author: WILSON, Justice.

text:
    Ferdinand LEDERLE et ux., Appellants, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee.
    No. 4408.
    Court of Civil Appeals of Texas. Waco.
    Sept. 9, 1965.
    Rehearing Denied Sept. 30, 1965.

      Head & James, Michael C. Kendrick, Jr., Corpus Christi, for appellants.
    Mahoney, Shaffer & Hatch, Corpus Christi, for appellee.
   WILSON, Justice.

Appellants, husband and wife, citizens and residents of Texas, appeal from a declaratory judgment in which the trial court determined that appellee insurer did not owe a defense under its automobile liability insurance policy, and was not obligated to pay for the loss claimed under that policy.

The automobile described in the policy, owned by husband and wife, was involved in a collision in Oklahoma. The husband was the driver of the insured vehicle; his wife was a passenger. The wife filed suit against her husband in Oklahoma to recover damages for her personal injuries. It is recognized by the parties that under Oklahoma law the wife may maintain an action against her husband for such damages, alone, and in her own name.

By the present action the insurer sought and obtained a declaration under Art. 2524— 1, Vernon’s Ann.Civ.Stat., that it was not obligated to defend the wife’s suit against the husband and was not liable for sums which the husband became legally obligated to pay thereby. The wife was enjoined from further prosecuting the Oklahoma action against her husband. The insurer is a Texas reciprocal insurance association with its principal office in Texas. It issued its Texas standard form Family-Automobile Policy in which the husband was the named insured. By policy definition the wife is also a “named insured,” as well as an “insured.” The policy was delivered in Texas.

The contention of husband and wife is that the insurer is obligated to defend and pay because the insuring clause requires it to pay all sums which the insured shall become legally obligated to pay because of bodily injury “sustained by any person” arising out of the ownership, maintenance or use of the owned automobile; and to defend any action alleging such injury. “Any person,” they say, includes.the wife of the named insured. They also insist that the law of Oklahoma, as that of the place of the tort and of the forum, governs all conflict of laws questions in the case. The Oklahoma court so held on preliminary pleas in the wife’s action there against her husband.

What law governs as to the right of the wife to maintain an action for personal injuries against her husband?

Under Texas substantive law the wife cannot recover damages from the husband for injuries resulting from the husband’s negligence. Nickerson v. Nickerson, 65 Tex. 281; Dallas Ry. & Terminal Co. v. High, 129 Tex. 219, 103 S.W.2d 735, 736; Crawford v. DeLong, Tex.Civ.App., 324 S.W.2d 25, writ ref. n. r. e.

Remedial rights, however, are generally controlled by the law of the forum, 16 Am.Jur.2d, Conflict of Laws, Sec. 76, which determines who may and who must sue and be sued. American Law Institute, Restatement, Conflict of Laws, Sec. 588; 15 C.J.S. Conflict of Laws § 22, p. 952. Such adjective law questions as proper joinder and misjoinder of parties, and whether the wife may be sole plaintiff in a suit against her husband are governed by Oklahoma law, that of the forum. Consequently, it is our opinion the Texas Court was not authorized to enjoin further proceedings in Oklahoma on grounds involving remedial law.

The preliminary question, however, is not one of adjective, but of substantive law: what law governs in determining whether the husband is immune from tort liability to the wife? That question has not been decided in Texas. The subject has received extensive treatment from eminent contributors to periodicals, and text writers. Stumberg, in his Principles of Conflict of Laws (3d ed. 1963) 206, noting that suits such as the present are not permitted in community property states “because of the relationship of the recovery to the marital assets,” concluded, “the domiciliary law has well-grounded claim for recognition.”

The problem was not encompassed by the original American Law Institute Restatement, Conflict of Laws, but is dealt with directly by the tentative draft of the second Restatement, Sec. 390g:

“Intra-Family Immunity. Whether one member of a family is immune from tort liability to another member of the family is determined by the local law of the state of their domicil.”

It is commented that the quoted rule represents the trend of the modern decisions, many of which are cited in the note. Holdings are listed from some jurisdictions, that the law of the place of the tort governs. Earlier decisions are collated in 22 A.L.R.2d 1248. Ford suggests seven advantages in the application of the law of the matrimonial domicil. Among these are that it will result in consistency with the domestic policy of the state which has primary responsibility for regulating incidents of the marital relationship; and that it will provide certainty, avoiding diversity of decisions.

In our opinion the law of the domi-cil of husband and wife, that of Texas, controls the question of the husband’s immunity from tort liability.

Will equity intervene, then, to restrain prosecution of the Oklahoma action on this ground alone? Such power should be exercised sparingly, and only to prevent manifest wrong and injustice. University of Texas v. Morris, 162 Tex. 60, 344 S.W.2d 426, cert. den. 366 U.S. 973, 81 S.Ct. 1940, 6 L.Ed.2d 1262; 43 C.J.S. Injunctions, Sec. 49. See Barr v. Thompson, Tex.Civ.App., 350 S.W.2d 36. Injunction will not ordinarily be granted merely to prevent invocation of the more favorable law of another state. 28 Am.Jur., Injunctions, Sec. 221. The remedy will not lie unless an actual evasion of the substantive law of the domicil will probably result. Id.; 43 C.J.S. Injunctions § 49; 4 Pomeroy, Equity (5th Ed.), Sec. 1361. Neither the husband nor his creditors seek to stay prosecution of the suit. In our opinion prosecution of the action in Oklahoma should not be restrained at the instance of the insurer because recovery of the proceeds of the policy in an effort to enforce the judgment would be precluded in any event for the following reasons.

Appellants urge that if the wife recovered a judgment against the husband in Oklahoma, the recovery on the Texas insurance policy would be her separate property because, under proper choice of law, that of Oklahoma governs the status of the judgment as separate or community, and under the law of the latter state the recovery is separate property. For that added reason they say the judgment should be reversed.

The rule is settled otherwise. Whether such property is separate or community is governed by the law of the domi-cil of husband and wife. American Law Inst., Restatement, Conflict of Laws, Sec. 290; 16 Am.Jur.2d, Conflict of Laws, Sec. 35; 41 C.J.S. Husband and Wife § 466; Tirado v. Tirado, Tex.Civ.App., 357 S.W. 2d 468, 471, writ ref. n. r. e.; Stumberg, Principles of Conflict of Laws (2d ed.) 312, 313; Speer, Marital Rights in Texas (4th ed.) Sec. 386; Reeves v. Schulmeier, 5 Cir., 303 F.2d 802, 806.

The chose in action representing the wife’s right of recovery, and damages recovered for her personal injuries constitute community property of husband and wife under Texas law. Texas Constitution, Art. 16, Sec. 15, Vernon’s Ann.St.; Ezell v. Dodson, 60 Tex. 331, 334; Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102; McAdams v. Dallas Ry. & Terminal Co., 149 Tex. 217, 229 S.W.2d 1012; 35 A.L.R.2d 1232.

The automobile insurance policy is a community asset, and its proceeds, resulting from attempted enforcement of a judgment obtained in the Oklahoma suit, insofar as husband and wife are concerned, would be community property. The wife could not enforce a judgment for her personal injuries, constituting community property, by recovery of community property. Neither could she effect a partition by recovering only one-half of the proceeds. Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565. Art. 4678, Vernon’s Ann.Civ. Stat., relied on by appellees, applies to enforcement of “a right of action” in Texas courts, not to collection of a foreign judgment.

The foregoing reasoning does not militate, however, against the obligation of the insurer to defend the suit in Oklahoma, and in our opinion the insurer has that duty under its policy even “if the allegations in the suit are groundless,” as the contract provides.

The judgment of the trial court is reversed and vacated, and the injunction is dissolved. Judgment is here rendered declaring (1) that the insurer is obligated to defend the Oklahoma action and (2) that appellee is not liable for the payment under its policy of any judgment which the wife may obtain against the husband in the Oklahoma action. Costs are taxed 54 against appellant, ¿4 against appellee.

      . E. g., Ford, Interspousal Liability for Automobile Accidents, 15 Pitt L.Rev. 397 (1954); Paulsen and Severn, “Public Policy” in the Conflict of Laws, 56 Columbia L.Rev. 969 (1956); Hancock, Marital Immunity for Torts in Conflict of Laws, 29 Chicago L.Rev. 237, (1962).


source: Caselaw Access Project

author: BATEMAN, Justice.

license: Public Domain

text:
    TEXAS EMPLOYMENT COMMISSION et al., Appellants. v. Vicky CAMACHO, Appellee.
    No. 16591.
    Court of Civil Appeals of Texas. Dallas.
    July 23, 1965.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, Stanton Stone, H. Grady Chandler and Sam Lane, Asst. Attys. Gen., Austin, Paul L. Salzberger and Passman, Jones, Stewart, Andrews & Hunter, Dallas, and Ernest Fortenberry, Austin, for appellants.

      Boyd, Veigel & Gay and Kathleen H. Sauerbrunn, McKinney, for appellee.
   BATEMAN, Justice.

