. That’s the way it is.

Q. You are still saying it?

A. You bet.

Q. On what basis now; Please state what basis ?

A. Because I didn’t know anything about what was going on.

Q. And that’s the reason you say he fraudulently induced you because you didn’t know ?

A. I certainly didn’t know anything about that kind of business. All I knew was to work.

Q. Would you have known anything about it if you had read the—

A. I don’t think I could have told a lot about it.

Q. And because you are ignorant you say he defrauded you, is that correct?

A. Whose ignorance?

Q. Yours?

A. Maybe it was my ignorance.”

Appellant’s points relating to alleged misconduct of the trial court in the presence of the jury cannot be sustained because the court instructed the jury not to consider anything he said. In Walker v. Texas Employers’ Insurance Association, 155 Tex. 617, 291 S.W.2d 298, the court said: “Moreover, the jury must be presumed to have obeyed the instruction of the trial court and to have disregarded the statement of the witness.”

We find that the foregoing testimony and other facts and circumstances in evidence constitute some evidence of probative value and supports the judgment.

We have considered all the evidence and have concluded that the answers of the jury and the judgment are not against the weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

The defendant has not discharged his burden of showing that the court abused its discretion in overruling his second motion for a continuance.

Defendant sought, by trial amendment, to plead that the bookkeeper made a mistake and reported a note payment in the years 1953 and 1954, thus, charging the partnership with income for the same item in two different years. Ramsey discovered this error and filed an amended return for himself. Defendant contends that the time for amending his income tax return has expired and any recovery for such error is now barred by limitations. Defendant contends that he failed to file an amended return before limitations became operative and he paid $2500.00 more in income taxes than he was obligated to pay and he, therefore, contends he is entitled to a judgment for said sum against Ramsey, or, in the alternative, a credit for such amount. We find no merit in defendant’s contention that the court erred in refusing him permission to file said trial amendment. “ * * * it is well settled that after announcement of ready the granting of leave to amend is ordinarily within the discretion of the court, this discretion being so exercised as to attain the ends of justice.” 46 Tex.Jur.2d page 26.

Defendant’s points contending the court erred in depriving him of his defenses relative to salary and profits from a horse deal alleged to be due him by the partnership are without merit. Defendant testified that he had never drawn a salary and said “I just told him, at the time he had this note and stuff that he claimed that I owed him, that whenever we settled the partnership that we would settle it then.”

The record shows without dispute that the partnership was dissolved by mutual agreement on or about October 1, 1959. On that date defendant executed a note to Ramsey for $6682.56, and renewed it on July 12, 1961 for the same amount after paying the interest on the first note. The evidence discloses that the matters pleaded by the defendant as defenses were known to him at the time. In Gaylord Container Division of Crown Zellerbach Corporation v. H. Rouw Company, 392 S.W.2d 118 (Tex. Sup.Ct.), the court quoted with approval Hunter v. Lanius, 82 Tex. 677, 18 S.W. 201, as follows:

“Where one executes an obligation in renewal of a note claimed by the holder to be valid, but known to the maker to be fraudulent or without consideration, the latter will be deemed to have freed the transaction of the fraud, and to have waived the want of consideration, and will not be permitted to plead it.”

We hold that the court submitted all of the ultimate issues made by the pleadings and raised by the evidence.

We have considered all of defendant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: PER CURIAM.

text:
    Edna G. STANLEY, Appellant, v. Lyle D. STANLEY, Appellee.
    No. 216.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 30, 1965.
    James C. Martin, Corpus Christi, for appellant.

      Mahoney, Shaffer & Hatch, by Richard J. Hatch, Corpus Christi, for appellee.
   PER CURIAM.

Final judgment for the defendant after non-jury trial was signed and ordered filed by the trial court September 28, 1965. This decree contained no notice of appeal, nor was any notice of appeal filed by plaintiff. No motion for new trial was filed. At the time the judgment was signed, a written motion for non-suit filed by plaintiff was pending. On October 18, 1965, the trial court entered an order overruling this motion. The only notice of appeal in the record is in plaintiff’s appeal bond filed in the trial court November 12, 1965, whereby plaintiff states she is appealing from the order of October 18, 1965. The transcript was first tendered to the clerk of our court for filing on December 17, 1965, eighty days from the date of the judgment of the court, but sixty days from the date of overruling the motion for non-suit.

