author: ARCHER, Chief Justice.

text:
    Albert E. GOODMAN, Appellant, v. E. A. GOODMAN, Appellee.
    No. 11021.
    Court of Civil Appeals of Texas. Austin.
    Jan. 9, 1962.

      Sneed & Vine, Sam R. Perry and J. P. Darrouzet, Austin, for appellant.
    Blundell & Moore, Lockhart, for appellee.
   ARCHER, Chief Justice.

This is an appeal from a judgment of the Trial Court canceling a deed executed by appellee dated July 29, 1960 conveying to appellant a tract of land in Caldwell County. The trial was to the Court without the aid of a jury, and after the testimony had been concluded, judgment was entered.

The appeal is founded on five points and are that the Court erred in finding that the deed was not delivered, because there was no evidence, or that the evidence was insufficient to support such finding; that the Court’s finding of fact that the plaintiff’s ability to realize the nature of his acts was doubtful and that he was easily influenced do not support the conclusions of law, and there was no evidence to support such finding.

Since this appeal may be determined by the correctness of the finding that the deed was not delivered, we will not consider other phases of this case.

We do not believe that appellee delivered the deed to appellant, and affirm the judgment of the Trial Court.

The parties hereto are father and son. The father was 85-years-old and had from time to time lived in the home of the son and his family.

The deed was written by an attorney, since deceased, on July 29, 1960. The appellant, appellant’s wife and son-in-law accompanied the appellee to the attorney’s office on the occasion of the execution of the deed.

Subsequent to the signing of the deed the attorney gave it to appellee who put it in his pocket and a little later put the deed in the glove compartment of appellant’s car where it remained until some misunderstanding arose between the parties and appellee left appellant’s home, and appellant placed the deed of record on May 23, 1961.

The appellee testified that on the occasion of the misunderstanding appellant told him that he had a deed and was going to have it recorded, and that he told appellant that he did not have a deed.

John W. Thorn, a son-in-law of appellant, testified that he was present on the occasion of the execution of the deed and saw the attorney hand the deed to appellee who put the deed in his pocket, took it home and later put the deed in the glove compartment of the appellant’s car.

Appellant’s wife testified that she was present on the occasion of the signing of the deed, and that the deed was at their home until her husband filed it for record, and that E. A. Goodman had asked them not to record it.

Appellant testified that one time appellee told appellant that he said, “I think I will deed you this place;” that this was on Saturday before the deed was made out; that there was no discussion what would be paid for the place.

The witness testified that his father told him that he wanted to deed the place, but said “Don’t say nothing to nobody about it”, and “When I make the papers, I don’t want you to put them on record.”

The appellant testified that on May 23, 1961, his father “got tore up,” and that appellant’s wife was crying and said, “Well, Pa has just fussed around until I just can’t take it any longer.” The witness testified that he got the deed out of his car pocket and put it on record.

As we have stated we do not believe the deed was actually delivered and accepted in view of the record in this case, or that there was an intention to do so.

The question of actual delivery of the deed was one of fact for a court or jury. Towery v. Henderson et al., 60 Tex. 291; Steffian et al. v. Milmo Nat. Bank, 69 Tex. 513, 6 S.W. 823; 19 Tex.Jur.2d, Paragraph 81, pp. 356 et seq.; Johnson v. Freytag, et al., Tex.Civ.App., 338 S.W.2d 257, er. ref., n. r. e.; Chasteen v. Miller, Tex.Civ.App., 349 S.W.2d 772, er. ref., n. r. e.

The judgment of the Trial Court is affirmed.

Affirmed.

PHILLIPS, J., not sitting.


source: Caselaw Access Project

author: NORTHCUTT, Justice.

license: Public Domain

text:
    Wayne HUME, Appellant, v. BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA, LOCAL NO. 23 OF TEXAS, Appellee.
    No. 7193.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 19, 1962.
    Rehearing Denied Jan. 7, 1963.
    William J. Gillespie, Lubbock, for appellant.
    Campbell, Brock, Wright & Waters, Lubbock, for appellee.
   NORTHCUTT, Justice.

This is a suit brought by appellant, Wayne Hume, against appellee, Bricklayers, Masons and Plasterers International Union of America, Local No. 23 of Texas, wherein appellant asked for a temporary restraining order restraining the Union and its agents and servants from interfering with appellant by way of threats, personal violence, intimidations, or other illegal means calculated to prevent or interfere with appellant’s employment during the pendency of the suit. The appellant further prayed for damages against the appellee Union. It is to be noticed that none of the agents or servants or members of the Union are sued personally but the suit is solely against Local No. 23.

The appellee filed a plea in abatement and a plea to the jurisdiction of the district court. The trial court sustained both pleas and dismissed the suit with prejudice. From this judgment the appellant perfected this appeal. The appellant perfected this appeal upon one point of error as follows: “The trial court materially erred in sustaining appellee’s plea in abatement and plea to the jurisdiction of the court in dismissing the appellant’s suit with prejudice.”

Rule 418, Texas Rules of Civil Procedure, provides that point of error is sufficient if it directs attention of the court to the error relied upon. This assignment does not call to our attention in what manner the court materially erred other than to say the court erred in dismissing the suit. We think this point is insufficient to direct our attention to the particular reason the •appellant contends the court erred. Missouri-Kansas-Texas Railroad Co. of Texas v. McFerrin et al., 156 Tex. 69, 291 S.W.2d 931 at 941. However, we will attempt to discuss the matters which we think are involved herein. After assigning the point ■of error above mentioned, the appellant then proceeds in the statement and argument to contend there can be no question as to the jurisdiction of the trial court in a suit for damages coupled with an injunction, then proceeds, after making such statement, to relate matters concerning the action of the defendant in assessing a fine against the appellant and because of such action of the Local Union the appellant brought this action for damages and for temporary injunction pending . the final hearing.

A restraining order had originally been granted and a hearing was thereafter had as to whether an injunction should issue. The trial court after such hearing, dissolved the restraining order and denied a temporary injunction and no objection or appeal was taken from this order. Defendant’s plea in abatement and plea to the jurisdiction was based upon three separate reasons. If the pleas were good under either one of the three separate reasons alleged, then the court correctly sustained such pleas.

Under this record the only action ever taken in this matter by the defendant, appellee herein, concerns the assessing of a fine against the appellant. The constitution and rules of the Union provide the steps to be taken before a fine may be assessed against a member. The undisputed record herein shows that each of the steps required were complied with and that the appellant refused to pay the fine and did not exhaust the remedies provided to him under the constitution and rules of the Union before filing this suit. There is no question here that appellant would have suffered some delay if he had been compelled to have exhausted his remedies within the order. Before appellant would be permitted to resort to the courts for any relief he might have had, he was bound to exhaust the remedies provided under the constitution and rules of the Union. It is stated in Grand International Brotherhood of Locomotive Engineers et al. v. Marshall et al., Tex.Civ.App., 146 S.W.2d 411 (writ refused) as follows:

“The appellees by becoming members of the association and accepting its benefits impliedly bound themselves to abide by its decisions in the determination of disputes arising within the society and were bound to exhaust the remedies provided for therein before resorting to the courts for relief. 5 Tex.Jur. 142; 6 Tex.Jur. 430 ; 5 C.J. 1364; 7 C.J.S. Associations, § 34; 7 C.J. 1116, 10 C.J.S. Beneficial Associations, § 65; Screwmen’s Benefit Ass’n v. Benson, 76 Tex. 552, 13 S.W. 379; Sawtell v. Feser, Tex.Civ.App., 235 S.W. 960; Grand Lodge Colored K. P. [of Grand Jurisdiction of Texas] v. Sanford, Tex.Civ.App., 289 S.W. 456; Fraser v. Buck, Tex.Civ.App., 234 S.W. 679; Crisler v. Crum, 115 Neb. 375, 213 N.W. 366; Henry v. Twichell, 286 Mass. 106, 189 N.E. 593.”

See also Fish v. Huddell et al., 60 App. D.C. 263, 51 F.2d 319; Grand International Brotherhood of Locomotive Engineers et al. v. Wilson et al., Tex.Civ.App., 341 S.W. 2d 206 (NRE).

Since appellant did not exhaust the remedies provided to him under the constitution and rules of the Union before bringing this action, we think the court correctly sustained the plea in abatement and plea to the jurisdiction. Judgment of the trial court is affirmed.


text:
    MASSEY-FERGUSON, INC., Appellant, v. Carl EASTERWOOD, Appellee.
    No. 7195.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 19, 1962.
    Rehearing Denied Jan. 7, 1963.
    Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellant.
    Moran & Miller, Dimmitt, for appellee.
   NORTHCUTT, Justice.