The appellee Vicky Camacho was discharged as an employee by appellant Texas Meat Packers, Inc. and claimed unemployment benefits under the Texas Unemployment Compensation Act (Vernon’s Ann.Civ. St. Art. 5221b-l et seq.). The appellant Texas Employment Commission, herein called “the Commission,” allowed the claim for the statutory maximum of 26 weeks, less a “disqualification” of eight weeks made pursuant to Art. 5221b-3(b) on the ground that she had been discharged for misconduct connected with her work. The matter was then reviewed by the individual designated as the “appeal tribunal,” who reduced the disqualification to four weeks. Upon a review of this decision by the Commission pursuant to Art. 5221b-4(c) the disqualification was increased to six weeks. Appel-lee then filed this suit for judicial review pursuant to Art. 5221b-4(i). Thus, the only issue presented to the county court was whether the order of disqualification was supported by substantial evidence. After hearing the evidence the trial court withdrew the case from the jury and rendered judgment for appellee, not only for the six weeks of benefits for which she had been disqualified, amounting to $192, but for a total of $824 in benefits, with interest on the $192, and all costs.

Appellants’ first point of error on appeal complains of the setting aside of the decision of the Commission since it was amply supported by substantial evidence. All parties agree that the disposition of the case must be governed by the substantial evidence rule. In the judgment appealed from the trial court expressly finds that the order of the Commission “is not reasonably supported by substantial evidence.”

We agree with appellants that this finding and the judgment are erroneous. Proper application of the substantial evidence rule precludes the courts from substituting their findings or conclusions for those of an administrative agency. Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699, 714. All the courts may do is to adjudge the reasonableness of the agency’s action on the basis of the evidence admitted in the judicial proceeding. The issue is purely one of law, for “the legal test of the reasonableness of an order of an administrative agency is whether it is reasonably supported by substantial evidence and not whether it is supported by a preponderance of the evidence.” Southern Canal Co. v. State Board of Water Eng., 159 Tex. 227, 318 S.W.2d 619, 623; Texas Company v. Texas Employment Commission, Tex.Civ.App., 261 S.W.2d 178, 183, wr. ref. n. r. e.; Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022, 1029; Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198; Todd Shipyards Corp v. Texas Employment Commission, Tex.Civ.App., 245 S.W.2d 371, wr. ref. n. r. e.; Board of Firemen’s Relief & Retirement Fund, etc. v. Marks, 150 Tex. 433, 242 S.W.2d 181, 27 A.L.R.2d 965.

The evidence admitted in proof of the allegation that appellee was discharged for misconduct is clearly of a substantial nature. There was evidence that on numerous occasions appellee left her place of work without permission of the proper supervisory employees, contrary to the employer’s rules and regulations; that on numerous occasions, as appellee was supposed to be packing meat patties as they came by on a conveyor belt, she would deliberately let them go by her and fall into a tub to be reprocessed; that appellee was repeatedly insubordinate and disobedient and failed to respond to numerous warnings and reprimands, both oral and written; that she had adopted a belligerent attitude towards those charged with supervising her work and refused to cooperate with them.

We need not be concerned with the fact that appellee denied some, though not all, of the alleged incidents of insubordination, explaining her inability to work harmoniously with her supervisors by saying that they treated her unfairly and were antagonistic to her because of her adamant refusal to join the union, to which most of her fellow-employees belonged. This testimony would have to be carefully weighed in the scales with that introduced by appellants if our task were to determine which preponderated over the other, but under the substantial evidence rule our only purpose in examining it is to determine whether it completely destroys the evidence of misconduct. It does not, and we are therefore compelled under the law to hold that the trial court should have upheld the order of the Commission. The first point of error is sustained.

By their second point of error the appellants say the court erred in ordering the Commission to pay unemployment compensation benefits to appellee in the amount of $824 since the maximum amount in controversy was only $192. In their fourth point of error appellants say the court erred in failing to hold that appellee was ineligible to receive unemployment benefits because she was not available for work within the meaning of Art. 5221b-2(d). As these points are related, we shall treat them together. Appellants contend under Point 2 that there was nothing before the court except the question of whether the finding of disqualification for six weeks was justified, and take the rather inconsistent position under Point 4 that the trial court should also adjudicate whether appel-lee was entitled to any benefits at all because of her alleged unavailability for work. The particular part of Art. 5221b-2 in question is as follows:

“An unemployed individual shall be eligible to receive benefits with respect to any benefit period only if the Commission finds that:
“(a) * * *
“(b) * * *
“(c) * * *
“(d) He is available for work;
“(e) * * *
“(f) * * *."

As far as we can determine from the record before us, this matter of appellee’s alleged unavailability for work has never been presented to and determined administratively by the Commission. It does not appear to have been raised by any pleading in the trial court. Therefore, it is our view that it is simply not in the case. Accordingly, we sustain Point 2 and overrule Point 4. This latter ruling is not to be construed as a finding of fact on our part as to availability or unavailability of appellee for work; it is made solely on the basis that in our opinion the point presents no error for which a reversal would ensue.

The third point complains of the award of interest on the past due installments of benefits. Art. 5221b-16 expressly limits the liability for benefits “to the extent provided in this Act and to the extent that moneys are available therefor to the credit of the Unemployment Compensation Fund, and neither the State nor the Com-mision shall be liable for any amount in excess of such sums.” No statute obligates the State or the Commission for interest on past due benefits; hence, the court was without authority to award interest. Auditorial Board v. Arles (1855), 15 Tex. 72; Walker v. State (1937), Tex.Civ.App., 103 S.W.2d 404, no wr. hist.; State v. El Paso Natural Gas Co. (1957), Tex.Civ.App., 300 S.W.2d 170, no wr. hist. The third point of error is sustained.

For the reasons given above in relation to appellants’ first three points of error the judgment appealed from is reversed and here rendered affirming the order of the Texas Employment Commission.

Reversed and rendered.


author: McDONALD, Chief Justice.

text:
    F. T. WALLING, Appellant, v. The STATE of Texas et al., Appellees.
    No. 4386.
    Court of Civil Appeals of Texas. Waco.
    Aug. 26, 1965.
    Rehearing Denied Sept. 16, 1965.
    Robert G. Carter, Marlin, for appellant.
    Thomas Bartlett, Jack Welch, Marlin, for appellees.
   McDONALD, Chief Justice.

This is an appeal by defendant landowner in a condemnation case. Plaintiffs, State of Texas and Falls County, filed proceedings to condemn 9.674 acres of defendant Wall-ings land for hiway purposes. On October 30, 1964 the County Judge of Falls County appointed Norris, Ferguson, and McAtee, as Special Commissioners. On November 4, 1964 the attorney for plaintiffs prepared notice to defendant to appear on November 11, 1964, which notice was signed by the 3 commissioners and served on defendant. No hearing was held. On November 11, 1964 the attorney for plaintiffs prepared a notice to defendant to appear on November 20, 1964, which was signed by the 3 commissioners and served on defendant. The commissioners met and held a hearing on November 20, 1964 and made an award. Defendant did not participate in such hearing.

On January 2S, 196S the County Judge set the award aside (because the defendant was not given 10 days notice of the hearing as required by Article 3264 Vernon’s Ann. Tex.St.); and in the same order appointed Souther, Gausemeier, and Herring to act as commissioners in the instant case. These second appointed commissioners issued notice which was served on defendant on January 28, 1965, and set a hearing for February 10, 1965.

Defendant filed a motion prior to the hearing, asserting the second set of commissioners had no jurisdiction to act, and requested the Court to proceed with the first appointed commissioners. The County Court overruled such motion. The second set of commissioners held a hearing on February 10, 1965, in which defendant did not participate, and made an award. Defendant filed objection to the award asserting: 1) it was inadequate; and 2) the second set of commissioners had no authority to act because the first appointed commissioners were the proper persons to act. Defendant’s objection to the award placed the matter on the docket of the County Court. Defendant then filed a plea in abatement in the County Court, asserting that the first appointed commissioners were the only duly appointed and acting commissioners in the proceeding; and that the County Court had no authority to appoint the second set of commissioners; and that their acts were void. Defendant prayed that the proceeding be abated, and that he be given opportunity to have the first appointed commissioners act in his case.

The County Court overruled such plea in abatement, and tried the condemnation case before a jury. The jury rendered a verdict for $4525.50, and the Trial Court entered judgment on the verdict.

Defendant moved for new trial asserting that the law authorizes the appointment of only 3 commissioners under the facts, and that the acts and award of the second set of commissioners was void. The trial court overruled such motion.

Defendant appeals contending that the Trial Court erred in overruling his plea in abatement; that the first appointed commissioners are the only duly appointed and acting commissioners in this proceeding; that the second set of commissioners had no jurisdiction; that their acts are void; and that he is entitled to have the judgment reversed and the proceedings abated until he is notified as required by law to appear before the first appointed commissioners.

Plaintiffs assert that the County Judge had authority to appoint the second set of commissioners under Article 3266 VATS, because the first appointed commissioners failed to serve; and that in any event, what the commissioners did is now moot; and regardless of the mechanics of appointing commissioners, the cause ultimately reached the state of a jury trial, and defendant has no complaint about the fairness of that jury trial; and thus should be affirmed.

Article 3266(2) VATS provides: “The county judge may appoint other commissioners when one or more of those appointed shall fail to serve.”

The record reflects that the first appointed commissioners set two hearings, and issued citations to defendant, all papers being prepared by the attorney for plaintiffs. A hearing was held on November 20, 1964 and an award was made, but was set aside by the County Judge on January 25, 1965, because the defendant had not been given ten days notice as required by Article 3264 VATS.

It is stipulated: “* * * that after November 20, 1964 the commissioners were never contacted by the County Judge or the County Attorney about having another hearing; or to issue a valid citation to defendant; these commissioners never failed or refused to act as commissioners in this proceeding; except in this; that from the date of their appointment on October 30, 1964 until January 25, 1965 they did not make a valid award or issue a valid citation.”

