author: WERLEIN, Justice.

text:
    James A. TAYLOR et al., Appellants, v. Hugh E. GRAGG, Appellee.
    No. 14995.
    Court of Civil Appeals of Texas. Houston.
    March 9, 1967.
    Rehearing Denied March 30, 1967.

      John H. Holloway, Houston, for appellants.
    Thomas Bousquet, Houston, for appellee.
   WERLEIN, Justice.

This suit was brought by appellants, James A. Taylor and wife, to recover damages for personal injuries sustained by them as the result of an automobile collision. Appellants’ vehicle was stopped in the north bound curb lane on Almeda Street, a four-lane street, near its intersection with Southmore in the City of Houston, when it was struck by appellee’s automobile which was traveling in a northerly direction on the inside north bound lane of Almeda.

Judgment was entered for the appellee on the jury verdict which found (1) that ap-pellee did not fail to make a proper application of his brakes, (3) appellee did not fail to keep a proper lookout, (5) appellee was not operating his vehicle at a greater speed than would have a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances, and (7) the collision was an unavoidable accident. Issues 2, 4 and 6 were proximate cause issues which were predicated upon the aforesaid issues and therefore were not answered.

Appellants assert that the court erred in refusing to disregard the findings of the jury to Special Issues Nos. 1, 3, 5 and 7 because (a) there was no evidence of probative force to support such findings, (b) there was insufficient evidence of probative force to support the findings, (c) the findings were contrary to the evidence and judicial admissions of the defendant, and were so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Appellants also complain that the amount of the damages found by the jury for each of the appellants was so grossly inadequate as to indicate that the jury was activated by passion or prejudice, and that the court erred in denying a new trial because of such findings.

Appellant, James Taylor, testified that he was driving a 1956 Ford in which his wife was a passenger; that the collision occurred about 10 a.m. on April 3, 1964; it had been “misting rain” and the streets were damp, but at the time of the collision there was not sufficient mist to require use of his windshield wipers or headlights; that he had come to a complete stop in the curb lane of Almeda in obedience to a red light which was red before he got to the intersection; that he came to a normal stop and was no less than 20 feet back from the intersection of Almeda and Southmore; that he had been stopped for about 2½ minutes waiting for the light to change; and that the force of the collision knocked his car at least three or four feet.

On cross-examination he testified that ap-pellee moved his car across the street after the accident; that appellee was going about 30 miles per hour when he hit him; that he didn’t see appellee before the accident, and that when he knew anything ap-pellee was sliding his car sideways; that there were no cars in the lane to his left and none stopped ahead of him, and that the light was still red at the time of the accident.

Appellee, the only other witness, testified in substance that the collision occurred about 10 a. m., and it was misting sufficiently to require him to have his windshield wipers on intermittently; that he was traveling in the inside lane of the two-lane north hound traffic and there were no vehicles in front of him; that back up the block a way he was probably going 20 miles per hour; that his brakes were in good condition; that he had slowed down as he approached the intersection and imagined that he was going about five miles an hour when he hit appellants’ car; that he was driving a 1961 Corvair convertible and the steering and mechanical parts responded normally; that when he was within the 5200 block of Al-meda he saw appellants’ car stopped or moving very slowly in the curb lane; that his recollection was that the light had been red but as he approached the intersection it turned green; that he was proceeding to cross the intersection and for such reason didn’t know how long appellants’ car had been stopped at the red light; that appellant was either stopped or moving ahead very slowly at the time of the accident which he thought occurred about 60 feet from the intersection ; and that he believed there were some cars in front of appellants’ car that had stopped for the red light.

Appellee further testified in substance that when his car was about alongside of appellants’ car, or the front of his car was probably a little bit behind appellants’ car, as he approached the intersection, appellant either looked or turned and gave some indication which caused him to think appellant would pull over into his lane; that he honked his horn and applied his brakes, and that when he did the right rear of his car slid about three feet sideways and bumped the left rear of appellants’ car; that he thought the slick street was primarily the reason his car skidded to the right, and also that in his opinion the street was higher in the center than in the curb lane, so that when he started sliding he went from the high part of the street to the low which was to his right; that he did not believe his car stopped and that he proceeded on through the intersection after the impact and then stopped and came back; that he found no evidence of damage to appellants’ car but did identify a certain place on the left rear fender thereof as being the point of contact because “maybe some paint was off my car at that point.” He didn’t notice any damage to the bumper and didn’t think his car struck appellants’ rear bumper in any manner. He characterized the impact between the cars as being very light or very slight.

We have read the statement of facts and examined the exhibits and have concluded that the jury’s findings, hereinabove set out, exonerating appellee of negligence are supported by ample evidence of probative force, and that we cannot say that such findings are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Appellants contend that the court should not have submitted an issue on unavoidable accident. The present case is distinguishable from the rear-end collision cases relied upon by appellants, such as Meinen v. Mercer, Tex.Civ.App., 390 S.W.2d 36, writ ref., n. r. e. In this case appellee was not following appellants’ car and was not even in the lane in which appellants’ car was stopped or moving slowly. The evidence shows that appellee was driving in the inside north bound lane of Almeda and but for the unfortunate accident would have passed such car to its left with ample space between the two automobiles. Appellee had slowed down as he approached the intersection because of the red light. There is no evidence that he slowed down suddenly or that he did not keep a proper lookout or that he did not properly apply his brakes, or that his car skidded or slid at any time before the front of his car was in line with or shortly to the rear of appellants’ car. In answer to the issues of primary negligence the jury found appellee was not negligent in any particular. Viewing the evidence most favorably to appellee and indulging every legitimate inference raised by the evidence in his favor, it is our view that there was evidence which justified the jury in finding that there was an unexpected happening of an event which occurred without negligence of either party. The unexpected movement of appellant, indicating to appellee that he was going to move into appellee’s lane, caused appellee to apply his brakes suddenly. Appellee testified that he may also have turned his steering wheel at the time. He honked his horn, which was an idle gesture unless there was something to make him think a sudden and unexpected danger had arisen. There were no other motor vehicles involved.

Appellee testified that the misting rain, slick pavement and the difference in the level of the lanes, caused the rear of his car to slide to the right and contact appellants’ car on its left at the rear. There is no evidence that such conditions were uniform and static at all points. In view of the facts and circumstances as testified to by appellee, including the apparent misleading movement of appellant, we have concluded that there was evidence which warranted the submission of the unavoidable accident issue, and the finding of the jury that the accident was unavoidable and not the result of negligence of either party.

In Texas & P. Ry. Co. v. Edwards, Tex.Com.App.1931, 36 S.W.2d 477, the court said that, “If neither party was negligent, and the collision occurred without fault to either party, then the accident would in law be classed as unavoidable.” In that case the evidence showed that the cause of the accident was a sand storm which obscured the view of the railroad crossing and those in charge of the train could not see plaintiff’s cattle. In Hankamer v. Roberts Undertaking Co., Tex.Civ.App., 139 S.W.2d 865, dism., judg.cor., the court said that the issue of unavoidable accident was raised by the evidence on two theories of the law. The Supreme Court, in a per curiam opinion in such case, 135 Tex. 139, 141 S.W.2d 587, agreed with the Court of Civil Appeals that the issue of unavoidable accident was raised by the evidence in the case for the second reason assigned by the Court of Civil Appeals. The second theory was that the sudden rain, the fact that appellant’s car was stalled, the elevation of the concrete above the shoulder of the road, the sudden gripping of the concrete by the rear wheel of appellant’s car, his loss of control of his car, and the fact that without negligence on his part, his car “jumped” ahead of the ambulance (all issues raised by the evidence) raised the issue that the accident resulted proximately from facts and circumstances independent of any negligence on the part of either party. So, in the instant case the facts and circumstances hereinabove set out were such as to raise the issue that the accident resulted independently of any negligence on the part of either party.