In January of 1954, Lesly-Vaughn Motor Co., sold appellee, Carl Easterwood, five new diesel tractors for a total sales price of $25,308.00. Appellee traded in some used tractors for which he received an allowance of $9,841.80. Interest was figured into the balance owed, and on January 26, 1954, appellee gave a chattel mortgage and note for $17,055.14, representing the balance owed on the tractor trade. The note was made payable to Lesly-Vaughn Motor Co., one of appellant’s dealers at Hereford, Texas, and, on the same day, shows to have been assigned to appellant. - ’

Over a period of years appellee made some payments on the note. Appellant filed this suit seeking recovery of the balance of principal and interest owed on the note, which was claimed to be $12,487.42, plus attorneys’ fees, and filed a writ of sequestration for the tractors. The tractors were replevied by appellee, and that part of the lawsuit has apparently been abandoned by the parties. Appellee, in his third amended original answer and cross action, and as a basis for claiming he should not pay the note, pleaded numerous acts of fraud on the part of appellant’s employees as an inducement to his signing the note and chattel mortgage of January, 1954. Trial was to a jury, which, in response to the issues which were submitted to it by the trial court, returned a verdict in favor of the appellee and against the appellant. Based upon the jury’s verdict (which is incorporated into the judgment), the trial court entered a take nothing judgment against the appellant, and adjudged that the note and chattel mortgage be cancelled. Motion for new trial was timely filed and in due course overruled by the trial court. From that take nothing judgment appellant has perfected this appeal.

Appellant presents this appeal upon five points of error. By its first point appellant complains of the action of the court in overruling appellant’s objections to the comment during jury argument by appel-lee’s attorney concerning the failure of appellant to call Luther Lesly as a witness for the reason that Lesly was as much subject to call by appellee as by appellant. Lesly was one of the parties making the sale of the tractors to appellee and was present when the sale was consummated and was in position to testify as to the representations made by him and others at that time. We believe the attorney was within his rights in making such argument. Tex-Jersey Oil Corporation et al. v. Beck et al., 157 Tex. 541, 305 S.W.2d 162, 68 A.L.R.2d 1062 (Sup.Ct.).

Appellant’s second point is as follows:
“The trial court erred in entering a take nothing judgment for the appellee because no issues were submitted or findings made which would support the proper measure of damages in a fraud case, which is the difference in value between what appellee parted with and what he received. No issue was submitted to the jury concerning the value of what appellee parted with, and, accordingly, there is no basis in the record in this case upon which the proper measure of damages could be computed so as to support the take nothing judgment which was entered.”

The appellee sought to keep the tractors and recover his damages, since he did not seek a recision and tender back the tractors, and as shown here by the appellant and undisputed by the appellee, the appellee has the tractors free of all liens. The appellee has had and used the tractors for several years and has never tendered them back to appellant. If the appellee was induced by fraud to enter into the contract to purchase the tractors herein contended, the measure of his damages would be the difference between the value of what he parted with and what he received under the contract. Morriss-Buick Co. v. Pondrom, 131 Tex. 98, 113 S.W.2d 889. No issue was submitted to the jury as to what was the value of the tractors the appellee traded in as a part of the original consideration for the purchase of the tractors herein involved. Appellee did not seek a recision of the contract and sue for the recovery of the value of the tractors he had delivered as a part of the purchase price of the tractors here involved. The effect of the holding of this case in denying appellant any recovery and cancelling the note and mortgage would be that appellee was damaged the amount of the balance due on the note and there is nothing in this record to justify such a holding.

In the case of Morriss-Buick Co. v. Pondrom, Tex.Civ.App., 84 S.W.2d 272 the trial court had assumed that the secondhand automobile given in part exchange for the alleged new car was worth the value placed upon it in the trade by the parties and used such value as a basis for the judgment without submitting same as an issue to the jury. In reversing the Pondrom case the Supreme Court at 113 S.W.2d 889 at 890 stated as follows:

“Briefly, the contention of Morriss-Buick Company is, that the correct measure of damages was the difference, if any, between the value of what Pon-drom parted with and what he received. The trial court assumed that Pondrom’s secondhand automobile given in part exchange for the alleged new car was worth the value placed upon it in the trade by the parties, and used such value as a basis for the judgment, without submitting same as an issue to the jury.
“The question has been the subject of much contrariety of opinion, both in and out of Texas. See 27 C.J. pp. 96, 97, 98, 99, and footnotes. The rule in Texas is stated in 27 C.J. p. 98 as follows: ‘In Texas it has been held by the supreme court that, where one is induced by fraud to enter into a contract to his loss, the measure of his damages is the difference between the value of what he parted with and what he received under the contract, such difference being regarded as the only actual loss involved and the difference between the real and represented value being regarded as too speculative to furnish a correct measure of damages.’
“This is the familiar rule announced by Judge Gaines in George v. Hesse, 100 Tex. 44, 93 S.W. 107, 8 L.R.A.,N.S., 804, 123 Am.St.Rep. 772, 15 Ann.Cas. 456. It is here claimed that because the parties agreed upon the value of Pondrom’s automobile, the rule does not apply. We think the facts are not essentially different from those found in a multitude of similar cases where the George-Hesse rule has been applied. In almost every case where different properties go into the consideration for the purchase of other property, the parties place a value upon each individual piece, so that the aggregate will equal the value placed upon that received. This obviously, we think, is its trading value, not its actual market value.”

In the case of Dallas Farm Machinery Company v. Reaves, 158 Tex. 1, 307 S.W.2d 233 the Supreme Court in discussing the Pondrom case, shows the difference required in a case as here involved and one where the party defrauded sought a re-cision of the contract. We sustain appellant’s second point of error and reverse the case.

Appellant’s remaining points of error concern the manner of the submission of special issues as to the market value because the issues did not state the locality nor time. The court in the charge instructed the jury that the market value as used in the charge was the price of the tractors asked about would have brought in cash in January of 1954 in Castro County, Texas. That was the date and place the contract of sale was entered into here in question. We think this instruction would relieve the court of again inserting that part in each issue. The judgment of the trial court is reversed and remanded.


author: RENFRO, Justice.

text:
    EMPLOYEE FINANCE COMPANY et al. Appellants, v. Crit C. LATHRAM, Appellee.
    No. 16376.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 28, 1962.
    Rehearing Denied Jan. 25, 1963.

      Abney, Howell, Abramson & Burleson, Fred S. Abney and Carl Abramson, Dallas, for appellants.
    Fritz & Vinson, and Edward C. Fritz, Dallas, for appellee.
   RENFRO, Justice.

The plaintiff Crit C. Lathram' recovered judgment against Employees Finance Company, First Finance Service, Texas Finance Company, Union Finance Company, W. Lee Moore, Jr., United Finance & Thrift Corporation, and State Loan & Finance Corporation for damages by reason of payment of usurious interest, and actual damages for physical injuries sustained by plaintiff and his wife by reason of defendants’ wrongful collection efforts. Plaintiff also plead for exemplary damages, but failed to obtain jury findings to support such damage.

Based upon the jury verdict (which required the jury to make 201 findings), judgment in the amount of $2,900 was adjudged against the defendants, jointly and severally, for actual damages resulting from unreasonable collection efforts.-

Defendants United Finance & Thrift Corporation and State Loan & Finance Corporation did not appeal. The other defendants named above appealed and will be referred to as appellants.

In their first two points of error the appellants object to issue No. 13 (similar issues were submitted separately as to each defendant) and its accompanying instruction. The issue read: “Do you find from a preponderance of the evidence that (name of defendant) through its agents, servants or employees made any unreasonable collection efforts against Mr. Crit C. Lathram, from on or about May, 1957?” The jury answered “Yes”.

The jury found that such collection efforts of (named defendant) were a proximate cause of any mental or emotional pain and physical illness of plaintiff.

Unreasonable collection efforts were defined by the court as efforts which a person of ordinary prudence in the exercise of ordinary care on his part would not have exercised under the same or similar circumstances.

Appellants contend that in order for collection efforts to be actionable it must be found that the creditor or his agents intentionally or wantonly inflicted mental distress of such a kind or character as was likely to cause physical harm.

An identical issue and instructions thereto were under attack in Moore v. Savage, Tex.Civ.App., 359 S.W.2d 95. The court held: “We reject the contentions. Wilful and malicious conduct are prerequisites to plaintiff’s recovery of exemplary damages, but not to actual damages. Negligent conduct of defendant which results in physical illness and mental or emotional pain, supports an award of actual damages. * * * It is our view that to make out a cause of action in ‘unreasonable collection effort’ cases, it is unnecessary .to plead or prove wilfulness or maliciousness, and that negligence causing physical illness will support recovery of actual damages. See: Wright v. E-Z Finance Co., Tex.Civ.App. (n. r. e.), 267 S.W.2d 602; Industrial Finance Ser. Co. v. Riley, Tex.Civ.App., 295 ; S.W.2d 498, affirmed 157 Tex. 306, 302 S. W.2d 652; Allison v. Simmons, Tex.Civ. App. (n. r. e.), 306 S.W.2d 206; Advance Loan Serv. v. Mandik, Tex.Civ.App., 306 S.W.2d 754; Western Guaranty Loan Co. v. Dean, Tex.Civ.App. (n. r. e), 309 S.W. 2d 857.” See Ware v. Paxton, Tex.Civ. App., 352 S.W.2d 520; Ware v. Paxton, Tex.Sup., 359 S.W.2d 897.

The appellants make no complaint that there is no evidence to support the jury findings of unreasonable collection efforts and the actual damages awarded therefor.

The points of error are overruled.

In point three appellants attack the issues on unreasonable collection efforts as being in global form.

The plaintiff pleaded and proved that all the appellants were guilty of unreasonable collection efforts. Separate issues were submitted as to each defendant concerning the question of unreasonable collection efforts. Under the record, as presented to us, we think there was no error in failing to ask the jury if each defendant committed each act of the multitude of acts in evidence. The issues as presented were, from the nature of this case, ultimate issues.