We think under the facts the first appointed commissioners did not “fail to serve” as contemplated by Article 3266 VATS; that the County Judge was without authority to appoint the second set; and that the hearing and award of the second set is void.

But plaintiffs assert that regardless the mechanics of appointing commissioners, the case ultimately reached the state of a jury trial in County Court; and since defendant makes no complaint about the fairness of that trial, the case should be affirmed.

The rule is that in condemnation proceedings, the requirements of the statutes are to be strictly followed, and that such rule is for the benefit of the landowner. City of Bryan v. Moehlman, 155 Tex. 45, 282 S.W.2d 687; Robison v. Whaley Farm Corp., 120 Tex. 633, 37 S.W.2d 714; City of Houston v. Kunze, 153 Tex. 42, 262 S.W.2d 947; Crim’s Estate v. State, Tex.Civ.App. (nwh), 371 S.W.2d 574; 22 Tex.Jur.2d p. 306.

Under plaintiffs’ contention the foregoing rule and authorities would mean nothing, and it would not matter whether the statutory requirements in condemnation proceedings were followed or not, so long as an objection was made to the award, and a trial de novo held in County Court. We reject the contention.

In the instant case defendant objected to the hearing before the second set of commissioners on the ground that they were without jurisdiction; preserved the complaint by objection to the award, and by filing plea in abatement on such ground in County Court; and the matter is properly before this court for review. State v. Giles, Tex.Sup.Ct., 368 S.W.2d 943.

We think defendant entitled to a compliance with the Statutes. Defendant’s contentions are sustained. The judgment is Reversed and Remanded with instructions that the proceedings be abated until defendant is notified as required by law to appear before the first appointed commissioners.

Reversed and remanded.


text:
    NATIONAL WESTERN LIFE INSURANCE COMPANY and J. A. Ring, Appellants, v. Michael MIOLA et ux., Appellees.
    No. 4412.
    Court of Civil Appeals of Texas. Waco.
    Sept. 9, 1965.

      Kleberg, Mobley, Lockett & Weil, J. Lev Hunt, Corpus Christi, for appellants.
    Mahoney, Shaffer & Hatch, Corpus Christi, for appellees.
   WILSON, Justice.

A temporary injunction was granted restraining foreclosure of a deed of trust lien under power of sale. In our opinion, there is no evidence of probative force to authorize the order and we reverse.

The injunction was sought on the basis that appellant company agreed that it would be mandatory, rather than optional, that funds in escrow should be used to make note payments if the borrower defaulted. The petition alleged that “as a part of the transaction between plaintiff and defendants at the time of the execution” of the note and deed of trust, it was represented to plaintiff by defendants “that the sum of $12,500 deposited in escrow would be held by the escrow agent for the purpose of payment” to appellant lender “of the monthly payments on said note in the event plaintiff was unable to make such payment on any month when such payment became due and payable.”

Appellee applied to appellant company for a loan to purchase a building. Having failed at the time of closing to obtain leases sufficient to assure repayment of the loan, appellee signed a written escrow agreement under which a sum from the loan proceeds was deposited to be held until specified leases were obtained. The contract provided that if appellee failed to make any payments on the note when due the lender company “may use such portions of the escrow fund as necessary” to make the payment, but that “the use of the escrow fund for such purpose by the company is an option to be exercised solely by the company in its discretion, and the company is in no wise or manner obligated to apply any portion of the escrow fund to such payment.”

Appellee borrower was permitted to testify, over objection that his evidence varied the contents of the escrow agreement in contravention of the parol evidence rule, that “prior to the closing of the loan” it was represented to him that “If and when I cannot make payment on the building, that this money or payment that I can’t make can be taken from the escrow money,” and “if and when I could not make any payment, this could be used as a cushion — or to make payments — take money out of and make payments to the building.” This is the only evidence we find relating to the allegations.

The escrow agreement is complete as to the very issue asserted in the pleadings as to the purpose and proposed use of the escrow fund. The alleged prior or contemporaneous parol agreement directly relates to the same subject matter as the writing, and is inconsistent with it. When the parties have reduced their contract to writing, and the terms are completely expressed without uncertainty, parol evidence of prior and contemporaneous agreements “is not admissible to contradict or vary the terms of the written instrument.” Lewis v. East Texas Finance Co., 136 Tex. 149, 146 S.W.2d 977, 980; Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 32; 2 McCormick and Ray, Texas Law of Evidence, (2d ed.), Sec. 1631, p. 483.

Appellees urge the rules, which we recognize, that the applicant is only required to show probable right and injury, and not that he will prevail on final hearing; and that the granting of the temporary injunction is within the trial court’s discretion. These rules do not obviate the applicant’s burden of producing some evidence. “If he cannot or does not discharge his burden he is not entitled to extraordinary relief. Writs of injunction should not issue on mere surmise.” Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519.

Appellees insist the order was proper because they alleged and proved fraud on the part of appellants in executing the escrow agreement. The “fraud” alleged was the same asserted prior agreement quoted above: the agreement “that such escrow funds would be used for the purpose of making monthly payments.” It was not alleged that appellants misrepresented or concealed the contents of the escrow agreement, or prevented appellees from obtaining knowledge of its provisions. It was not claimed the execution of the escrow agreement was induced by fraud. Appellee testified the agreement was read to him as it was written; that the quoted provisions were read to him before he signed it; that he heard them read as stated in the agreement, before he signed it. The pleading and proof do not raise the issue of fraud. Lanius v. Shuber, 77 Tex. 24, 13 S.W. 614.

The judgment is reversed and the temporary injunction is dissolved.


author: HUGHES, Justice.

text:
    John Linn SCOTT et ux., Appellants, v. Perry D. SNAVELY and Robert K. Moses, Appellees.
    No. 11328.
    Court of Civil Appeals of Texas. Austin.
    July 14, 1965.
    Rehearing Denied Oct. 6, 1965.

      . Cofer, Cofer & Hearne, Hume Cofer, Austin, for appellants.
    Thomas T. Smith, Austin, for appellees.
   HUGHES, Justice.

This suit is for damages for breach of a general warranty contained in a deed to real property. The breach of warranty is alleged to result from the existence of an outstanding paving lien against the property.

Appellants, grantors in the deed in suit, are John Linn Scott and wife, Frances Jean Scott. Appellees, grantees in such deed, are Perry D. Snavely and Robert K. Moses.

Trial was nonjury and there are no findings of fact in the record. The facts, as stated below, will be those which are undisputed as well as those which are disputed but which are presumed found in support of the judgment.

On July 15, 1960, appellants “granted and conveyed” to appellees by general warranty deed certain described real property located in the City of Austin, Travis County, Texas. As part consideration for such conveyance, appellees gave appellants a note of even date with the deed for $27,211.86, and at the same time executed and delivered a deed of trust on the land conveyed to secure payment of the described note.

On April 14, 1960, the City Council of Austin adopted an ordinance ordering certain paving improvements. Notification that such improvements were proposed was sent by the City by mail to all record affected property owners, including appellant Mr. Scott, on April 25, 1960. This notice contained full information about the scheduled improvements including this statement: “Assessment Date: May 30, 1960.”

On June 7, 1960, the parties herein entered into a sales contract for the involved property which provided that seller was to deliver a general warranty deed “conveying said property free and clear of all liens whatsoever, except as herein provided.”

On June 10, 1960, appellant, Mr. Scott, sold a strip off the south side of the property later conveyed to appellees to the City of Austin for the purpose of straightening Riverside Drive on which street the paving was to be done.

On August 25, 1960, a paving assessment in the sum of $1,284.34 was levied against the involved property by ordinance adopted by the City of Austin. These paving improvements were completed and accepted by the City on February 2, 1961, on which date the City issued to itself a Certificate of Special Assessment against such property in the sum of $1,284.34 by reason of such paving improvements.

Appellees sold this property to third parties and, in order to discharge the paving lien against it, paid the City $1,467.88, in which amount appellants have refused reimbursement.

Judgment for $1,567.95 plus 6% interest was rendered against appellants.

Appellants have three points one of which is that the trial court erred in rendering judgment against them for the reason that the paving lien had not been levied when their deed was executed and that the subsequent levy did not create retroactively a breach of warranty even though Sec. 6 of Art. 1105b, Vernon’s Tex.Civ.St. provides, in part, that, “Any assessment against abutting property shall be a first and prior lien thereon from the date improvements are ordered, and shall be a personal liability and charge against the true owners of such property at said date, whether named or not.”

As shown, the paving here was ordered by the City on April 14, 1960, prior to the execution by appellants of their general warranty deed. Under the statute just quoted from, the inchoate lien in existence when the deed was made related back when completed to a specific time, when the paving was ordered, towit April 14, 1960.

Appellants do not attack the validity of this statute, and, in our opinion, it is controlling.

In Kohfeldt v. City of Denison, 58 S.W.2d 549, Tex.Civ.App. Dallas, n. w. h., the Court in discussing prior statutes and the charter of the City of Denison involving a similar situation stated:

“At the time the initial ordinance was passed, November 14, 1921, ordering the improvement and declaring a lien on the abutting property, to secure its payment, Franz Kohfeldt was the owner and in possession of the property. He knew, at the time he conveyed the property to Young, thereby bringing into existence and reserving unto himself the vendor’s lien, the improvement had been ordered, and the assessment and lien were in process of being created on the property. He had actual and constructive notice of the initial step taken by the city of Denison. The initial step is just as essential to the validity of the paving lien as any other requirement of the statute. The conveyance to Young, above mentioned, could not interrupt the improvement ordered, or impair the lien created. The lien was created against the property when the initial ordinance was passed. The succeeding requirements of the statutes — notices, assessments, contract, and certificate — are necessary prerequisites for the completion of the lien, which was brought into existence and attached to the property by the initial ordinance.”