In Greer v. Thaman, Tex.Com.App., 55 S.W.2d 519, the court held that there was sufficient evidence to raise the issue of unavoidable accident. In that case the bus in which plaintiff was riding turned over. The evidence showed that on such occasion it was raining, the road was narrow and the shoulders thereof soft; that cars were approaching from the opposite direction with blinding lights; that because of such conditions the bus driver pulled over on the side of the road and almost stopped, and that the ground under the right front wheel gave way and caused the bus to slip and roll into the ditch. In Orange & N. W. R. Co. v. Harris, Tex.Sup.1936, 89 S.W.2d 973, the Supreme Court said that the issue of unavoidable accident is raised when there is evidence tending to prove that the injury resulted from some cause other than the negligence of the parties. It is our view that in the instant case there was sufficient evidence from which the jury could find that the accident occurred from some cause other than the negligence of either party. See also Blasberg v. Cockerell, 254 S.W.2d 1012, Tex.Civ.App.1952, n. w. h.; Leatherwood Drilling Co. v. T. X. L. Oil Corporation, 379 S.W.2d 693, Tex.Civ.App. 1964, ref., n. r. e.; Vergauwen v. Parsons, 294 S.W.2d 863, Tex.Civ.App.1956, n. w. h.; Dallas Railway & Terminal Co. v. Bailey, 1952, 151 Tex. 359, 250 S.W.2d 379.

We overrule appellants’ complaint that the damage findings were so grossly inadequate as to indicate, as a matter of law, that the jury was activated by passion or prejudice.

Judgment affirmed.


source: Caselaw Access Project

author: WILSON, Justice.

license: Public Domain

text:
    REYNOLDS RESEARCH AND MANUFACTURING COMPANY, a Corporation, Appellant, v. Pete Thomas SCAMARDO et al., Appellees.
    No. 4522.
    Court of Civil Appeals of Texas. Waco.
    Feb. 2, 1967.
    Rankin, Kern & Martinez, R. H. Kern, Jr., McAllen, for appellant.
    W. C. Davis, Bryan, for appellees.
   OPINION

WILSON, Justice.

Appellant sued appellees for debt, alleging the parties had executed a written contract and an amendment thereto by which appellant was to move dirt and level the surface of appellees’ land, and for which appellees were to pay a specified sum. The suit was to recover the balance alleged to be due under the contract and its amendment, and for $377.50, alleged to be the reasonable value of certain additional work.

Appellees answered with a cross-action alleging that the contract required appellant to level and finish their land according to-Soil Conservation Service standards to prepare it for cultivation and irrigation, and provide drainage, which appellant failed to do; and that the work was not completed within the time specified in the contract. Appellees alleged in their cross-action that they failed to 'produce 53 bales of cotton which they would have harvested if appellant had performed the work according to contract. They prayed for damages for loss of profits.

Appellant replied that appellees were responsible for its failure to perform its obligations on time, and in the alternative that “there was a substantial performance and compliance by it.” It sought judgment in quantum meruit, averring that improper drainage was the result of engineering or design-standard defects, and that it had done the work in accordance with the specifications in the standards furnished by appellees. The entire pleading was verified, as was appellees’ answer and cross-action.

In a non-jury trial judgment was rendered that appellant recover $6,510.47 as “the value of services performed under the contracts in this suit,” and attorney’s fees; that appellant was denied recovery of $377.50 for additional services; and that appellees recover $1,560.47 on their cross-action, credited on and offset against appellant’s recovery. Findings of fact were to the effect that appellant “performed the contract in a defective manner” and did not complete it within the required time; that the reasonable value of the work done was $6,510.47; that appellees’ damages were in the amount assessed; and that the $377.50 claimed for extra work “was paid and released” as “recited in the amendment to the original contract.”

Appellant says there is no pleading or evidence to authorize the latter finding that the extra-work claim had been released. Appellees affirmatively pleaded the terms of the amendment to the original contract which recited that a certain portion of the contract had been completed, and that the owners agreed to pay an amount which differed from that specified in the original agreement, “which represents the total amount to be paid” to the contractor’ “for the work pertaining to” the land described. At that time the evidence shows the extra work had already been completed. This pleading and evidence adequately supports the finding.

It is contended that there was no pleading to authorize recovery of lost profits. As we understand appellant’s argument, the complaint is that the pleading did not “inform appellant or the court of the cost of production and delivery.” Appellant filed a special exception that the pleading did not itemize costs and expenses, but it did not present the exception or obtain an order thereon. It was therefore waived, and the point may not be first raised on appeal. Rule 90, Texas Rules of Civil Procedure; Texas Osage Co-op. Royalty Pool v. Kemper, Tex.Civ.App., 170 S.W.2d 849, writ. ref.

The trial court found $750 to be a reasonable attorney’s fee, and allowed its recovery in the judgment. Appellant complains the fee is inadequate under the evidence. The only support for recovery of any fee whatever is a stipulation that a named witness, if present, would testify that, in his opinion, based on examination of the file, information furnished by appellant’s counsel, and an estimate of two days in trial, a reasonable attorney’s fee would be “at least a thousand dollars.” The trial required four days. Appellant asks us to take judicial notice that the fee should he not less than twice the amount allowed.

It is the province of the trier of facts to determine the reasonable value of an attorney’s services, and opinion evidence is not conclusive. Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155, 160, 161; New Amsterdam Cas. Co. v. Texas Industries, Inc., Tex.Civ.App., 408 S.W.2d 733, 735.

The Supreme Court has held that the amount of a reasonable attorney’s fee may not be adjudicated on judicial knowledge. Great American Reserve Insurance Co. v. Britton, (Tex.Sup.1966), 406 S.W.2d 901, 907.

We have examined appellant’s other points, including those asserting insufficiency of evidence. They are overruled.

Affirmed.


author: BARROW, Chief Justice.

text:
    Joe HOLLOWAY, Appellant, v. Don L. ZAPARA, Appellee.
    No. 14556.
    Court of Civil Appeals of Texas. San Antonio.
    March 1, 1967.
    Rehearing Denied March 29, 1967.
    Lagerquist, Shaw & Davis, San Antonio, for appellant.
    Luther Rutherford, San Antonio, for ap-pellee.
   BARROW, Chief Justice.

Lessor, Joe Holloway, brought this suit against lessee, Don L. Zapara, to recover rent and attorneys’ fees due under a lease agreement, as well as for physical damages to the leased premises. The trial court rendered judgment, after a non-jury trial, that lessor recover his attorneys’ fees and for physical damages to the premises, but limited his recovery under the lease agreement to the rent which was owed at the time lessee abandoned the premises. No findings of fact or conclusions of law were filed herein.

On September 27, 1961, Zapara entered into a written agreement to lease business property in San Antonio for a term of five years, beginning October 1, 1961. As consideration therefor, he agreed to make certain improvements to the premises which would become the property of lessor, and to pay rent at the rate of $75.00 per month during the first three years and $85.00 per month during the remaining two years. The first and last months’ rent were paid in advance.