Appellants contend the court erred in sustaining exceptions to their plea of contributory negligence on the part of plaintiff. The plea in substance alleged that plaintiff and wife lived above their means and continued to contract debts and to make so many loans from various lenders that their combined commitments were beyond their ability to meet. We fail to see how plaintiff’s improvident condition was a defense to appellants’ unreasonable collection efforts.

In addition to actual damages, the judgment awarded plaintiff double damages against each appellant for usury payments received by each appellant.

Appellants contend the plaintiff waived submission- of necessary issues o; support usury penalties. .By cross-points plaintiff contends he should have been awarded more than the court allowed.

Appellants objected to proposed usury issues as being multifarious and evidentiary.

The appellants stipulated that the court might enter whatever judgment the plaintiff would be entitled to as if the jury had answered all usury questions favorably to the plaintiff. The issues were thereupon withdrawn from the charge and were not submitted to the jury.

Based upon the evidence, including scores of exhibits, and the stipulation, the amount of usury found by the court as to each appellant is fully supported by the record.

The evidence was not such as to require the court to find in plaintiff’s favor on some of his claimed payments of interest. The question of usury is generally one of fact. Andrews v. Hoxie, 5 Tex. 171. Since the parties in effect agreed to leave the question of usury to the determination of the trial court, we are bound by his finding that some of the disputed payments were not payments of interest.

Since the proposed issues were not submitted to the jury, it matters not that they may have been multifarious.

Appellants’ points five and six and plaintiff’s cross-points are overruled. •

The judgment is affirmed.


text:
    COOPER & WOODRUFF, INC., Appellant, v. Marcus SAUCEDO, Jr., Appellee.
    No. 7205.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 17, 1962.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellant.
    John B. Stapleton, Floydada, Conner & Walker, Spur, for appellee
   NORTHCUTT, Justice.

This is a venue matter. Marcus Saucedo, Jr., sued Cooper & Woodruff, Inc., for damages due to personal injury. The suit was filed in the district court of Hall County, Texas. The defendant filed its plea of privilege to be sued in Potter County, Texas, alleging it was a corporation with its principal office and place of business in Potter County, Texas. Plaintiff filed his controverting plea seeking to hold venue in Hall County, Texas, under and by virtue of Section 9a of Article 1995, Vernon’s Texas Civil Statutes. The pleas were submitted to the court without a jury. The court overruled the plea of privilege and held venue in Hall County. From that holding the defendant perfected this appeal. Saucedo will hereafter be referred to as ap-pellee and Cooper & Woodruff, Inc. as appellant.

It is the contention of appellant that there is no substantial and also insufficient evidence that the accident occurred in Hall County; that there is no evidence and also insufficient evidence that appellant was negligent in placing the ridge of dirt on the highway; that there was no evidence and also insufficient evidence and against the great weight and preponderance of the evidence to sustain the court’s finding that appellant breached any duty to warn appel-lee of the condition because the evidence conclusively showed the condition to be open, obvious, and itself constituting sufficient warning.

To sustain venue in Hall County under Section 9a of Article 1995 there were : three things for appellee to prove. Appellee had to prove an act or omission of negligence occurred in Hall County; that such. act or omission was that of appellant in person or that of its servant, agent, or representative acting within the scope of his employment and that such negligence was' a proximate cause of appellee’s injuries.

It is undisputed that the dirt or gravel, here in question was placed by appellant upon the highway where the accident occurred. It is also undisputed that there were no signs or warning of any kind given that the dirt or gravel was upon the highway. The accident happened four and a fraction miles west of the town of Memphis, Hall County, Texas. There is evidence that a point five miles west of Memphis, Hall County, Texas, was in Hall County, Texas.

From the undisputed record here we think the sole question to be determined is whether the condition which existed on the highway was so open and obvious that no notice or warnings were necessary. The day of the accident it was very foggy. Visibility was about three hundred feet. The man driving the pickup truck in which appellant was riding and under whose direction appellee worked testified he saw the dirt or gravel when he was about three hundred feet away and had no idea that it was anything more than just a small isolated pile of dirt; it looked quite small and appeared to be a small pile of dirt. His first impression when he first saw the dirt was that someone had tossed a few shovels full of dirt on the highway. There was no indication of any actual construction going on at that time on the highway at that point.

There are no findings of fact or conclusions of law here and since we are of the opinion that all fact issues had supporting evidence, we are bound by the holdings of the trial court. State v. Balli, Tex.Civ.App., 173 S.W.2d 522.

On appeal in a plea of privilege matter, if there is any evidence upon which 'the judgment can be upheld, it is our duty lo do so and every issue raised by the testimony will be resolved in favor of the judgment. John F. Buckner & Sons v. Allen, Tex.Civ.App., 272 S.W.2d 929 (writ dismissed) ; Jones v. Jones, Tex.Civ.App., 181 'S.W.2d 988 (writ refused WM).

Under appellant’s theory that the conditions were so open and obvious as to constitute a warning in itself that appellee should have appreciated the danger and the doctrine of “volenti non fit injuria” would apply, we do not believe that doctrine would apply here since no notices were given of the danger and appellee could not and did not realize the danger as to make an intelligent decision in time to’ avert the accident. City of Fort Worth v. Barlow, Tex.Civ.App., 313 S.W.2d 906 (NRE) and the cases there cited. Judgment of the trial court, is affirmed.


author: MORRISON, Judge.

text:
    Kenneth Lonzo TATUM, Appellant, v. The STATE of Texas, Appellee.
    No. 35030.
    Court of Criminal Appeals of Texas.
    Nov. 21, 1962.
    Rehearing Denied Jan. 30, 1963.
    Buck C. Miller, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Theodore P. Busch, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense the possession of marijuana; the punishment, 10 years.

Officer Strickland of the narcotics division of the Houston police testified that on the night in question, in company with other officers and armed with a search warrant, he went to appellant’s home; that a light was shining in the living room and, as he approached the house, he saw appellant and his wife seated on a couch; that he opened the unlocked screen door, knocked on the wooden door, and that a male voice said “Come in.” He testified that as soon as he opened the front door he identified himself to appellant, handed him the search warrant which both appellant and his wife read; that he and the other officers proceeded to search appellant’s home, where they found a quantity of a green plant substance in four different containers which was later identified by a chemist as 432 grams of marijuana and which was a sufficient quantity to make more than 1500 marijuana cigarettes.

Strickland’s testimony was corroborated by Officers Pollock and Stringfellow, who both stated that Strickland entered first, but neither of them heard Strickland’s knock on the door or appellant’s invitation to enter, and Pollock admitted that his pistol was drawn as he followed the other officers into the house.

Appellant did not testify in his own behalf but called Officer Baker, who testified that Strickland identified himself at the time he opened the door; that he did not remember hearing Strickland knock on the door or hear appellant say “Come in,” but explained that Strickland went in first and was already inside when he (the witness) stepped up on the porch.

Appellant’s contention that the search, under the facts stated, was shown to be illegal has been recently decided adversely to him by this Court in McCown v. State, Tex.Cr.App., 338 S.W.2d 732, wherein we stated that we found no expression of the Supreme Court of the United States contrary to our conclusion that Article 319, Vernon’s Ann.C.C.P., when its terms were complied with, authorized a legal search. The affidavit for the search warrant is in the terms recently approved by this Court in Davis v. State, 165 Tex.Cr.R. 2, 302 S. W.2d 419.

As we construe the evidence set forth above, it did not require the giving of the requested instructions concerning the legality of the execution of the search warrant.

The fact that certain witnesses may not have heard certain things done and said does not constitute evidence that the same did not transpire just as Strickland had testified.

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


author: McDonald, judge.

text:
    Dennis E. WATSON, Appellant, v. The STATE of Texas, Appellee.
    No. 35249.
    Court of Criminal Appeals of Texas.
    Jan. 23, 1963.
    No attorney on appeal for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., and Paul Filer, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant waived trial by jury and entered a plea of guilty before the court to the offense of robbery by assault. Punishment was assessed at life imprisonment.

Appellant, in person, waived confrontation by the witnesses and agreed and stipulated as to the evidence in the case and that such evidence was true.

Accordingly, it was stipulated that if Edward Schonn were present he would testify that on May 23, 1961, the appellant came into the store which he operated at Shadow Oaks and ordered him to lie flat on his face and that a friend accompanying the appellant took the contents of the cash register.

As State’s Exhibit No. 1, the signed, written confession of the appellant was introduced into evidence and in such statement the appellant admitted committing the robbery at the Shadow Oaks store from which they obtained about $180 in money.

The record contains no formal nor informal bills of exception. No brief has been filed in appellant’s behalf.

Tested in the light of Noble v. State, Tex.Cr.App., 336 S.W.2d 170, and King v. State, Tex.Cr.App., 341 S.W.2d 654, the evidence is sufficient to satisfy Art. 12, Vernon’s Ann.C.C.P., requiring the state to introduce evidence into the record showing the guilt of the defendant who waives a jury and pleads guilty to a felony less than capital.

Finding no reversible error, the judgment is affirmed.


text:
    Dennis E. WATSON, Appellant, v. The STATE of Texas, Appellee.
    No. 35250.
    Court of Criminal Appeals of Texas.
    Jan. 23, 1963.
    No attorney on appeal for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., and Paul Filer, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant waived trial by jury and entered a plea of guilty before the court to the offense of robbery by assault. Punishment was assessed at ninety-nine years in the penitentiary.