See also Anderson v. Brandon, 121 Tex. 188, 47 S.W.2d 261.

Since this paving lien was an encumbrance and since encumbrances are embraced within a general warranty clause, the covenant against encumbrances was breached when the deed was executed and delivered. Arts. 1297, 1298, V.T.C.S., Walcott v. Kershner, Tex.Com.App., 291 S.W. 195. This case also holds that the owner of the property when the paving lien is created is the one who benefits from the improvements.

We overrule the point under discussion.

Appellants by another point contend that by the terms of the deed of trust executed by appellees as grantors to appellants as grantees to secure the payment of the above described note that appellees specifically agreed to pay all assessments due under any municipal ordinance, and that the trial court erred in rendering judgment against them on their warranty for the amount of the paving lien.

We quote the following provisions of the deed or trust:

“(d) TAXES: Grantor (appellees) will pay all taxes and assessments that are or may become due and payable on the above described property under any law, ordinance or regulation whether made by federal, state or municipal authority, before any interest or penalty accrues thereon.
* * * * * *
(j) PRIOR LIENS : Grantor agrees that in the event any lien, charge or incumbrance is claimed or asserted by any person or party to be prior or superior to the lien of this DEED OF TRUST, to immediately pay off, discharge or remove such lien, charge or incumbrance from the above described property, whether or not the same prove in fact to be prior or superior to the lien of this DEED OF TRUST.”

This instrument also contained the usual provisions found in deeds of trust to the effect that it is given for the purpose of securing certain described indebtedness and if the note representing such indebtedness is paid as provided and the obligations and covenants contained in the deed of trust and note are performed then the deed of trust should become null and void.

We construe the deed and the deed of trust together, as appellants suggest we should do, and conclude that there is no basis for the contention they make. To construe these instruments as appellants would have us construe them would be to nullify the effect of the general warranty in the deed and the covenant against encumbrances. Paragraph (j) of the deed of trust would obligate appellees to discharge liens against the property which were in existence when the deed was executed and in the teeth of appellants’ solemn covenant that there were no such liens.

The primary purpose of this deed of trust was to secure payment of the note described in it and to expedite foreclosure in the event of default in its payment. It should not be construed to create onerous and absurd obligations on appellees when it is clear from the instruments that the parties did not so intend.

We, of course, confine our decision to the facts before us and do not suggest that our construction of these instruments would be applicable to a deed of trust standing alone, which is given to secure payment of money borrowed by an owner of the land, conveying the land in trust for such purpose.

The point under discussion is overruled.

Appellants’ remaining point is that appel-lees did not show that the paving lien has been paid.

This point is devoid of merit.

The City of Austin issued a Certificate of Special Assessment payable to itself in the sum of $1,284.34, for the improvements to the property in suit. This certificate was assignable, but there is no evidence that it was assigned. Appellees directed the Austin Title Company to pay the paving lien in their behalf, which it did. The City executed a receipt for this payment, appel-lees testified that they had not been reimbursed for the amount paid the City for a discharge of the paving lien.

The original of the Certificate of Assessment was not produced in Court and it is appellants’ contention, as we understand it, that it necessarily follows that the City did not own the Certificate. We cannot agree. In the absence of evidence that the City assigned the Certificate coupled with the action of the City in accepting its payment, the evidence of its ownership of the Certificate sufficiently supports the implied finding of the trial court to this effect.

The judgment of the trial court is affirmed.

Affirmed.


author: PHILLIPS, Justice. HUGHES, Justice.

text:
    C. W. HUDSON, Appellant, v. Aubrey HIGHTOWER, Appellee.
    No. 11323.
    Court of Civil Appeals of Texas. Austin.
    June 30, 1965.
    Rehearing Denied July 21, 1965.
    Camp & Camp, Robert L. Ellett, Cameron, for appellant.
    Donald G. Humble, Cameron, for ap-pellee.
   PHILLIPS, Justice.

This is a damage suit resulting from the collision of two automobiles at the intersection of North Fannin and Marlow Road in Cameron, Texas. Appellee High-tower, the plaintiff below, was driving his car north on North Fannin at noontime. Appellant Hudson, defendant below, drove his car into North Fannin from the west and the two cars collided. Those entering North Fannin from Marlow Road are required by law to yield the right of way and there is a yield right of way sign at this intersection facing Marlow Road.

There was a cross assignment against ap-pellee for damages alleging negligence on the part of appellee in operating his vehicle.

There is no question but that appellee received bodily damage and damage to his vehicle as a result of the collision and these facts are not in issue here.

At the conclusion of the trial, the jury made the following findings with respect to the special issues submitted: that appellant Hudson failed to keep a proper lookout; that this failure was the proximate cause of the accident; that appellant was driving at an imprudent rate of speed; that such was the proximate cause of the accident; that appellant failed to yield the right of way; that such failure to yield the right of way was the proximate cause of the accident.

The jury found that appellee had not operated his car at an excessive speed and did not fail to keep a proper lookout.

The court entered judgment on the jury’s verdict for appellee and appellant has perfected his appeal to this Court.

We reverse the judgment of the trial court and remand the case for trial.

Appellant is before us on two points of error. The first being that of the trial court in allowing testimony from a witness as to the manner in which appellant had operated his automobile in the past at the intersection in question. The second point of error being that of the trial court in instructing the jury that the testimony complained of in point of error number one should be considered only in the light of impeachment of certain testimony previously offered by appellant.

Appellant, during direct examination, testified with reference to his speed in crossing the intersection where the accident occurred as follows:

“Q Now, Mr. Hudson you testified I believe that as you entered the intersection of North Fannin and Country Club Road that you were driving some two or three miles an hour?
A That is right.
Q Why were you driving so slow?
A Well, we always have to slow up there to watch the traffic coming from north or south.”

On cross-examination with reference to the same subject the following testimony was adduced from appellant:

“Q Mr. Hudson, you said you always have to slow up there for traffic?
A Yes, sir. Don’t always have to, no.
Q You said a minute ago in response to a question by Mr. Camp you always have to slow up there.
A Yes, sir.
Q Same speed, same everything ?
A I have always come to a pretty slow — before you cross to check the traffic.”

Subsequently Walter Wallace, who also testified as.an eye witness to the collision, was called to testify by appellee and the following exchange occurred between the witness, the court and attorneys representing appellant and appellee:

“Q All right. Mr. Wallace prior to February 9, 1963, had you seen Mr. Hudson come through that intersection on prior occasions?
MR. CAMP: Now may it please the Court, we are going to object to this, it is immaterial, irrelevant, things transpiring prior to the date.
MR. KOEHNE: Judge, he opened it up.
THE COURT: Mr. Morgan will you retire the jury into that room while we discuss this.
(The jury retired).
MR. CAMP: May I ask him one or two questions on voir dire?
THE COURT: All right, go ahead.
BY MR. CAMP: (Counsel for appellant)
Q Walter, have you and Aubrey discussed this case since you testified this morning?
A No, sir.
Q Didn’t talk about it when you were talking together?
A No, sir, not talking about the case.
Q Didn’t say anything about the case?
A No, sir.
MR. CAMP: O.K.
MR. KOEHNE: You have talked to me though haven’t you?
A I talked to the lawyer. The only ones I was instructed to talk to.
THE COURT: All right, go ahead.
BY MR. KOEHNE: (Co-Counsel for appellee)
Q Mr. Wallace, prior to February 9, 1963, had you seen Mr. Hudson go through this intersection of Fannin and Marlow Road before ?
A Now make yourself a little bit clearer, have I saw him go through there.
Q Have you seen him traveling in an easterly direction on Marlow Road through this intersection before February 9, 1963?
A You mean have I seen him traveling through there?
Q Yes, sir.
A Yes, sir.
Q 'On a few occasions or on many occasions, how frequently?
A Well, I’d say three or four times a day, five or six, he goes back and forth home every day.
Q All right. Now on these prior occasions that you have seen him, now prior to February 9, 1963, could you tell the Court how he goes through that intersection there ?
A Generally goes through there too fast.
Q How fast does he usually go through there?
A I’d say I have seen him go through there SO or 60 miles an hour. I don’t like to get into this kind of thing but that is the truth.”

The court recalled the jury and then permitted Wallace to testify in the same manner set out above.

At the conclusion of the evidence the trial court submitted special issues to the jury. Included in the court’s charge was the following instruction with reference to the controversial testimony by witness Wallace given over objection of appellant:

“You are instructed that the testimony of- Walter Wallace regarding the operation by C. W. Hudson of his vehicle on occasions prior to the date of the accident in question has been admitted before you for the sole purpose of rebutting Hudson’s testimony as to how he operated his vehicle in crossing the intersection in question on such prior occasions.
And you are further instructed that Walter Wallace’s testimony in this regard is not to be considered by you, and is no evidence of, the speed, or the manner in which C. W. Hudson entered the intersection on the date of the collision in question.”

We are of the opinion that the admission of this testimony for any purpose was error. It is admitted by both of the parties to this lawsuit that the original testimony of C. W. Hudson as to the method he always operated his car at the intersection was inadmissible. This is true even though there was no objection at the time to its admission. Consequently, the impeachment testimony was equally inadmissible for any purpose whatsoever.

