author: BELL, Chief Justice. COLEMAN, Justice.

text:
    MONTCLAIR CORPORATION, Appellant, v. EARL N. LIGHTFOOT PAVING CO., Inc., et al., Appellees.
    No. 14686.
    Court of Civil Appeals of Texas. Houston.
    June 22, 1967.
    Rehearing Denied Aug. 24, 1967.

      Ben H. Schleider, Jr., Earl O. Latimer, II, Lake Alvin Greene, Jr., Houston, Dill-ingham & Schleider, Houston, of counsel, for appellant.
    W. N. Arnold, Jr., Houston, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, of counsel, for Aetna Casualty & Surety Co.
    Bennett Lay, Houston, Kucera, Lay & Lightfoot, Houston, of counsel, for Earl N. Lightfoot Paving Co., Inc.
   BELL, Chief Justice.

Majority Opinion

This is an appeal from a judgment rendered in favor of appellee, Earl N. Light-foot Paving Co., Inc., against appellant for $16,536.50, with interest from the date of judgment, plus $6,500.00 as an attorney’s fee, with interest thereon from the date of judgment. The purpose of the suit filed by appellee was to recover for work done and labor and material furnished under a written contract in the laying of pavement in a parking area at the Montclair Shopping Center in Houston and the construction of sidewalks and driveways in connection therewith. There were, of course, certain specifications that were a part of the contract in accordance with which the improvements were to be constructed. The contract also obligated appellee to maintain the surface for six months. Too, the suit encompassed an effort to recover for additional materials and labor furnished that were not called for in the contract.

Appellee asserted right of recovery on the theory of full performance of the contract and for the extras furnished. It, alternatively, asserted right of recovery on the theory of substantial performance, and, further in the alternative, on the theory of quantum meruit for all labor, material and services furnished both under the contract and those not covered by the contract.

Appellant defended on a basis of nonperformance in numerous specified particulars. On the theory that the improvements were not performed in conformity with the contract and that the improvements as constructed were wholly worthless and could, not be corrected except by tearing up the pavement and other improvements, appellant filed a cross action against appellee and its surety, Aetna Casualty & Surety Company, for $150,000.00. Judgment was against appellant on its cross-action.

The case was submitted on 35 special issues, many of which were unanswered because conditionally submitted. All theories noticed above were submitted.

The jury answered as follows on the issues relating to performance of the work called for by the contract, they relating to whether the work was performed in compliance with the contract or substantially performed:

1. Issue No. 1. Appellee did not perform the work in accordance with the contract of May 25, 1959, as amended.

2. Issue No. 3. Appellee substantially performed the work in accordance with said contract.

3. Issue No. 4. For substantially performing the work called for by said contract there was due appellee the sum of $71,693.51.

We specifically note that the amount found due for substantial performance of the work called for by the contract was the full amount for which appellant had been invoiced at the contract price. Without dispute appellant had paid $55,-614.42. Deducting the amount admittedly paid from the amount the jury found to be due under the contract for substantial performance of the work would leave a balance owing, assuming appellee in this case would be entitled to recover on the contract, of $16,079.09.

The jury in answer to issues submitting the theory of recovery on quantum meruit, including work, labor and material furnished under the written contract, and for extras not called for by the contract, found all issues of liability in favor of appellee, and found appellee was due and owing for the reasonable value to appellant of the materials and services furnished the sum of $16,536.50.

Appellee had sued for extras in the amount of $1,250.40.

An award of an attorney’s fee of $6,-500.00 was also made.

The jury also found that appellant accepted the work after appellee claimed it was completed. It found that the architect accepted the work after appellee claimed it was completed. It also found that appellant waived the issuance by the architect of the final certificate of completion and acceptance of the work performed.

In response to Special Issue No. 16, the jury found that appellee did not fail to install the paving in accordance with the contract, and in response to Special Issue No. 18 it was found that appellee did not fail to install such paving in a good and workmanlike manner.

In response to Special Issue No. 20, it was found that appellee did not fail to construct the driveways in accordance with the contract.

The jury found that appellee failed to maintain the improvements for the period of time provided in the contract; that such was a material failure, but that appellee was excused for such failure because of the failure of appellant to perform its obligations under the contract.

Special Issue No. 31 was conditionally submitted. It was predicated on a “We do” answer to either Special Issue No. 16 or No. 20. The jury had, however, answered “We do not” to each issue, the effect of such answers being to find that appellee had not failed to install the paving and driveways in accordance with the contract. Special Issue No. 31 was, therefore, not answered, but it had inquired whether any alterations would have been required to make “such improvements" (paving and driveways) conform to the contract. Special Issue No. 32 was predicated on a “We do” answer to Special Issue No. 31 and inquired whether such alterations would have been substantial. It was unanswered. Special Issue No. 33 was predicated on a “We do” answer to Special Issue No. 32, and inquired as to the value in the year 1959 to appellant of the improvements called for by the contract.. It was unanswered. Special Issue No. 34 was also predicated on a “We do” answer to Special Issue No. 32, and inquired as to the value in 1959 to appellant of the improvements as actually constructed. It was unanswered. Special Issue No. 35 was predicated on a “We do” answer to Special Issue No. 31, and inquired as to the reasonable cost of such alterations, if any, required to make such improvements (paving and driveways) conform to the contract. It was unanswered.

We believe we have noticed all issues submitted, together with the jury’s response to them, if any, that are material to this appeal. The jury did not fail to answer any unconditionally submitted issue.

The court rendered judgment for appel-lee, as above stated, for $16,536.50, which is the amount found by the jury as the unpaid sum of money due appellee for the reasonable value to appellant of materials and services furnished by appellee. This was, therefore, apparently a rendition of judgment on the theory of quantum meruit for the materials and services furnished under the written contract and for some extras sued for in the amount of $457.41. This conclusion is based on our notice that the effect of the jury’s answer to Special Issue No. 4 was that there was a balance due for work done under the written contract of $16,079.09, the jury having found substantial performance. Additionally, judgment was rendered for an attorney’s fee.

Appellant asserts the following five Points of Error, the substance of which we state:

1.The trial court erred in refusing to render judgment for appellant and in rendering judgment for appellee on the theory of quantum meruit because an express contract was pled and proved and appellee’s theory of the case was that it had fully performed.

2. The trial court erroneously admitted hearsay «evidence of appellee bearing on quantities and costs of materials and equipment rentals, using invoices prepared by third persons who did not testify.

3. There was no evidence, other than hearsay, to support the findings of the jury on quantum meruit and substantial performance.

4. There was no evidence to support the finding that appellee performed the paving in accordance with the contract, or, alternatively, such finding was against the overwhelming weight and preponderance of the evidence.

5. The jury findings, that there was an acceptance of the improvements by appellant and its architect and that there was a waiver of acceptance, are in hopeless conflict, or, alternatively, such findings are either not supported by the evidence or are contrary to the overwhelming weight thereof.

The record in this case consists of 792 pages of testimony, 37 exhibits introduced as Plaintiffs’ (appellees’), and 58 exhibits introduced as Defendant’s (appellant’s). All exhibits are here in original form. Many of them are bulky and cumbersome. We will merely summarize the evidence we feel controlling and many of our statements will be our conclusions as to the material facts shown by the record. We have, however, carefully read the entire statement of facts and all of the exhibits.

Appellant sought bids for the laying of ping center bounded by Richmond Road on the South, Weslayan Street on the east, and Academy Street on the west. On the north it appears there would be some vacant land between the north side of the shopping center buildings and Law Street. There was a Weingarten grocery store already on the site. Apparently appellant was the general contractor for the construction of the additional buildings and was owner of the building site, and would be the owner of the buildings on completion, subject to certain construction loans obtained to aid in financing.

Appellant sought bids for the laying of pavement, construction of driveways, including removal of curb and installation with roll curb according to City of Houston specifications. There was already some pavement used in connection with the Weingarten store. This was to be removed and new pavement laid. The work was to be done in compliance with certain plans, specifications and drawings prepared by Irving R. Klein and Associates, as architects. Appellee’s bid was accepted and a contract was entered into between the parties on May 25, 1959. It was prepared on a printed form issued by the American Institute of Architects and is denominated “The Standard Form of Agreement between Contractor and Owner for Construction of Buildings.” The appropriate blank spaces in the form were filled in showing the work to be done and the prices agreed to by appellee. Too, appellee’s bid is attached and made a part of the contract. It should be noted, because of appellant’s contention, that there are a few words in the printed form deleted and typewritten words substituted. In Article 4, which provides for monthly installment payments, it is provided that payment on the 15th day of each month of 85% of the value, based on contract price of labor and materials incorporated in the work, and materials suitably stored at the site up to the first of the month as estimated by the architect, less previous payments, shall be made, and upon “substantial” completion of the entire work, a sum sufficient to increase the total payments to 85% of the contract price shall be made. The printed word “substantial” appearing in the form is deleted and the word “final” appears typed in. In Article 5, dealing with the final payment and acceptance, it is provided in the printed form that final payment shall be due thirty days after “substantial completion of the work provided the work be then fully completed and the contract fully performed.” The word “substantial” is deleted and the word “final” is typed in.

