author: COLEMAN, Justice.

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. John M. MORGAN, Appellee.
    No. 14464.
    Court of Civil Appeals of Texas. Houston.
    April 1, 1965.
    Rehearing Denied April 29, 1965.

      Fulbright, Crooker, Freeman, Bates & Jaworski, J. S. Covington, Jr., Houston, for appellant.
    Baggett, Kirk, Van Keuren & Baggett, Russell T. Van Keuren, Houston, for ap-pellee.
   COLEMAN, Justice.

This is a Hurricane Carla case. Judgment was entered in favor of the insured based on a jury verdict that all damage sustained was solely caused by wind or by rain entering through openings previously caused by wind. It is appellant’s position that since it is undisputed that flood waters entered the houses involved, and covered the personal property insured, some damage resulted, and, therefore, the jury verdict was not supported by the evidence.

A dwelling, a warehouse building, and the contents of the warehouse, belonging to appellee were insured by appellant against loss caused by windstorm or hurricane. Section III of the policy provided that the company shall not be liable for loss caused by tidal wave, high water, or overflow, whether driven by wind or not, nor for loss caused by rain unless wind shall first make an opening in the walls or roof of the building, and then only for such loss to the interior of the building, or insured property, caused immediately by rain entering the building through such openings.

The parties stipulated that the residence was damaged to the extent of $3,000.00; the warehouse $2,250.00; and the contents of the warehouse $1,250.00. The nature of the damage was fully explained. On the side of the residence nearest the water (the south) a terrace was completely destroyed; the wall separating the terrace from the living room was almost completely gone, exposing the interior of the house to the wind and rain; windows were broken out; the concrete block piers on the east side of the house were gone, causing the house to drop to the ground on the east side and to be lifted from the piers on the west while resting on center piers. Extensive structural damage resulted. Prior to the damage the floor of the house was seventeen feet above mean sea level. It appears from the evidence that the crest of waves at this point was seventeen feet above mean sea level. From water marks and debris it was determined that water reached a level in the living room four inches above the floor. There were also water marks on the walls in the bedroom on the East.

Two witnesses viewed the Morgan premises on the day before the full force of the hurricane hit and testified that the roof of the warehouse was seen upside down in one piece on the adjoining premises. Some of the sheet metal was gone from the walls and other pieces of metal were loose and flopped in the wind. The water had not risen to a point level with the floor of the warehouse, and so could not have reached the residence at that time. There was evidence of heavy rainfall in the vicinity, as well as several tornadoes, by eye witnesses. On the premises next to Morgan’s a garage was completely destroyed while an adjoining small house was undamaged. A nearby tree was broken off about a foot from the ground. Trees were extensively damaged in the vicinity from ten to forty feet above the ground. The top was broken off a tree on Morgan’s premises near the warehouse and a hollow tree near the residence was broken off high above the high water mark.

The evidence clearly was sufficient to support the findings of the jury that the damage to the houses was solely caused by wind and rain entering through openings caused by wind. While water entered the residence and completely covered the site of the warehouse, the jury might well have concluded that the rain driven by hurricane force winds through open windows and doors would have completely soaked the interior of the residence and that the flood waters could have done no additional damage to the walls and floors. They might well have concluded from the evidence of the condition of the warehouse building prior to the time the water reached it, the force of the winds thereafter, and the location and condition of the sheet metal and heavy machinery after the storm, that the warehouse was completely destroyed by wind. In Hardware Dealers Mutual Fire Ins. Co. v. Smart, 10 Cir., 293 F.2d 558, the court said: “ * * * The evidence is sufficient to present a question of fact for the jury as to whether the plaintiff's building was destroyed by wind alone, and the fact that a flood immediately followed does not, as a matter of law, prevent recovery on the policy.”

It is clear that the machinery was subjected to heavy rains after the roof was removed from the warehouse. The principal damage to the machinery was caused by rust and corrosion due to water. Some electrical equipment was damaged by water. The smaller items were missing. Appellee attempted to establish the value of the missing items, but appellant objected that such evidence was irrelevant in view of the stipulation as to total damage, and this objection was sustained by the court. There was no direct or opinion testimony as to the relative likelihood of the rust or corrosion being caused by rainwater or flood water. Since the testimony is that this condition was caused by water and it was first exposed to rainwater, we cannot say that the verdict of the jury is not supported by the evidence as to these items.

Among the items missing were such things as linens, chairs, tables, lanterns, electric heaters, nails, screws, wire, etc. There is nothing in the evidence to indicate that these and other items were not deposited in the water by the destruction of the building, and then carried away by the water currents or receding waters. While it might be argued that the loss was occasioned solely by the force of the winds, it could be argued with equal force that some or all of the items were deposited in the water.

It would seem that in any case where a house is totally destroyed by hurricane or windstorm, its contents will be damaged by water. Even though there is no rising water, the currents caused by the heavy rains would wash away some articles. If there were no water, it is probable that such articles would be blown away by the winds. Under such circumstances the loss is directly and proximately caused by the wind, and is covered by the policy. Niagara Fire Ins. Co. v. Muhle, 8 Cir., 208 F.2d 191; Pennsylvania Fire Ins. Co. v. Sikes, 197 Okl. 137, 168 P.2d 1016, 166 A.L.R. 375.

Appellant sought to introduce evidence to the effect that appellee’s property had been in the path of a previous hurricane during which the winds were of approximately the same velocity, but which was not accompanied by flood waters, without significant injury. The trial court did not abuse his discretion in excluding this testimony. Missouri, Kansas & Texas R. Co. of Texas v. Bailey, 53 Tex.Civ.App. 295, 115 S.W. 601, error ref.; Tex.Jur.2d, Vol. 23, Evidence, Sec. 126.

Appellant requested the trial court to submit certain issues inquiring as to each item of property insured (1) whether damage was caused by the insured peril and (2) the percentage of damage so caused. Appellant is in no position to complain of the manner of submission of this case. No objections to the court’s charge are found in the transcript. The issues as submitted required the jury to determine whether the damage was caused solely by the insured peril. Under this form of submission ap-pellee would have recovered nothing had the jury been of the opinion that any percentage of the damage was caused by a peril not covered by the policy of insurance. The form of submission favored appellant. The controlling issues were submitted. Carter v. Ferris, Tex.Civ.App., 93 S.W.2d 504, writ dism.; Lincoln County Mutual Fire Ins. Co. v. Smith, Tex.Civ.App., 232 S.W.2d 637, ref., n. r. e.

Affirmed.


source: Caselaw Access Project

author: GREEN, Chief Justice.

license: Public Domain

text:
    Alex ANGERSTEIN, Appellant, v. Mrs. Dolly ANGERSTEIN, Appellee.
    No. 158.
    Court of Civil Appeals of Texas. Corpus Christi.
    April 15, 1965.

      Clyde W. Woody, Houston, Charles Tess-xner, Dallas, for appellant.
    Armond G. Schwartz, Hallettsville, Richard D. Cullen, of Cullen, Mallette, Maddin & Edwards, Victoria, for appellee.
   GREEN, Chief Justice.

Appellant Alex Angerstein, defendent below, seeks to appeal to this Court from a judgment of the district court of Victoria County, Texas, granting a divorce to appel-lee, and allowing recovery of attorney fees. Appellant, on the 63rd day after entry of the judgment, filed a motion with this Court asking for an extension of time in which to file the transcript and statement of facts, accompanying said motion with the transcript duly certified by the district clerk. Thereafter, within the 75-day period from the date of the judgment, amended motion for such extension was filed. We find that this motion shows good cause for delay, and have granted same, extending such time for an additional thirty days from the end of the sixty days period, and have ordered the transcript filed as of the date it was received by our clerk.

A study of the decree entered by the trial court in this cause convinces us that same is not a final, appealable judgment, since it expressly reserves for future order in the same case a ruling on the property issues, and that, acting on our own motion, we should dismiss this appeal. The record shows that appellee sued appellant for divorce, attorney fees, and a determination and partition of community property. On order of the court, appellant filed a sworn inventory evidencing ownership by the parties of a large amount of community property, including valuable real estate, money in banks, and other personal property. The decree of the court, entered January 29, 1965, after granting the divorce as prayed for and allowing attorney fees, states as follows:

“The Court having further heard evidence concerning the community property and estate acquired by the parties hereto during their marriage but being of the opinion that further evidence is necessary for a just and equitable division thereof, does not now decree a partition: * * *'
* * * The community property of the parties hereto shall remain under its present management and shall not be divided pending further order of this court, however, the « defendant herein shall keep an accurate accounting of the use thereof and the proceeds, if any, therefrom insofar as said community property is under his control.”