McCormick and Ray in Texas Law of Evidence in Sections 682, 683 and 684, beginning on page S2S, state the general rule in this matter to the effect that where a witness asserts a particular fact to be true, other witnesses may be called who deny the truth of the fact testified to by the first witness and state that the opposite is true if such contradictory testimony is relevant. Continuing in Section 683, McCormick states the law as follows:

“The rule which permits a witness to be contradicted by other witnesses is subject to one important limitation. That is, he cannot be contradicted upon a collateral or immaterial matter (here the author cites numerous Texas cases on the point of immaterial or collateral matters.) The chief reasons for excluding contradiction on collateral matters are reasons of policy. First, too great an inconvenience would result if every alleged error could be investigated. Much time would be wasted and the issue confused. Second, it would be unfair to the witness to expect him to come prepared to meet any error that might be alleged, although entirely beyond the matters in litigation.” Continuing in Section 684:
“Although the rule that error on collateral matters may not be shown is well established, the rule itself marks out no definite line of exclusion. The difficult question is left unanswered. What matters are collateral and what are not? Only one satisfactory test appears to have ever been devised. This was laid down in the English case of Attorney-General v. Hitchcock (1847, 1 Exch. 99). In Professor Wig-more’s words it is: ‘Could the fact, as to which error is predicated, have been shown in evidence for any purpose independently of the contradiction?’ (Wigmore Section 1003). Although this test was set up in connection with the doctrine of self-contradiction, it is equally applicable here. The test is simple, definite and easy of application, * *

We hold that under the abovementioned test, appellant’s testimony as to his habit of approaching the intersection at which the collision occurred was inadmissible, consequently, contradicting testimony was inadmissible and of a sufficiently prejudicial nature as to require a new trial. Consequently, we reverse this case and remand it for a new trial.

The judgment of the trial court is reversed and remanded.

Reversed and remanded.

ON MOTION FOR REHEARING

HUGHES, Justice.

Appellee denies our statement that, “It is admitted by both parties to this lawsuit that the original testimony of C. W. Hudson as to the method he always operated his car at the intersection was inadmissible.”

We based this statement, as to appellee, on this language in his brief:

“Appellee concedes that such testimony by the witness Walter Wallace could not have been initially admitted as proof of appellant’s habit in crossing the intersection to show probably present conduct, but when appellant unequivocally asserts that his conduct on the day in question was his habitual conduct, the issue of irrelevance has also been effectively removed. Appel-lee was not trying to establish present conduct by past habit or custom, but simply rebutting, for impeachment purposes, appellant’s assertion that he always slowed up at this intersection. The two examples are worlds apart and do not involve the same rule of law. Appellant is confusing the two issues by asserting that the impeachment attempts to inject collateral issues or collateral conduct into the case. No citation of legal principles or authorities is necessary, we think, to demonstrate such fallacy. Appellee contends that the controverted testimony would actually be admissible for unlimited purposes were it not for the Texas rule against proof of custom or habit in this manner, so therefore it could not be excluded as impeachment because immaterial, irrelevant or collateral matter.”

Regardless of appellee’s admission, the testimony of C. W. Hudson as to the usual manner in which he drove his car through the intersection was inadmissible since there were eyewitnesses to the collision. M. K. & T. Ry. Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931.

The fact that this testimony was admitted without objection did not, in our opinion, give appellee the right to introduce impeaching evidence. The policy issues involved in trying collateral issues should not be controlled by or made to depend upon the alertness of counsel.

Upon examination of the entire record, it is our opinion that reversible error was committed by the trial court in this respect. Rule 434, Texas Rules of Civil Procedure.

The motion is overruled.

Motion overruled.


author: WILLIAMS, Justice.

text:
    James W. THOMAS, Appellant, v. MAGNOLIA CHEMICAL COMPANY OF TEXAS, Inc., Appellee.
    No. 16584.
    Court of Civil Appeals of Texas. Dallas.
    July 9, 1965.
    Rehearing Denied Sept. 24, 1965.

      Johnson, Guthrie, White & Stanfield and Robert M. Greenberg, Dallas, for appellant.
    McCulloch, Ray, Trotti & Hemphill, Ross H. Hemphill and Donald J. Hahn, Jr., Dallas, for appellee.
   WILLIAMS, Justice.

Action for damages resulting from destruction of a building by fire. James W. Thomas, alleging he was the owner and landlord of a certain building located in an industrial district in Dallas, Texas, brought this action against Magnolia Chemical Company of Texas, Inc., the tenant of the building by virtue of a written lease agreement, alleging that the defendant, its agents, servants and employees, had been guilty of various and sundry negligent acts which had proximately caused the loss of the structure by fire on August 29, 1963 and that by virtue of said loss plaintiff had sustained damages in excess of $127,000. Defendant answered, denying the allegations of negligence and proximate cause, and affirmatively pleading that plaintiff, as landlord, had assumed the risk and hazard of the fire in question so that, pursuant to the doctrine of assumed or incurred risk, he was precluded from recovery.

Merchants Fire Assurance Company of New York filed its plea of intervention seeking to recover the sum of $99,550 which it had paid plaintiff pursuant to the terms of a fire insurance policy carried on the building in question.

The jury, in answer to special issues submitted, completely exonerated the defendant, its agents, servants and employees, of any acts of negligence which proximately caused the fire in question. The j-ury answered the assumed risk questions against the plaintiff and found that the fire was not the result of an unavoidable accident. Based upon this jury verdict the trial court rendered a take-nothing judgment against plaintiff.

Appellant’s first three points on appeal from this judgment complain that there is no evidence, or insufficient evidence, to support the jury’s answers to Special Issues 1, 4 and 8.

Consideration of these points has required us to examine the entire statement of facts. We have conducted our examination of the record in the light of the rules announced by our Supreme Court in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. In determining the “no evidence” question, which is one of law, we view the testimony favorable to the verdict to determine if there is any evidence of probative force to support same. In determining the “insufficient evidence” question, which is one of fact, we consider and weigh all of the evidence in the case to determine whether the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. The following is a summary of essential antecedent facts prior to the conflagration which is made the basis of this litigation.

The building in question, and which was destroyed by the fire, was owned by J. W. Thomas and leased by him to Magnolia Chemical Company of Texas, Inc. The tenant was engaged in manufacturing, storing and selling various types of chemicals as well as other products. The landlord was cognizant of the nature of the tenant’s business at the time of the execution of the lease. The building was a rather large, one-story structure and divided into two separate areas. In one area, located in the corner of the building, the various chemicals were manufactured. This area was separated from the remainder of the building by a fire wall and a fire door. The largest section of the building was used for storage purposes and preparation of the products for shipping. Thomas, the landlord, admitted that during the term of the lease his office manager, Mr. McElyea, had made periodic visits to the premises in question and had inspected the same on a number of occasions. McElyea had never complained to him about the fact that the tenant’s employees had smoked in the building nor had he made any complaint concerning the fire-fighting equipment or the manner of storage of chemicals on the premises. However, Thomas contended that McEl-yea’s visits and inspection trips to the plant were for public relations purposes and not for the purpose of inspecting or making complaints concerning the manner of the tenant’s use of the premises.

It was generally conceded by all witnesses that the tenant’s employees habitually smoked in the building but such activities were generally confined to the larger storage area. As to the fire-fighting equipment available on the premises the testimony reveals that the tenant’s employees had been given fire-fighting instructions with such equipment but it was undisputed that the two employees directly concerned with the fire had not been given such instructions because they had been employed by the company a short time. There was testimony that the various chemicals and other products, in packaged form, which were in the storage area where the fire occurred were not considered flammable unless exposed to extreme heat. There was also testimony that although the employees habitually smoked in the storage area there had never been another fire prior to the one in question.

On August 29, 1963 Rayford D. Price, a young employee of appellee, was driving and operating a forklift truck in the storage area of the premises when the same ran out of gasoline and stopped. Price solicited the aid of another young employee, Melvin Trammell, to assist in refueling the forklift. As to what happened then, Price testified:

“Q. So, what did you do ?
“A. Well, I had to put some gas in it, and it took two of us to put the gas in it, because the body — we had to raise the back end of it, not off the floor, but, you know, off the forklift where the gas tank cap was, had to have one to hold the lid open, because it had a spring on it. It would shut automatically, so we had to have some help to hold that open for me to pour the gas into it.
“Q. One man had to hold the spring back on the lid of the gas tank of the forklift?
“A. Yes, sir.
“Q. And the other man poke the gasoline can spout in the intake hole of the gas tank of the forklift?
“A. Yes, sir.
“Q. Who did you get to help you ?
“A. Melvin Trammell.
“Q. Was he an employee of Magnolia Chemical?
“A. Yes, sir, he was.
“Q. And did he help you ?
“A. Yes, sir, he did.
“Q. Did you get the gas can with the extra gas yourself?
“A. Yes, sir, I did.
“Q. And did you bring it up to the folklift?
“A. Yes, sir.
“Q. And what did Melvin Trammell do?
“A. He held the lid of the gas tank partly open for me while I put the nozzle into the gas tank.
“Q. Did you do that that day ?
“A. Yes, sir.
“Q. Now, did the gas tank — the gas can that you had — did it leak around this nozzle that went into the tank, or not?
"“A. Well, to the best of my knowledge, sir, it leaked around where it was joined onto the can.
“Q. The hose—
“A. Yes, sir.
“Q. —from the can?
“A. Yes, sir.
“Q. This hose you put into the gas tank of the lift leaked around the gasoline can ?
“A. Yes, sir.
“Q. Did it make a puddle there on the floor as you poured it?
“A. Yes, sir, it did.”
******
“Q. Now, as you were pouring the gasoline into the can this day of the fire, you testified just a minute ago it was leaking. Then what happened?
“A. Well, after we got the nozzle into the gas tank, Melvin Trammell stepped back to light a cigarette, and I knocked the match out of his hand, and it went into the gas and caught the building on fire.
“Q. Which gas did it go into ? That on the floor or in the can?
“A. On the floor, sir.
“Q. The puddle that had leaked?
“A. Yes, sir.
“Q. Did it catch fire immediately, explode, or what ?
“A. Well, it just caught fire and kind of made a woosh sound, you know.”