The rent was not paid after December 31, 1963, and in June, 1964, lessee abandoned the premises. The trial court credited the advance payment to January, 1964, and awarded lessor the sum of $375.00, being the rent due for the months of February through June, 1964. Lessor also recovered attorneys’ fees of $425.00, and the sum of $700.00 for physical damages to the premises caused by the wrongful removal by lessee of several fixtures and the resulting damage to the structure.

Lessor complains on this appeal only of the denial of any recovery for the rent owed for the remainder of the term. The question presented is whether the record supports the implied findings by the trial court that lessee had an obligation to exercise due diligence to re-let the premises and that by the exercise of same, the leased premises could have been re-let the remainder of the term for a sum equal to the rent owed by lessee under the agreement. There is no contention that lessor assumed such an obligation at the time lessee abandoned the premises to him, and therefore this obligation must be found in the lease agreement in order to support the implied finding of the court.

The lease provides that in case of default of any covenant, “lessor may enforce the performance of this lease in any modes provided by law, and this lease may be forfeited at lessor’s discretion if such default continue for a period of ten days after lessor notifies said lessee of such default and his intention to declare the lease forfeited,” and thereupon “this lease shall cease and come to an end as if that were the day originally fixed herein for the expiration of the term hereof * * * or lessor’s agent or attorney may resume possession of the premises and re-let the same for the remainder of the term at the best rent said agent or attorney may obtain, for account of the lessee, who shall make good any deficiency.”

There is no evidence that lessor ever exercised his option under the lease to terminate the agreement and, to the contrary, the uncontradicted evidence is that lessor at all times stated that he would not terminate the lease until lessee repaired the damage to the premises. Cf. Rohrt v. Kelley Mfg. Co., 162 Tex. 534, 349 S.W.2d 95 (1961).

Our question therefore narrows as to whether lessor had the duty to use reasonable diligence to re-let the premises after lessee abandoned same in June, 1964. It has been held that where the lease contract authorizes the landlord to re-let for the remainder of the term, he is not required to do so, but merely has the option to so act. White v. Watkins, Tex.Civ.App., 385 S.W.2d 267, no writ; Wukasch v. Hoover, Tex.Civ.App., 247 S.W.2d 593, aff. Hoover v. Wukasch, 152 Tex. 111, 254 S.W.2d 507 (1953); Early v. Isaacson, Tex.Civ.App., 31 S.W.2d 515, writ ref’d; Silbert v. Keton, Tex.Civ.App., 29 S.W.2d 824, writ ref’d; Willis v. Thomas, Tex.Civ.App., 9 S.W.2d 423, writ dism’d; 126 A.L.R. 1219.

The record is silent as to what, if anything, occurred when lessee abandoned the premises. It shows only that lessor rented the premises during the months of July and August, 1964, for which he received the sum of $150.00. It is not established as to the use of the premises from that date until the case was tried on May 16, 1966, however, there is no contention that any rent was received during that period. There was evidence that sometime after his default lessee produced two prospective tenants who were willing to sublease on the same terms as the lease agreement, but lessor refused to give his consent until the damages were repaired by lessee. The agreement required the consent of lessor to any sublease and he had the right to refuse to approve same.

The proper measure of damages in this case is the difference between the rental provided in the agreement and the amount realized by lessor from the re-letting up to the date of the trial. Lessor made no attempt to prove the reasonable cash market value of the lease for the remainder of the unexpired term after the trial.

The judgment is reformed to provide that appellant, Joe Holloway, recover from ap-pellee, Don L. Zapara, the sum of One Thousand Seven Hundred Seventy-five Dollars ($1,775.00) for rent owed under the lease agreement, and in all other respects the judgment is affirmed. The costs are taxed against appellee, Don L. Zapara.


author: COLLINGS, Justice.

text:
    Martha B. PEREZ, Appellant, v. Isidore SANDOVAL et al., Appellees.
    No. 4133.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 24, 1967.
    Rehearing Denied March 17, 1967.
    John H. Whitaker, El Paso, for appellant.
    Orba Lee Malone, El Paso, Mayfield, Broaddus & Perrenot, Francis C. Broad-dus, Jr., El Paso, for appellees.
   COLLINGS, Justice.

Martha B. Perez brought suit against Isidore Sandoval, doing business as Sandy’s Auto Sales, and Federal Service Finance Corporation of Texas. She alleged fraud on the part of Sandoval in the sale to her of a used Chevrolet automobile; that the note given by her in part payment thereof provided for payment of usurious interest and that it had been sold to defendant Federal Finance Corporation, to whom plaintiff was required to pay such usurious interest. Plaintiff further alleged that the defendants failed and refused to deliver title to the automobile. She sought judgment that the contract of sale of the automobile be set aside and held for naught, that she recover the $300.00 down payment and the eight payments of $49.60 each made by her thereon, and that she recover $500.00 exemplary damages. Plaintiff further sought judgment for triple the amount of the alleged usurious interest collected from her. The trial was to the court without a jury and judgment was rendered that plaintiff take nothing. She has appealed.

Appellant urges one point in which she contends that the court erred in not finding as a matter of law that the sale was void because of the failure of Sandoval to deliver to her title to the automobile.

Section 33, Article 1436-1, Vernon’s Ann. P.C. provides that no title to any motor vehicle shall pass or vest until the certificate of title shall be transferred to the our-chaser. Sections 51, 52 and 53 provide that it is unlawful to buy an automobile in Texas without demanding of the seller the registration receipt and certificate of title and that all sales made in violation of the certificate of title law shall be void and that no title shall pass until the provisions of the act have been complied with.

The court made the following findings of fact material to appellant’s contention. That Martha B. Perez and Isidore Sandoval executed a conditional sales contract providing for the purchase and sale of a 1959 Chevrolet automobile for a price of $1,095.00, with a cash down payment of $100.00 and an allowance of $200.00 as trade-in for appellant’s old automobile. Insurance premiums and finance charges were added to the balance which appellant agreed to pay in twenty-three monthly installments of $49.60 each; that appellant made eight payments of $49.60 called for by the contract; that at the time of executing said contract appellant did-not then demand of Isidore Sandoval the registration receipt and Certificate of title covering the motor vehicle described in the contract, but that subsequent to the institution of this suit appellant’s attorney requested of the attorney for Sandoval that the Certificate of title to the automobile in question be made available to appellant for the purpose of obtaining 1966 license plates. No Certificate of title to said automobile was delivered to appellant in response to such request.

It was further found by the court that there was no fraud, misrepresentation or malice on the part of Sandoval in the execution of the contract and that the contract was not usurious.