It appears from the language above quoted that the trial court intended in this same cause to hear further evidence on the issues involving the community property, and to render a further order making a just and equitable division thereof under the provisions of Article 4638, Vernon’s Ann. Tex.Civ.St. Unless the community property rights are litigated in the divorce suit, Article 4638 is not applicable in subsequent litigation. Wade v. Wade, Tex.Civ.App., 295 S.W.2d 939.

Severance, under Rule 41, Texas Rules of Civil Procedure, is proper only where the suit involves two or more separate and distinct causes of action. Each of the causes into which the action is severed must be such that the same might be tried and determined as if it were the only claim in controversy. A judgment after trial on a severed cause of action is a final, appeal-able judgment. Kansas University Endowment Ass’n v. King, 162 Tex. 599, 350 S.W.2d 11; Hayes v. Norman, Tex.Civ.App., 383 S.W.2d 477, writ ref., n. r. e. Hall, Severance and Separate Trial in Texas, 36 Tex.Law Review 339. That portion of a divorce suit regarding property rights between the parties is a part of the very divorce suit itself, Burguieres v. Farrell, 126 Tex. 209, 87 S.W.2d 463; Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, and can not be severed from the divorce action under Rule 41, T.R.C.P. Pelham v. Sanders, Tex.Civ.App., 290 S.W.2d 684. Article 4638, V.A.T.S., being the statutory provision for judicial division of property in a divorce action, is mandatory, having for its purpose the prevention of a multiplicity of suits. Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299, 302; Ex parte Scott, supra; Pelham v. Sanders, supra; Speers Marital Rights in Texas, Vol. 3, p. 176.

A separate trial on one or more of the issues in a suit, as contemplated by Rule 174, T.R.C.P., results in an interlocutory, non-appealable order determining the claims or issues so tried, but there can be only one final judgment, to be entered after all claims and issues involved in the suit have been tried. Kansas University Endowment Ass’n v. King, supra; Hall, Severance and Separate Trial in Texas, supra; Rule 301, T.R.C.P. The order entered by the trial court in the instant cause does not dispose of all issues in the case, and is interlocutory, and not affinal judgment. Sterett v. Dyer, Tex.Civ.App., 230 S.W.2d 461, writ ref.; Restelle v. Williford, Tex.Civ.App., 364 S.W.2d 444; Fleming v. Fleming, Tex.Civ.App., 203 S.W.2d 989.

While we do not hold that the issues involving the property rights can not be tried separately from the other issues in the case under the provisions of Rule 174, we do hold that after the trial of all issues raised, either separately or in one trial, the final disposition of all of such issues must be evidenced in one final judgment. Rule 301.

Under our disposition of this appeal, the trial court, in his discretion, need not retry the issues disposed of in his interlocutory decree of January 29,1965, but may proceed to hear further evidence on the property issues, and thereafter set forth his final judgment in one decree.

Appeal dismissed.


author: BARROW, Justice.

text:
    WESTERN FLAVOR-SEAL COMPANY, Appellant, v. Morris KALLISON, Appellee.
    No. 14379.
    Court of Civil Appeals of Texas. San Antonio.
    April 21, 1965.

      Frank P. Christian, San Antonio, for appellant.
    Glosserman, Alter, Smith & Rosenheim, San Antonio, for appellee.
   BARROW, Justice.

This is an appeal from a default judgment rendered by the County Court at Law No. 3 of Bexar County against appellant, Western Flavor-Seal Company, for rental payments due under a lease contract allegedly entered into by appellant with ap-pellee, Morris Kallison. The questions presented are whether the county court had jurisdiction over the amount in controversy and whether it had jurisdiction to render judgment adjudicating the validity of the alleged lease contract. Appellant raised these questions by timely filing its motion for new trial and asserting a meritorious defense.

Appellee’s petition was filed on July 30, 1964, and alleged that he had entered into a two-year lease contract with appellant, to begin on August 1, 1963, and end on July 31, 1965, whereby appellant agreed to pay monthly rental payments of $250.00. Appellee alleged that appellant owed $100.00 on the April, 1964 rent and $250.00 for the months of May, June and July, 1964. He sought judgment for said debt, plus interest, attorney’s fees and foreclosure of his landlord’s and preference liens against the property of appellant in said leased premises. He also prayed for general relief.

It is well settled that when by the terms of the contract the rental is payable in monthly installments, upon default in the payment of the rent, the landlord may either stand on the contract and sue for each month’s rent as it falls due, or, he may sue once for all damages for breach of the contract. Amco Trust v. Naylor, Tex.Civ.App., 311 S.W.2d 257, rev. on other grounds, 159 Tex. 146, 317 S.W.2d 47, 73 A.L.R.2d 1109; Davidson v. Hirsh, 45 Tex.Civ.App. 631, 101 S.W. 269; 35 Tex.Jur.2d 648; 13 Baylor Law Review 374, 378. Appellee’s petition clearly shows an election to sue only for the payments in default at the time the petition was filed. He thereby asserted a claim for less than $1,000.00, and one within the jurisdiction of the county court. Metropolitan Life Ins. Co. v. Evans, Tex.Civ.App., 96 S.W.2d 152, no wr. hist.; Jones v. Dodd, Tex.Civ.App., 192 S.W. 1134, no wr. hist. Appellee did not seek an adjudication of the validity of the two-year lease contract, and such an adjudication was not necessary to his recovery for the past due rentals. Cf. Gossett v. Manley, Tex.Civ.App., 43 S.W.2d 622, wr. ref.

Appellant also urges that the county court lacked jurisdiction in that appellee did not allege the value of the property upon which he sought foreclosure of his statutory lien. It is settled law that in a suit to foreclose a statutory landlord’s lien as sought by appellee herein the court’s jurisdiction is determined by the amount of the debt and not the value of the property upon which the lien exists, since the statute contemplates a foreclosure upon only so much of the property as is sufficient to satisfy the debt. Childress Oil Co. v. Wood, 111 Tex. 165, 230 S.W. 143; Southwestern Drug Corp. v. Webster, Tex.Civ.App., 246 S.W.2d 241, no wr. hist.; R. O. Kipp Co. v. Anglin, Tex.Civ.App., 270 S.W. 893, no wr. hist.; McDonald, Texas Civil Practice, § 1.13. It is therefore our opinion that the county court had jurisdiction over the subject matter of this suit.

The trial court properly rendered judgment upon appellant’s default for the sum of $955.00, being the amount of the unpaid rentals, plus interest and attorney’s fees. In addition, however, the trial court found and decreed that the parties had entered into a legal, valid and binding lease agreement commencing on August 1, 1963, at a monthly rental of $250.00. We have heretofore pointed out that there were no pleadings seeking an adjudication of the validity of this lease, and had such been sought the county court would not have had jurisdiction of this case. Gossett v. Manley, supra. The trial court, therefore, erred in adjudicating the validity of the two-year lease. Farmers’ National Bank v. Daggett, Tex.Com.App., 2 S.W.2d 834; Harrison v. Barngrover, Tex.Civ.App., 72 S.W.2d 971, wr. ref.; McDonald, Texas Civil Practice, § 6.24 and § 17.27.

The judgment is reformed to delete that portion of the judgment of October 12, 1964, finding and decreeing the validity of the lease agreement. In all other respects the judgment is affirmed. The costs of this appeal are taxed against the appellee.

      . “It is therefore ORDERED, ADJUDGED and DECREED that the Plaintiff as Lessor and Defendant as Lessee entered into a legal, valid and binding lease agreement covering the premises described as 614 Broadway, San Antonio, Bexar County, Texas for the term commencing August 1, 1963 at a monthly rental of $250.00, payable by Defendant to Plaintiff at the office of Plaintiff in the City of San Antonio, Bexar County, Texas on the first day of each month of said term and otherwise renewing the terms of the lease between Plaintiff and Defendant dated June 30, 1960 hereinabove referred to.”


author: HUGHES, Justice.

text:
    CITY OF BIG SPRING, Appellant, v. BOARD OF CONTROL of the State of Texas et al., Appellees.
    No. 11314.
    Court of Civil Appeals of Texas. Austin.
    April 7, 1965.
    Rehearing Denied April 28, 1965.