Price testified that the fire did not start after Trammell had lit the match to put to his cigarette but that it was only after he, Price, knocked the match out of Tram-mell’s hand causing it to land in the puddle of gasoline on the floor, that the fire ignited. He said:

“Q. How far back did Melvin step before he lit the cigarette there from the forklift where it was being filled? You testified he stepped back.
“A. I wouldn’t know exactly, sir. Looked to me like he stepped back one step.
“Q. When the match was struck, you saw Melvin Trammell actually strike this gopher match?
“A. Yes, sir.
'‘Q. Did any gasoline fumes ignite at that time ?
“A. No, sir.
“Q. Did the gasoline can catch on fire at that time — ■
“A. No, sir.
“Q. —Rayford Price ?
“A, No, sir.
“Q. Was any fire spontaneously ignited of any chemicals, or any gasoline, or any substance, when Melvin Trammell lit the match?
“A. No, sir.
“Q. And it wasn’t until you moved and made a sweeping movement with your hand and knocked the match out of his hand, and then the course of the match fell and hit the gasoline on the floor that the fire started?
“A. Yes, sir.
“Q. Is that your testimony?
“A. Yes, sir.”

As to the gasoline can used to refuel the forklift on the occasion in question there was testimony that the can leaked part of the time. The witness Younger, a former employee of the appellee company, testified that while the gasoline can leaked before the fire in question and smoking had occurred on the premises before, yet no fire had resulted prior to the one in question. He also testified that he had had experience with many cans and that most of them leaked.

Special Issue No. 1 submitted to the jury inquired whether the use by the defendant of the gasoline can in question, in refueling the forklift, was negligence on the part of defendant’s employees. To the issue the jury answered “No”.

In Special Issue No. 3 the jury was asked whether defendant’s employees, in refueling the forklift, allowed any spilled gasoline to remain on the concrete floor, to which the jury answered “Yes”. However, in answer to Special Issue No. 4 the jury said that such conduct was not negligence.

In Special Issue No. 6 the jury found that the defendant’s officers and foremen permitted the defendant’s employees to smoke in the area where the fire began. In Special Issue No. 7 the jury found that such conduct was negligence. In Special Issue No. 8 the jury was asked:

“Do you find from a preponderance of the evidence that such negligence, if any you have found in answer to the preceding special issue, was a proximate cause, as defined herein, of the fire in question?”

To which the jury answered “No”. The term “proximate cause” was defined to mean: •

“ * * * a cause which, in a natural and continuous sequence, unbroken by any new and independent cause, produces an event, and without which the event would not have occurred; and, to be a proximate cause of an event it should be such as that it could have been reasonably anticipated and foreseen by a person of ordinary prudence in the exercise of ordinary care that the event, or some similar event, would have resulted from such cause as a natural and probable consequence, in the light of the attending circumstances.”

From a review of the evidence we cannot agree with appellant that there is no evidence to support the jury finding to Special Issue No. 1 or that such answer is contrary to the great weight of the testimony. There was testimony, both pro and con, concerning the use of the gasoline can in question, as well as the use of another can. The jury could have easily concluded that the use of this particular can on the occasion in question was not negligence.

Neither can we agree with appellant that the answer of the jury in response to Special Issue No. 4 is without support in the evidence or contrary to the overwhelming weight of the testimony. While it is true that the evidence is uncontroverted that gasoline was allowed to remain on the concrete floor the testimony is conclusive that it had not been on the floor a sufficient length of time for anyone to have removed it prior to the fire. The witness Rayford Price was asked by the attorney for appellant :

“Q. Did you have time to wipe up that gasoline that spilled before this match hit it ?
“A. No, sir, I didn’t.”

In considering appellant’s attack on Special Issue No. 8 reference must be made to Special Issue No. 6, and Special Issue No. 7, which both relate to the negligence on the part of appellee’s officers and foremen in permitting “defendant’s employees to smoke in the area where the fire in question began.” While the jury found that it was negligence to allow smoking in the area yet, in answer to Special Issue No. 8, they found that such negligence was not a proximate cause of the fire in question. When we examine the entire evidence adduced, and especially in view of the definition of the term “proximate cause” as given by the court, we cannot sustain appellant’s attack. It must be borne in mind that the testimony is undisputed that the fire did not commence when Trammell struck the match to light his cigarette. The actual cause of the fire was shown to be the act on the part of the employee Price in striking Trammell’s hand and thereby causing the match to fly directly into the puddle of gasoline which had accumulated on the concrete floor. It was only then that the fire started. The jury could have easily concluded that while it was negligence to allow smoking in the area yet the real cause of the fire was not smoking but the act of Price in striking Trammell’s hand. No question was submitted to the jury as to whether or not the act on the part of Price in striking Trammell’s hand was either negligence or a proximate cause of the fire. There was ample testimony that while smoking was tolerated in the area in question there had never been a fire prior to the one in question. Moreover, in the light of the definition given by the court of the term “proximate cause” the jury was justified in concluding that the defendant, appellee herein, could not have reasonably anticipated or foreseen that Price would strike Trammell’s hand and knock the match directly into the gasoline.

As was aptly stated by Chief Justice Dixon, speaking for this court in Davidson v. Methodist Hospital of Dallas, Tex.Civ.App., 348 S.W.2d 400, a wrongdoer is not responsible for a consequence which is merely possible, but is responsible only for a consequence which is probable according to ordinary and usual experience. T. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162; 30-B Texjur. 216-220.

The issue of proximate cause was one of fact to be decided by the jury and we hold the answer thereto to be supported by competent testimony.

Having carefully examined the record in the light of the rules heretofore announced we have arrived at the conclusion that there was evidence, as well as sufficient evidence, to justify the answer of the jury to the special issues to which complaint is directed, and therefore overrule appellant’s Points 1, 2 and 3:

By his fourth point, obviously multifarious, appellant contends that the court erred in permitting the appellee (1) to plead and (2) to offer proof on the defense that the landlord had incurred the risk of having his premises destroyed by fire, and (3) in submitting such a defensive theory which caused the jury to be confused. There are a number of reasons why each of these contentions must be overruled. Appellee, by way of affirmative defense, pleaded that appellant had incurred the risk of fire by leasing the premises to appellee with knowledge of the nature of the business and also by inspecting the premises from time to time and failing to make complaint concerning fire hazards. Appellant did not complain of these pleadings by special exception, motion or otherwise. Moreover, when appellee offered proof in support of this defensive plea of incurred risk appellant made no objection to such testimony and presents no bills of exception complaining of the admission of such evidence. We cannot agree with appellant that the record reveals that the jury was confused by the method of submission of the defensive theory.

Appellant argues in his brief that the doctrine of “assumed risk” or “incurred risk” as pleaded by appellee was not a proper defense under the facts of this case. We find it unnecessary to decide this question for the simple reason that the jury has exonerated appellee from any acts of negligence or proximate cause charged by appellant and which was essential for recovery by appellant. Therefore, the question of the propriety of submission of defensive issues becomes wholly immaterial. Any possible error in submitting such issues is harmless. Rule 434, T.R.C.P.

Appellant’s fifth point complains of improper argument by appellee’s counsel wherein he referred to appellant Thomas as a “rich landlord”. We agree with appellant that such argument was improper but a complete review of the record fails to convince us that probable harm resulted. Rule 434, T.R.C.P.; Aultman, et al v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596.

By his sixth, seventh and eighth points appellant contends that the court erred in refusing to -permit him to call the witness Frank Younger as an adverse witness under Rule 182, T.R.C.P., and by allowing appellee to develop alleged improper evidence on cross-examination of such witness. He also complains that appellee was allowed to make an alleged improper argument based upon such evidence. We find no merit in any of these points and overrule them. Appellant called the witness Frank Younger under the adverse party rule. The court refused to allow appellant to examine the witness under that rule because it was shown that whereas Mr. Younger had been an employee of appellee at the time of the fire in question he was no longer employed by appellee at the time he was called as a witness. Appellant relies upon T. & P. Ry. Co. v. Hagenloh, Tex.Civ.App., 241 S.W.2d 669, wherein the Court of Civil Appeals held that the witness Houghland could be properly called as an adverse witness even though he was no longer an employee of the defendant railway company. However, on appeal to the Supreme Court the judgment was reversed on other grounds and the Supreme Court expressly refrained from either approving or disapproving the ruling of the Court of Civil Appeals relating to this question. However, in the ease of Dollahite-Levy Co. v. Phillips, Tex.Civ.App., 99 S.W.2d 688 the court in construing Art. 3769c, V.A.C.S. (now Rule 182 T.R.C.P.) said:

“It would, in our opinion, be a dangerous doctrine to permit the adverse party to call as a witness some officer, agent, or employee of a corporation whose connection therewith had been severed, and allow the adverse party the benefit of asking leading questions such as are permitted on the cross-examination of a witness.”