We overrule appellant’s contention that the court erred in failing to hold that the sale was void, as a matter of law, because Sandoval failed to deliver to her title to the automobile. It is held that a contract to sell an automobile without delivery of title certificate is not illegal as between the parties. Rush v. Smitherman, 294 S.W.2d 873 (CCA 1956, writ ref.). Appellant recites and relies upon Bryant v. Hancock, 287 S.W.2d 525, 59 A.L.R.2d 1348 (CCA 1956, no writ history). In our opinion, however, the facts of that case are distinguishable from those of the instant case. In that case Hancock sold Bryant a used 1948 truck for $995.00. Bryant paid Hancock $300.00 as a down payment and an additional $12.00 to cover the transfer of the certificate of title to the truck. Bryant also executed notes secured by a mortgage for the deferred balance of $695.00. The evidence is undisputed that Hancock did not comply with Article 1436-1, supra. He gave no certificate of title to Bryant, although he accepted $12.00 for that specific purpose. He, in fact, had no title to the 1948 model truck, but did have a title certificate to a 1942 model truck. Hancock kept the keys to the truck which he sold to Bryant and possession of the truck was never delivered to him. In the instant case appellant as purchaser had possession of the vehicle from the date of the contract to the time of the trial and made eight monthly installments on the agreed purchase price during that period.

Neither Sandoval nor Mrs. Perez complied with the Certificate of Title law. The transaction between them was a contract to sell. As heretofore noted such a contract to sell without delivery of a Certificate of Title is not illegal as between the parties. Something more than a mere failure to deliver a certificate is necessary to set aside and hold for naught such a contract of sale. Craig v. Stephenville State Bank, 395 S.W.2d 421 (Ct.Civ.Apps.1965, writ dis.). In the instant case there was no showing of any misrepresentation by appellee concerning the automobile or the title thereto which would support the setting aside of the sale as there was in Bryant v. Hancock, supra, and in Williams v. Brown, Tex.Civ.App., 362 S.W.2d 177. The findings of the court that there was no fraud on the part of Sandoval in the execution of the contract of sale and that such contract was not usurious are supported by the evidence. Appellant has failed to sustain her burden of proving facts or ciricumstances which entitle her to have the contract of sale declared void because of the failure of Sandoval to deliver to her title to the automobile in question.

The judgment is affirmed.


author: WALTER, Justice.

text:
    Glenn R. ROBERTS et ux., Appellants, v. Robert W. HOLMES, Appellee.
    No. 4145.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 2, 1966.
    Floyd Addington, Jasper, for appellants.
    Barnes & Barnes, Beaumont, for appel-lee.
   WALTER, Justice.

Robert W. Holmes filed suit against his former wife Billie J. Roberts, who is now married to Glenn R. Roberts, for damages based on fraud. Judgment was rendered that plaintiff recover one half interest in three lots and five acres of land in Hardin County and ninety shares of stock in a life insurance company and some furniture. The defendants have appealed contending that the court erred in rendering judgment for the appellee because the jury’s answers to issues one and two are against the preponderance of the evidence; because appel-lee’s claim was barred by the four year statute of limitations, and because the judgment is against public policy. Appellants also contend the court improperly considered some agreements and stipulations and erred in overruling their motion for an instructed verdict.

Holmes alleged that while he was in the service of the United States Armed Forces the appellant Billie J. Roberts, then Billie J. Holmes his former wife, filed a suit for a divorce; that prior to the entry of a final decree she caused to be filed a waiver of citation which instrument contained the following : “I further state that the settlement proposed in said suit is satisfactory with me, and I agree with the disposition of property as set out therein.” Appellee further alleged that he never saw such instrument, did not sign it and that all of the foregoing took place without his knowledge or consent. He further alleged that such property was community property; and that such conduct of the appellant amounted to fraud and as a result of such fraud he has been damaged to the extent of his undivided one-half interest in said community property.

In answer to the two special issues submitted, the jury answered that appellee did not sign the waiver of service and entry of appearance, and that the forged signature of appellee constituted the misrepresentation of a material fact.

At the outset we are confronted with a contention by appellee that some of appellants’ points are not germane to any assignment of error in their motion for a new trial and are too general to merit consideration. We fail to find a subject index or a list of authorities in appellants’ brief as are required by Rule 421, Texas Rules of Civil Procedure. The pages in appellants’ brief are not numbered. None of appellants’ points give the assignments of error to which they are germane. From an examination of appellants’ amended motion for a new trial, we find that their first two points are not germane to any assignment in said motion.

We will nevertheless consider appellants’ first two points in the event we are mistaken about finding that they are not germane to any assignment of error.

Appellants’ first two points are as follows :

“FIRST POINT
The error of the trial court in entering the judgment for Plaintiff herein which recites agreements, stipulations, additional and presumed findings, other than the jury’s verdict, without notice to Defendant or Defendant’s counsel, because the record contains no such agreements, stipulations, additional or presumed findings.
SECOND POINT
The error of the Trial Court in entering the Judgment for Plaintiff herein which recites agreements, stipulations, additional and presumed findings, other than the jury’s verdict, without notice to Defendant or Defendants’ counsel, because there is insufficient evidence in the record to sustain said findings by the Court.”

The judgment provides:

“And it appearing unto the Court that the foregoing Special Issues and the answers of the Jury thereto are each and all supported by both pleadings and evidence, and that a judgment ought to be entered in accordance with said verdict; and it appearing to the Court that all other relevant matters of fact are either uncontradicted or agreed to by the parties; and it appearing therefrom that the Plaintiff, Robert W. Holmes, ought to recover of and from the Defendants, Glenn R. Roberts and his wife, Billie J. Roberts, an undivided one-half interest in and to the following described property * * *»
And the Court finds further that all other issues have been answered as a matter of law or stipulated herein in favor of a judgment for the Plaintiff; and the Court finds further from the evidence and from the stipulations of the parties that all fact issues not presented to the jury are resolved in support of this judgment:”

Appellants contend that because only two of the elments of fraud were submitted to the jury, the remaining elements cannot be resolved by the court in support of the judgment.

Appellee introduced his former wife’s original petition in the divorce suit in evidence. She alleged therein that she and appellee accumulated, as community property during their marriage, the property here in controversy. This matter was not controverted. This evidence was direct and positive. There was no issue raised by the evidence about this matter. Two of the elements of appellee’s cause of action for damages based on fraud were submitted and answered favorably to appellee. Appellants did not object to the charge because it failed to submit other elements of appellee’s ground of recovery. Under such circumstances, before appellants could complain of the court’s action, they had a duty to object to the charge for failing to submit the other elements of appellee’s ground of recovery. Rule 279 T.R.C.P.; Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, (S.Ct.1940). We find no merit in appellants’ first two points.

The appellants pleaded limitations. No issue on limitations was submitted and no request was made by appellants that the issue be submitted and no objection was made to the charge because it failed to submit an issue on limitation. This defense was therefore waived. Rule 279, T.R.C.P.

We have considered the entire record and find that the answers to issues one and two are not against the overwhelming weight and preponderance of the evidence.

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

The judgment is affirmed.


text:
    Gonzalo GARCIA et al., Trustees, Appellants, v. Joseph ANGELINI et al., Trustees, Appellees.
    No. 4126.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 24, 1967.
    Rehearing Denied March 17, 1967.

      Gerald J. Smith, El Paso, for appellants.
    Owen & Steinberger, John C. Steinber-ger, El Paso, for appellees.
   COLLINGS, Justice.

Joseph Angelini, Fred Freeman and Jose Alderete, in their capacity as trustees of the Canutillo Independent School District, brought suit against Gonzalo Garcia, T. J. Warren and Gaspar Tarango, in their capacity as trustees of such school district. Plaintiffs sought to restrain and enjoin defendants from barring plaintiffs from attending school board meetings and from participating in the activities of the school board in their official capacity and to restrain defendants from appointing trustees to fill vacancies which defendants claim have been created by plaintiffs’ resignations. The court after hearing granted a temporary injunction restraining defendants as prayed pending final hearing of the cause. The defendants have appealed.