As a part of the contract there is what is denominated “Addendum Bulletin No. 1” dealing with the paving. It provides as follows:

The pavement shall consist of 600 pounds per square yard of cement stabilized shall, 1½ sack per ton compacted by use of roller weighing not less than 10 tons to 6 inches of depth and 150 pounds asphalt shell topping compacted to 1½" depth.
The owner or engineer shall compute the total tonnage of material required for the job and the contractor shall furnish truck delivery tickets for at least that amount of material.
While the owner pays for testing and coring of fill and paving materials, the contractor is to pay for any retesting in case any deficiency is shown.

In the form contract dealing with payment, it is provided that all quantities listed are approximate and the contractor will be paid for the actual amount of work performed at the unit prices bid. It further provided that “the work will be cored and payment reduced proportionately to any measurement below specified thickness.”

The contract also provided that the payment for the cement base and asphalt surface should include preparation of the sub-base in accordance with the plans and specifications. The subbase was to be compacted to a density of 95% of maximum density at optimum moisture content as determined by Proctor Compaction Tests.

With regard to the cement mix, it is provided that the contractor should use grade stakes, cubical block or other approved methods to fix thickness of processed shell as it is spread. For compaction the use of a 10 ton roller was specified. Compaction of the cement stabilized shell base and the asphalt shell surface was to be a minimum density of 94.

The contract also provided that the contractor should maintain the surface for a period of six months.

The appellee’s bid called for from 31,000 to 35,000 square yards of new pavement at $1.87 per square yard. The square yardage of the existing Weingarten pavement and its replacement is not specified, but it was to be paid for at the rate of $1.99 per square yard. The driveways with roll curb were to be paid for at the rate of $3.25 per square yard. The sidewalks were to be paid for at the rate of 35 cents per square foot.

We need not notice the two other small items of work, because they are not involved.

The evidence, as we read the record, is in conflict about whether the items of work called for were done in accordance with the contract, except the failure to maintain, which failure was found by the jury to have been excused by appellant. No attack is made on such finding. No issues were submitted concerning the minor items of a sidewalk and raising and changing existing manholes and inlets.

While appellant has assigned the points of error stated above, the basic complaint is that there is no evidence, except hearsay, to support the jury’s findings on quantum meruit and substantial performance, and there is no evidence to support the jury finding that the paving was laid in accordance with the contract, or, alternatively, that such finding is contrary to the overwhelming weight and preponderance of the evidence. The primary basis of these assertions is that the evidence shows the cement stabilized shell was deficient in quantity because the contract called for 600 pounds per square yard rolled by use of a roller of at least ten tons to a depth of six inches, and that in fact there was a shortage in the material which resulted in an insufficiently compacted base and also one that did not measure six inches in thickness, and this made an unstable base. Further, it is asserted the contract called for a surface of hot mix asphaltic concrete of 150 pounds per square yard rolled with a roller of at least ten tons so the surface would measure 1Y2 inches in thickness and that there was a shortage in quantity which resulted in a surface of less than l]/2 inches. Too, alleged failures in the pavement are attributed to an inadequately compacted subbase or subgrade. Lack of evenness and improper grading resulting in faulty drainage is urged.

Daniel F. Smith Laboratories was the testing agent for Montclair. Under the contract the subbase and the concrete stabilized shell base were to be inspected by appellant’s agent and approved before the surface could be laid. Then finally the surface improvement was to be inspected and approved. The paving was done by sections. ■ Mr. Lightfoot testified that the contract provisions were followed. As the subbase for a particular section was prepared, it would be inspected by appellant’s agent and approved before the concrete stabilized shell base was laid. His testimony and the detailed report of appellant’s agent, introduced as Plaintiff’s Exhibit 19, clearly show that the subbase was in accord with the contract. The exhibit reflects that a copy of each of the inspection reports was sent to appellant, Irving R. Klein, architect, and to appellee.

The evidence with regard to whether the cement stabilized shell base was in accordance with the contract is conflicting. (We use the term “contract” to include plans and specifications.)

The evidence relating to quantity of both the cement stabilized shell and asphaltic shell concrete topping comes from the testimony of Mr. Lightfoot, testing laboratory reports and invoices from Mr. Lightfoot’s business records. These invoices are those prepared by the suppliers and the material shown on them was paid for by appellee. These invoices were placed in the record based on Mr. Lightfoot’s testimony, even though objected to by appellant on the ground that they were prepared by someone else. However, Mr. Lightfoot testified they were a part of his business records kept under his supervision; that he personally knew all of the material went into the Montclair job; and that he paid the invoices. He also testified he had personal knowledge of all the facts reflected by the invoices and payrolls. The same is true with regard to the invoices covering charges for equipment rentals. Too, the payroll covering payment to persons serving on this job and other jobs was introduced, but the services rendered on this particular job were segregated by Mr. Lightfoot in his testimony.

As previously stated, Daniel F. Smith Laboratories was the appellant’s agent to make inspections and tests. In the record are Appellant’s Exhibits Nos. 1 through 6. These exhibits purport to show the tonnage of cement stabilized shell and hot mix as-phaltic shell concrete laid on various dates together with the thickness of each. Too, the reports purport to show what tonnage of each would be required if the area covered would supply the cement stabilized shell base of 6 inches in depth and the hot mix asphaltic shell concrete topping of a thickness of 1½ inches in depth if the specified tonnage was compacted to the required density. When the tests were made does not appear, but all of the reports are dated prior to August 22, 1959, the latest date being shown on any of them being August 20.

The significance of these reports by appellant’s representatives is that though they purport to show less than 600 pounds per square yard of cement stabilized shell base and 150 pounds per square yard of asphalt topping, and that there was a deficiency in depth in both the cement stabilized base and the asphalt surface, no complaint was made to appellee of any of these alleged deficiencies until the entire parking lot had been paved. It is to be noted that where deficiencies were discovered in the sub-base they were called to appellee’s attention and corrections were made. Too, it is of significance that copies of the reports were sent to appellant’s architect and to appellant as well as to appellee. When they were received by the architect or Lightfoot we are not informed. Two of them are stamped “received” by appellant before August 22. Two were stamped “received” by appellant August 27, and two are stamped as received by appellant September 2. The particular significance of the reports that were dated before August 22 is that they were made by the chosen representative of appellant and, prior to August 22, appellee had, in accordance with the contract, sent appellant two estimates based on work then done in accordance with the contract and appellant had paid the amount of the estimates less the 15% retainage called for in the contract. Too, it is noted that the work was completed in sections and as completed opened for use by appellant and used by it and its tenants and customers. Though the two estimates covered work done up to August 1, the last payment was made August 22, though no complaint had been made to appellee of shortages or defects.

The last estimate was after all work called for by the contract had allegedly been completed and is dated September 1. It is appellee’s Invoice No. 3371. It claims payment for 31,437 square yards of new paving @ $1.87 per square yard and for 5,768 square yards @ $1.99 per square yard. This latter item is for replacing pavement previously in place that was used by Weingarten. Too, it covered construction of 4,080 square feet of sidewalk. This invoice showed the total of the cost at the unit prices prescribed in the contract to be $71,693.51. It showed that two payments had been made, one on July 21 and one on August 22. The amounts were for 85% of the estimates made on July 1 and August 1 and totaled $37,614.42. This left a balance due of $34,079.09 according to the invoice. On this invoice no additional 15% retain-age is shown.

On September 24, appellant’s architect issued to appellant what is referred to therein as “Certificate of Payment No. 2.” It contains, among other things not necessary to notice, this language:

“We, along with Mr. Anderson, have examined Contractors Invoice No. 3371 dated September 1, 1959 (Duplicate copies of which are attached) and find it to be in order.
“Earl N. Lightfoot Paving Company, Inc. — is due payment in the amount of $28,967.23.”

The amount thus certified to be due is the unpaid balance of $34,079.09 less 15% re-tainage.

On September 18 appellant paid $18,-000.00 on this invoice.

Based on the appellant’s exhibits above discussed, there would be a shortage in the cement stabilized shell base and asphaltic topping. It is observed that while this work was in progress Mr. Anderson, who is referred to in the architect’s approval of “Certificate of Payment No. 2,” was in rather close supervision for appellant of the work as it was being performed and we fail to find any complaint he made about the work. According to appellant, the material shortage would be about 10%.