The record reflects that the indictment jointly charged the appellant and Dewey H. Rash with the offense of robbery by firearms but that prior to proceeding to trial a severance was granted and, upon motion by the state, the allegation of exhibiting a firearm, to-wit, a pistol, was abandoned and the offense was reduced to robbery by assault.

Appellant, in person, waived confrontation by the witnesses and agreed that the state might introduce evidence contained in the official files of the district attorney’s office, and stipulated that such evidence was true.

Accordingly, it was stipulated that “if Mr. Buford Roye were here, that he would testify” that on May 17, 1961, a white male walked into his U Tote ’M store located at 3240 Richmond Avenue in Houston, Harris County, Texas, and asked for a package of cigarettes; that as he dropped the cigarettes on the counter the person picked them up and stepped around the counter, holding in his hand a blue steel revolver, and stated: “ ‘All right. Let’s have the money, this is a stick up.’ ”; that at this time another white person entered the store carrying a pistol and they both forced the manager and the customer to lie down on the floor; that $282 in currency was removed from the cash register and approximately. $16 was removed from the billfold of the store manager.

As State’s Exhibit No. 1, the signed, written confession of the appellant was introduced in evidence and in the statement the appellant admitted committing the robbery at the U Tote ’M store in question.

The record contains no formal nor informal bills of exception, and no brief has been filed in appellant’s behalf.

Tested in the light of Noble v. State, Tex.Cr.App., 336 S.W.2d 170, and King v. State, Tex.Cr.App., 341 S.W.2d 654, the evidence is sufficient to satisfy Art. 12, Vernon’s Ann.C.C.P., requiring the state to introduce evidence in the record showing the guilt of the defendant who waives a jury and pleads guilty to a felony less than capital.

Finding no reversible error, the judgment is affirmed.


text:
    Dennis Ewing WATSON, Appellant, v. The STATE of Texas, Appellee.
    Nos. 35251-35254.
    Court of Criminal Appeals of Texas.
    Jan. 23, 1963.
    No attorney on appeal for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., and Paul Filer, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

By agreement of counsel for the state and for the appellant, and the appellant in his own proper person, and by approval of the court, these four cases were tried jointly.

Appellant waived trial by jury in each of the four respective cases and entered a plea of guilty before the court in each case to the offense of possession of a forged instrument in writing. The punishment in each case was fixed by the court at five years in the penitentiary. No effort was made to cumulate the sentences.

Appellant, in person, waived confrontation by the witnesses and agreed and stipulated as to the evidence in each case and that such evidence was true.

Such evidence shows that at the time appellant was arrested on June 11, 1961, in Harris County, Texas, he had in his possession four checks in the respective sums of $63.31, $73.90, $76.23, and $76.02, drawn on the Spring Branch State Bank, made payable to Lewis H. Hyle, and shown to be signed by “B. M. Barker,” but that Mr. Barker did not sign the checks nor did he give anyone his consent and permission to sign his name thereto. These four checks were all introduced into evidence and shown in the record of each of the four cases as a state’s exhibit.

Tested in the light of Noble v. State, Tex. Cr.App., 336 S.W.2d 170, and King v. State, Tex.Cr.App., 341 S.W.2d 654, the evidence is sufficient to satisfy Art. 12, Vernon’s Ann. C.C.P., requiring the staté to introduce evidence into the record showing the guilt of the defendant who waives a jury and pleads guilty to a felony less than capital.

The records contain no formal nor informal bills of exception and no brief has been filed in these four cases in appellant’s behalf.

Finding no reversible error, the judgment in each of these cases is affirmed.


text:
    Dennis Ewing WATSON, Appellant, v. The STATE of Texas, Appellee.
    No. 35255.
    Court of Criminal Appeals of Texas.
    Jan. 23, 1963.
    No attorney on appeal for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., and Paul Filer, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant waived trial by jury and entered a plea of guilty before the court to the felony offense of unlawfully possessing a pistol. Art. 489c, Vernon’s Ann.P.C. Punishment was assessed at five years in the penitentiary.

Appellant, in person, waived confrontation by the witnesses and agreed and stipulated as to the evidence in the case and that such evidence was true.

Accordingly, it was stipulated that the appellant had previously been convicted of burglary as alleged in the indictment, and that if Officer J. W. Maddox were present in court he would testify that on May 25, 1961, he arrested the appellant in Houston, Harris County, Texas, and, upon a search of his person, found a .38 caliber Webley blue steel revolver in the waistband of his trousers.

The record contains no formal nor informal bills of exception. No brief has been filed in appellant’s behalf.

Tested in the light of Noble v. State, Tex. Cr.App., 336 S.W.2d 170, and King v. State, Tex.Cr.App., 341 S.W.2d 654, the evidence is sufficient to satisfy Art. 12, Vernon’s Ann.C.C.P., requiring the state to introduce evidence into the record showing the guilt of the defendant who waives a jury and pleads guilty to a felony less than capital.

Finding no reversible error, the judgment is affirmed.


author: DICE, Commissioner.

text:
    Perry Morrisson PRESCOTT et al., Appellants, v. The STATE of Texas, Appellee.
    No. 35193.
    Court of Criminal Appeals of Texas.
    Jan. 16, 1963.
    McCarthy, Carnahan, Fields & Haynes, Amarillo, for appellant,
    Frank J. Baughman, Dist. Atty., Oth O. Miller, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal by Dora Dean Prescott and Cloyd Coody, as sureties in a recognizance of Perry Morrisson Prescott, the defendant-principal, from a final judgment of the 47th Judicial District Court of Potter County forfeiting said obligation.

The recognizance, in the amount of $5,-000, was entered into by the appellants in the 47th District Court of Potter County on December 31, 1959, on an appeal by the principal, Perry Morrisson Prescott, from an order revoking probation granted to him in Cause No. 9865, styled The State of Texas vs. Perry Morrisson Prescott, upon his conviction for the offense of arson with punishment assessed at confinement in the penitentiary for three years.

Such recognizance was conditioned as provided by law, and bound the defendant-principal, Prescott, to appear before the court instanter “and there remain from day to day and from term to term of this Court, and not depart therefrom without leave of the Court, in order to abide the judgment of the Court of Criminal appeals of the State of Texas in said cause.”

On October 18, 1961, the court’s judgment revoking probation was affirmed by this court in a per curiam opinion, not reported, and on November 3, 1961, mandate was issued by the clerk.

On February 27, 1962, judgment nisi was entered in the 47th District Court of Potter County on the recognizance, upon failure of the principal to appear in said court when the cause was called for hearing in order that he might be compelled to abide the mandate issued by the clerk of this court.

Citation was duly issued and served upon the appellant-sureties, to which they answered and appeared in the cause. After a. hearing, final judgment was rendered by ■the court on May 24, 1962, against the •principal and appellant-sureties for the full amount of the recognizance.

At the hearing, appellant-sureties sought to exonerate themselves from liability on the recognizance by showing that pending the'áppéal to this court by the principal-defendant from the judgment revoking probation and before issuance of the mandate in the: cause on November 3, 1961, the principal-defendant was adjudged insane and committed to the Wichita Falls State Hospital, on May 23, 1960, in an insanity hearing held in the 108th District Court of Potter County, in Cause No. 10,577, wherein he stood charged by indictment with the subsequent offense of drunken driving.

It is appellants’ contention that after the principal was found to be insane and committed to the state hospital the court was without legal authority at the subsequent proceedings to order forfeiture of the recognizance and that before said recognizance could be forfeited it was incumbent upon the state to show that there had been an adjudication of the principal’s restoration to sanity.

In support of their contention, appellants rely upon Sec. 5 of Art. 932b, Vernon’s Ann.C.C.P., which provides that when a defendant is found to be insane and committed to a state hospital, all further proceedings in the case against him shall be suspended until he becomes sane, and reliance is also had upon Sec. 6 of the statute, which prescribes the procedure for trial on the issue of recovery of sanity of an accused committed to a state hospital, under the statute.

Reference is further made by appellants to Sec. 3 of Art. 932b, supra, which provides that if the question of sanity of a defendant is raised after his conviction prior to the pronouncement of sentence in a felony case or while an appeal is pending, the judge of the convicting court, upon sufficient proof, shall impanel a jury to determine whether the defendant is sane or insane, and if the jury finds him insane the judge shall order him committed to a state hospital, and if the jury finds him sane the proceedings in the case against him shall continue.

Appellants further rely upon the opinions of this court in Witty v. State, 69 Tex.Cr. R. 125, 153 S.W. 1146, and Gephart v. State, 157 Tex.Cr.R. 414, 249 S.W.2d 612, decided prior to the enactment of Art. 932b, supra, which held that the adjudication by a jury in county court that an accused was insane —while not a bar to his prosecution for a felony in the district court — did constitute presumptive evidence of insanity and made out a prima facie case to be overcome by the state.

We do not deem the provisions of the statute and decisions relied upon by appellant as here controlling.

Art. 436, V.A.C.C.P., enumerates the causes, “and no other,” which will exonerate the defendant and his sureties from liability upon the forfeiture of a bond. The article does not provide as a cause for exoneration the adjudication of insanity of the defendant prior to the appearance date.