      John A. Burgess, Big Springs, J. C. Hins-ley, Austin, for appellant.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., Stanton Stone, Executive Asst. Atty. Gen., J. C. Davis, John Reeves, Pat Bailey, Asst. Attys. Gen., Austin, for appellees.
   HUGHES, Justice.

The City of Big Spring, a Home Rule City and the County seat of Howard County, sued the State Board of Control of Texas, The Board for Texas State Hospitals and Special Schools and the Attorney General of Texas for a declaratory judgment declaring that a Contract between the City and the Board of Control, executed' in 1937, under which the City agreed to furnish not to exceed 300,000 gallons of water per day to the Big Spring State Hospital at a rate of ten cents per 1,000 gallons was not binding on the City and was subject to renegotiation.

Trial to the court resulted in a judgment declaring the subject Contract valid and denying any relief to the City.

The material portions of the City-Board of Control Contract are:

“THIS AGREEMENT made and entered into by and between the City of Big Spring, Texas, hereinafter called THE CITY, and the Board of Control of the State of Texas, acting for and on behalf of the State of Texas,
“WITNESSETH
“WHEREAS, the Board of Control of the State of Texas has selected as site for, and proposes to construct and maintain thereon, a new State Hospital, said site consisting of parts of Sections Numbers Twenty-five (25), Howard County, Texas; and, whereas, the City of Big Spring has heretofore agreed with the Board of Control of the State of Texas that it will, in part consideration for the location of said hospital at said site above mentioned, furnish water to said hospital and for the uses and purposes of said hospital at a rate agreed upon and as hereinafter stated, and the City has also deeded to the State of Texas for use in connection with said hospital five acres of land with producing water wells thereon, to be used in accordance with agreement between the City and the Board of Control, and it is desired to clearly and expressly state the agreement between the parties hereto with respect to same:
“NOW, THEREFORE, it is agreed by and between the City and the Board of Control of the State of Texas, as follows:
“I.
“This agreement is made by the Board of Control of the State of Texas for the use of the State of Texas, in connection with the construction, maintenance and operation of a State Hospital on the site above referred to, and the rights and privileges conferred by this contract upon the Board of Control of the State of Texas are with reference to and pertaining to said hospital, and where any action is required under this contract on behalf of said hospital, it shall be understood that such action may be taken and said hospital and the State of Texas represented by such person or persons as may be lawfully in charge of said hospital and having the right to contract and bind the State of Texas with reference to any such matters as may be involved at any time under this contract. The Board of Control and the State of Texas shall hereafter be included within the designation of hospital under the remaining terms and provisions of this agreement.
“II.
“The City covenants and agrees to furnish to the State of Texas, and to said hospital above mentioned, such water as said hospital may require for any and all uses incident to said hospital and its operation and maintenance to an amount not exceeding three hundred thousand gallons per day, at a price of ten cents (10(0 Per thousand (1000) gallons, said hospital to be furnished water delivered through one meter furnished by the hospital at such location on said hospital site as may be selected by the Board of Control, and the distribution of said water from said central point to be made by said hospital at its own cost and expense and the duties and obligations of the City to be discharged upon delivery of said water through said meter at said selected location. The water furnished as aforesaid to be paid for monthly in accordance with actual water consumed as shown by meter readings.
“HI.
“The City has by separate instrument conveyed to the State of Texas a tract of five acres of land, with three producing water wells located thereon; the City covenants and agrees that in event the Board of Control shall equip said wells for pumping and pump water from said wells and deliver same into the pipe lines of the City of Big Spring with which said wells are connected, all such equipment and pumping of said wells to be taken care of by said hospital, that said water may be metered into the City transmission lines connected with the wells, and metered out again at the hospital free of cost to said hospital on account of the carriage of said water from said wells to said hospital, the hospital furnishing the meters, and the City agreeing to deliver to said hospital without cost or charge the same amount of water that is metered into the line from wells pumped by said hospital. Said hospital shall have the right to buy any part of its water supply, or all of same, from the City under the terms and conditions as set out in the preceding paragraph, or at its election it may purchase a portion of its water from the City and pump and produce part of its own water from the wells on said five acres tract under the terms and conditions as just above set out, it being entirely optional with said hospital as to which of said methods of providing water it cares to utilize, or at its election may utilize and operate under both plans, buying part of the water from the City and pumping part of the water itself.
“IV.
“It is understood and agreed that this agreement is made in accordance with and pursuant to an agreement heretofore made by and between the City of Big Spring and the Board of Control of the State of Texas with reference to the location of said hospital site near the City of Big Spring, and this contract with reference to furnishing of water to said hospital is and constitutes a material consideration influencing the Board of Control to locate said hospital at said site, and this agreement with reference to the furnishing of water by the City to said hospital shall continue in full force and effect and is not subject to being revoked as long as the State of Texas shall in good faith maintain and operate said hospital on said site.”

The following facts are undisputed:

The State of Texas commenced operation of the Big Spring State Hospital in 1938 and has continued to maintain and operate such Hospital since such time.

The City of Big Spring has furnished water, within the Contract limit, to the Hospital since 1938 at the rate of ten cents per 1,000 gallons, and is continuing to do so.

Most of the water processed and distributed by the City is purchased as raw water from the Colorado River Municipal Water District. The average cost of this water to the City for the years 1953-64 has been 16.5 cents per 1,000 gallons.

During the years 1960-1964, the average cost of treatment and distribution of water by the City has been 17.25 cents per 1,000 gallons.

During the years 1960-1964, the cost to the City of water purchased, treated and delivered to the Hospital under the above Contract has been 33.75 cents per 1,000 gallons.

The cost to the State of the Hospital since its inception has been about $18,000,000.00.

The current payroll of the Hospital is $91,000.00 per month.

In 1961, the Legislature adopted a resolution authorizing the Board for Texas State Hospitals and Special Schools to “enter into negotiations with the City of Big Spring for a new Contract which will cover the increased demands of the Hospital for water, the cost of delivering same, and the maintenance of adequate water pressure at the Hospital for ordinary water use and for fire protection.”

Following the enactment of this resolution, the Executive Director for the Hospitals and Special Schools Board, Mr. Raymond Vowell, requested an opinion of the Attorney General as to whether or not the Board “is presently empowered to renegotiate the Water Contract with the City of Big Spring.”

The response from the Attorney General concluded with this statement, “Under the facts presented, it does not appear that the parties contemplate an assumption by the City of any obligation beyond that which it is presently bound to perform. In the event the parties reach an agreement affording a new and adequate consideration to the State, they then may renegotiate the contract.”

The City has three points, jointly briefed, which deny the authority of the parties to the 1937 contract, the City and the Board of Control, to make such Contract.

We will first discuss the authority of the City.

The City, as a Home Rule City, has authority to own and operate a water works system and to prescribe rates for water furnished. Art. 1175(11), Vernon’s Ann. Tex. Civ. St.

Citing City of El Paso v. Carroll, 108 S.W.2d 251, writ ref. and San Antonio Ind. Sch. Dist. v. Board of Trustees, 204 S.W.2d 22, writ ref., n. r. e., both by the El Paso C.C.A., as authority for the rule that a City may not make a donation or gift of its assets, the City contends that this is the effect of the Contract between it and the Board of Control.

Without determining the authority of a Home Rule City to make gifts of water to a State hospital, we hold that this Contract is not either in form or substance a gift.

There is no evidence that ten cents per thousand gallons of water in 1938 in Big Spring was not a fair price. In the absence of such evidence, we must assume that it was a fair price.

Even if the contract price for the water was below its market value when the Contract was made, there were other benefits which the City expected to receive and did receive as contractual consideration for the Contract. The construction and maintenance of an $18,000,000.00 Hospital (and expenses) and its $91,000.00 monthly payroll constitute the real consideration which the City received and is continuing to receive under the Contract. The value of this institution to a town the size of Big Spring in 1938, or now, is certainly not trivial.