Appellant having called Younger as his witness, and being bound by the testimony of such witness, cannot complain now of the testimony given by the witness on cross-examination of appellee. Neither can he complain of argument made by ap-pellee’s counsel based upon the witness’ testimony. Even if it could be said that any of the matters complained about in appellant’s points constituted error we would hold that such error is harmless as it has not been demonstrated to us that such alleged errors reasonably or probably resulted in an improper verdict in this case. Rule 434, T.R.C.P.

In his final point, No. 9, appellant contends that the court erred in submitting Special Issues Nos. 17 and 20, being issues of specific negligence against defendant, because said issues did not restrict and confine the jury’s consideration thereof to the acts and conduct of two specific agents, Trammell and Price. In submitting Special Issues 17 and 20 to the jury the court merely inquired whether “defendant’s officers and agents” failed to do certain things. Appellant cites no authority to support his contention that such a method of submission was wrong and we have been unable to find any. It would seem to us that the method of submission is more favorable to appellant than to appellee since it does not restrict or confine the jury’s consideration of such issues to any particular named employees. In any event, any error reflected by the submission of these issues was harmless in this record. Rule 434, T.R.C.P.

Having carefully examined all of appellant’s points, and having carefully examined the entire record in this case, we are unable to find any reversible error reflected therein and accordingly the judgment of the trial court is affirmed.

Affirmed.


author: MASSEY, Chief Justice.

text:
    BEST BUILDING COMPANY, Appellant, v. Louis SIKES et ux., Appellees.
    No. 16655.
    Court of Civil Appeals of Texas. Fort Worth.
    July 23, 1965.
    Rehearing Denied Sept. 17, 1965.

      Simon & Simon, Fort Worth, Humphrey, Gibson & Darden and Lee Humphrey, Wichita Falls, for appellant.
    Eggers, Sherrill & Pace and Robert K. Pace, Wichita Falls, Spence, Martin & Richie and Howard Martin, Wichita Falls, for appellees.
   MASSEY, Chief Justice.

Our holding on the instant appeal is that the plaintiff below was entitled to exercise his option to purchase a certain tract of land, termed Tract 2-B, as of the time that he attempted to do so, and — since his right to exact specific performance by the defendants was not inhibited by the Statute of Frauds — he was alternatively entitled to the damages sustained by reason of the defendants’ refusal to make conveyance. Our further holding is that plaintiff was entitled to exercise his option to purchase Tract 3 (dependent upon exercise of the option to acquire Tract 2-B) from and after the time defendants refused to honor the first option, but that since the option period expired without any timely and proper attempt by plaintiff to exercise such, he was not entitled to any damages because of a failure to obtain it.

Judgment of the trial court is therefore m part affirmed and in part reversed and rendered.

In this case the Best Building Company (as purchaser) was the plaintiff and Louis Sikes et ux. the defendants. Suit began as one for specific performance to convey land or for damages for defendants’ breach. At “election” time plaintiff actually sought damages alone. Hereinafter, for convenience, plaintiff will often be referred to as “he” or treated as an individual. Trial was before the court without a jury. Judgment was rendered for defendants in denial of all relief for which plaintiff sued. Plaintiff appealed.

Defendants were the owners of land(s) contemplated for development as subdivision (s). They desired orderly residential development. In certain tracts, hereinafter referred to as Tracts 1, 2-A, 2-B and 3, the plaintiff’s active participation was enlisted. At the time the parties’ contract was executed Tracts 2-B and 3 had not been plotted or dedicated. Plaintiff, through his attorney, prepared a contract relative to property interests in the aforesaid tracts, acquired and/or contemplated to be acquired from defendants.

Not at issue is any question whether plaintiff was entitled to acquire Tracts 1 and 2-A. He did acquire them. At issue is plaintiff’s right at material times to acquire Tracts 2-B and 3, considered severalty-

Any right plaintiff had to acquire Tract 2-B was obtained pursuant to contract. The language “balance of the hereinafter described property”, in the portion of the contract we quote, relates to what we refer to as Tract 2-B: “In the event that the Purchasers, within a two year period from this date (February 15, 1958), have acquired and paid for a minimum of 24 acres (Tract 2-A) at the $2,000.00 per acre price, then such Purchasers shall have an additional two-year period within which to elect to develop the balance of the hereinafter described property, * * (Emphasis supplied.) Other language clarified parties’ intent that right to acquire Tract 2-B by plaintiff likewise depended upon such development.

Constructively, the contract provided that the plaintiff’s right to acquire Tract 2-B should exist and persist for a period of four years from February IS, 1958, or until and including February 15, 1962, conditioned and contingent upon his having paid for the “minimum of 24 acres” (Tract 2-A) out of the fully designated and described entire tract (2-A and 2-B) on or prior to expiration of the first two-year period subsequent to February 15, 1958. Though he may have fully performed all prerequisites which would entitle him to demand performance upon tender of the agreed consideration, plaintiff had the right to delay the tender which would incur the defendants’ obligation to convey until the last day of the four-year period, and the further right to forego the exercise of his option to acquire the property without penalty. If plaintiff’s option right actually was additionally dependent upon his prior development of Tract 2-A, the condition was satisfied. What is stated in this paragraph is not at issue and it appears the parties agree it is correct.

At issue is whether plaintiff’s option right to Tract 2-B had vanished because of his action and conduct with reference to the entire contract of the parties prior to the important date of January 15, 1962. On that date he made known to defendants his desire to demand a conveyance of Tract 2-B in accordance with the option so to do, and to tender in full payment therefor the agreed consideration (of $2,-000.00 per acre). By stipulation of the parties it was agreed that such occurred, and that in response the defendants advised plaintiff that if made, such demand and tender would nevertheless be refused by them in any event.

We may safely assume that after plaintiff had acquired Tract 2-A he was developing it as a residential subdivision in 1961. During that year plaintiff discovered a prospective purchaser for 10 acres of land out of Tract 3. As will be more specifically discussed at a later stage of this opinion the parties’ contract included a plaintiff’s option to purchase Tract 3, said option being conditioned upon plaintiff having theretofore “acquired and developed” Tract 2-B. If plaintiff could obtain title to Tract 3, or the 10 acres therein his purchaser desired, he was in position to take a substantial profit. Said purchaser intended to devote the 10 acres tó a commercial use. There were no restrictions as to such use in the contract which is the subject of dispute, but when the defendants learned that such was the use intended they decided that they would do all things legally possible to prevent it.

Plaintiff considered the “acquired and developed” language aforementioned to be a stumbling-block in his course toward the goal of obtaining the 10 acres in question, or any part of Tract 3. There were negotiations between the parties which we have concluded amounted to no more than offers and counter-offers in no way affecting the existing written contract. Plaintiff lost the deal with his prospective purchaser and his anticipated profit.

In September of 1961 plaintiff brought suit against the defendants. He prayed for “specific performance of the Contract”, — without reference to distinction to be made between the separate option rights thereunder as to Tract 2-B and Tract 3,— plus “damages for Defendants’ breach” of contract. Of course trial had not yet occurred, but by reference to the statement of facts it is to be observed that as of this time plaintiff had never attempted any independent exercise of his option right to Tract 2-B.

Our conclusion, as heretofore indicated, is that the plaintiff’s option right to acquire Tract 2-B persisted at and after the time suit was brought and for several months thereafter and that it was an option which necessarily must be exercised independently of any exercise of his option right to Tract 3. Plaintiff evidently arrived at the same conclusion prior to the time for expiration of the option period, for we are of the opinion that his action taken, January 15, 1962 (heretofore referred to), was the first and only proper attempt to independently exercise any right of option.

In the court’s findings of fact was included a finding that the value, per acre, of Tract 2-B, on or about January 15, 1962, was $3,000.00. The price to be paid therefor, under the contract, was $2,000.00 per acre. There having been 30.20 acres of land in Tract 2-B the amount of plaintiff’s damages because of defendants’ failure and refusal to deliver it would be $30,200.00.

We have concluded that plaintiff is entitled to such damages because of defendants’ failure to make conveyance according to plaintiff’s communication to them on January 15, 1962. The effect thereof was that plaintiff made a valid and effective attempt to exercise his right of option. We hold that the defendants breached their duty under that part of the contract which gave plaintiff the right to purchase Tract 2-B.

The parties were at cross-purposes on and prior to that time. It may well be that it was by reason thereof that defendants failed to perceive plaintiff’s right. Plaintiff had embroiled the defendants in litigation. He was no doubt angered at the refusal of defendants to make conveyance of the ten acres out of Tract 3. Defendants were angry also. The matter of damages flowing from the failure to obtain Tract 2-B was relatively an inconsequential part of plaintiff’s suit. Yet plaintiff had, for a valuable consideration, obtained from the defendants the right to exercise an option to acquire Tract 2-B and plaintiff did attempt to exercise such option within the specified period. Plaintiff owned and possessed such right pursuant to contract supported by consideration delivered. The right was vested in him. It persisted for the period contracted, to exercise or not as he might see fit, because he had satisfied all contingencies upon which the right depended. The value of such right consisted in the privilege to exercise it or not, at his election. Corsicana Petroleum Co. v. Owens, 110 Tex. 568, 571, 222 S.W. 154 (1920).