Subdivision 3 of the statute (Art. 436, supra) provides as a cause which will exonerate, the following:

“The sickness of the principal or some uncontrollable circumstance which prevented his appearance at court, and it must, in every such case, be shown that his failure to appear arose from no fault on his part. The causes mentioned in this subdivision shall not be deemed sufficient to exonerate the principal and his sureties unless such principal appear before final judgment on the recognizance or bail bond to answer the accusation against him, or show sufficient cause for not so appearing.”

While confinement in a mental hospital under an adjudication of insanity could constitute a cause for exoneration under this provision of the statute and is a cause under the weight of authority in other jurisdictions (7 A.L.R., p. 394), the proof does not show that such was the reason for the principal’s failure to appear in the present case.

The record before us affirmatively reflects that prior to the time the principal was called upon to appear in district court after issuance of the mandate, he was returned to the Amarillo jail from the Wichita Falls State Hospital, upon the authority of the hospital, to stand trial for a felony, and that while so confined he escaped or otherwise took leave and has not since been seen.

For sickness or any cause to exonerate under Subd. 3 of the statute, it must be shown that the principal’s failure to appear arose through no fault of his own, and then such is not deemed sufficient unless the principal appear before final judgment on the bond or recognizance to answer the charge against him or show sufficient cause for not appearing. Markham v. State, 33 Tex.Cr.R. 91, 25 S.W. 127, and Holley v. State, 70 Tex.Cr.R. 511, 157 S.W. 937.

No proof was offered by the appellants that the principal’s failure to appear was through no fault of his own. The principal made no appearance before the court in the present case before entry of final judgment on the forfeiture of the recognizance and no proof was offered by appellants as to why he did not appear.

Under the record; the court did' not err in rendering final judgment against the principal and appellant-sureties, upon forfeiture of the recognizance entered into by them.

The judgment is affirmed.

Opinion approved by the Court.


author: BELCHER, Commissioner.

text:
    Robert E. DEITLE, Appellant, v. The STATE of Texas, Appellee.
    No. 35111.
    Court of Criminal Appeals of Texas.
    Jan. 16, 1963.
    Robert E. Deitle, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The offense is defrauding with a worthless check in the sum of $750; the punishment, ten years and a fine of $2,500.

The indictment herein is as to form substantially the same as those in Goodwin v. State, 167 Tex.Cr.R. 485, 320 S.W.2d 852, and Gutierrez v. State, 171 Tex.Cr.R. 493, 352 S.W.2d 124.

The $750 check which is relied upon for conviction was signed by the appellant, and payable to and drawn on the First State Bank of Aransas Pass, and it was paid in money when it was presented by the appellant to Ruth Donelson, teller at the window of the First State Bank of Aransas Pass.

While testifying, Ruth Donelson identified the appellant as the person she had seen for the first time when he came to her window and opened an account with the bank, on January 23, 1958, by making a deposit with a check signed by him for $2,500 drawn on a bank in the State of Oklahoma. She testified that the check was sent in for collection, that a “hold” of seven days was placed on his account, and that she told appellant his checks on the account would not be honored until the $2,500 check had cleared. The next day, the appellant appeared again at Mrs. Donel-son’s window at the bank and presented to her three checks. Appellant directed that one of the checks, which was drawn on an Oklahoma bank, be deposited to the account of Tarrant Bros. The second check in the sum of $1,262.50, drawn on a Dallas bank, was payable to appellant and signed Cooper’s Carpets, by Gail Cooper, and deposited to appellant’s “hold” account; and the third check, being the check described in the indictment in the amount of $750, signed by the appellant, was payable to and drawn on the First State Bank of Aransas Pass. Appellant made no statement pertaining to the $750 check at the time he presented it to Mrs. Donelson at the window except that he wanted it paid in money, and Mrs. Donelson then gave him $750 in money.

Shortly after the appellant left the bank Mrs. Donelson “realized something was wrong”, consulted with an officer of the bank, and it was determined immediately that there was no account in either of the out-of-town banks to cover the checks deposited to appellant’s “hold” account.

The testimony of the vice-president of the Aransas Pass bank and that of another witness who saw the appellant in Aransas Pass on the date in question substantially corroborates that of the witness Donelson.

The appellant did not testify but recalled as a witness the vice-president of the bank, who testified that in his opinion the signatures on four checks, including the $750 check, were written by the same person; that the face of the $750 check bore a notation meaning “no account”, and that the notation on the back “1 / 25 / 58” probably meant the date that the check was handled by the bank.

The evidence reveals that the bank teller not only had knowledge of the status of the account of the appellant in the Aransas Pass bank, but that she as teller of the bank had at the time she paid the $750 check the means at hand of detecting the true condition of the account. Therefore the bank teller could not have been induced to part with the money by means of some false or deceitful pretense or devise or fraudulent representation as to such account.

The injured party in cases of this nature cannot be defrauded by any representation made of a fact he knows or could have known by the exercise of ordinary prudence in using the means at hand to detect the true condition of the account. Nickson v. State, 147 Tex.Cr.R. 316, 180 S.W.2d 161; McKinzie v. State, 167 Tex.Cr.R. 335, 320 S.W.2d 674.

It is concluded that the evidence is insufficient to support the conviction.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    Nina Moore McAFEE, alias Virginia Moore McAfee, Appellant, v. The STATE of Texas, Appellee.
    No. 35232.
    Court of Criminal Appeals of Texas.
    Jan. 23, 1963.
    Henry Stollenwerck, Dallas, for appellant.
    Henry Wade, Dist. Atty., H. D. Nicholson and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is unlawfully carrying a pistol; the punishment, a fine of $400.

Trial was before the court and facts which are sufficient to sustain the conviction were stipulated.

The sole ground for reversal is the overruling of appellant’s plea of former jeopardy based upon a judgment of conviction in Criminal District Court for assault with a prohibited weapon, a two year suspended sentence being assessed.

The indictment in said cause alleged that the appellant herein “did, while then and there unlawfully carrying on and about her person a pistol, wilfully and upon E. M. Lovell make an assault.”

In the absence of any allegation that the assault charged was made with the pistol, the indictment alleged no offense which the District Coitrt had jurisdiction to try.

Jeopardy will attach only upon a good and sufficient accusatory pleading. Jurisdiction of the court trying the prior cause is an essential prerequisite where jeopardy is pleaded. Ogle v. State, 43 Tex. Cr.R. 219, 63 S.W. 1009; 10 Tex.Jur.2d, Criminal Law, Sec. 121.

The District Court being without jurisdiction to enter the judgment of conviction pleaded in bar of this prosecution, the question of whether a conviction for assault with a prohibited weapon would bar a subsequent prosecution for unlawfully carrying such weapon need not be decided.

We observe however that we have held that a conviction for murder by accident while driving drunk would constitute a bar to a subsequent prosecution for such drunk driving. Such holding would appear to be analogous. See Paxton v. State, 151 Tex. Cr.R. 324, 207 S.W.2d 876.

The judgment is affirmed.


text:
    Mint Preston RAGER, Appellant, v. The STATE of Texas, Appellee.
    No. 35082.
    Court of Criminal Appeals of Texas.
    Jan. 16, 1963.
    No Attorney on Appeal, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is burglary; the punishment, two years.

The witness Korff testified that he lived inside his place of business, that on the night in question he heard a noise in the area of the front door which led into the office section of the building, that he went to investigate and discovered appellant inside the office and a companion in the act of entering the front door. Korff asked the two how they had gotten in and, after seeing the glass on the floor, charged them with having broken in. The companion fled at once while appellant said, “now just a minute” several times while retreating to the door and he then fled. Korff stated that he had seen appellant seated on the curb in the neighborhood earlier in the evening. It was shown that he picked appellant out of a lineup following his arrest.

Appellant did not testify but called his father and the owner of a bar by whom he attempted to establish an alibi.

We find the evidence sufficient to support the conviction.

No brief has been filed, but appellant brings forward several bills of exception in which he complains of the court’s charge. As qualified, they reflect that the court allowed counsel 90 minutes to prepare his objections to the charge and that none was presented, that the charge was read to the jury and argument was begun before any obj ections were made. There is no showing in the bill that appellant requested additional time in which to prepare his objections. Under this record, the objections came too late. Spears v. State, 148 Tex.Cr., 86, 184 S.W.2d 629. We have, however, examined the objections and find them to be without merit.

Finding no reversible error, the judgment of the trial court is affirmed.


text:
    Ex parte Edward McNEELY.
    No. 35033.
    Court of Criminal Appeals of Texas.
    Nov. 28, 1962.
    Rehearing Denied Jan. 23, 1963.
    Alan Haley, Houston, for appellant.
    Frank Briscoe, Dist. Atty., and Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

This is an extradition case.

The demand of the Governor of the State of Mississippi was not executed by him or anyone performing his executive functions as provided by Section 1 of Article 1008a (Uniform Criminal Extradition Act), Vernon’s Ann.C.C.P. The record is therefore void of “a statement of the Executive Authority of the demanding state that the person claimed” is subject to extradition, as is required by Section 3 of such Act.

This question does not appear to have been heretofore before this Court but was decided recently in McGahagin v. State, 131 So.2d 425 (1961), wherein the Alabama Court had before it a demand from the State of California signed “Edmund G.,” which the Court held could not be regarded as the official signature of the Governor of California. In the case at bar, the line for the signature of the Governor of Mississippi is blank, and therefore presents a stronger case than McGahagin.