The City cites numerous authorities, some of which are listed below, to the effect that in the regulation of water and other utilities rates a City is exercising a legislative or governmental function and that it cannot divest itself of this continuing power by contract.

It is our opinion that the City of Big Spring was vested with authority to enter into a Contract with the Board of Control to furnish water to the Big Spring-Hospital for the consideration stated in the Contract and that in exercising this authority it has not impaired its governmental or legislative authority.

Art. 1108, V.T.C.S. provides, in part:

“Any town or city in this State which has or may be chartered or organized under the general laws of Texas, or by special Act or charter, and which owns or operates waterworks, sewers, gas or electric lights, shall have the power and right: * * *
“3. To extend the lines of such systems outside of the limits of such towns or cities and to sell water, sewer, gas, and electric light and power privileges or service to any person or corporation outside of the limits of such towns or cities, or permit them to connect therewith under contract with such town or city under such terms and conditions as may appear to be for the best interest of such town or city; * * *

In Wiggins, footnote 4, it was held that an ordinance by the City of Texarkana, a Home Rule City, charging for water delivered by it outside the corporate limits one and one-half times the rate charged for water furnished within the corporate limits was invalid because discriminatory and that Sec. 3 of Art. 1108, supra, did not authorize a City to charge discriminatory rates. There is a strong four judge dissent in this case the effect of which is that the majority opinion flouts the clear unambiguous language of the statute. The importance of the case here, however, is that it sustains the applicability of Sec. 3, Art. 1108, to Home Rule Cities, and it also sustains its validity.

There is no discrimination in this case, and none is asserted.

A City owning or operating a waterworks is under no duty to furnish water to persons residing beyond the corporate limits. City of Livingston v. Wilson, 310 S.W.2d 569, Beaumont C.C.A., writ ref., n. r. e. It may do so, however, upon such terms “as may appear to be for the best interest of such town or city” (Sec. 3, Art. 1108) so long as it does not discriminate in so doing. (Wiggins)

If the City of Big Spring lost any legislative prerogatives in executing the Contract in suit it did so of its own volition and under authority of a valid statute.

The City also attacks the Contract on the ground that it is for an indefinite period and is, therefore, a Contract terminable at the will of either party thereto. In support of this contention, the City cites Sturgeon v. City of Paris, 58 Tex.Civ.App. 102, 122 S.W. 967, Texarkana C.C.A., writ denied, and other authorities. In Sturgeon the Contract relied upon was to the effect that the city would furnish water to him so long as he desired to use the water and paid for it. The Court, among other controlling holdings, held that this Contract was a Contract at will and terminable by either party at any time.

The Contract in suit is not indefinite as to the period of its duration. It is limited in time by a specified event, towit, “as long as the State of Texas shall in good faith maintain and operate said hospital on said site.”

In 17 Am.Jur.2d, Contracts, Sec. 80, p. 420, it is stated that “Words which fix an ascertainable fact or event, by which the term of a Contract’s duration can be determined, make the Contract definite and certain in that particular.” The contingency upon which the duration of this Contract depends can be ascertained with precision. The duration of the Contract is, therefore, not indefinite.

Turning now to the authority of the Board of Control to make the Contract in suit, appellant directs our attention to these facts:

The Big Spring State Hospital was constructed and established under the provisions of Art. 3185a, V.T.C.S. This article provided for the general location of the hospital and contained these provisions:

“The Board of Control of the State of Texas shall select a site for said hospital, and the Board, in selecting such site, shall make such selection with a view to its accessibility and convenience to the greatest number of inhabitants, the supply of water, building material, fuel, fertility of soil, and healthfulness, and the same shall contain not less than three hundred (300) acres of land as above described.
* * * * * *
“At the completion of the buildings, and when the said hospital is ready to open, the Board of Control shall appoint a Superintendent and other employees to superintend and carry on the work of such hospital as is now provided by the General Laws of the State of Texas governing such institutions.
“The support and general maintenance of said hospital shall be the same in every respect as is provided for insane hospitals as now provided by law.
“There shall be constructed upon said grounds so selected permanent, suitable, substantial, and fireproof buildings sufficient to accommodate at least five hundred and forty (540) inmates; said buildings to be provided with modern improvements for furnishing water, heat, ventilation, and sewerage; and the Board of Control immediately after this Act goes into effect and after the selection of the site for said hospital, and after the title of said land shall have been approved by the Attorney General, shall advertise for plans and specifications for said buildings and contract for the erection of the same; and shall have the power and authority to do and perform all things necessary for carrying out the purpose of this Act. * * *
“That there shall be and there is hereby appropriated out of the General Revenues of this State not otherwise appropriated the sum of Eight Hundred and Seventeen Thousand Dollars ($817,000) for the buildings and improvements and the expenses incurred in securing the lands for the site, providing that no money herein appropriated shall be expended for the payment of the lands selected for the site.”

Article 634, R.C.S., 1925, in force in 1937, provided, in part, that the Board of Control should purchase all supplies for each eleemosynary institution, and, similarly, Art. 642, id., provided that the Board should contract for all supplies, except perishables, needed for the maintenance and operation of such institutions. Art. 643, id., provided for public notices before letting such Contracts and that, “Such contracts shall he made within the limits of the appropriations made by the Legislature for such purposes regard being had to the appropriations for each institution.”

On October 22, 1937, when the Contract before us was executed, there was no appropriation in existence for the maintenance of the Big Spring Hospital.

From these facts, appellant concludes that the Board of Control lacked authority to execute the Contract.

Since 1937, the Legislature has appropriated funds for the support and maintenance of the Big Spring Hospital from which appropriations the City has been paid for water used under the terms of the Contract.

It is our opinion that the Board of Control was not without authority to execute the Contract. The Hospital could not operate without water. The site selected for the Hospital was not within the city limits of Big Spring and that City was under no legal obligation to supply the Hospital with water. The only manner in which the Hospital could be assured of an adequate supply of water was to develop such a supply itself or to contract with someone who owned or controlled a sufficient source of water. The latter method was adopted here. The authority for the Board to contract for water before there was actual need for it is clearly implied by the language of Art. 3185a, supra. By this statute the Board of Control is given power and authority to do and perform all necessary things for carrying out the purpose of the Act. The overall purpose of hie Act was to build, establish otid maintain a Hospital for the treatment of mentally ill persons. One of the specific instructions to the Board was to select a site for the Hospital having in view the “accessibility” of a “supply of water.” For water to be accessible to the Hospital, in the sense that word is used in the statute, it must be obtainable. It could only be obtainable here, or at least one way in which it could be made obtainable, was by Contract with the City of Big Spring which had a supply of water it was willing to sell to the Hospital as evidenced by its Contract. Of necessity, this Contract had to be executed before the Hospital was constructed if it was to be relied upon to insure ample water for the Hospital. If it had not been so executed the Board of Control would have violated the specific statutory instructions given it, which instructions in our opinion, controlled other general statutes governing the Board.

It is also our opinion that this Contract does not run afoul of any Constitutional provision brought to our attention in a general fashion. Appellant relies upon Fort Worth Cavalry Club, Inc. v. Sheppard, 125 Tex. 339, 83 S.W.2d 660, as requiring us to hold the Contract invalid for want of an appropriation for the purchase of water when it was made.

Art. 8, Sec. 6 of the Texas Constitution, Vernon’s Ann.St., provides, that no money shall be drawn from the Treasury but in pursuance of specific appropriations made by law and that no appropriation of money should be made for a longer term than two years.

Art. 3, Sec. 44 of the Texas Constitution provides, in part, that the Legislature shall not grant by appropriation, or otherwise, any money out of the State Treasury “ * * * when the same shall not have been provided for by pre-existing law * * *.”

Art. 3, Sec. 49 of the Texas Constitution provides that, witfi certain exceptions, no debt A call be created by or on behalf of the State.

The primary holding in Cavalry Club was that the Adjutant General who executed a five year lease on behalf of the State had no authority to do so.

It is our opinion that this case is controlled by the decision in Charles Scribner’s Sons v. Marrs, 114 Tex. 11, 262 S.W. 722. This case, Marrs, was distinguished in Cavalry Club, the Court saying, “In the Marrs Case, the Supreme Court had under consideration a five-year contract, but the contract was one expressly authorized by statute. No such case is presented here.”