Mr. Lightfoot testified that the invoices which he paid for materials furnished under the contract did show about the same percentage of shortage as above stated, but he was never satisfied that he had found all of the invoices. However, after appel-lee claimed all work under the contract had been properly done and he had not been paid and appellant was insisting there were shortages and defects, appellee employed Engineers Testing Laboratory, Inc., to take sample cores for the purpose of determining thickness of the shell base and asphalt topping and to determine the weight per square yard of the material. This report on thickness is dated November 2, 1959, and shows the shell base and the asphalt topping to be of the required thickness. The report on the weight of the material is dated November 4, 1959, and shows the weight of the material per square yard to be that required. Appellant criticizes this report as not being a representation of the whole area. The weight to be attached to it was for the jury.

Mr. Lightfoot also testified that after the subbase was approved he set the block and stakes as provided in the contract to determine the thickness of the cement stabilized shell base and rolled it with the 10 ton roller required, and thus also saw to it that there was the required 6 inch thickness. Then as this base was finished on a particular section he laid the asphalt topping. At no time before he laid the topping did appellant’s inspectors complain of the base; nor did they complain of the topping until all the work was completed.

After appellee claimed all work on the parking lot had been completed and while use was being made of it by appellant, appellant ordered extra work of appellee. Appellee performed such extras, though there is a dispute as to the extent of these extras.

The latter part of 1963, appellant employed Mr. Turner, a consulting engineer, to make a topographical survey of the parking area. His survey is dated in January, 1964. This was over four years after the paving was done. Particular complaint by appellant was of the paving of the Academy Street side and of unevenness throughout the paved areas. Mr. Turner’s survey showed uneveness particularly on the Academy Street side. There were low places. The effect of his testimony would be to show uneven distribution of building materials causing unevenness, and also he testified the construction was not on proper grade. He felt though his work was done the last of 1963 it would reflect within an inch, one way or the other, the conditions that existed in 1959. He testified to what he termed some base failures on the Academy Street side. He felt the only way to fix the Academy Street side would be to tear it out and do it over completely. The cost would be $80,000.00. He felt that the base failures could have been caused by failure to compact the subbase and base to required density. ' This would permit moisture to penetrate the paving.

In 1965, shortly before trial, Mr. Jeanes of Southwest Testing Laboratory, was employed to make tests of the paving to determine thickness of the shell base and asphalt topping and to calculate the weight of the materials per square yard. The result of his tests, made by taking cores from various parts of the pavement, appears as appellant’s Exhibits 28 and 29. The testimony of Mr. Jeanes and his reports have the effect of showing deficiency in quantity of materials used and maldistribution so as to cause substantial variation in thickness of the shell base and asphalt resulting in substantially inferior pavement.

Mr. McKnight, a consulting engineer, on behalf of appellee, examined the pavement about ten days before trial. In his opinion it was in good condition, particularly considering its use for five years. He found no base failures that could not be remedied by comparatively insignificant repairs. This was on the Academy Street side. He saw some patches on the Academy Street side. The reason, in his opinion, for the condition of the Academy Street side and the Weslayan Street side was the difference in use to which put. The pavement of this nature is designed for lightweight vehicles and frequent use instead of heavy vehicles and infrequent use. At the time he was there, there were about three vehicles on the Academy Street side and 300 on the Weslayan Street side. An asphalt surface is kept alive by regular use by light vehicles. Heavy trucks use the Academy Street side. It is the back side where trucks unload. This is damaging to asphalt.

The witness felt that the condition of the Academy Street side was due in part to the fact that water coming from spouts draining the buildings emptied onto the asphalt.

The witness stated that the area was formerly used to cultivate rice and contained silt and light clay. This would be conducive to allowing excess moisture. Where there is excess moisture, there is great expansion, and when there is a drying out there is rapid shrinkage. There can be both vertical and horizontal seepage. Too, elevation changes come from natural heavage of the soil. He states, assuming $2,000.00 in repairs over a five year period, this would be on the low side. After five years’ use, the asphalt would not be as thick because of evaporation when it was hot and because car tires pick up materials.

Mr. Nix, owner of appellant, among other things, testified that up to October 11, 1963, his invoices showed cost of repairs to be $1,025.00. We are unable to tell from the record whether they were made during the six months’ period that appellee was to keep the pavement in repair. We will assume they were because the jury found there was a failure to maintain the improvements as provided by the contract; but that such failure was excused by the failure of appellant to perform. We notice there is no attack here upon such jury finding. However, such a small expenditure would be evidentiary of well constructed pavement. Mr. Nix testified that as the various sections were finished they were opened for .use. Some of his rental contracts with tenants who would occupy the stores when completed provided for the furnishing of a parking area. We refer particularly to the W. T. Grant lease. Also, the lease provided for appellant to furnish the architect’s certificate that all improvements have been completed in accordance with plans and specifications. Too, the loan commitment required such a certificate. While the architect did not issue a formal certificate to appellant that appellee’s work had been completed in accordance with the plans and specifications, he did by appellee’s Exhibit 20 approve ap-pellee’s Invoice No. 3371 dated September 1, as previously discussed. While the architect referred to the invoice as Estimate No. 2, there was nothing on the invoice to indicate it was such. While not labeled a final invoice, it was such in fact and there had already been two estimates, one of July 1 and one of August 1. Shortly following the claim in August that the work was complete, the tenants moved in and have been using their respective stores, and they and their customers have been using the parking facilities constructed by appellee.

There was testimony that the improvements were so deficient the only way to make them comply with the contract was to tear them out and replace them, and the reasonable cost of doing this would be about $150,000.00 as contended by appellant in its cross-action. This testimony, as we recall, was from appellant’s witness, Mr. Turner. There was testimony from Mr. Lightfoot that the reasonable value to appellant of the materials and services furnished by appellee under the contract and for extras was the amount for which appellant was billed.

Points Two and Three are closely related and will be discussed together. The court did not err in admitting in evidence the invoices for materials furnished, equipment rentals or the payrolls. While it is true that the invoices were those prepared by the suppliers, they were sent to appellee for payment and were paid by appellee. Mr. Lightfoot testified they were kept as a part of his business records under his supervision. Too, he testified that he had personal knowledge that all the materials, rentals and services went into the job and they were of the reasonable value shown as incorporated in the improvements. The same is true with respect to the invoices covering materials, equipment rentals and services covering extras. Too, the originals of the payrolls were introduced and Mr. Lightfoot based on his knowledge segregated the work of the men listed going into the job. Lightfoot’s testimony that he had firsthand knowledge of the facts stated in the invoices would make them admissible as substantive evidence. Kansas City, M. & O. Ry. Co. of Texas v. Worsham, 149 S.W. 755 (Tex.Civ.App.), n.w.h.; 1 McCormick and Ray, Texas Law of Evidence, page 578. Too, we think that the fact Lightfoot paid for the materials and services represented by the invoices is some evidence of their correctness, particularly when coupled with his testimony as to his personal knowledge.

The jury finding of substantial performance and the findings on substantial performance are sufficiently supported by evidence not hearsay in nature.

Appellant’s first point, on which it lays much stress, is that the court erred in refusing to render judgment for appellant and in rendering judgment on quantum meruit because an express contract was pled and proved and appellee’s theory was that it was fully performed.

Appellant misconceives the law in this regard. Had appellee only pled an express contract and had by evidence stood solely on a right to recover on the contract, ap-pellee would be allowed recovery only if it fully performed. However, in this case appellee, as it is permitted to do under Rule 48, Texas Rules of Civil Procedure, pled alternatively for recovery on the theory that it had fully performed the contract, or, if it had not that it had substantially performed, or, if it had not substantially performed it was still entitled to recover the reasonable value of the benefits conferred upon and knowingly and willingly accepted by appellant. Too, it pled to recover, in addition, for extras furnished at the special instance and request of appellant. Where, as here, several theories of recovery are pled, and the evidence is conflicting but is sufficient to raise a question of the existence of any or all of the theories, it is proper to submit issues to the jury on all theories raised. The court will then get a verdict and render judgment on the proper theory as found by the jury. Hodges on Special Issue Submission in Texas, page 3; Colbert v. Dallas Joint Stock Land Bank, 129 Tex. 235, 102 S.W.2d 1031 (Com.App.); Petit v. Klinke, 152 Tex. 142, 254 S.W.2d 769; Montgomery v. Gay, 222 S.W.2d 922 (Tex.Civ.App.), error dism.; Johnson Aircrafts, Inc. v. Eichholtz, 194 S.W.2d 815 (Tex.Civ.App.), ref., n.r.e.