Also, recently in Ex parte Harck, 160 Tex.Cr.R. 602, 274 S.W.2d 74, this Court held that where the record shows that in fact there was no demand from the Governor of Arizona the presumption as to the regularity of the Executive Warrant of the Governor of this State was overcome.

The order of the District Court is reversed, and appellant is ordered discharged.


text:
    Howard ROSS, Appellant, v. The STATE of Texas, Appellee.
    No. 35230.
    Court of Criminal Appeals of Texas.
    Jan. 16, 1963.
    W. D. Hollars, Plainview, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for procuring; the punishment, two months in jail and a fine ■ of $75.

It'appears from the record that this case was filed in the County Court of Hale County, and that the trial on the merits was had before Judge C. L. Abernethy the regular judge of the County Court of Hale County.

The record further shows that the motion for a new trial in this case was heard by Frank R. Day, Special County Judge of Hale County; that he heard the evidence submitted thereon and refused the motion to which action of. the Special Judge, the appellant in open court excepted and gave notice of appeal.

The record fails to show the mode of the selection as prescribed by statute of the special judge that heard and refused the motion for a new trial, and before whom notice of appeal was given and recognizance entered. It also fails to show that he took the oath of office as required by Art. 555, Vernon’s Ann.C.C.P. 33 Tex.Jur.2d 460, Sec. 85; 1 Branch 2d 320, Sec. 278; Baker v. State, 159 Tex.Cr.R. 130, 261 S.W. 2d 593; Parish v. State, Tex.Cr.App., 268 S.W.2d 149; West v. State, Tex.Cr.App., 358 S.W.2d 132

For the reasons pointed out the judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: PER CURIAM.

text:
    A. A. SCHAEFFER v. The STATE of Texas.
    No. 34934.
    Court of Criminal Appeals of Texas.
    Jan. 23, 1963.

      James L. McNees, Jr., Dallas, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   PER CURIAM.

The offense is practicing medicine without a license; the punishment, 1 day in jail and a fine of $500.

It is properly made to appear that since the appeal in this case the appellant has died. Accordingly, the prior opinion is withdrawn and the appeal is abated.


text:
    Daniel William GRUNDSTROM, Appellant, v. The STATE of Texas, Appellee.
    No. 35142.
    Court of Criminal Appeals of Texas.
    Jan. 16, 1963.
    Ryan & Griffitts by Thomas L. Ryan, Herbert H. Landau, Gene Barrington, Houston, for appellant.
    Henry Wade, Dist. Atty., George Milner, Jim Miller and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is robbery; the punishment, 25 years.

The appellant was identified as the person who came in to the Tower Hotel Courts about 3:30 A.M.; arrived with a pistol and with what appeared to be a yellow napkin over the lower part of his face. He pointed the cocked pistol at E. C. Habern, the night clerk, and said “Get up and get your money out of the cash drawer,” and threatened to blow his head off if he did not hurry.

Appellant produced a brown paper sack and said “Hurry up and put the money in the sack.”

Habern complied, and also surrendered to the man the money in his wallet.

The robber directed Habern and Rubin Gudino, the bell boy, to lie down on the floor and he left with the money.

A short time later police officers stopped a 1953 Mercury automobile in which appellant was a passenger. The driver was asked for his driver’s license and said he did not have one.

While one of the officers was checking a “license suspension” list the other officer searched the car and found a loaded .22 caliber pistol and a brown paper sack containing $220 in bills and $7.00 in change.

When confronted with the pistol and sack of money, the appellant told the officer “This other boy didn’t have nothing to do with it.”

In a police line up the next morning Ha-bern, the night clerk, and Rubin Gudino, the “bell hop”, identified appellant as the person who committed the robbery, and they identified him at the trial.

Appellant’s brief presents as grounds for reversal the contention that the search of the automobile in which appellant was a passenger was unlawful, and the evidence obtained as a result thereof was inadmissible.

We find it unnecessary to pass upon the claimed error of the trial court in admitting the evidence relating to the search and the fruits thereof. Police Officer K. W. Heard testified, without objection:

“Q. All right, did you find anything in that Mercury that you took possession of?
“A. Yes sir, I did.
“Q. All right, first of all where did you find it?
“A. I found it, what I would call the righthand kick board of the car, it’s below the glove-compartment, just — the fire wall, kick board; it’s a paste board, between the body and the inside of the car.
“Q. All right, now what did you find concealed behind that kick board ?
“A. I found a pistol, a revolver; I found a brown paper sack containing bills and change, and a white handkerchief, inside there, between the body and the cardboard. * * *
“Q. All right, now then what did the boys or the men in the car say to you at that time?
“A. The person that was the passenger in the car told me, he says, ‘This other boy didn’t have nothing to do with it.’ * * *
“Q. I show you what has been marked State’s Exhibit No. 1 and ask you if you can identify that weapon?
“A. Yes sir, I can.
“Q. What was the first time you saw it?
“A. It was inside of the Mercury.
“Q. Behind the kick board that you told us about?
“A. Yes sir. * * *
“Q. I’ll ask you whether or not you found any shells in the gun?
“A. Yes sir; the gun was fully loaded, nine rounds.
“Q. I show you what has been marked State’s Exhibit No. 2. Identify, please, for the record what that is?
“A. That is a .22 caliber long shell.”

Having completed his examination of the witness, the pistol (Exhibit 1) and the shell (Exhibit 2) were offered in evidence. Appellant was permitted to examine the witness in the jury’s absence and the officer having testified that the driver was stopped because of a “loud muffler” and was under arrest for “loud muffler and no operator’s license”, appellant objected on the ground that the search and seizure were unlawful.

In view of the evidence above quoted, and the absence of any objection or motion to have it withdrawn, any error in the admission of the exhibits was waived and would not be ground for reversal. See Texas Digest, Criminal Law, : 1169(2-a); Phillips v. State, 168 Tex.Cr.R. 463, 328 S.W.2d 873; Cruz v. State, 170 Tex.Cr.R. 611, 343 S.W.2d 457.

We observe that Art. 6701d, Sec. 153, Vernon’s Ann.Civ.St. authorizes arrest without warrant for violation of any provision of said Article 6701d.

The judgment is affirmed.


text:
    Thomas JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 35215.
    Court of Criminal Appeals of Texas.
    Jan. 23, 1963.
    Wardlaw & Cochran, Fort Worth, for appellant.
    Henry Wade, Dist. Atty.; H. D. Nicholson, Sam Paternostro and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellant was convicted for driving an automobile upon a public highway while his operator’s license was suspended; the punishment was assessed at 60 days in jail and a fine of $200.

Trial was had before a jury.

The disposition of this cause makes a summary of the facts unnecessary other than to state that the evidence is sufficient to support the conviction. Goolsby v. State, 166 Tex.Cr.R. 180, 312 S.W.2d 654.

The appellant did not testify.

While testifying for the state an officer who had the custody of the official driving records of the Texas Department of Public Safety was examined by counsel for the state as follows:

“Q. Officer Poynter, there’s been some discussion as to whether or not this particular license was suspended. I believe you testified that the license which was issued to this Defendant on March the 11th, 1960, which went into suspension, was the license which was suspended at the time that this man was picked up * * * is that correct?
“A. Yes sir, it was.
“Q. Now, what do your records reflect as to this man making false affidavits and getting another driver’s license? Will you tell this jury about that, please?”

To which the appellant objected on the ground that it indicated that he was guilty of a separate and distinct offense, and he then moved for a mistrial because the question and statement in the presence of the jury about making false affidavits in connection with his driver’s license were separate offenses, and were detrimental and prejudicial to his rights before the jury. The objection was sustained and the motion for a mistrial was overruled, and the appellant reserved his exception. Then upon request the court instructed the jury to disregard the question for any purpose.

The state takes the position that although the question was improper, there was evidence of the use of another or fictitious name on a license of the appellant before the jury without objection. The record shows that the appellant had before been issued a license in the name of Tom Jackson, whereas the license allegedly suspended was issued in the name of Thomas Jackson. Further, that the rulings and instruction of the court on said question removed any harmful effects before the jury, hence no reversible error is presented.

The question directed to the custodian of the driving records division of .the Texas Department of Public Safety asking that he tell the jury what the records reflect as to appellant making false affidavits and getting another driver’s license implies and conveys to the jury that appellant had made false affidavits in getting his driver’s license which are separate and extraneous offenses from the one here charged.

Notwithstanding the rulings and instructions of the court, and the variances between the names on the licenses, it appears that the jury could not have wholly disregarded the question and the facts and circumstances surrounding it because of the enhanced penalty assessed. From the record, it cannot be reasonably concluded that the question-statement and the surrounding circumstances did not prejudicially affect the rights of the appellant. Mounts v. State, 148 Tex.Cr.R. 177, 185 S.W.2d 731, and cases cited therein.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


text:
    O’Dell RYAN et al., Appellants, v. O. W. MATHEWS, Appellee.
    No. 7204.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 17, 1962.
    Rehearing Denied Jan. 21, 1963.
    See also 320 S.W.2d 44.

      Lemon, Close & Atkinson, Perryton, for appellants.
    Sanders, Scott, Saunders, Brian & Humphrey, Amarillo, for appellee.
   NORTHCUTT, Justice.