Appellants contend that the court erred (1) in overruling their exception to the jurisdiction of the court, (2) in overruling their exception to the nature of the proceeding in that the action should have been brought by quo warranto, (3) erred in granting the temporary injunction because there was no evidence to support the granting of a temporary injunction and (4) erred in granting the temporary injunction because to do so was an abuse of the court’s discretion.

The record shows that this case arose out of a dispute between appellees and appellants, all of whom were admittedly duly elected qualified and acting trustees of the Canutillo Independent School District. The controversy came to a climax at a meeting of the board and involved an alleged diversion of funds in the amount of $1900.00 by appellants in the purchase of an automobile for the private use of one connected with the “poverty program”. Appellees were dissatisfied, upset and angry about the matter and after much discussion and argument stated that they were “fed up” and were resigning or were going to resign and walked out of the meeting. Thereafter appellees indicated an intention not to resign but appellants denied them the right to thereafter participate as trustees in board meetings and actually barred them from attending such meetings.

We cannot agree with appellants’ points urging that the court erred in overruling their exceptions to the jurisdiction of the court and in overruling exceptions urging that appellees’ suit could be brought only by a quo warranto proceeding. Ap-pellees were duly elected qualified and acting trustees of the Canutillo Independent School District. As such they were county officers within the meaning of the statutes providing for the removal of county officers. 51 Tex.Jur.2d, Schools, Section 80, pages 439 and 440. Appellants had no power to remove appellees from office. They likewise had no power to prohibit or bar appellees from attending and participating in meetings and proceedings of the school board in their official capacity. Appellants’ action in attempting to prohibit appellees from so participating and acting as trustees was without legal authority. The action of appellants in determining contrary to the facts of the case that ap-pellees were no longer trustees because of resignation and in attempting to appoint other trustees to fill the claimed vacancies was likewise without legal authority. Injunction is a proper remedy to restrain a public official from performing an invalid and unauthorized action. McClellan v. Guerra, 152 Tex. 373, 258 S.W.2d 72 (1953); City of Lubbock v. Green, Tex.Civ.App., 312 S.W.2d 279; Lynn County School Board v. Garlynn Common County Line School District, Tex.Civ.App., 118 S.W.2d 1070 (writ ref.). We overrule appellants’ contention that quo warranto was the exclusive remedy by which appellees might seek a determination of their rights in this case.

On the jurisdictional question appellants cite 51 Tex.Jur.2d, Schools, Section 59, contending that the matter involved is within the jurisdiction of school authorities and that one who complains of the action of such authorities must exhaust his statutory remedy by appeal to higher school authority as provided by Articles 2654-1 and 2654 — 7, Vernon’s Ann.Tex.Civ.St. before he may invoke the jurisdiction of the courts. Appellants cite Kaml v. Camp, 78 S.W.2d 1046, (Ct.Civ.Apps., 1935, writ dis.) in support of their contention that the announced principle is applicable in determining whether or not a vacancy has been created and the filling of such vacancy. The facts of the Kami case are distinguishable from the facts in the instant case and in our opinion the holding in that case does not support appellants’ position here. In that case the County School Board under its statutory authority declared the existence of a vacancy in the office of a trustee of a community school board and filled such vacancy. Kami first appealed to the higher school authorities but thereafter abandoned his appeal to the school authorities and brought an injunction in the District Court. The San Antonio Court of Civil Appeals affirmed the action of the District Court in denying Kami’s petition for a temporary injunction, holding that by virtue of Article 2745, V.A.T.C.S., the County Board of School Trustees had the power and authority to declare the existence of a vacancy in the office of trustee of a common school district and by appointment to fill such vacancy. In the instant case there was no statutory authority for the action of appellants of which appellees complain.

Appellants contend that appel-lees resigned from office. The court found in its judgment, however, that appellees “are the lawful trustees of said independent school district.” Although the evidence does show that appellees orally tendered their resignations or at least indicated an intention to resign, the evidence further supports the conclusion that they withdrew their resignations before they had been accepted and acted upon by proper authorities. Under such circumstances appellees retained their status as trustees of the Canutillo Independent School District. Sawyer v. City of San Antonio, 149 Tex. 408, 234 S.W.2d 398, (Sup.Ct.1950.) It is true, as appellant contends, that there was conflicting evidence on the question of whether appellees resigned, whether the remaining board members held the matter open for further consideration or took affirmative action thereupon and whether or not the resignations of appellees, if made, were retracted prior to any affirmative action thereon by the remaining members of the board. It must be presumed that the court found every fact which has support in the evidence in a manner favorable to the judgment. The evidence in our opinion amply supports the judgment.

The fact questions here involved were for the court. It is held that exclusive prior jurisdiction of school authorities pertain only to such matters as are placed by law under their jurisdiction. Metalab Equipment Company v. Spring Branch Independent School District, 378 S.W.2d 347, (CCA 1964, n. r. e., 381 S.W.2d 48). As stated in 51 Tex.Jur.2d 427:

“It was not the intention of the legislature to confer on school officials, discharging quasi-judicial functions, exclusive authority to determine questions pertaining to their own jurisdiction and the extent of their power. All such questions are subject to inquiry by the courts. And where school officials do not have final or conclusive discretion, their fact findings are not conclusive on the courts.”

We overrule appellants’ points urging that there was no evidence in support of the judgment and that the court abused its discretion in granting the temporary injunction. Appellants’ points are all overruled.

The judgment is affirmed.


author: PARKER, Justice.

text:
    Hilton H. GREEN et al., Appellants, v. J. R. PAGE et al., Appellees.
    No. 6877.
    Court of Civil Appeals of Texas. Beaumont.
    March 1, 1967.

      Cowart & Orr, Bay City, for appellant.
    Robert F. Atkins, James E. Faulkner, Cold Springs, for appellee.
   ON MOTION FOR REHEARING

PARKER, Justice.

The opinion and judgment rendered in this cause on the 9th day of February, 1967, are withdrawn and this opinion in all things substituted therefor with judgment rendered as hereinafter set forth.

This is an election contest. An election was held in the Oakhurst Independent School District and the Coldspring Independent School District, separately, to determine whether such school districts should be consolidated for school purposes and be known as Coldspring-Oakhurst Consolidated Independent School District. The election was held on December 11, 1965. No contest as to the election in Coldspring Independent School District is before this court. It is only the election held within Oakhurst Independent School District that is contested. The results of the election held in Oakhurst Independent School District were canvassed by the Commissioners’ Court of San Jacinto County. Such court found 402 votes were cast. 248 votes were cast for consolidation and 146 votes against consolidation, with 8 mutilated ballots. The consolidation of such two districts carried in the Coldspring Independent School District. The consolidation of said school districts was accordingly approved by the Commissioners’ Court. Hilton Green, Jr. and other individuals contested the validity of the school consolidation election. The trial court held the election was valid. Plaintiffs below, who were contesting the election, have appealed. They will be designated as either contestants or plaintiffs in this opinion.