In its discussion under Point One, appellant cites cases which make the broad statement that if there is an express contract there can be no recovery on quantum meruit because quantum meruit is independent of the contract. However, in such cases there was no situation such as we have here where there was alternative pleading and conflicting evidence concerning whether the contract was fully performed. We will not lengthen this opinion by specifically noticing each case, but it will suffice to say none of them is applicable to the situation we have before us. It has long and many times been held in this State that though there be an express contract there may be a recovery in quantum meruit if there has been partial performance as distinguished from full performance. Carroll v. Welch, 26 Tex. 147; Campbell v. Hildebrandt, 68 Tex. 22, 3 S.W. 243; Colbert v. Dallas Joint Stock Land Bank, supra, and many authorities there cited.

Probably the point is not sufficient to encompass part of the argument under it, that is, that the jury having found substantial performance the court could not render judgment on quantum meruit, but the right to recover on quantum meruit is restricted to a situation where there is only partial performance. We will nevertheless consider it, and overrule the contention.

No case has been cited us, and in our extensive research we have found none, which holds that if there has been only substantial performance the contractor is restricted to recovery on the contract, recovering the contract price, including profits, if any, less the reasonable cost of completing the building in accordance with the contract. The cases do allow recovery on the contract for substantial performance; but we think the contractor may elect to sue on quantum meruit for the reasonable value of the benefits conferred on the owner, the value not to exceed the contract price, and the owner may recover his damages against the contractor for not fully performing. If there has been no substantial performance, the contractor is limited to recovery on quantum meruit. Whether we be correct in this or not, we feel that under the facts of this case it really makes no difference.

In this case it is evident, when we consider the verdict as a whole, as we must, that the jury felt and so found that the only breach by appellee was its failure to maintain the improvements for six months. The jury found this was excused by the owner in not performing and there is no attack on this finding. The effect of the jury’s finding to Special Issue No. 4 was that for the paving and driveways there was due at the contract price a total of $71,693.51. The wording of the issue did not call to answer for the balance owing. Deducting the admitted payment of $55,614.42 would leave a balance of $16,— 079.09. The court could have rendered judgment for this amount, plus any extras furnished. However, the issue on the amount owed under the theory of quantum meruit was submitted so as to include not only the extras but the value of the materials, etc. furnished under the contract that had been only substantially performed. Appellee had sued for, and introduced evidence to show, $1,250.00 extras. To the issue the jury answered “$16,536.60”. The effect, when considered in connection with the answer to special issue No. 4, is to find the amount owed for the materials, etc. furnished under the contract was $16,-079.09 and the value of the extras was $457.71. Certainly the contract price is evidentiary of the reasonable value of what is furnished. In any event, no more was recovered than the evidence showed was the reasonable value of the improvements to appellant. The court here rendered judgment on quantum meruit, but it could have, under the verdict, rendered judgment in part on Special Issue No. 4 and added the $457.71 representing extras included in the issue on quantum meruit. The result is the same, so appellant could show no harm. Montgomery v. Gay, 222 S.W.2d 922 (Tex.Civ.App.), error dism.; Johnson Aircrafts, Inc. v. Eichholtz, 194 S.W.2d 815 (Tex.Civ.App.), ref., n.r.e. The court rendered judgment, however, apparently on quantum meruit.

By its fifth point of error, appellant urges a conflict between the jury answer that appellant arid its architect accepted the improvements, and its answer that there was a waiver of acceptance.

There is no conflict. Issue No. 11 inquired if appellant accepted the work after appellee claimed it was complete. Issue No. 12 made the same inquiry about acceptance by the architect. The jury answered, “We do”, to both issues. Issue No. 13 inquired if appellant waived the issuance by the architect of a final certificate. The first two dealt with acceptance by the parties of the improvements by conduct such as continuous use. Too, some lease contracts of tenants provided they would not be required to take possession until the architect had issued a certificate that all work, including parking facilities, had been completed according to contract.

This referred to the requirement of a formal final certificate. We find no evidence that a final formal certificate was ever issued. However, we have stated the facts about use by both appellant and the tenants. From the facts it can be inferred that the work was accepted though no formal final certificate was ever required. In fact, the acceptance under the facts shown here would evidence the waiver of a certificate.

Even if there were a conflict it would not be fatal because there is no need for a certificate where recovery is for substantial performance or on quantum mer-uit. Childress v. Smith, 90. Tex. 610, 40 S.W. 389; Linch v. Paris Lumber & Grain Elevator Co., 80 Tex. 23, 15 S.W. 208.

From an analysis of the evidence, we find the jury’s answers supported by evidence and no answer is contrary to the overwhelming weight and preponderance of the evidence.

Affirmed.

Dissenting Opinion

COLEMAN, Justice.

I agree with the opinion of Chief Justice Bell with the exceptions herein noted.

Here issues were submitted on theories of full performance, substantial performance, and quantum meruit. The jury found substantial performance and that full performance was prevented by conduct of the owner, and further answered issues on which the court entered a judgment based on quantum meruit.

In Teague v. Edwards, 159 Tex. 94, 315 S.W.2d 950 (1958), the Supreme Court held that if there be a valid express contract, a recovery cannot be sustained in quantum meruit.

In Dallas Electric Supply Co. v. Branum (Tex.Civ.App.—Galveston 1954, ref., n. r. e.), the opinion reflects that by one special issue the jury found an express contract to pay a certain amount of money as attorney’s fees. By its answer to another special issue the jury found that a reasonable attorney’s fee for the services rendered was a greater sum. The trial court entered a judgment for the larger amount. The Court of Civil Appeals stated that a party cannot recover in quantum meruit where he has an express contract and required a remittitur as a condition of affirmance.

In Dallas Electric Supply Co. v. Branum Co., 143 Tex. 366, 185 S.W.2d 427 (1945), the Supreme Court said:

“It follows that there is no basis for the application of the doctrine of quantum meruit in this case. A recovery on that ground would be a recovery of what the agent’s services were worth. The contract expressly covered that subject * * *. The amount of compensation was not left to implications, but was definitely fixed. For the court to determine what the agent’s services were worth would be for it to make a contract for the parties. That, of course, it cannot do.”

In Deal v. Craven, 277 S.W. 1046 (Tex.Com.App.1925), the opinion reflects that in answer to special issues the jury found that the plaintiff (subcontractor) constructed a road in substantial compliance with plans and specifications and that the work was accepted as complete by an engineer (designated in the contract as one whose decisions on all questions arising out of performance of the work would be final). The jury further found the defendant (general contractor) expended $1,160.63 on the work in order to meet the requirements of his contract with the county. The trial court deducted this amount, together with the payments previously made, from the total contract price as found by the jury and granted judgment for the plaintiff in the resulting amount. This judgment was affirmed by the Court of Civil Appeals, but the Supreme Court reversed and rendered judgment for the plaintiff for the contract price less sums paid. The Court said:

The plaintiff pleaded a strict compliance with the terms of his contract, and likewise, in the alternative, he pleaded a substantial compliance, but in view of the verdict upon issue No. 2, no judgment other than one for the plaintiff could be entered. It has long been settled in this state that the judgment must follow the verdict, and that the courts are without power to enter a judgment notwithstanding a verdict upon a material issue. This is the correct practice, even to the extent of those cases where the verdict is contrary to the undisputed evidence. In such a case the court has the alternative of setting aside the verdict, but until such action is taken, no judgment can be entered contrary thereto. Ablowich v. [Greenville Nat.] Bank, 95 Tex. 429, 67 S.W. 79, 881. The parties to this suit, by the contract duly pleaded and proved, agreed specifically that the decision of the county engineer of Fort Bend county on all questions arising out of the performance of the work contemplated should be binding upon them. In response to special issue No. 2 the jury found that the engineer had fully accepted as complete the construction work which the plaintiff had contracted to do, and in response to issue No. 3 they found the total amount due. In view of these findings, the other findings become immaterial. Those referred to are absolutely conclusive of the case, and upon them the plaintiff was entitled to judgment for the amount found in response to issue No. 3, less, of course, the admitted credit pleaded by plaintiff.”

In Cox v. KTM Drilling, Inc., 395 S.W.2d 851 (Tex.Civ.App.—Amarillo 1965, ref., n. r. e.), the court affirmed the judgment of the trial court granting full contract price to the contractor and against the owner where the contract had been substantially performed and an attempted complete performance was prevented when the owner refused to permit the contractor to use a pump which the owner was obligated by the contract to furnish. The court held:

“It is elementary that where a contract has been substantially performed and an attempt to complete performance is refused the refusal excuses any further attempts on the part of the party offering performance.”