In Marrs the Court held valid a contract between the Texas State Textbook Commission and Scribner’s Sons, a Corporation, by the terms of which the State agreed to use certain textbooks in its schools and Scribner’s Sons obligated itself to furnish and sell such books to the State. The contract was for five years. In its opinion, the Court said:

“The Constitution is silent as to the length of term for which a contract may be made by the state. The only provisions of the Constitution that might affect the term are those which provide that no debt may be created by or on behalf of the state, and that no appropriation of money may be made for a longer term than two years, and perhaps the provision prohibiting monopolies. The contract under consideration does not partake of the nature of a monopoly.
“The state in its sovereignty has the right and power to contract. Unless limited by organic law, the subjects of contract, the length of term for which a contract may be made, and the general public policy regarding contracts, are within the legislative -prerogative.
“The contract under consideration is one which the state text-book commission had legislative authority to make. The statute expressly authorizes the making of a contract for a period of time not to exceed six years.
“The making of this contract by the state text-book commission was not the exercise of any legislative function or power on its part, but the performance of the ordinary business affairs of that body. Therefore the contract is not one which, in effect, precludes it from exercising from time to time any power legislative in character conferred upon it by law, if indeed it has any such powers; and its act in making the contract is not controlled by the limitation that the power to make contracts which affect governmental or legislative functions must be so exercised as not to infringe upon the powers of its successors. This is stated that the law of this contract may not be confused with such other contracts as were under consideration in the case of City of Brenham v. Brenham Water Co., 67 Tex. 542, 4 S.W. 143, and cases which follow it. In that case, in reviewing the contractual powers of cities, Judge Stayton said:
“ ‘We do not wish to be understood to hold that a municipal corporation has no power, in any event, to contract for such things as are consumed in their daily use for a period longer than the official term of the officers who make the contract; but we do intend to be understood to hold that such corporations have no power to make contracts, continuous in character, in reference to such things or any others by which they will be, in effect, precluded from exercising from time to time any power, legislative in character, conferred upon them by law.’
“That case is based upon the idea that under the terms of that contract the city had divested itself of the exercise of governmental and legislative functions, and for that reason it was objectionable, and that the contract created a monopoly.
“Obligations that run current with revenues are not debts within the contemplation of the Constitution. * * *
“This contract obligates the state to introduce into and use relator’s books in the public free schools for a period of five years. It obligates relator to furnish, offer, and sell these books to the state each year for five years, upon the requisition of the school authorities each year for such books as may be needed. Payment for them is to be made out of the current fund each year as they are purchased. The obligation of the contract is not to buy a fixed number or amount of books, but only so many as are needed by the schools of the state. Liability is fixed only for such amounts as are requisitioned by the trustees of the schools. The number of books purchased for any year and the amount of money applied thereto is wholly within the control of the school authorities.
“The contract is for uniform textbooks for a period of five years. No quantity is stipulated and no promise to pay, only an agreement to use the books in the schools. The statute and the contract provide that no debt is created. The obligation to pay arises only upon the purchase and delivery of books for the year when needed, and according to the purchase. The books so furnished and so purchased during any year do not make a charge on the future resources of the state, but are paid for each year as the purchases are made.
“It logically follows that the contract is not repugnant to that part of section 6, Art. 8, of the Constitution which provides : ‘Nor shall any appropriation of money be made for a longer term than two years.’
“If any particular school district had no need of any new books of the kind provided for in this contract, its trustees would make no requisition for any; or if all the districts of the state should be supplied, none would be furnished, and the matter of making appropriation would not arise.
“One year of the contract has already expired. No purchases have been made under it, and consequently no payment made, and no question of appropriation has arisen. No debt has been created, and no demand made based upon it.
“No action could be maintained on the contract against the state, even if permission to sue were given, for the recovery of compensation under the contract, without evidence that books had been furnished. This proves that there is no debt created until books have been supplied in accordance with the terms of the contract; and, also, that no appropriation was necessary ‘for a longer term than two years.’
“The power to contract is an important subject. While making limitations on other subjects of equal importance, the Constitution made none on the power to contract, except as to the creation of ‘debt.’ It would seem, if other limitation on the power to contract was intended, it would have been expressed.
“The fact that the official term of office is commonly two years, together with the limitation that appropriation shall not be made for a longer term than two years, is argued as indicating a general public policy, and that in keeping with same this limitation of two years should be implied on the term of contracts.
“Those provisions of government do fix the public policy with regard to them, but it cannot be held that the limitation that no appropriation of money shall be made for a longer term than two years is by implication a limitation upon a contract that does not require an appropriation to be made for a longer term than two years.
“Both subjects, appropriations and contracts, are of such importance, and each so common and so essential to the administration of the government, that it is reasonable to presume that” if it had been the purpose of the makers of the Constitution to prohibit the making of contracts that would extend over a period of more than two years, they would have made that purpose plain by direct reference to that important subject.”

Under the Contract in suit, the State, or the Hospital, was not obligated to buy any water from the City. It was obligated to pay monthly for the water it used at the specified rates. The City was obligated to furnish water in the amounts and at the rates stated in the Contract. The parallel between the provisions of this Contract and the Contract in Marrs is striking. We could not invalidate the Contract before us without doing violence to the Marrs decision. In our opinion, the Contract is valid and binding upon the City.

Even if the Contract is invalid, we are of the opinion that the City is in no position to complain. It is estopped to do so under the plainest principles of equity. In Boiles v. City of Abilene, 276 S.W.2d 922, Eastland C.C.A., writ ref., it was held that the City could not repudiate the obligations of a Contract on the ground of its partial invalidity while retaining its benefits, the Court saying: “It is the settled law that a municipal corporation is estopped to deny the validity of a contract where it exacts performance from the other party and accepts the benefits accruing to it therefrom.”

The judgment of the trial court is affirmed.

Affirmed.

      . This suit was authorized by the Legislature. Acts 1962, 57th Leg. 3rd Called Sess., p. 233.

      . Acts 1961, 57th Leg., Reg.Sess., p. 1249.

      . Barr v. City Council of Augusta, 206 Ga. 753, 58 S.E.2d 823, Connett v. City of Jerseyville, 110 F.2d 1015, 7th Cir., Schenker v. City of San Antonio, 369 S.W.2d 626, San Antonio C.C.A., writ ref., n. r. e., Williams v. Davidson, 43 Tex. 1, Waterbury v. City of Laredo, 68 Tex. 565, 5 S.W. 81, Bowers v. City of Taylor, 16 S.W.2d 520, Tex. Comm, of Appeals, Nairn v. Bean, 121 Tex. 355, 48 S.W.2d 584 and City of Brenham v. Brenham Water Co., 67 Tex. 542, 4 S.W. 143.

      . This statute is applicable to Home Rule Cities. City of Sweetwater v. Hamner, 259 S.W. 191, Fort Worth C.C.A., writ dismissed. See also City of Texarkana v. Wiggins, 151 Tex. 100, 246 S.W.2d 622. The Special Charter of the City of Big Spring provides, in part: “The City shall have all powers that are now, or hereafter may be granted to municipalities of its class by the Constitutions or laws of the State of Texas.”


text:
    Robert Eugene HOUSSIERE, Appellant, v. Mary Jane HOUSSIERE, Appellee.
    No. 14372.
    Court of Civil Appeals of Texas. San Antonio.
    March 31, 1965.
    Rehearing Denied April 28, 1965.

      Robert E. Houssiere, Seguin, Horace Duncan, Gonzales, James D. Kennedy, San Antonio, for appellant.
    Collins B. Cook, San Antonio, Denver E. Perkins, Gonzales, for appellee.
   BARROW, Justice.

This is an appeal by Robert Eugene Houssiere from a decree of divorce granted Mary Jane Houssiere after a non-jury trial. Appellant complains primarily of the granting of the divorce, asserting the evidence is not full and satisfactory that he was guilty of excesses, cruel treatment and outrages toward appellee, of such a nature as to render their living together insupportable, or that his conduct was studied, wilful and deliberate and intended to cause her mental distress, pain and suffering. He further asserts that the testimony of appel-lee was not corroborated and, in any event, under the uncontradicted evidence, appel-lee had condoned all acts complained of by her.