O. W. Mathews filed this suit against O’Dell Ryan and Perryton National Bank, a corporation, to recover upon two contracts for pasturage of cattle. Since it was agreed that if Mathews should recover judgment against Ryan that the same judgment should be against Perryton National Bank, we will not consider the bank any further herein.

The two contracts here in question are identical except as to dates. The first contract was dated September 13, 1956, and the second contract was dated September 26, 1956. Under the contracts Ryan was designated as first party and Mathews as second party. The terms of the contracts were as follows:

“WHEREAS, First Party is desirous of pasturing cattle on irrigated crops owned by Second Party and Second Party is desirous of taking the livestock in to pasture them under the following terms and conditions, to-wit:
“1. First Party agrees to deliver 300 head of cattle to Second Party’s place for pasture between the 1st of November, 1956, and the 1st of December, 1956. The cattle are to be weighed prior to such delivery.
“2. Second Party agrees to furnish all feed, salt and water as may be required and to be responsible for generally taking care of the cattle and in particular, to see that all strays are located and returned.
“3. First Party agrees to take the above described cattle off the pasture between the 1st of April, 1957, and the 15th of April, 1957. Immediately after being taken off pasture, cattle then on hand are to be weighed. After the cattle are weighed and a 2% per cent shrinkage is taken from their weight at the time they are taken off pasture, the beginning weight is to be deducted from their weight at the time they are taken off pasture (less shrinkage) and First Party then agrees to pay Second Party the sum of fifteen cents per pound on the gain, if any, as the consideration for pasturing such cattle.”

Ryan delivered the 600 head of cattle to Mathews and they were weighed before delivery. Thereafter, because of a severe storm, a great number of the cattle were frozen to death. There were remaining after the storm 419 head. These 419 were weighed when taken off of the pasture. This suit was for the gain in weight of the 419 head remaining. It was the contention of Mr. Ryan that he did not owe anything because there was no gain in weight as the 600 head weighed more when put on the pasture than the 419 did after being taken off pasture. It was contended by Mathews, both by agreement and by custom, that the death of animals was Ryan’s loss and Ryan contended the parties agreed that Ryan’s liability for pasture depended on the total cattle herd weighing more when taken off pasture than when put on.

The case was tried to a jury upon special issues. In reply to the special issues submitted, the jury found that before Mathews signed the contract in question, Ryan agreed to stand the death loss among the cattle mentioned in the contract; that during the time in question and where the cattle were on pasture, it was the custom in pasturing cattle upon the gain basis for the owner of the cattle to stand the death loss; that Mathews did not fail to use that degree of care in taking care of the Ryan cattle that a person of ordinary care and prudence would have used under the same or similar circumstances and also found that the loss of the cattle during the March 23, 1957, storm was due to the act of God. Judgment was rendered for Mathews for the sum of $7,465.05’ with interest from the date the cattle were taken off the pasture, making a total of $9,732.75. From that judgment appellant perfected this appeal.

The amount of gain by the 419 head was determined by taking the weight of the 600 head when received which was 240,005 pounds, being an average of 340 pounds for each head and then multiplying 340 by 419 making the weight of the 419 head when received. The 419 head were weighed when removed from the pasture and the amount of gain for the 419 head less the 2%' per cent shrinkage was 49,767 pounds.

Appellant presents this appeal upon the theory that the court erred in admitting evidence that Mr. Ryan agreed to stand the death loss, and also as to admitting evidence of custom, since the contract was not ambiguous and the parties expressly agreed the liability for pasture depended on the total cattle herd weighing more when taken off pasture than when put on, and there was not any evidence or in the alternative insufficient, competent, admissible evidence to authorize the submission of special issues, and in the alternative the answer of the jury to special issues one and two were against the great weight and preponderance of the evidence and the verdict or judgment based thereon would be manifestly unfair and unjust.

On a former hearing on a venue matter we held in this same case at 320 S.W.2d 44 as follows:

“A very careful study of the contracts involved convinces us there is not any wording in the instruments that make provision as to who wottld stand the death loss of the cattle. To say the least, they are not so plain as to reflect no shadow of doubt as to their meaning. This being true the use of the parol evidence rule should not be invoked to defeat an intention and understanding between the parties as to who would stand such loss, which this record shows could be clearly proven, and without which appellant, from the record in this case, has no cause of action for almost a half year of pasturage on 600 head of cattle. In Ellisor v. Kennedy,, 128 S.W.2d 842, 844 (writ refused) the Court of Civil Appeals at Galveston said:
« < “'j'he ultimate purpose of the courts should be to arrive at the real intention of the parties to a contract, and to give the contract force accordingly. It is an important rule of construction that a written contract, plain and reflecting no shadow of doubt as to its meaning, shall be the sole evidence of the intention of the contracting parties. But, if the contract is not clearly unambiguous, the rule should not be permitted to defeat an intention and understanding which can be clearly proven by parol, and to lead to a conclusion which is absurd.”
“Even if the written contracts herein are not ambiguous the evidence of Hall Jones and appellant was admissible under the record made in this case for the purpose of ascertaining the real intention of the parties. In Scott v. Walden, Tex.Com.App., 140 Tex. 31, 165 S.W.2d 449, 452, 154 A.L.R. 1 it is said:
■“'Whether or not, strickly speaking, the language of the grant is ambiguous need not be discussed, for even though it is not ambiguous on its face parol evidence was nevertheless properly admitted to apply the language to the subject with which it dealt for the purpose of ascertaining the real intention of the parties. First National Bank of Amarillo v. Rush, Tex.Com.App., 210 S.W. 521; Ryan v. Kent, Tex.Com. App., 36 S.W.2d 1007; Guardian Trust Co. v. Bauereisen, 132 Tex. 396, 121 S.W.2d 579; Murphy v. Dilworth, 137 Tex. 32, 151 S.W.2d 10047
“Our Supreme Court has announced practically the same rule when it said:
“ ‘It is proper to consider parol testimony as to the circumstances surrounding the parties out of which the contracts grew, not to add to or vary their terms, but to apply the contracts to the subjects with which they deal for the purpose of ascertaining the real intention of the parties.’ Guardian Trust Co. v. Bauereisen, 132 Tex. 396, 121 S.W.2d 579, 583.
“This Court in Archer v. Skelly Oil Co. [Tex.Civ.App.], 314 S.W.2d 655 has recently followed the same rules as those just quoted.
“We are not unmindful of the fact that a separate agreement could not be proven by parol if it is in conflict with the plain words of the written contract, absent an allegation of fraud, accident or mistake, Bryant Co. v. Hamlin Independent School District, 118 Tex. 255, 14 S.W.2d 53. but as we view the written contracts with which we are here concerned they are practically void of any language that would even tend to show such agreement. To say the least they are not unambiguous on the subject. This is particularly true when we consider that the well settled law of this State requires that a contract should be construed most strictly against the party who prepared it and tendered it to the other for acceptance, Brandt jen & Kluge, Inc. v. Tarter, Tex.Civ.App., 236 S.W.2d 550; Masterson v. Allen, Tex.Civ.App., 69 S.W.2d 539 (writ refused), which was Ryan in our case. Thus, ‘It may be shown that a parol contract was made independently, wholly collateral to, and distinct from, a written one made at the same time. In such cases, the parol evidence is used, not to vary the terms of the written instrument, but to show either that it is inoperative as an entire and independent agreement, or that it is collateral and irrelevant ; and, in many instances, the terms reduced to writing may constitute but a small part of the real contract.’ Roberts v. Bonaparte, 1890, 73 Md. 191, 20 A. 918, 919, 10 L.R.A. 689. A similar rule has been recognized by the Supreme Court of Tennessee in Turner v. Abbott, 116 Tenn. 718, 94 S.W. 64, 6 L.R.A.,N.S., 892.”

We believe we were correct in holding in the former hearing as above quoted and hold the same here.

This case was tried upon the theory that the contracts in question were ambiguous. This placed the burden upon Mathews of showing what was the real meaning of the parties to the contract. However, should we be wrong in holding the contracts were ambiguous and should interpret the contracts as not being ambiguous as contended by Mr. Ryan, we would be compelled to reach the same conclusion that Mr. Mathews was entitled to recover for the gain on the 419 head of cattle. The contracts provide “that immediately after being taken off pasture, cattle then on hand (emphasis ours) are to be weighed. After the cattle are weighed and a 2% per cent shrinkage is taken from their weight at the time they are taken off pasture, the beginning weight is to be deducted from their (emphasis ours) weight at the time they are taken off pasture (less shrinkage) and first party then agrees to pay second party the sum of per pound on the gain, if any, as a consideration for pasturing such cattle.” As we see the contention of appellant, the cattle then on hand could only apply to the 419 head of cattle, as those were the only cattle then on hand to be removed from pasture and weighed. The sentence preceding that just above quoted from the contract provides for the removal of the “above described cattle” which has reference to 600 head, then to explain what was the real intention of the parties to the contract since they disagreed as to the terms the court was correct in admitting the evidence to determine that intention. Under this record we think the proper issues were submitted by the court, and the evidence justified the findings of the jury. Judgment of the trial court is affirmed.


author: NORTHCUTT, Justice. DENTON, Chief Justice

text:
    R. C. FREEMAN, Appellant, v. Ronald DAVIS d/b/a Memphis Tractor Sales & Service, Appellee.
    No. 7201.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 3, 1962.
    Rehearing Denied Jan. 7, 1963.
    A. Curtis Neal, Amarillo, for appellant..
    E. Byron Singleton, Amarillo, for appel-lee.
   NORTHCUTT, Justice.