Contestants have two points of error:

“1. The Court erred in finding as a matter of law that the Coldspring-Oak-hurst Independent School District Election was valid and legal, because the undisputed evidence showed that a large number of the voters casting ballots had not paid their poll tax or secured an exemption certificate as required by the Texas Election Code, Articles 5.02 and 5.09.
“2. The Court erred in finding as a matter of law that the Coldspring-Oak-hurst Independent School District consolidation election was valid and legal, because the undisputed evidence showed that a large number of the citizens casting ballots were not listed on the official poll tax list as required by the Texas Election Code, Article 5.22.”

On December 11, 1965, the Election Code, V.A.T.S. provided:

Art. 5.OP:
“There shall be levied and collected from every person between the ages of twenty-one and sixty years on the first day of January of each year and resident within this state on that date, an annual state poll tax of one dollar and fifty cents, * * * ”
Art. 5.10:
“Every person who is a qualified voter otherwise and who is exempt from paying a poll tax shall be entitled to vote without being required to pay a poll tax if he has obtained his certificate of exemption from the county tax collector of the county in which he resided at the time of issuance of the certificate, when same 'is required by the provisions of this Code.” (emphasis added)

The provisions of the Code requiring an exemption certificate are stated in the Acts of the 52nd Legislature, Regular Session, 1951, Chapter 492, art. 48:

“Every person who is exempted by law from the payment of a poll tax, and who is in other respects a qualified voter, who resides in a city of ten thousand (10,000) inhabitants or more, shall, before the first day of February of the year when such voter shall have become entitled to such exemption, obtain from the Tax Collector of the county of his or her residence, a certificate showing his or her exemption from the payment of a poll tax.” (emphasis added)

Art. 5.16 incorporated the above provision in the following language:

“As a condition to voting, any person who is exempt from the payment of a poll tax by reason of the fact that he was over sixty years of age on the first day of January preceding its levy, and who resides in a city of ten thousand or more inhabitants, must annually obtain from the tax collector of the county of his residence, between the first day of October and the 31st day of January, a certificate showing his exemption from the payment of the tax.”

This is in keeping with Art. 6, § 4 of the Constitution of the State of Texas, Vernon’s Ann.St. which states:

“Sec. 4. In all elections by the people the vote shall be by ballot and the Legislature shall provide for the numbering of tickets and make such other regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot box and the Legislature may provide by law for the registration of all voters in all cities containing a population of ten thousand inhabitants or more. As amended Aug. 11, 1891, proclamation Sept. 22, 1891.”

There is not a city of ten thousand or more inhabitants within the Oakhurst Independent School District. Such persons over sixty years of age on the first of the year when the election was held were not listed on the official poll tax list because they were not required to pay a poll tax and were not required to obtain an exemption certificate. In the election in the Oak-hurst Independent School District approximately 170 votes were cast by persons over the age of sixty. 150 of these testified they were over sixty years old and did not possess exemption certificates. These voters over sixty years of age were not living in a city of ten thousand inhabitants or more and were not required to obtain an exemption certificate. Huff v. Duffield, 251 S.W. 298 (Tex.Civ.App.1923, n. w. h.); Stewart v. State, 123 Tex.Cr.R. 269, 58 S.W.2d 519, at p. 520 (1933); United States v. State of Texas, D.C., 252 F.Supp. 234, on p. 239.

In this election, persons over sixty years of age were qualified to vote without an exemption certificate and without making an affidavit that same was lost. Art. 5.02 stating as a condition to voting, “any qualified elector who is over sixty years of age on the day of an election at which he offers to vote and who does not reside in a city of ten thousand or more inhabitants may vote at the election without having registered as a voter,” etc., does not require an exemption certificate for over-age persons to vote. The Code and the Constitution of the State of Texas do not require exemption certificates to entitle over-age persons to vote under the facts in this case. Acts of 1965, H.B. No. 258, Chapter 354, 59th Regular Session, pages 760 and 761, only repealed and deleted the previous provisions of Art. 5.02 restricting voting by persons in military service. Sec. 28, Chap. 424, p. 1046, Acts of 1963, 58th Legislature, Regular Session (Art. 5.16 of the Texas Election Code) was not amended or repealed by the Acts of 1965, H.B. No. 258.

The above answers all arguments of the contestants under their two points of error. Contestants’ points of error are overruled. Contestants’ motion for rehearing is overruled.

Judgment of the trial court is affirmed.


author: MASSEY, Chief Justice.

text:
    GLOBE FINANCE & THRIFT COMPANY et al., Appellants, v. Walker THOMPSON, Appellee.
    No. 16808.
    Court of Civil Appeals of Texas. Fort Worth.
    March 10, 1967.
    Evans & Marshall and Louis E. Marshall, San Antonio, for appellants.
    Fritz & Vinson and Windle Turley, Dallas, for appellee.
   OPINION

MASSEY, Chief Justice.

Venue case.

A controverting plea to a defendant’s plea of privilege is fatally defective if it is not verified as required by Texas Rules of Civil Procedure Rule 86, “Plea of Privilege”, Lopez v. Cantu, 130 S.W.2d 345 (San Antonio Tex.Civ.App., 1939, no writ) and cases cited; Fielder v. Parker, 119 S.W.2d 1089 (Eastland Tex.Civ.App., 1938, no writ).

The controverting plea in the instant case being thus fatally defective, with the result that it had not the effect of its own force to make venue a litigious issue, our duty is to determine whether such character of issue existed in the case through a waiver of the defect and/or because a trial of the venue issue was conducted by implied consent as provided for by T.R.C.P. Rule 67, “Amendments to Conform to Issues Tried Without Objection”. Buchanan v. Jean, 141 Tex. 401, 172 S.W.2d 688 (1943).

The appellants’ contention is that there was no waiver, either under the theory that the venue issue was tried by implied consent, nor, if the rule be applicable, because of appellants’ failure to point out the defect in the controverting plea as provided by T.R.C.P. Rule 90, “Waiver of Defects in Pleading”.

Before entry of the order overruling the plea of privilege there were two trials, and it appears that the second was perhaps a continuation of the first with the evidence first heard considered as a part of the whole of the evidence. As applied to the cause of action upon which appellants’ pleas of privilege were overruled, to-wit: for the collection of usurious interest, the evidence initially introduced by the plaintiff did not present a prima facie case establishing such character of action under the assumption that the hearing was properly held.

A few weeks later the trial court directed that the matter be reopened and opportunity afforded for introduction of additional testimony. At that stage of the proceedings the appellants filed a rather lengthy instrument labeled as “Defendant’s Exceptions and Objections to Reopening Hearing on Defendant’s Plea of Privilege to Permit Plaintiff to Introduce Further Evidence, and Motion for Judgment Sustaining said Plea on Grounds of Insufficiency, Late Filing and Lack of Good Cause For Not Filing a Controverting Affidavit in Due Time”. In the body of such instrument the appellants objected to the reception of any (further) evidence on the ground that plaintiff had not complied with the requisites of T.R.C.P. Rule 86 in that the controverting plea had not been filed in time, and because “plaintiff’s controverting affidavit does not comply with Rule 86 of the Rules of Civil Procedure”.

By reference to the provisions of Rule 86 with respect to requisites of a controverting plea it is to be observed that in addition to provisions relative to the time for filing such there are two more requirements. The first is that such plea be under oath, and the second that it set out specifically the grounds relied upon to confer venue. We are concerned only with the first.

The second hearing or trial followed action of the trial court overruling defendants’ exceptions and motion for judgment. By the conclusion of the second hearing there is no doubt but that a cause of action was proved under Vernon’s Ann.Tex.Civ.St. Art. 5073, “Action on usurious rate”. Said article contains provisions relative to venue of such cases. There was no objection advanced to introduction of testimony.