The parties were married on May 31, 1950, separated temporarily from October 14 to October 20, 1963, and then separated finally about January 15, 1964. Four children were born of this marriage, but appellee’s right to their custody was not disputed. Findings of fact were filed by the trial court, which entitled appellee to a divorce under Subd. 1 of Art. 4629, Vernon’s Ann.Civ.Stats.

Appellant complains that these findings are too general and the trial court erred in not specifying the particular acts and conduct of appellant which constituted excesses, cruel treatment and outrages. It is seen, however, that the trial court made findings on all ultimate issues of fact necessary to establish this ground for divorce. Howell v. Howell, 147 Tex. 14, 210 S.W.2d 978. It was not necessary for the trial court to make specific findings on eviden-tiary issues as requested by appellant. Moore v. Campbell, Tex.Civ.App., 254 S.W.2d 1018, wr. ref., n. r. e.; 4 McDonald, Texas Civil Practice, 1289.

It is the duty of this Court to examine the entire record and to determine whether the evidence is full and satisfactory and of a nature to justify and support the decree granting the divorce. In doing so, however, we may not pass on the credibility of the witnesses. Barrett v. Barrett, Tex.Civ.App., 368 S.W.2d 709; Christen v. Christen, Tex.Civ.App., 333 S.W.2d 472; Robinson v. Robinson, Tex.Civ.App., 235 S.W.2d 228; Mortensen v. Mortensen, Tex.Civ.App., 186 S.W.2d 297. This Court can not lose sight of the fact that the trial court alone had the vantage of having the personal presence of the parties before him and the opportunity to observe their demeanor and pass upon their credibility. Dickey v. Dickey, Tex.Civ.App., 290 S.W.2d 933.

Appellee testified that appellant was very domineering and treated his family as chattels. He frequently quoted to her a French phrase meaning that the husband is master of the house and responsible only to God. Difficulty was encountered between the couple concerning the discipline of the children, particularly the eldest son. Appellant was very severe on this boy and there was testimony that the boy had become highly nervous, threatened suicide, and required psychiatric treatment. Although appellant inherited a very substantial estate, appellee testified that she was not permitted to handle any money, and that appellant was very miserly. She said that she was given from twenty-five to forty cents a week, depending upon her behavior, for church benevolence. Appellant maintained a bank account for his separate property and there was friction over his juggling of funds between this account and one containing community funds. Appellee’s primary complaints relate to excessive sexual demands and unnatural sex relations demanded of her by appellant.

Appellee had difficulty in carrying each of the children and was very nauseated during each pregnancy. Despite her delicate health she testified that appellant made frequent sexual demands upon her that endangered both her health and the life of the baby. She also testified to many unnatural and immoral ways that appellant demanded that she receive him. Little would be gained, compared to the harm to this family, by detailing these sordid and revolting acts which were fully described by appellee in her direct testimony. Appellant did not contradict this testimony, but asserted a plea against self-incrimination. He further urges that his wife was a willing partner in these acts and freely consented to same.

The trial court has impliedly found that appellant was responsible for this abnormal sexual behavior and, although it is difficult to understand why appellee did not sooner draw the line, we cannot say that this finding is without support 'in the evidence.

Appellee testified that she was educated by a religious order and was completely unprepared for the marriage relationship. She believed that she was required to do anything that pleased her husband, and that appellant frequently criticized her for failing to satisfy him. She was told that if she did not do so and he went elsewhere for his satisfaction, the sin would be hers. Appellant, by his pleadings and testimony, admitted that appellee was a person of refinement and good moral character. Appellant testified that the couple had difficulty with their sexual relations from the beginning. His religious belief was that the husband could have his wife sexually at any reasonable time he desired, and this belief was frequently told to his wife.

Appellee testified that these unnatural acts were offensive to her, and she was physically hurt many times to the extent that she would lie in bed and cry. She further testified that she was pretty well pressured by appellant into a lot of things. She said these acts kept her nervous and upset and affected her health. It is not disputed that at the time of the final separation appellee’s physical and mental health was broken. Appellant admitted that his wife was underweight and needed medical attention. Dr. Liberty was called as a witness by appellant. He testified that he first treated appellee in May, 1963, and that she was suffering, from multiple gastrointestinal complaints, directly referrable to chronic tension and chronic anxiety. He further testified that some of her difficulty was due to appellant’s actions. He advised appellee that she could either continue to live under this constant stress and strain with the resulting difficulty, or get a divorce.

Appellant called several of the couple’s social friends as witnesses, and they testified to many good qualities in this marriage. Appellant did not drink to excess, beat or curse his wife. They had four children, a nice home and, on the surface, appeared to get along fairly well. It is apparent, however, that the primary complaints of appellee were of such a nature that they would not ordinarily be discussed with a social friend. Several of these witnesses did confirm the nervous difficulties of the eldest son.

Appellant urges further that the evidence was not full and satisfactory because appellee’s testimony was not corroborated. It is settled that corroboration of the testimony of the complaining spouse is not an indispensable requirement under Art. 4632, Vernon’s Ann.Civ.Stats.; Finn v. Bond, 145 Tex. 244, 197 S.W.2d 108. Furthermore, it is seen that appellee’s testimony of the unnatural demands and immoral acts are corroborated by appellant’s failure to contradict her testimony, and by his urging that she willingly participated in these acts. Parker v. Parker, Tex.Civ.App., 165 S.W.2d 926. Her testimony is further corroborated by the diagnosis of Dr. Liberty as to the cause of her mental and physical difficulties.

We are not unmindful of the sacredness of the marriage vows and the significance to our social order of the continuity of same. It cannot be said, however, that these acts of perversion amount to only trivial complaints. The offensive and excessive sexual demands made of ap-pellee, together with the other acts described by her, undermined and impaired her physical and mental health, and under the medical evidence will continue to impair her health if the marriage continues. This record supports the implied finding that appellant’s conduct was studied and deliberate so as to constitute cruel treatment under Subd. 1 of Art. 4629, supra. McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459; Thomason v. Thomason, Tex.Civ.App., 332 S.W.2d 148; Norvell v. Norvell, Tex.Civ.App., 194 S.W.2d 270, wr. dism. It is our opinion, after closely examining the lengthy record in this case, that there is full and satisfactory evidence supporting the trial court’s finding that appellant was guilty of excesses, cruel treatment and outrages of such nature as to render their further living together insupportable.

Appellant asserts that the decree of divorce was erroneously granted because ap-pellee condoned any and all acts complained of by her. This contention is based upon the proposition that although appellee left appellant on October 14, 1963, she returned to their home on October 20, and they lived together for about three months until their final separation. He testified that he was careful to treat her very kindly during this period. Appellee testified that she returned to their home only because she was sick and had no other place to go. Further, it was agreed that she was returning only upon appellant’s express promise to her and her family that he would treat her with consideration and they would try to make a new life. She testified, however, that contrary to his promise appellant almost immediately resumed his prior domineering conduct and unnatural sex demands of her. The final separation was brought to a head after appellee fainted during an argument over insurance policies when appellant suggested she see her lawyer.

The trial judge, after hearing this conflicting testimony, found that appellant’s promises to appellee were breached and the former acts, omissions and conduct constituting cruel treatment were revived by appellant’s subsequent conduct. These findings are supported by the testimony of appellee. It is settled that where the acts of cruelty are repeated after a reconciliation, the former acts are revived and are available as a basis for divorce. Pride v. Pride, Tex.Civ.App., 318 S.W.2d 715; Thompson v. Thompson, Tex.Civ.App., 231 S.W.2d 496; 20 Tex.Jur.2d, Divorce and Separation, § 50. Appellant’s point asserting that the uncontradicted evidence shows condonation is therefore overruled.

This case went to trial at the urging of appellant on the sixty-first day after ap-pellee’s petition was filed, although the final decree was not signed until nearly four months later and after several hearings. On April 8 and 9, 1964, the court heard evidence of the grounds for divorce and both parties closed their evidence on this phase of the case at that time. At a subsequent hearing on May 28, appellant offered the deposition testimony of Dr. Stool and Dr. Weiss. Appellant complains of the trial court’s refusal to hear this evidence on any issue other than custody of the children, and specifically of its refusal to consider same on the grounds for divorce.