In this case issues answered by the jury establish substantial performance on the part of the contractor and that full performance was excused by reason of the owner’s conduct. The jury found the full contract price. The balance due can be calculated from undisputed facts. While there was a claim for extra work and evidence was introduced, there were no issues answered on which a judgment for the extra work can be based.

The judgment of the Trial Court based on the quantum meruit issues exceeds the balance due on the contract price. It is my opinion that judgment should have been entered for the contract price, less the sums already paid, resulting in a judgment for the appellee in the sum of $16,079.09, and that, therefore, the judgment of the Trial Court should be reversed and judgment rendered for such amount.

I respectfully dissent.


source: Caselaw Access Project

author: BELL, Chief Justice.

license: Public Domain

text:
    IPIK DOOR COMPANY, Inc., et al., Appellants, v. LOESSIN & HERNDON, INC., Appellee.
    No. 14697.
    Court of Civil Appeals of Texas. Houston.
    July 3, 1967.
    Rehearing Denied Aug. 24, 1967.

      Dillingham & Schleider, Ben H. Schleider, Jr., Houston, for appellee.
    Ragan & Russell, Joe S. Moss, attys., Houston, John L. Russell, Houston, of counsel, for appellants.
   BELL, Chief Justice.

The appellee sued appellants, Ipik Door Company, Inc., C. V. (Buster) Kern, Sheriff of Harris County, and his deputy, Marvin Zindler, for damages for conversion of lumber and materials belonging to it. Trial was to á jury and based on the jury verdict the court rendered a joint and several judgment against the appellants for actual damages in the amount of $4,314.01 and for exemplary damages of $1500.00.

The incident giving rise to the claim was the levy of execution by the Sheriff, through his deputy, the execution having issued pursuant to a judgment obtained by Ipik Door Company, Inc., against Texas Millwork, Inc., in the amount of $2,247.75. The lumber and materials levied on were located at the Texas Millwork plant on the Hempstead Highway in Harris County at the time of the levy on February 2, 1963. Sale under execution was held February 18, 1963, -and the lumber and materials were purchased by Ipik. At the time of trial Ipik still had the lumber and materials at its place of business in Louisiana.

The pleadings and statement of facts reveal that Ipik, through its Houston attorney, who had obtained the judgment and who was directing the deputy sheriff in making the levy, took the position that all the lumber and materials belonged to Texas Millwork. Texas Millwork and appellee took the position that all of the lumber and materials levied on was owned by appellee and that it was in possession of Millwork which was processing the lumber and manufacturing different kinds of items such as moulding, door jambs, doors, and what Mr. Loessin referred to as mill work items.

The jury answered as follows to the issues submitted:

1. All of the lumber and materials removed from the premises of Texas Mill-work by appellants was owned at the time by appellee.

2. The market value on February 2, 1963, of such lumber and materials, in Houston, was $4,314.01.

3. In taking the lumber and materials, the defendants, acting jointly and severally, acted wilfully and wantonly and in disregard of the rights of appellee.

4. The sum of $1,500.00 would reasonably compensate appellee for exemplary damages.

5. The lumber and materials levied on had not been sold by appellee to Texas Mill-work, Inc.

Without setting out specifically the 13 Points of Error urged by appellants, we will merely state the substantial complaints. Appellants complain there was no evidence to support the jury’s finding that all materials and lumber belonged to appellee, or that such answer was contrary to the overwhelming weight and preponderance of the evidence. There was no evidence to support the answer of market value because the evidence showed at most the retail value instead of value in bulk, or, at most the answer was contrary to the overwhelming weight and preponderance of the evidence. There was no evidence to support the jury’s finding that the taking was wilful and wanton, or, the finding was contrary to the overwhelming weight and preponderance of the evidence. The finding of $1,500.00 exemplary damages has no support in the evidence, or, is contrary to the overwhelming weight and preponderance of the evidence.

We overrule all points that there was no evidence to support the answers of the jury to the issues and also that such answers were contrary to the overwhelming weight and preponderance of the evidence.

There is a sharp conflict in all of the evidence on all issues submitted. We will not recite all evidence, but will give its substance and what the jury could well conclude concerning it. According to the testimony of Mr. Loessin, who owned an interest in appellee, and of Mr. R. A. Stolz, Jr., President of Texas Millwork, for quite a number of years prior to June 30, 1961, Texas Millwork had bought lumber from appellee and other persons. It used the lumber thus purchased to manufacture mill work items, and then marketed them. However, for some time prior to June 30, 1961, Texas Millwork had been experiencing financial difficulty and, according to Mr. Stolz, he decided not to purchase materials, but to limit his work to soliciting orders from persons who desired mill work items to be manufactured. Too, appellee had refused to sell Texas Mill-work any more lumber and materials. Under this arrangement the customer would furnish him with the materials and lumber which they had purchased and he would manufacture the items desired and would be paid for his work.

As between appellee and Texas Mill-work, the evidence shows that the purchase account Texas Millwork had with appellee was closed June 30, 1961. At that time Texas Millwork owed appellee $3,543.25.-This is shown on a ledger sheet of Texas Millwork, which shows the account closed. This sheet was shown to Ipik’s attorney on the day of but before the levy of execution. This was uncollectible and appellee charged it off on its income tax as a bad debt. Thereafter, on September 28, 1962, appellee by letter agreement signed by ap-pellee and Texas Millwork stated it was sending Texas Millwork some yellow pine that was to be made into split door jambs in accord with the sample furnished by Gulf Sash & Door, Inc. In the letter it was stated appellee was to pay Texas Millwork $50.00 per 1000 feet based on footage that came from the mill. Appellee was to deduct 15% of this $50.00 to apply on the debt of $3,543.25. The testimony of Mr. Stolz and Mr. Loessin was that after this letter ap-pellee resumed business with Texas Mill-work, but appellee bought and furnished all lumber and materials and only paid Texas Millwork for the manufacturing work it did, paying therefor the amount stated with the 15% deduction stated except that some time later this deduction, due to Texas Millwork’s financial straits, was suspended. While the letter referred to one specific shipment and the terms of payment, both Stolz and Loessin testified this was the agreement between them as to all work thereafter done for appellee by Texas Millwork. They both testified that at all times thereafter no material or lumber belonged to Texas Millwork, but was bought and paid for by appellee and shipped to Texas Millwork to be manufactured into items as directed by appellee. Mr. Stolz and Mr. Loessin testified that all lumber and materials taken under execution was that furnished by appellee on which Stolz was working under the arrangement above stated. Too, Stolz stated that at such time there was no other material and lumber except non-usable odds and ends at the plant when levy was made, other than that belonging to ap-pellee. Really there is no evidence to refute the above testimony, except as to two items which we will now notice. Appellants’ first and second points are largely based on evidence bearing on such items.

It appears that Mr. Stolz did pick up some masonite to go into some doors for which he actually paid. However, Mr. Loessin testified payment was from funds he had theretofore advanced to Texas Millwork. The jury could well conclude, in the light of all testimony, that it was therefore paid for and owned by appellee.

The second item concerning which there could be a controversy involves some yellow pine split door jambs that had been manufactured by Texas Millwork out of lumber and materials furnished by appellee. It appears that by invoice dated October 25, 1962, appellee had billed Gulf Sash & Door, Inc., for products sold the latter in the sum of $2,913.80. This amount had been paid to appellee. However, various of these items were rejected by Gulf Sash & Door and returned to appellee to be reworked because not conforming to specifications. They were among the materials seized. No refund had been made of the amount of their value of $749.11 at the time of the levy. However, after the levy and on February 26, 1963, appellee made a refund of this amount. It appears to us that the jury could have well concluded they had not been accepted by Gulf Sash & Door, but had been rejected and therefore title had not passed out of appellee and a refund was owed, though it was not paid until later. They still belonged to appellee, or so the jury could have found.

The answer to Issue No. 2 as to the market value of the lumber and materials taken is supported by the evidence and the answer is not contrary to the overwhelming weight and preponderance of the evidence.

Both Mr. Stolz and Mr. Loessin, who because of their long experience in Houston and Harris County in this type of business, were well qualified to testify to the value, and did testify to the value as found by the jury. We find nothing in the record showing this was the retail as distinguished from bulk value. Nor do we find any such objection to this effect made to the offer of the evidence. Even if there had been, there is no point of error here that the court erred in admitting testimony of retail value. Of more significance, however, is the fact that there was no objection to the special issue on the ground that it submitted an improper measure of damages. Any error, if there was one, was, therefore waived.

We are also of the view that the jury’s answers to all issues relating to exemplary damages find support in the evidence and such answers are not contrary to the overwhelming weight and preponderance of the evidence.