We are of the opinion that T.R. C.P. Rule 90 (relative to waiver of defects in pleading) is without application to the instant case. A purported controverting plea which contains no affidavit is a nullity. It may not be amended. McDonald Texas Civil Practice, p. 451, “Venue”, § 4.50, “Controverting Affidavit — Amendment”; Brashears v. Strawn Nat. Bank, 57 S.W.2d 177 (Eastland Tex.Civ.App., 1932, no writ) and cases cited. Not having waived their contest of the venue of the court in which plaintiff brought his cause of action, — as by consenting to the trial of the venue issue as though plaintiff had in fact discharged his burden to raise such by proper pleading,— the appellants’ right persisted. That right was to have the cause removed upon their pleas of privilege.

Judgment is reversed. The cause is remanded to the trial court with instructions to enter an order transferring the case to a district court of Bexar County, Texas.


author: McDONALD, Chief Justice.

text:
    Frank K. MEYER, Individually, etc., et al., Appellants, v. TEXAS NATIONAL BANK OF COMMERCE OF HOUSTON, Adm., etc., Appellee.
    No. 4554.
    Court of Civil Appeals of Texas. Waco.
    March 2, 1967.
    Rehearing Denied March 30, 1967.
    Hirsch & Westheimer, Charles F. Cock-rell, Jr., Andrews, Kurth, Campbell & Jones, Hall E. Timanus, Homer Mabry, Palmer Bradley, Brian E. O’Neill, Houston, for appellants.
    Brown, Kronzer, Abraham, Watkins & Steely, W. James Kronzer, W. J. Knight, Gail Whitcomb, Fred Parks, Bohn Phillips, Houston, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by Frank Meyer, et al. from a summary judgment, impressing a trust on an undivided two-thirds interest in the estate of Joseph F. Meyer, Jr., in favor of the heirs of Alpha Meyer, deceased.

Plaintiff Bank, administrator of the estate of Alpha Meyer, filed suit against defendants, Estate of Joseph F. Meyer, Jr., deceased, Frank Meyer and George Meyer, alleging Joseph F. Meyer, Jr. and Alpha Meyer, husband and wife, entered into an agreement that each would leave his or her entire estate to the survivor between them; that pursuant to such agreement each executed a will leaving their entire estate to the other; that thereafter on March 13, 1962 Joseph Meyer, Jr., breached said agreement by executing another will leaving two-thirds of his estate to his brothers Frank and George Meyer, and one-third to his wife, Alpha; that Joseph Meyer, Jr., died on May 18, 1962; that Alpha Meyer did not know of Joseph Meyer, Junior’s breach of the agreement until after the death of Joseph Meyer, Jr., and did not revoke her will leaving her entire estate to Joseph Meyer, Jr., prior to her death on June 15, 1962. Plaintiff asserted that by virtue of the agreement Alpha Meyer was vested in equity with the entire estate of Joseph Meyer, Jr., and prayed that an equitable trust be impressed on the two-thirds of the estate bequeathed to Frank and George Meyer, in favor of the estate of Alpha Meyer.

Plaintiff and defendants both moved for summary judgment. The trial court denied defendants’ motion, and granted plaintiff’s motion, impressing a trust on two-thirds of the estate of Joseph Meyer, Jr., in favor of the estate of Alpha Meyer, deceased.

Defendants appeal on four points, contending the trial court erred in granting summary judgment for plaintiff because:

1) A fact issue exists as to whether Joseph Meyer, Jr. and wife, Alpha Meyer, orally agreed that each would devise his or her estate to the other.

2) If there was an agreement, such was oral, and in contravention of and unenforceable because of the Statute of Frauds.

Defendants’ first contention is that a fact issue was made as to whether there was an oral agreement between Joseph and Alpha Meyer to will their estates to each other.

The record reflects that on January 10, 1944 Alpha Meyer executed a will leaving her estate to Joseph Meyer, Jr., and that Joseph Meyer, Jr. executed a will on July 21, 1944 leaving his estate to Alpha Meyer. Erna Toner made affidavit that “on numerous occasions both (Mr. and Mrs. Meyer) told me they had executed wills leaving their estates to each other, and that their wills were the result of a mutual agreement between them, and that the wills were not to be revoked.” Mrs. DeBrophy made affidavit that Mrs. Meyer told her “she and her husband agreed to make the wills— they agreed to leave everything each one had to the other.” Mr. Summers testified in his deposition that Mr. Meyer told him “that he and Alpha had agreed that they would make their wills to each other; whichever one passed away first would get everything the other one would have.” Mrs. Summer’s deposition is to the same effect.

Defendants contend that the testimony by deposition of sixteen persons, who were either close friends, relatives or business associates, to the effect that they had no knowledge of an agreement by Mr. and Mrs. Meyer to will their estates to each other, constitutes some evidence there was no agreement. It is asserted these persons would be the ones most likely to have knowledge of any agreement, and that their lack of knowledge produces an inference that no agreement existed. Defendants further contend the affidavits of Mrs. Dennis and Mrs. Lorraine Meyer make for a fact issue as to the existence of any agreement. Mrs. Dennis’ affidavit stated: “Mr. Meyer stated to me that he was under no obligation to leave any of his estate to Alpha Meyer” and Mrs. Meyer’s affidavit was that “Mr. Meyer * * * stated to me that his wife Alpha was well taken care of and he could do what he wanted to with his property.” Mrs. Dennis and Mrs. Lorraine Meyer’s affidavits were not a part of the record on summary judgment, but were attached to defendants’ motion for new trial. They cannot be considered. Oaxaca v. Lowman, Tex.Civ.App. (nre) 297 S.W.2d 729.

Under the record on summary judgment it is undisputed that Joseph and Alpha Meyer made an oral agreement to will their estates to one another.

Defendants’ second contention is that such oral agreement is unenforceable because of our Statute of Frauds.

Article 3995(4), Vernon’s Ann.Texas Statute of Frauds provides that no action shall be brought upon any contract for the sale of real estate unless the agreement be in writing, and signed by the party charged therewith.

Joseph and Alpha Meyer, husband and wife, orally agreed to will their property to each other. Each executed a will leaving their property to the other. Two months before his death, Joseph Meyer covertly and without the knowledge of Alpha Meyer, breached his agreement by executing a new will leaving his wife one-third and his brothers two-thirds of his estate. The wife died 27 days later, without having executed a new will. Alpha’s estate seeks enforcement of the oral agreement she made with her husband, and prayed that a trust be impressed in its favor on the two-thirds of the estate devised to the two brothers.

In Kirk v. Beard, Tex.Sup.Ct, 345 S.W.2d 267, two brothers made an oral contract to devise their property to each other, and further contracted that the survivor would devise all property to named nieces. In such case the brothers executed reciprocal wills as agreed. The first brother died and the second brother took under the first brother’s will, but did not will his estate to the nieces. In suit by the nieces to enforce the oral contract the court held an oral agreement to make mutual or reciprocal wills is taken out of the Statute of Frauds by part performance, as by the death of one party, leaving a will in accordance with the agreement, and the acceptance of benefits under such will by the survivor. To the same effect is Larrabee v. Porter, Tex.Civ.App., Er.Ref., 166 S.W. 395.