The question of reopening the case and hearing additional testimony is left to the sound discretion of the trial court. Rule 270, Texas Rules of Civil Procedure; Lubbering v. Ellison, Tex.Civ.App., 342 S.W.2d 796, no wr. hist. There is no abuse of discretion shown under the record in this case.

The testimony of Dr. Stool shows only that the eldest son was physically normal. Dr. Stool admitted that he was not a psychiatrist and had not made such an examination of the boy. He did testify that the boy was a trifle subdued and a little tense on the two occasions he saw him.

Dr. Weiss was a psychiatrist who had treated appellee on March 23, 30 and April 15, 1964. He confirmed the testimony of appellee that she did not willingly participate in the immoral and unnatural sex acts, but was coerced into same by appellant. He further gave his opinion that her complaints in this connection were genuine. He did refute appellee’s testimony that he said the oldest boy needed psychiatric treatment in the home. He admitted on cross-examination that he had probably advised her that the boy’s home situation needed to be changed. The trial judge heard this evidence in connection with custody of the children, and did not abuse his discretion in refusing to reopen the divorce case on the merits. Certainly, any error in this connection would be harmless because of the nature of the evidence given by these two doctors. Rule 434, T.R.C.P.

Appellant urges that the trial court erred in not permitting the introduction of certain deposit slips and bank statements, and this error resulted in an excessive property settlement being awarded appellee. It is our opinion that this point is too general for consideration. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960). The evidence referred to consists of hundreds of deposit slips, check stubs, bank statements and cancelled checks, and there is no specific showing of what appellant expected to prove by them. In any event, harm is not shown by their exclusion.

The evidence on the property settlement was heard by the trial court at several hearings between April 9, and July 31, 1964. Appellant was the only witness on this phase of the case and he was most cooperative in preparing exhibits listing his various holdings and the time he acquired same. The statement of facts shows that at the final hearing he offered numerous checks as a group, drawn on the community property account of the parties in 1962 and 1963. His stated purpose was to show that his wife had made numerous expenditures from the account, and to show how he had spent the community funds. The court advised that there was no issue of mismanagement raised and declined to go through the tendered checks. The record shows that the trial court, with the consent of ap-pellee’s counsel, gave appellant full opportunity, over several months, to prepare exhibits which would trace and distinguish the separate and community property. Many exhibits were introduced and there is no showing that the tendered exhibits would add anything to this admitted evidence.

The trial court found that the value of the community estate was $280,240.00 and awarded appellee half of this sum. Appellant had admitted that the community estate was worth from $100,000 to $110,000. The additional sum was found under appellant’s testimony that prior to 1956 he did not maintain a separate bank account and that many stocks were purchased from the one bank account which also contained community funds. Appellant admitted that his separate estate was valued at a million dollars. He was also awarded the couple’s home which was valued at $60,000, although he had originally pleaded that this home was community property. He testified, however, that this pleading was in error in that he had been able to trace the funds that went into the home as being from his separate estate. The trial court is given wide discretion in dividing the community estate, and no abuse of same is shown under this record. Hayes v. Hayes, Tex.Civ.App., 378 S.W.2d 375.

The trial judge did not abuse his discretion in awarding appellee judgment for $3,500.00 as attorneys’ fees. The granting of the divorce establishes that she had justifiable grounds for bringing this action. Becker v. Becker, Tex.Civ.App., 299 S.W. 528. The trial court was entitled to consider the relative financial standing of the parties in awarding appel-lee her attorneys’ fees. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002; Lewis v. Lewis, Tex.Civ.App., 218 S.W.2d 220.

Appellant has failed to demonstrate reversible error by this appeal. The judgment of the trial court is therefore affirmed.

      . The trial court filed findings substantially as follows:
      “4. The parties separated on or about January 15, 1964, by reason of the cruel, harsh and unkind treatment of defendant towards plaintiff.
      “5. Sometime after their marriage, defendant, being unmindful of the duties and obligations of his marriage vows, began a course of studied and deliberate unkind, cruel, harsh and tyrannical conduct against plaintiff, which continued and became worse and more unbearable until she was forced to separate from him.
      “6. Defendant has been guilty of excesses, cruel treatment and outrages toward plaintiff of such nature as to render their further living together insupportable.
      “7. Defendant’s conduct has caused plaintiff great physical and extreme mental pain and suffering, has undermined and impaired plaintiff’s physical and mental health, and will continue to impair and will completely destroy her mental and physical health if their marriage continues and if they continue living together.”

      . The trial court found substantially as followss
      “8. The plaintiff did not condone the acts, omissions and conduct of the defendant constituting the cruel treatment, and there was no reconciliation between them.
      “9. If there was condonation by the plaintiff of the defendant’s acts, omissions and conduct constituting the cruel treatment aforesaid and a reeoncilation on the part of plaintiff and de-389 S.W.2d — 34% fendant, it was upon the condition that defendant discontinue his former acts, omissions and conduct constituting such cruel treatment, and upon other conditions.
      “10. Such conditions were thereafter breached by defendant, and he continued his former acts, omissions and conduct constituting such cruel treatment, and the former acts, omissions and conduct constituting cruel treatment were revived.”


author: SHARPE, Justice.

text:
    Donald E. BOWEN, Individually and as next friend of the minor Douglas D. Bowen, Appellant, v. M. W. REDLIN. Appellee.
    No. 99.
    Court of Civil Appeals of Texas. Corpus Christi.
    April 8, 1965.

      William R. Edwards, of Edwards & De-Anda, Corpus Christi, for appellant.
    W. N. Woolsey, of Lewright, Dyer & Redford, Corpus Christi, for appellee.
   SHARPE, Justice.

This is an appeal from a take-nothing judgment rendered in favor of M. W. Redlin, appellee, defendant below, against Donald E. Bowen, who, as plaintiff, individually and as next friend for his minor son, Douglas Dale Bowen, sued for damages on account of injuries allegedly suffered when his minor son, then three years of age, was struck by an automobile operated by Redlin on September 5, 1961, in Corpus Christi, Texas.

In answer to ten special issues the jury found, in substance, that Redlin failed to keep a proper lookout on the occasion in question, but that such failure was not a proximate cause of the collision; that Mrs. Bowen, mother of said minor child, failed to prevent him from running unattended into the parking lot at a shopping center where the accident occurred; that such conduct was negligence and a proximate cause of the accident in question; that the event was not the result of an unavoidable accident; in answer to Special Issue 9, that the minor suffered no damages on account of physical and mental pain and suffering due to said accident; and in answer to Special Issue 10 that $1,000.00 would reasonably compensate Donald Bowen, the father, for reasonable and necessary medical, doctor and hospital expenses incurred by him on account of the injuries suffered by his minor son.

On this appeal Bowen asserts four points of error, contending that the trial court erred substantially as follows: (1) In failing to grant a mistrial because of improper and prejudicial remarks allegedly made in the presence of the jurors outside the courtroom during a recess by a claims manager for the liability insurance carrier of Redlin, (2) in refusing a new trial on account of such remarks allegedly made by said claims manager under such conditions, concerning fraudulent and exaggerated claims and demands of plaintiffs for damages on account of personal injuries, (3) in refusing a new trial because the amount of damages fixed was not supported by evidence, was too small and shows bias and prejudice on the part of the jury, and (4) in refusing a new trial because the jury finding on the issue of damages was so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust, demonstrating bias and prejudice on the part of the jury.

The alleged misconduct relied upon by appellant is common to his first two points and they will be considered together. The evidence offered to sustain Bowen’s position under said points was, in substance, as follows: During the afternoon recess on the first day of the trial, while Bowen was still offering his evidence, the local claims manager of the liability insurance carrier for Redlin made certain remarks to a Corpus Christi attorney and the court reporter of another court while they were outside the courtroom to the effect that “most of the claims that came up here to court, or at least a lot of them were fraudulent, * * * that they shouldn’t be up here, and that many people would file suit for $25,000.00 damages, and the company would offer them $350.00, and they would hold out for $600.00 and when the company wouldn’t pay said sum they would go ahead and prosecute their action for $25,000.00”. The attorney to whom said remarks were made testified that the claims manager was talking louder than a normal conversational tone of voice at a time when some of the jurors were not more than eight or nine feet away. The court reporter said that such remarks were made in “just a conversational tone of voice, not excessively loud, knowing how loud some people speak.” After the said testimony was heard by the trial judge out of the presence and hearing of the jury, he denied the motion for mistrial and ruled that he could not then ascertain whether any of the jurors had heard the alleged remarks and the only way he could act would be in connection with a motion for new trial. On the hearing of Bowen’s motion for new trial none of the jurors were called to testify and no further evidence was offered in connection with the alleged misconduct.