Any modification, even to the extent of discharge, of an existing contract must be supported by a fresh consideration. There was no such consideration. Under this general rule plaintiff’s option to purchase Tract 2-B was in full force and effect on the date of its attempted exercise. 13 Tex.Jur.2d, P. 499, “Contracts”, § 268, “Necessity for new consideration”. Nothing in the record shows any change of condition nor act of the defendants impairing plaintiff’s right to acquire Tract 2-B prior to date of January 15, 1962. Estoppel was neither plead nor proved by the defendants, even equitable estoppel. Had defendants delivered the land to plaintiff they would not have sustained any prejudice. There was a $1,000.00 per acre difference in value on January 15th as compared with the contract price, but the possibility of such enhancement in value of the tract was clearly within the contemplation of the parties in the contract itself.

In support of the propriety of their refusal to honor plaintiff’s exercise of the option defendants present contentions bearing upon effect of counter-offers, revocation or rejection of offers, etc., none of which we consider sound. Neither the contentions nor the authorities cited in support thereof have a bearing upon a situation where, as in the instant case, the optionee had purchased and paid for his right of option and possessed same as a property right. That plaintiff’s suit existed at the time had no effect upon that right. Neither would that fact foreclose the efficacy of plaintiff’s attempt to exercise it. No distinction in the legal situation is to be made because of the pendency of the suit. That plaintiff never made offer to dismiss his suit or abandon the claims asserted therein would have no legal significance.

The defendants contend that in any event the contract, as applied to- plaintiff’s option on Tract 2-B, was unenforceable under the Statute of Frauds. This they plead. In connection therewith defendants refer to a paragraph of the contract reading as follows: “As a special condition of this Contract, the Sellers expressly agree and obligate themselves h> dedicate a sufficient area for park purposes to meet the requirements of the City of Wichita Falls as to any subdivision of the land herein purchased, or that may hereafter be purchased under the terms of this agreement. * * * ” In this connection the defendants aver that what is meant by the language is that pursuant to the conveyance of Tract 2-B they would have the right, indeed the obligation, to carve out of the same whatever amount of acreage the City of Wichita Falls demanded be dedicated for park purposes,— conveying to plaintiff only the remaining land. Hence, say defendants, the land to be acquired by the plaintiff upon proper exercise of the option could not be Tract 2-B (described by metes and bounds) but something different — land which the court in its judgment would be powerless to so describe that plaintiff could be placed in possession thereof under a writ because there could be no adequate description of the land to be delivered. We hold that the language quoted does not say this. Indeed, nothing required plaintiff to subdivide Tract 2-B. The language did not hamper plaintiff’s right to have the whole of Tract 2-B. Indeed, and for .the purpose we assume that it is an obligation that plaintiff would not be entitled to waive, the language in question does not specify that acreage to be delivered to the City of Wichita Falls must be carved out of the land defendants had optioned to the plaintiff. It might have been acreage on adjoining land (admittedly defendants’) or even on land considerably removed, which defendants would be obliged to dedicate for municipal purposes. The Statute of Frauds may not be used to inhibit plaintiff’s right to enforce the contract or to obtain damages because of its breach.

Furthermore, it is not to be disregarded that plaintiff had “developed” Tract 2-A (he had likewise developed Tract 1) as well as having delivered full compensation therefor, all pursuant to the obligations imposed upon him under the contract. Defendants had performed their own obligations under the contract up to the time they refused to honor plaintiff’s attempted exercise of this option to acquire Tract 2-B. It might properly be said that as to Tract 1 and Tract 2-A, as well as to the option to Tract 2-B, plaintiff had fully performed. The defendants, having knowingly accepted benefits and partly performing, were foreclosed from any defeat of plaintiff’s right through use of the Statute of Frauds. Callahan v. Walsh, 49 S.W.2d 945 (San Antonio Civ.App., 1932, error refused). The opinion also constitutes authority for our opinion that the premises to be conveyed were sufficiently identified by the parties’ contract. Other cases to this effect are Taylor v. Lester, 12 S.W.2d 1097 (Austin Civ.App., 1928, error refused), cited in respect to the question in Stekoll Production Co. v. Hamilton, 152 Tex. 182, 255 S.W.2d 187, 191 (1953); and Tiller v. Fields, 301 S.W.2d 185 (Texarkana Civ.App., 1957, no writ hist.). It appears that existence in one party of an unqualified right of determination or selection of an amount and location of premises (within an area certainly ascertainable) meets the requirements of the Statute of Frauds where there is no necessity of any further agreement or approval by the other party.

Relative to the contractual provision under which plaintiff claims he was entitled to acquire Tract 3, the agreement reads: “In the event the Purchaser acquires and develops the foregoing * * * (Tracts 2-A and 2-B) in accordance with the terms of this contract, then he shall likewise have the exclusive right to acquire * * * on the same terms * * *” followed by a description of Tract 3. (Emphasis supplied.)

Simple contractual construction leads to the natural conclusion that the written language quoted, taken into consideration with the option language relative to Tract 2-B, had the basic meaning that plaintiff should have the right to acquire Tract 3 under the condition that Tract 2-B be first acquired by him, and that the period during which his option right (to Tract 3) persisted would be for a period of six years from February 15, 1958 to February 15,1964. As applied to that portion of the contract which reads: “In the event the Purchaser acquires and develops * * *” a more complicated and difficult problem is presented. If the phrase has no meaning then plaintiff would obtain the right to purchase Tract 3 provided he purchased Tract 2-B (he had already purchased Tract 2-A) or because of his attempt to exercise his option right to do so within the applicable time limitation. If it had any meaning it would necessarily be that plaintiff was obliged to satisfy some additional condition precedent and that his option right would be thereupon contingent.

The trial court, on the strength of extrinsic evidence received for the purpose of ascertaining the meaning of the phrase “acquire and develop”, and more particularly relative to the meaning of “develop” as therein embodied, found as a matter of law that “develop” had the meaning found in its findings of fact. Therein the court found: “At the time the Option was executed and delivered, the parties thereto contemplated that as used therein with respect of Tract 2b, the term ‘develop’ would include the following acts, to-wit: the preparation and recordation of a plat subdividing the tract into lots and blocks and dedicating streets and alleys; the cutting, paving and curbing of the streets; and the installation of utility lines, including electricity, gas, water and sewer, at points adjacent to but not necessarily on the various lots; the particular size, number and location of the lots, blocks, streets and alleys and the manner and means of constructing the streets and installing the utility lines being left to the good faith judgment of the developing purchaser or its successors in interest.”

If the term “develop” (in the phrase “acquire and develop”) did not have the meaning ascribed to it by the court it would be ambiguous. If ambiguous, resort to extraneous evidence was proper. Such as was received was adequate to support the determination made by the court in its findings of fact. In this connection see General Ins. Corporation v. Laney, 224 S.W.2d 746, 751 (Fort Worth Civ.App., 1949, no writ hist.), cited with approval in Myers v. Gulf Coast Minerals Management Corp., 361 S.W.2d 193 (Tex.Sup., 1962); 13 Tex.Jur.2d, P. 261 et seq., and § 109 et seq., “Contracts” under Sub. IV, “Construction of Agreement”; Words & Phrases, Perm. Ed., Vol. 20, “Improved Real Estate”, “Improvement”, etc.

Reverting to the contractual provisions, therefore, it plainly appears that as a condition precedent to any right on the part of the plaintiff to acquire Tract 3 he was obliged not only to acquire but also to “develop” Tract 2 (collectively—Tracts 2-A and 2-B). Although plaintiff did “develop” Tract 2-A, he never did likewise as to Tract 2-B. Had defendants honored his attempt to exercise the option to acquire Tract 2-B he might have done so, but of course he was unable to when the defendants denied him. The trial court’s judgment as applied to Tract 3 may not be sustained on the ground that plaintiff had not “developed” Tract 2-B, but it is properly sustained on the ground that plaintiff was never relieved of the duty to at least attempt to exercise his option to Tract 3—which was never attempted.

From and after January 15, 1962—and until February 15, 1964—plaintiff was vested with the right to exercise his option to acquire Tract 3. The prerequisite requirement that plaintiff “develop” Tract 2-B could no longer have force and effect after defendants refused to convey Tract 2-B to plaintiff in order that he might develop it. See 157 A.L.R. 1311, Anno: “When optionee’s delay in exercising option excused”; 37 Tex. Digest, Vendor and Purchaser, ^18(3), “Exercise of option”; Jones v. Gibbs, 133 Tex. 627, 130 S.W.2d 265, 131 S.W.2d 957 (1939).

Remaining, however, was action necessary to be taken by plaintiff to actually exercise his right of option. He had the right to exercise it or not, according to whether he so desired, — to and including February 15, 1964. Plaintiff’s suit still pended for trial on said date. However, neither in his pleadings nor in his evidence does it appear that on or after January 15, 1962 (when his right to exercise the option to acquire Tract 3 became vested) did he ever seek specific performance by the defendants of their obligations under his option to Tract 3, His pleading sought damages because of a breach by defendants, not specific performance. His proof evidenced demands for such specific performance, but the dates of the demands as so proved antedated January 15, 1962. On those dates his rights to exercise the option did not exist for they were born January 15, 1962 in the defendants’ refusal to honor plaintiff’s attempt to exercise his option as to Tract 2-B.

Judgment is affirmed in so far as it denies plaintiff any damages because of his failure to acquire Tract 3. Judgment is reversed and rendered otherwise, and as a judgment against defendants the plaintiff is awarded $30,200.00 in damages because of defendants’ refusal to make conveyance of the land embraced in Tract 2-B. Interest on plaintiff’s judgment shall date from January 15, 1962.