The question now before the court is whether we have jurisdiction of this appeal. Our answer is that we do not have such jurisdiction, and that the appeal must be dismissed.

The judgment of September 28, 1965, disposed of all issues in the case, Vance v. Wilson, Tex.Sup.Ct., 382 S.W.2d 107, and in the absence of a notice of appeal or motion for new trial became a final decree thirty days after it was signed and ordered entered. Rule 329b § 5, Texas Rules of Civil Procedure. The order of October 18, 1965, was not an appealable judgment, but was only a ruling on a matter pending at the time judgment was rendered. We are not now concerned with the issue of whether the non-suit should have been granted, as that question would arise only if we have jurisdiction of this appeal. But even if appeal could be taken from such order of October 18,1965, notice of such appeal within ten days from the entry of the order was required and this was not given. Rule 353, T.R.C.P.; Donald v. John Vinson, Inc., Tex.Civ.App., 344 S.W.2d 751, writ ref.

The only appealable final judgment contained in the transcript is the decree of September 28, 1965. No notice of appeal from such judgment was ever given by plaintiff. The transcript was not timely filed, having been first tendered to this court eighty days after rendition of the judgment. Rule 386, T.R.C.P. This court has no jurisdiction over this cause. Angelina County v. McFarland, Tex.Sup.Ct., 374 S.W.2d 417; Consolidated Casualty Insurance Company v. Wade, Tex.Civ.App., 373 S.W.2d 841, writ dism.; Donald v. John Vinson, Inc., supra.

Appeal dismissed.


text:
    William F. CONKWRIGHT, Appellant, v. GLOBE NEWS PUBLISHING COMPANY, Appellee.
    No. 4020.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 12, 1965.

      Edward L. Lasof, Caldwell & Hurst, Houston, for appellant.
    Butler, Binion, Rice, Cook & Knapp, Jack Binion and Tom Alexander, Houston, Folley, Snodgrass, Calhoun & Kolius, V. G. Kolius, Amarillo, for appellee.
   GRISSOM, Chief Justice.

William F. Conkwright sued the Globe News Publishing Company in Harris County for damages alleged to have been caused by libel. The defendant’s plea of privilege to be sued in Potter County, where it maintains its legal residence, was sustained and the cause was ordered transferred to Potter County. Conkwright has appealed.

On the hearing of the plea of privilege Conkwright proved only that the defendant stated in its newspaper that “Red Conk-wright, who shouldn’s be coaching anything, is coaching the Houston receivers”; that he was the person referred to and that he was embarrassed and angered by such publication. Appellant’s point is that the court erred in sustaining said plea of privilege over appellant’s controverting plea in which he alleged the suit was maintainable in Harris County under exception 29, Article 1995, Vernon’s Ann.Civ.St. We understand appellant’s contention to be that the article was libelous per se, not privileged, and, therefore, that venue was established in Harris County, where the plaintiff resided when the article was published.

Paragraph 4 of Article 5432 provides that publication by a newspaper of reasonable or fair comment or criticism concerning matters of public concern published for general information shall be deemed privileged and shall not be the basis of any action for libel. We think the evidence supports the implied conclusion of the court that the published opinion stated a reasonable comment or criticism concerning a matter of public concern published for general information. Therefore, it could not be the basis for a libel suit, unless made with malice. We understand the law to be that unless a plaintiff establish that: such an article was published with malice that he has not proved a cause of action for libel. Fitzjarrald v. Panhandle Pub. Co., 149 Tex. 87, 228 S.W.2d 499, 503. Conk-wright had the burden of proving by a preponderance of the evidence on the hearing of the plea of privilege that a cause of action for libel, in fact, accrued in his favor. Renfro Drug Co. v. Lawson, 138 Tex. 434, 160 S.W.2d 246, 146 A.L.R. 732, 735; Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619, 622, Par. 4; Blanton v. Garrett, 133 Tex. 399, 129 S.W.2d 623, 625. Since appellant did not establish that he had such a cause of action the defendant’s plea of privilege was properly sustained. Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63, Par. 5. That essential venue fact was not conclusively established. Therefore, the judgment ordering the case transferred to Potter County is affirmed.