In connection with Bowen’s motions for mistrial and for new trial a fact issue was presented as to whether any juror heard the remarks allegedly made by the said insurance claims manager. There was no direct testimony that any juror heard the same and there was a conflict in the testimony of the two above-mentioned witnesses concerning whether such remarks could have been heard by the jurors under the conditions. In the absence of express findings and conclusions by the trial judge there is an implied finding in favor of the judgment overruling the motion for new trial that the said remarks were not heard by the members of the jury, which finding is supported by evidence. The latest expression of the Supreme Court of Texas on the subject now under consideration is found in the case of Brawley v. Bowen, 387 S.W.2d 383 wherein the Court said:

“Where no express findings are filed, it is presumed on appeal that the trial court found all controverted facts in support of its judgment overruling the motion and that no misconduct occurred. Putman v. Lazarus, 156 Tex. 154, 293 S.W.2d 493 (1956); Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S.W.2d 770 (1932); Milstead v. Aynesworth, 341 S.W.2d 942 (Tex.Civ.App., 1960, writ refused, n. r. e.). If the evidence offered at the hearing on the motion for new trial is conflicting as to whether or not misconduct occurred, the decision of the trial court on the question is binding on appeal. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943); Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62 (1945); State v. Wair, 163 Tex. 69, 351 S.W.2d 878 (1961).”

Appellant’s points 1 and 2 are overruled.

Since the jury did not make findings which would afford a basis for liability against Redlin and affirmatively found contributory negligence on the part of Mrs. Bowen, proximately causing the event in question, there was no basis for a judgment in favor of Bowen and the answers to special issues 9 and 10, inquiring as to damages, became immaterial. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334 (1939). The contentions made by appellant under his points 3 and 4 under such conditions could not reflect reversible error and they are overruled.

The judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    Robert H. MARTIN, Appellant, v. FANNIN BANK, Appellee.
    No. 4340.
    Court of Civil Appeals of Texas. Waco.
    March 25, 1965.
    Rehearing Denied April 15, 1965.

      Lamar Carnes, Houston, for appellant.
    Bracewell, Reynolds & Patterson, Houston, for appellee.
   WILSON, Justice.

Summary judgment was rendered for appellee in its suit against appellant on two promissory notes.

Appellant says his pleadings and affidavit raise fact issues precluding summary judgment: (a) that he was induced to execute the notes by appellee’s representation and promise that he would not have to pay them except from certain oil and gas income; and that there “would never be any question as to repayment of said notes other than by payment” by another named person; (b) that he deposited corporate stock certificates with appellee “with the understanding on his part and the agreement of appellee that no legal action would be taken against appellant” on the notes until appel-lee had received the oil and gas income; (c) failure of consideration.

The consideration for the original notes of which the notes sued on were renewals, it is admitted, was cash advanced by appellee to appellant. No other fraud being charged, the alleged agreements that appellant would not have to pay the notes, that he would not have to pay them except from specified income, and that no legal action would be taken against him do not constitute a defense. Robertson v. City National Bank, 120 Tex. 226, 36 S.W.2d 481, 483; Dolsen v. De Ganahl, 70 Tex. 620, 8 S.W. 321, 322; Steve Lynn Motor Co. v. Pavelka, Tex.Civ.App., 371 S.W.2d 928; Lassiter v. Boxwell Bros., Tex.Civ.App., 362 S.W.2d 884, 886; Wheeler v. Thomas, Tex.Civ.App., 328 S.W.2d 891, 895; Howeth v. Davenport, Tex.Civ.App., 311 S.W.2d 480, 482, writ ref. n. r. e.; Jones v. Hubbard, Tex.Civ.App., 302 S.W.2d 493, 495, writ ref. n. r. e.; Rasey v. Perryman, Tex.Civ.App., 262 S.W.2d 761, 762; Britton, Bills and Notes (1943) Sec. 53, p. 210; Beutel, Brannan’s Negotiable Instruments Law (7th ed.) Sec. 52(4), p. 574, Sec. 16, p. 272; 2 McCormick & Ray, Texas Law of Evidence, Sec. 1643, p. 502; IX Wigmore, Evidence (3rd ed.) Sec. 2444, p. 144.

Appellant testified by deposition that one of the notes (and the prior note which it renewed) was not executed as a result of any misrepresentation or any false information; that “At the time this note was made I did not know of any misrepresenation”; that the answer he filed alleging the bank’s misstatements to him had “nothing to do with” that note.

Both notes, the record establishes without dispute, were executed in renewal and extension of previous notes. The representations alleged to have been made to induce execution of notes referred to in appellant’s affidavit, of necessity are referable to the original notes, under the uncontroverted record, including appellant’s deposition. Before the renewal notes were executed, the record shows without dispute, appellant made independent investigation of facts alleged to have been misrepresented by ap-pellee, and arrived at the independent conclusion the matters alleged to have been represented were untrue. He admitted also that he was sure if he signed the original notes the bank would look to him for payment, and he testified by deposition the bank had made it clear to him they were looking" to him, and not to other sources, for payment.

“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.” Hunter v. Lanius, 82 Tex. 677, 18 S.W. 201, 205; Braxton v. Haney, Tex.Civ.App., 82 S.W.2d 984, 986, per Alexander, writ ref., and cases cited. The record justifies the trial court’s conclusion that appellant’s contentions . concerning failure of consideration and misrepresentations do not militate against appellee’s recovery.

Appellant pleaded and filed an affidavit, however, stating that at appellee’s request he deposited corporate stock “with the agreement of plaintiff that no legal action would be taken against” him on any purported obligation until specified income was received by him, which would be applied on these and other notes of which he was maker.

The alleged deposit of securities was sufficient consideration to support the alleged agreement to forbear commencing suit or postpone enforcing appellee’s claim. Von Brandenstein v. Ebensberger, 71 Tex. 267, 9 S.W. 153. See authorities cited, 13 Tex.Jur.2d Sec. 54, p. 192; 9 Tex.Jur.2d, Sec. 45, p. 58.

Appellee argues that it denied there was any such agreement; that appellant failed to allege whether it was made before or after the renewal notes were executed; that it is an attempt to vary the terms of the notes by parol; that no definite time of forbearance is alleged, and it is possible the contingency may never come to pass; that appellant fails to allege his own agreement to forego his right to pay before the end of the extension period.

None of these arguments are valid reasons for sustaining the judgment. The burden of demonstrating absence of any genuine issue of material fact is on the movant, against whom all doubts are resolved. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274; Winters v. Langdeau, Tex.Sup., 360 S.W.2d 515; In re Price’s Estate, Tex.Sup., 375 S.W.2d 900. We do not, in fact, find a denial by appellee in the record, but appellee’s denial of appellant’s proof could do no more, of course, than create an issue of fact. Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948, syl. 6. Since appellee’s affidavit did not negative the availability as a defense, or .the sufficiency and validity of the agreement alleged, existence of a fact issue was not thereby eliminated. The agreement alleged would not “vary” the instruments sued on; it would only postpone enforcement. The rule relied on by appellee applies to prior and contemporaneous parol agreements; not to those subsequently made. 2 McCormick and Ray, Texas Law of Evidence, Sec. 1671, p. 515. Finally, appellant’s affidavit does not assert an extension agreement; and it states the oil and gas proceeds currently amount to $75,000 and are accruing to his account at the rate of $2500 per month.

That portion of the affidavit declaring the agreement to forbear legal action in consideration of deposit of the stock made a genuine issue of material fact in the face of which a summary judgment under Rule 166-A was unauthorized.

The judgment is reversed. The order severing appellant’s cross action is set aside. The cause is remanded.