Sometime previous to February 2, when levy was made, Mr. Zindler had by telephone communicated with Texas Millwork seeking to obtain payment of the Ipik judgment, but was told it was unable to pay. About 12: or 12:30 o’clock on Saturday, February 2, the attorney for Ipik, Mr. Zindler, and another deputy sheriff, went to the premises of Texas Millwork to collect the judgment, if possible, and if it were not possible to levy execution. When the judgment was presented, Mrs. Stolz said they were unable to pay. Ipik’s attorney then set about to find property to be levied on. There was certain equipment not levied on because it was determined that it had been conveyed to a finance company that had held a mortgage on it. There were two items of equipment levied on that are not here in controversy. The attorney for Ipik and Mr. Zindler were told by Mr. and Mrs. Stolz that all the lumber and materials on hand belonged to appellee and not Texas Millwork. Mrs. Stolz showed the attorney the agreement of September 28, 1962, and the method of operation was explained. The ledger sheet showing the debt of Texas Millwork to ap-pellee was shown the attorney. There is evidence, though it is in conflict, that the attorney stated he thought the asserted arrangement was a sham. The material, according to the evidence of Mr. Stolz, is that which the attorney pointed out to Mr. Zindler — all the lumber and materials that were taken. While the attorney was present, Mrs. Stolz tried to get in touch with Mr. Loessin but was unable to get him personally. After the attorney had left, and while the lumber and materials were being loaded on the trucks that the Sheriff’s office had hired, Mr. Loessin came to Texas Millwork premises. He told Mr. Zindler the lumber and materials belonged to him. Mr. Zindler told him Ipik’s attorney had pointed out the material to take and he had to take it. Mr. Loessin told Mr. Zindler he was the law and he could not keep him from taking it, but he (Loessin) would hold the parties liable. There is evidence that Mr. Zindler said the Sheriff was protected because he had a bond. Mr. Zin-dler told Mr. Loessin that Mr. Loessin could get the property only by filing an affidavit and putting up a bond. We presume he was referring to replevy. Too, after the levy, but before sale, appellee’s attorney was in communication with the attorney for Ipik seeking a return of the property, but the efforts were unsuccessful.

We are of the view that the evidence supports wilful and wanton seizure of ap-pellee’s property, authorizing exemplary damages. Lang v. Daugherty, 74 Tex. 226, 12 S.W. 29; Epps & Mattox v. Hazlewood, 40 Tex.Civ.App. 325, 89 S.W. 809, no writ hist.

While we have not discussed appellants’ authorities, we have read them. We do not disagree with the rules therein stated. The rules are just not applicable to the facts before us.

The other Points raised by appellants, though not discussed, have been considered by us and found to be without merit.

Affirmed.


author: DAVIS, Justice.

text:
    Grace Herndon PATTEN et al., Appellants, v. Nettie Odum RODGERS et vir, et al., Appellees.
    No. 7818.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 1, 1967.
    Rehearing Denied Sept. 5, 1967.

      Will A. Knight, Spruiell, Lowry, Potter, Lasater & Guinn, Tyler, Jerry P. Jones, Thompson, Knight, Wright & Simmons, Dallas, Ben G. Smith, Ft. Worth, Shawnie B. Smith, Edinburgh, John W. Coolidge, Houston, Smith, Hall & Huffman, Marshall, for appellants.
    George Glenn Huffman, Marshall, for appellees.
   DAVIS, Justice.

A trespass to try title suit. Plaintiffs-appellees, W. E. Odum, et al., (14 plaintiffs) sued defendants-appellants, Grace Herndon Patten, et al., (43 defendants) for title and possession of two tracts of land situated in Harrison County, Texas, claiming under the ten year statute of limitation.

The tracts of land are described as follows :

FIRST TRACT:

Being 320 acres, more or less, being the entire B.B.B. & Co. R.R. Co. Survey, Abstract No. 125, Patent No. 150, Volume 14, issued to S. D. Rainey on December 14, 1861, and now appearing of record in Volume 296, Page 546 of the Deed Records of Harrison County, Texas, to which instrument and its record reference is hereby made for all relevant purposes.

SECOND TRACT:

Being 44 acres, more or less, being the entire S. D. Rainey Survey, Abstract No. 614, Patent No. 609, Volume 9, issued to S. D. Rainey on August 9, 1862, and now appearing of record in Volume 296, Page 545 of the Deed Records of Harrison County, Texas, to which instrument and its record reference is hereby made for all relevant purposes.

Appellees allege that they, and those whose title they have and hold, have had and held continuously, peaceable and adverse possession of the lands and tenements described in the petition, cultivating, occupying, using and enjoying the same for more than ten consecutive years after the appellants’ cause of action, if any, accrued and before the commencement of this suit.

The case was tried to a jury and only one special issue was submitted. The issue and the jury’s answer reads as follows:

“SPECIAL ISSUE NO. 1
“Do you find from a preponderance of the evidence that the plaintiffs and those under whom they claim, either personally or through tenants, or partly in person and partly through tenants, have had peaceable and adverse possession of the land involved in this suit, cultivating, using and enjoying the-, same for any consecutive period of ten (10) years or longer between January 5th, 1944 and the filing of this suit on the 11th day of
September, 1962?
“ANSWER ‘yes’ or ‘no’.
“ANSWER: Yes.”

Judgment was entered for the appellees. Appellants have perfected their appeal, and bring forward two points of error.

By their first point, they say the trial court erred in failing and refusing to grant their motion for instructed verdict and motion for judgment non obstante veredicto that were filed in the case, because, as a matter of law, the appellees did not mature a limitation title to the 320 acres and 44 acres involved in this suit for the reason that they acknowledged appellants’ title during the period of limitation claimed and that possession was, therefore, not hostile as required by law.

The evidence shows that W. E. Odum ■purchased the land from H. C. Alexander by deed dated January 5, 1944; and that W. E. Odum immediately put a fence around the 320 acres sufficient to keep his cattle enclosed. It also showed that he had farmed anywhere from 15 to 60 acres out of the southeast corner of the tract of land continuously, beginning in 1944, down to date. The evidence shows that Ernest Odum purchased the 44 acre tract, but the deed was made to W. E. Odum to both the tracts of land. The 44 acre tract was deeded by W. E. Odum, et al., to Ernest Odum on April 21, 1950. These tracts of land are located about 9 miles north of Marshall. The 320 acre tract is located on the south side of Little Cypress Creek and the 44 acre tract is located on the north side. Little Cypress Creek is a natural barrier that livestock cannot cross, except in extremely dry weather. The evidence further shows that there were short fences built along Little Cypress Creek to keep cattle enclosed on the 320 acre tract during any extremely dry weather. Broughton et al. v. Humble Oil & Refining Co. et al. (Tex.Civ.App., 1937), 105 S.W.2d 480, error refused. The evidence further shows that Ernest Odum went into possession of the 44 acre tract of land in 1944 and pastured cattle thereon until about 1955, when he sold his dairy business and moved to California. W. E. Odum and Ernest Odum were in the dairy business and they used the land for grazing purposes. W. E. Odum farmed some of the 320 acres, and Ernest Odum pastured the 44 acres. The evidence is a little vague about who fenced the 44 acre tract of land, or whether or not it was fenced at the time of the purchase. Anyway, there is sufficient evidence to show that Ernest Odum and the adjoining landowners kept the fences in good shape so that livestock could not get on or off the same. When Ernest Odum went to California, he turned the land over to his father, who leased the same to Willis Howard.

Now, as to the claim that the appellants admitted title in the record owners. The evidence shows that W. E. Odum executed a mineral deed to Carey M. Abney on March 24, 1950, conveying 60⅜ acres of minerals under the 320 acre tract. The record further shows that W. E. Odum executed a mineral deed to William F. Young on April 4, 1957, conveying an undivided 45 ½ acres interest in and to the minerals under the two tracts of land. Appellants claim that these minerals are based upon a power of attorney that was executed by Stuart R. Smith et al., the appellants, to Carey M. Abney and William F. Young dated November 28, 1921. In this power of attorney, the appellants conveyed Abney and Young an undivided 1/2 interest in and to whatever interest they may recover in the two tracts of land. It seems that a suit was filed in the district court of Harrison County, Texas, prior to February 16, 1922, styled J. H. Herndon, executor et al., v. A. Lane Mitchell. Judgment was entered in favor of the plaintiffs to the entire two tracts of land, but in no wise puts any title into Carey M. Abney and William F. Young. Therefore, Carey M. Abney and William F. Young were not made defendants in this suit. The record shows that Carey M. Abney approached W. E. Odum about some minerals and as a result of the conversation he executed to Abney a mineral deed to 60⅜ acres of minerals from under the 320 acre tract. There is nothing in this mineral deed that will recognize any ownership of any of the land by the appellants. At the time of the execution of this mineral deed, the evidence shows that Carey M. Abney told W. E. Odum that if he ever had any trouble with the title to the land that he would be glad to help him. Mr. Abney is a very prominent lawyer in the town of Marshall.