Ronald Davis d/b./a Memphis Tractor &- Supply, being the same as Memphis Tractor-Sales & Service, brought this suit against R. C. Freeman to recover a deficiency balance upon a sales contract. One, Dale Cunningham, was a tractor salesman during; July 1960 at which time he contacted Mr.. Freeman as a possible purchaser of a tractor. At this meeting, Mr. Freeman told1 Cunningham he was interested in buying a-, tractor of the particular type here in question. Cunningham at that time drew up the-contract here in question. Mr. Freeman-signed the contract and Cunningham signed’, the same as a witness to Freeman’s signature. Cunningham was a mere go-between for Freeman and Memphis Tractor & Sup-, ply. Thereafter Cunningham took the contract and presented it to a Mr. Dorsey, manager of Memphis Tractor & Sales Service,, who signed and approved the contract for the plaintiff. Cunningham informed Freeman that the tractor could be delivered andl at that time Freeman delivered his check to. Cunningham, made payable to Memphis Tractor & Supply in the sum of $1,250, to be ■delivered to Mr. Dorsey when the tractor was delivered. The tractor was delivered to Freeman and the check was delivered to Dorsey. When the tractor was delivered, Freeman contended the tractor was not properly equipped and had payment of the $1,250 check turned down. Davis acknowledges part of the equipment was not on the tractor when delivered as he did not at that time have part of it hut testified he secured all of it and placed on the tractor all the equipment as specified in the contract.

Parties hereafter will he referred to as they were in the trial court. After defendant had failed to pay the $1,250 check and also failed to pay any of-the monthly installments upon the deferred time balance ■of $3,350.70, the plaintiff took the tractor and resold it for the sum of $2,455 and brought this suit to recover the $1,250 as represented by the check and $895.70 being the difference for what he sold the tractor for and the deferred time balance of $3,-350.70 and also asked for interest and attorney’s fees.

The case was submitted to a jury upon four special issues. There were no objections made by either party to any portion ■of the charge and neither did they request any special issues or charges. The first three issues substantiates the contention of the defendant that the plaintiff substantially failed to perform the agreement between the parties. By special issue four the jury found that the defendant accepted the tractor and equipment furnished him by the plaintiff. The court in the judgment stated: "“The verdict was duly received by the court .and the jury was discharged, and both parties having filed motion for judgment, and it appearing to the court under the pleadings, the evidence, the exhibits, the stipulations, the verdict and the undisputed facts that plaintiff is entitled to judgment * * * ” The court then rendered judgment for the plaintiff for the $1,250 being the amount of the check; $895.70 being the amount of deficiency loss suffered by the plaintiff upon his sale of the property purchased by defendant and repossessed from him towards the partial satisfaction of the unpaid balance of the installment contract note signed by defendant to the plaintiff; $375 as attorney’s fees and $74.65 interest, making a total recovery of $2,595.35. From that judgment defendant perfected this appeal.

For convenience we copy appellant’s assignments of error as follows:

“I.
“The trial court erred in overruling defendant’s motion for judgment on the verdict, which established failure of. consideration and breach of warranty by plaintiff inasmuch as any “acceptance” by defendant Freeman was at most only a conditional acceptance in reliance on broken promises of plaintiff dealer to correct the defects complained of, and accordingly resulted in plaintiff failing to prove any right of recovery.
“II.
“The trial court erred in overruling defendant’s motion for judgment by disregarding the jury finding of “acceptance” in that:
“A. The evidence was insufficient to warrant the submission of the issue of “acceptance”, much less in an absolute unqualified sense,
“B. The finding of unqualified acceptance is contrary to the undisputed evidence, or at least the overwhelming preponderance of the evidence.
“III.
“The trial court erred in overruling defendant’s motion for judgment non obstante veredicto, in that the record clearly establishes (1) (as found by the jury) failure of consideration and breach of warranty by plaintiff and (2) that whatever temporary “acceptance” was made by defendant rested solely on unkept promises by plaintiff to correct the defects complained of.”

The defendant had contracted to do a certain concrete foundation job for grain storage buildings in Tulia for the contract price running between $120,000- and $130,-000 and purchased the tractor and equipment to be used in such work. The job took about approximately three or three and a half months. Defendant testified the tractor was on the job ten weeks or longer. He also testified that ⅜ of the building was done with the tractor in question. There is evidence that everything that was specified in the contract was put on the tractor and the defendant got everything that was ordered under the contract. The tractor was never returned to the plaintiff and defendant never requested plaintiff to come and get the tractor. Defendant brought the tractor to his place of business here in Amarillo from the job in Tulia and it remained at the defendant’s place of business until repossessed. The contract provided: “No warranty, express or implied, and no representations, promises, or statements have been made by seller unless endorsed hereon in writing.” This record shows the contract here in question was drawn by Cunningham and signed by defendant before the matter was ever presented to the plaintiff. There is no question but what defendant knew about the things he complained about before ever using the tractor. He could have inspected the tractor and did have a fair opportunity therefor. Consequently, he became liable on the contract. In Swift & Company v. Roberson, Tex.Civ.App., 288 S. W.2d 226, it is stated:

“In 37 Tex.Jur., sec. 178, p. 401, it is stated:

“ ‘It is a settled rule in Texas that, in the absence of any express warranty, a buyer who has accepted the goods tendered him by the seller after inspection or a fair opportunity for inspection thereby becomes liable for the purchase price and is estopped, in so far as all visible defects are concerned, from asserting that they are not such as-the seller contracted to deliver, and from seeking recission of the contract or damages for its breach.’
“In Tex.Jur., sec. 107, pp. 851-2, it is stated:
“ * * As in other cases, a seller of animals may, by contract, limit his warranty; and a warranty may not, except upon a showing of fraud, accident, or mistake in drafting or executing the agreement be varied by parol.
“ ‘While, if such an intent is clearly manifested, a special warranty on the sale of an animal may be made to cover blemishes or defects that are open and visible, it is the general rule that, under a contract for the delivery of a certain quality of animals, a purchaser who, on inspection, accepts animals tendered in compliance with the contract, is thereafter estopped to claim, so far as visible defects are concerned, that they do not conform to the agreement; in other words, prior representations as to quality do not constitute such a warranty as will survive the delivery.’

“In Easton v. Dozier, Tex.Civ.App., 148-S.W. 603, 604, writ refused, it is stated:

“ ‘If the cattle were not as represented, no contention is made that: Thomason [the buyer’s agent] did not know that fact at the time he accepted them. * * * The defects in the cattle, if any, were therefore visible * *" and under such circumstances the alleged representations * * * at the time of the trade, * * * did not amount to a warranty which would survive the delivery of the cattle.’

“In Seby v. Craven Lumber Co., Tex.Civ, App., 259 S.W. 1093, 1094, no writ history, it is stated:

“ ‘The rule is well established that,: where a party purchasing has a fair opportunity of inspecting, and the defects were of such a nature as could have been discovered by him by inspection, then there is no implied warranty of quality or fitness, and, in the absence of fraud, the buyer is without remedy in any character of defense or suit he might have on an implied warranty. * * * His mere protests, in the face of his acceptance, amount to nothing.’ ”

Judgment of the trial court is affirmed.

DENTON, Chief Justice

(dissenting).

I respectfully dissent. I am of the opinion the trial court erred in entering judgment on the jury verdict.

In response to the four special issues submitted, the jury found: The plaintiff failed to deliver defendant a new tractor and new equipment of the substantial quality and fitness agreed upon; that the acceptance of the tractor and equipment as delivered by the plaintiff would have resulted in defendant accepting something substantially different from that which he contracted to accept; that plaintiff did not subsequently substantially perform the agreement between the parties; and that the defendant accepted the tractor and equipment furnished by the plaintiff.

The whole tenor of plaintiff’s pleadings, evidence, and his motion for judgment is that he admits “accepting” the tractor and equipment, but only after immediately calling the seller’s attention to the defects. There is further evidence to the effect that after assurances by the plaintiff that these defects would be corrected, and at the plaintiff’s request, the defendant retained possession of the tractor and equipment and did use the same for a time. It is therefore undisputed that the defendant accepted or received the tractor and its equipment, but in a legal sense acceptance implies not only the physical act of receiving the goods but also the intention of retaining them. Mueller v. Simon, Tex.Civ.App., 183 S.W. 63, (NWH).

The jury found in response to special issue number two that acceptance of the tractor and equipment by the defendant would Rave resulted in his accepting something different from that which he contracted for. In response to special issue number four, the jury found the defendant accepted the tractor and equipment furnished to him by the plaintiff. There were no definitions or explanatory instructions given in connection with these special issues. In applying the approved test laid down in Howard v. Howard, Tex.Civ.App., 102 S.W.2d 473 (Writ Refused), I am of the opinion the jury’s answers to these issues present a fatal conflict. It is difficult to understand how a purchaser can accept goods he has contracted for on one hand, and at the same time, accept goods which the jury found did not conform with the terms of the contract. It is well settled that a fatal conflict cannot be waived by the parties, and that a judgment on a verdict containing such a conflict must be set aside. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, and cases therein cited.

I would, therefore, reverse the judgment of the trial court and remand the cause for a new trial.