On April 4, 1957, William F. Young approached W. E. Odum for a mineral interest in the land. It was agreed that he would convey to Young 45½ acres of minerals out of both the tracts of land, and it is recited in the mineral deed that Young was conveying to Odum a quitclaim deed conveying any interest that he night claim in and to the surface of the 451/2 acres of land and further stating that Odum had not held the possession of the minerals adversely to Young. There is nothing in this transaction whereby appel-lees admitted any title in the appellants.

Appellants contend that the evidence conclusively showed that the possession of the appellees was not held adversely and hostile to all the world. They rely on 2 T.J.2d 174, Sec. 85; Mhoon v. Cain (1890), 77 Tex. 316, 14 S.W. 24; Broocks et al. v. Phelps et al., Tex.Civ.App. (1926, n.w.h.) 285 S.W. 904; Warren v. Fredericks (1892), 83 Tex. 380, 18 S.W. 750; Houston Oil Company of Texas v. Pullen et al., Com. of App. of Tex. (1925) 272 S.W. 439. These authorities are not in point. Each of these authorities shows that the claimant admitted the ownership in the record title holder.

Let us say again that Abney and Young were not record owners of the property involved. If they had any right to ownership, it should have been noted in the judgment, or they should have had their interest executed to them after the judgment was entered. It seems that effective adverse possession need not be adverse to the world, but only adverse to the record owners. The Supreme Court of Texas so held in 1910 in Smith v. Jones, 103 Tex. 632, 132 S.W. 469, 31 L.R.A.,N.S., 153. See, also, Jefferies v. Benavides et al. (Tex.Civ.App.1949), 220 S.W.2d 712, W.R.,N.R.E.; Lone Star Steel Company v. Owens, Tex.Civ.App. (1957), 302 S.W.2d 213, W.R.,N.R.E. As to the rule of joint possession by tenants possessors as to the record owner, or adverse possessor, see Arnold v. Jones, Tex.Civ.App. (1957), 304 S.W.2d 400, N.W.H.; Glover v. Pfeuffer, Tex.Civ.App. (1914), 163 S.W. 984, E.R.; and, Moran v. Wallace, Tex.Civ.App. (1943), 171 S.W.2d 149, E.R.,W.O.M.

It has been held that the severance of minerals after the commencement of adverse possession, but prior to maturity of title by limitation does not affect the running of limitation. Clements v. Texas Company, Tex.Civ.App. (1925), 273 S.W. 993, E.R.; Houston Oil Company of Texas v. Moss (1955), 155 Tex. 157, 284 S.W.2d 131; Cargill v. Buie, Tex.Civ.App. (1960), 343 S.W.2d 746, E.R.,N.R.E. The appellants do not challenge the sufficiency of the evidence. It seems that when the minerals have been severed from the surface, that no one can actually acquire title to the minerals without the actual possession or the production and use of the same for the statutory period of time. Texas courts have held that the recognition of an outstanding mineral interest of an adverse claimant has no effect upon the hostility of a claim against the record owners. Schwarz v. Smith, Tex.Civ.App. (1959), 325 S.W.2d 407, W.R.,N.R.E„ and the authorities cited therein. The point is overruled.

By their point No. 2, appellants say the trial court erred in overruling their objections and exceptions to the court’s charge for the reason that the sole Special Issue submitted to the jury was duplicitous and multifarious, since it inquired as to the possession of both tracts of land in one issue.

The deed from H. C. Alexander to W. E. Odum was offered in evidence without objection. The evidence shows that W. E. Odum immediately went into possession of the 320 acre tract of land, and that Ernest Odum went into possession of the 44 acre tract. They were father and son. The evidence shows that Ernest Odum actually purchased the 44 acre tract, but, for some reason or other, both tracts were deeded to W. E. Odum. In 1950, W. E. Odum, et al., conveyed the 44 acre tract to Ernest Odum. A person who holds possession of land under a deed, holds all the land within the boundaries of the deed, although he may not be in actual possession of the entire land. 2 Tex.Jur.2d, 303, Sec. 176; Caver v. Liverman (1945), 143 Tex. 359, 185 S.W.2d 417. The rule applies to possession under the 10 year statute of limitation. Temple Lumber Company v. McFarland, Tex.Civ.App. (1924), 264 S.W. 298, E.R.; Bordages et al. v. Stanolind Oil & Gas Company et al., Tex.Civ.App. (1938) 129 S.W.2d 786, Err.Dism., Judgment Correct. Two or more persons may jointly possess land without destroying the exclusive nature of their adverse possession. Anzaldua et al. v. Richardson, Tex.Civ.App. (1956), 287 S.W.2d 299, E.R.,N. R.E.

Even if it was error to submit the issue on the two tracts of land in one issue, the evidence is sufficient to support the jury’s findings on both tracts of land, and, therefore, the error, if any, is harmless. 3 McDonalds Texas Civil Practice, Page 1167, Sec. 1237. Rule 434 T.R.C.P. The point is overruled.

The -judgment of the trial court is affirmed.


author: MASSEY, Chief Justice.

text:
    S. Mort ZIMMERMAN, Appellant, v. G. E. ADAMI et al., Appellees.
    No. 16836.
    Court of Civil Appeals of Texas. Fort Worth.
    June 2, 1967.
    Rehearing Denied Sept. 15, 1967.
    Goldberg, Alexander & Baker, and James A. Baker, Dallas, for appellant.
    Lattimore & Lattimore and Hal M. Lattimore, Fort Worth, for appellee G. E. Adami.
    Simon, Crowley, Wright, Ratliff & Miller and Kleber Miller, Fort Worth, for appellees Morris B. Parker and D. C. Pitts, Jr.
   OPINION

MASSEY, Chief Justice.

Suit to reform contract because of mutual mistake. Judgment entered was against defendant S. Mort Zimmerman, based upon jury findings that he personally agreed prior to plaintiffs’ execution of a certain contract that he would indemnify them against all debts and obligations of Admiral Motor Hotel of Texas, Inc., that he as well as the plaintiffs intended that the contract in question would contain a provision providing for such indemnity, and that the failure of such contract to include such a provision was the result of a mutual mistake of fact on the part of all parties thereto.

We reverse and remand.

In our opinion the state of the record is such that to find that Zimmerman was laboring under a mistake was so against the great weight and preponderance of the evidence as to be manifestly unjust. Especially is this conclusion fortified when it is remembered that evidence to support allegations of mutual mistake in a suit to reform a contract should be of the most clear and satisfactory character to the effect not only that there has been such a mistake but that the alleged intention of the parties to which the contract is sought to be made to conform continued concurrently in the minds of all parties down to the time of its execution. See authorities in 33 Tex. Digest, “Reformation of Instruments”, ®=345, “Evidence — Weight and sufficiency”.

The contract sought to be reformed reads as follows:

“PLAINTIFFS’ EXHIBIT #1

“BILL OF SALE

“KNOW ALL MEN BY THESE PRESENTS:

“THAT for a good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the undersigned individuals (hereinafter called “Sellers”), do hereby BARGAIN, SELL, ASSIGN and CONVEY to EXCHANGE ESTATES, INC. (hereinafter called “Purchaser”), the number of shares of the capital stock of Admiral Motor Hotels of Texas, Inc. as is set forth following their respective names below.

“As partial consideration for this sale Purchaser hereby agrees to indemnify and hold harmless the Sellers as to any and all obligations or liabilities stemming from the construction, equipping, furnishing, and/or the operations of the Admiral Motor Hotel located at Arlington, Texas, from the inception of the corporation, including but not limited to any and all liability arising by virtue of the Sellers appearing as comaker, endorser or guarantor on any notes issued by Admiral Motor Hotels of Texas, Inc., the proceeds of which were utilized in the construction, equipping, furnishing and/or the operations of said corporation, from the inception of said corporation.

“As further consideration for this sale Purchaser has herewith delivered to Sellers individual checks in the aggregate amount of $3,000.00 divided among the Sellers in the same proportion as the number of shares sold by each individual Seller bears to 490.

“As additional consideration Purchaser hereby agrees that from and after this date it shall be primarily liable for the unpaid balance of that certain notes 10/31-$8,820 executed by Sellers dated 11/25-$9,200 in the original principal amount of $18,020.00 State $18,000.00, payable to Arlington National Bank, Arlington, Texas.

“It is understood and agreed by Purchaser that all shares of stock purchased hereby are at the present time pledged with the Republic National Bank of Dallas as additional collateral for a loan to Admiral Motor Hotels of Texas, Inc. (and are also subject to an additional lien of S. Mort Zimmerman), and that the shares hereby acquired are taken subject to the rights of the Republic National Bank of Dallas (and S. Mort Zimmerman).

“Attached hereto are duly executed stock powers, executed by the individual Sellers transferring to Purchaser all of their respective interest in and to aforesaid, shares, subject to the rights of the Republic National Bank of Dallas and S. Mort Zimmerman.

“For the consideration recited above Sellers do also hereby BARGAIN, SELL, TRANSFER and ASSIGN to Purchaser a promissory note or notes of Admiral Motor Hotels of Texas, Inc. dated 10/31 & 11/25, in the aggregate principal amount of $18,020.00 $18,000.00.

“Sellers hereby release Purchaser, S. Mort Zimmerman and Admiral Motor Hotels of Texas, Inc. of any and all claims of every nature whatsoever which they individually or collectively might have at this time, except that nothing herein is to be construed as releasing Admiral Motor Hotels of Texas, Inc. of any liability or obligation to make payment on any notes- or indebtedness which is hereby assigned to Purchaser.

“Purchaser and S. Mort Zimmerman, individually, hereby release Sellers of any and all claims of every nature whatsoever which Purchaser or S. Mort Zimmerman, individually, might have at this time, except as might arise under and by virtue of this Bill of Sale.

“EXECUTED THIS 13th day of July, 1964.

No. of Shares

“Signatures : Sold

“/s/ Homer H. Newman 120

“/s/ Morris B. Parker 120

“/s/ D. C. Pitts, Jr. 30

“/s/ G. E. Adami 100

“/s/ Monty Gray 120

SELLERS

“EXCHANGE ESTATES, INC.

PURCHASER

In the foregoing instrument the emphasis supplied to certain words of the second paragraph is our own. As submitted to plaintiffs the contract did not contain the words we have emphasized. They were inserted at the instance of one or more of the plaintiffs after consultation with an attorney.

The trial court held that the contract was not ambiguous. We agree. It is clear therefrom that Zimmerman, individually, was party thereto only insofar as he was released by the plaintiffs and as he released the plaintiffs. He was the president of Exchange Estates, Inc., and in such capacity he executed the contract for that corporation. According to the contract only Exchange Estates, Inc., (as “Purchaser”) agreed to any indemnification. Plaintiffs’ theory is that the contract was— and should have read — that Zimmerman as well as Exchange Estates, Inc. agreed to the same indemnification.

It will be noticed from the signatures on the contract that one seller was Monty Gray. Of all the “sellers” thereon listed he is the only one who was not a party to the suit. In other words all the other “sellers” were plaintiffs but Monty Gray was not. Plaintiffs place great reliance on the testimony of Gray, as a disinterested party. From the statement of facts it is apparent that he was present at the meeting held pursuant to consummation of the contract and there held conversation with Zimmerman where matters material to the litigation were stated by him. The conversation was apparently held when all interested parties were present.

On direct examination Gray testified, as follows:

“Q. Well, did you ever get down to the point of asking him whether he was saying ‘I’m going to do it,’ or just ‘We are going to do it’?

“A. He said, ‘I’m going to do it.’

“Q. He said, ‘I’m going to’?

“A. Yes.

“Q. Are you sure, Monty?

“A. Yes, I am sure.

“Q. Did you have any conversation with him about why his name appeared on there individually on that contract?

“A. No, sir, I did not.

“Q. Now I want to be sure about this because you have used a lot of pronouns, you know we and they and he and I. Are you certain that he said, ‘I’m going to protect everybody,’ or did he just say, ‘We’re going to protect everybody’?

“A. He said, ‘I’m going to.’

“Q. Had you made it plain to him that you were concerned about the Doctor and yourself ?

“A. Well, this was the reason for getting me there was to get me to sign this thing. And I wasn’t going to sign it until I was assured that it was going to be taken care of.

“Q. Now what do you mean by taken care of?

“A. By all of the things that were the bank’s and the bills that were past due and the operation in general, the whole operation was going to be taken care of financially.”

At another point in response to cross-examination Gray testified:

“Q. And in making these statements to you, did Mr. Zimmerman ever say, ‘I’m not going to be personally on that’?

“A. No, sir, he did not.

“Q. In his statements to you, did he use the statement, ‘I am going to see that your problems are over’?

“A. Yes, sir, he did.

“Q. And ‘I’m going to see that these notes are paid’?

“A. Yes, sir.

“Q. And ‘I’m going to see that you are taken care of in this deal’?

“A. Yes, sir.

“Q. Did he ever mention the Exchange Estates, Inc. in the deal?

“A. No, sir, I don’t believe the cor* poration was mentioned.

“Q. He never even mentioned the corporation in his whole approach to you, and ‘This is something that I’m going to take care of’?

“A. Yes, sir, that’s right.

“Q. And it was after that conversation that you executed the agreement, the Bill of Sale?

“A. Yes, sir; that was the last thing I did before I left.”

Homer H. Newman was the only plaintiff who had held antecedent conversation with Zimmerman concerning the subject of the sale. He had previously participated in a transaction whereby all the stock of Warren Donaldson in Admiral Motor Hotel of Texas, Inc. had been purchased by Exchange Estates, Inc., acting through Zimmerman, its president. Pursuant to that transaction Zimmerman, individually, had contracted to indemnify Donaldson in substantially the same manner that plaintiffs seek entitlement. In connection with the sale by plaintiffs Newman acted in a leading role, for himself and the other plaintiffs (and Gray).

The contract instrument was picked up by Newman in Zimmerman’s office and a copy thereof was given to each interested party. Such was in their possession for more than a day and possibly as long as one week. In any event there was time expired during which the instrument originally secured by Newman from Zimmerman’s office was taken to an attorney. As result of consultations with the attorney it was changed by insertion of the inter-lineated additions in the second paragraph. Newman returned to Zimmerman’s office and exhibited the contract as so changed and received his approval thereof before the meeting where the transaction was concluded.

The only evidence directly establishing plaintiffs’ contentions upon Zimmerman’s intent as of the time when the contract was originally prepared (before the additions by interlineation . by plaintiffs) was expressed by Newman's testimony on direct examination, as follows:

“Q. In the oral arrangement and oral agreements that you had with Mr. Zimmerman, did he agree to personally indemnify the minority stockholders and hold them harmless as to the Arlington State Bank note?

“A. I was negotiating for these other people; and with this obligation I made certain that this was, this was requested by the minority, the 49 percenters, and so I made certain that this was part of the indemnity.

“Q. Did he say that he personally, did he ever say that he personally would hold harmless and indemnify the 49% group?

“A. It was associated with the Donaldson sale, and I was to negotiate one with the same indemnity agreement or at least with the same protection as near as could be had; so this included Mr. Zimmerman’s personal endorsement.

“Q. Did Mr. Zimmerman use the phrase ‘the same as Mr. Donaldson’s indemnity’?

“A. I wouldn’t know that. I had never seen the Donaldson indemnity.

“Q. Did he ever actually say that he personally would be liable on these debts?

“A. Well, this was what we were selling actually, in a sense, was the obligation to indebtedness. So the answer would be yes.”

We are of the opinion that the evidence shows that each of the plaintiffs believed that Zimmerman had agreed to personal indemnification and that they labored under a misconception of the contractual provisions in that they considered that when Zimmerman signed it both in the capacity of president of Exchange Estates, Inc. and as S. Mort Zimmerman, individually, he was individually binding himself to personal indemnification.

However, when the evidence is viewed in a test to determine whether it is sufficiently clear and satisfactory to the effect that Zimmerman had not only made a mistake but that it was his intention that the contract provide for personal indemnification of the plaintiffs up until and inclusive of the very time when it was finally executed and delivered, we feel compelled to the conclusion that the jury findings were against the great weight and preponderance of the evidence. In other words, while we are not prepared to hold that there was no evidence of probative force and effect we cannot say that the evidence is not ambiguous, equivocal or contradictory, and sufficient to support the verdict and judgment in spite of the contradictory evidence introduced in behalf of the defendant. Pegues v. Dilworth, 134 Tex. 169, 132 S.W.2d 582, 586 (1939).

As in the case of other plaintiffs, whose testimony we have not copied, the testimony of Homer H. Newman and Monty Gray (portions of which we have copied) is as susceptible of construction to the effect that it was Zimmerman, in his capacity of president of Exchange Estates, Inc. who was making representations as to intentions concerning indemnification as a construetion to the effect that it was Zimmerman, individually.

The other contentions in points of error have been considered and found to be without merit. They are overruled.

Judgment is reversed and the cause remanded for another trial.