The precise factual situation here involved has been passed on in other jurisdictions, with a division of the authorities.

The Supreme Court of Washington (1938) In re Fischer’s Estate, 196 Wash. 41, 81 P.2d 836, holds execution of the wills under the agreement a sufficient performance to take the oral agreement out of the restrictions of the Statute of Frauds. The Supreme Court of Nebraska (1912) in Brown v. Webster, 90 Neb. 591, 134 N.W. 185, 37 L.R.A.,N.S., 1196, holds an oral agreement to make a reciprocal will, relieved from the Statute of Frauds by the part performance of the making of the wills; and that the contract will be specifically enforced by a court of equity against a devisee of the after made will in breach of the oral contract.

On the contrary, the Supreme Court of Wyoming (1925), Canada v. Ihmsen, 33 Wyo. 439, 240 P. 927, and Wisconsin (1966) In re Estate of Rogers, 30 Wis.2d 284, 140 N.W.2d 273, hold that an oral contract to make a reciprocal will is within the Statute of Frauds, and that if one party covertly revokes the will made pursuant to the oral contract, the other party is precluded by the Statute of Frauds from enforcing, and that the making of the wills pursuant to the oral contract is not sufficient part performance to remove the case from the purview of the Statute. Maloney v. Maloney, 258 Ky. 567, 80 S.W.2d 611 holds the oral contract in such situation within the Statute of Frauds, and notes that the “doctrine of part performance” of oral contracts to avoid the Statute does not prevail in Kentucky.

We think in Texas the doctrine of part performance as recognized in Kirk v. Beard, and Larrabee v. Porter, supra, extends to the factual situation here involved,, and that the oral agreement of Alpha and Joseph Meyer, Jr. is not unenforceable because of the Statute of Frauds.

Defendants’ points and contentions are overruled.

Affirmed.


author: TOWNSEND, Commissioner. PER CURIAM.

text:
    Virginia H. BARNETT, Plaintiff-Respondent, v. William C. BARNETT, Defendant-Appellant.
    No. 32332.
    St. Louis Court of Appeals. Missouri.
    Feb. 21, 1967.
    Motion for Rehearing Denied March 17, 1967.

      William C. Barnett, St. Louis, for defendant-appellant.
    Brackman, Copeland, Oetting, Copeland, Walther & Schmidt, Theodore C. Traeger, William T. Euwer, Clayton, for plaintiff-respondent.
   TOWNSEND, Commissioner.

In her petition for divorce plaintiff alleged the marriage of the parties in 1933 “and that from and after” that date “plaintiff and defendant have lived together as wife and husband.” Defendant moved to dismiss on the ground that the petition alleged that the parties “are still living together as wife and husband”. (No ruling upon that motion was ever made). Thereupon plaintiff filed her amended petition, the pertinent part of which alleged that for more than one year the parties had not cohabited and had not lived as husband and wife but had lived separate lives in the same household. Plaintiff prayed for alimony, custody of minor children, attorney’s fees and costs.

Defendant moved for summary judgment on the ground that the allegations of the original and amended petitions were contradictory, that one must be false, that plaintiff had made a false affidavit and hence had shown that she is a person who cannot be believed under oath and that having sworn falsely she cannot meet the requirement of being an innocent party. On the next day plaintiff filed her motion for alimony pendente lite, attorney’s fees and costs. The latter motion and defendant’s motion lor summary judgment were heard at the same time.

The motion for summary judgment was overruled; the 'motion for alimony pen-dente lite was sustained and defendant was ordered to pay plaintiff fifteen dollars per week, as well as two hundred fifty dollars for attorneys’ fees, seventy-five dollars for depositions and fifty dollars court costs. Defendant’s motion for new trial was based principally upon his charge of fraud, deceit and perjury practiced by plaintiff. He assigned also failure of pr^of by plaintiff and the existence of a just defence. A hearing was had on the motion for a new trial, at which defendant introduced evidence over plaintiff’s objection. From judgment overruling defendant’s motion for a new trial he appeals.

While the order overruling the motion for summary judgment is not subject to appeal (Lawrence County on Behalf of Tunnell v. Johnson, Mo., 269 S.W. 2d 110; Agin-Feeley Services, Inc. v. Industrial Commission, Mo.App., 389 S.W. 2d 416), the record made in relation thereto is part of the whole record in the present proceeding and we first look thereto for matters material to the errors assigned by defendant. Plaintiff filed her affidavit in opposition to the motion for summary judgment and explained the alleged inconsistency between the allegation of her two petitions by stating:

“1. That plaintiff and defendant have occupied the same house during their married life but since on or before the fourth day of October, 1963, they have not had marital relations;
2. That defendant has constantly remained away from the home for short periods of time returning only on occasions early in the morning to sleep and has in effect separated himself from plaintiff but is still the husband of plaintiff and does live in said household on occasion, and since the 7th day of February 1965, defendant has not slept in said home.”

Under such circumstances we cannot say that plaintiff’s verification of her original petition sustains defendant’s charge of fraud and deceit. The relevant allegation of that petition — “that from and after the date of said marriage plaintiff and defendant have lived together as wife and husband” — was plainly inadequate to the situation and might have justified the sustaining of the motion to dismiss if that motion had ever been called for hearing. But to attempt to use it and the amended petition in combination as the basis for an accusation of fraud, deceit and perjury is fatuous.

At the hearing on the motion for alimony pendente lite on March 10, 1965, plaintiff testified that she was then employed part-time by Volunteer Film Association and that her take-home pay therefrom would be about ninety-five dollars every two weeks; this employment began March 1, 1965. She had previously worked part-time for Porter Paint Company at $1.75 per hour, selling wall-paper. “I worked one day a week, two days the next week.” Upon cross-examination the following questions and answers were had:

“Q Employment is still available to you at Porter Paint, is it not ?
A Only part-time.
Q In other words you are working half-time at Volunteer Film and the other half of the time is available to you at Porter, is that correct ?
A No.
Q Why not ?- A Because they have other employees.”

The hearing on defendant’s motion for new trial was held on May 26, 1965. Mr. Gibbons, a branch manager for Porter Paint Company, was called by defendant. Plaintiff objected to the admission of any new evidence. The court reserved its ruling and the witness proceeded to testify. Defendant’s brief under his Point II asserts as error the court’s failure to rule and insists that oral testimony may be presented in connection with a motion for new trial. (Supreme Court Rule 78.03, V.A.M.R.). Mr. Gibbons’ testimony is set forth in full in the transcript and, as plaintiff’s brief contends, the net effect was that the court admitted the testimony for the purpose of ruling on the motion. We agree with defendant that this testimony was clear, cogent and of great probative value; his conclusion that “it should have been utilized in a timely and favorable ruling on defendant’s motion” cannot be accepted.

Mr. Gibbons testified that at the beginning of March 1965, he knew that plaintiff was going to work for his company less time than had theretofore been the case because of her new employment and requested her to give them as much time as possible during the first week of March 1965 in order that they might get their stores fully staffed, and that after the first week in March he had not requested her to work more than one day a week— “just one Saturday.” “She is now on a schedule of one day a week, on Saturday.” From his personnel records the witness testified that plaintiff worked 31½ hours in the two-week pay period ending March 19. After March 10, the day of the hearing on motion for alimony pendente lite, and until the end of the pay period on March 19,. she worked fourteen hours including eight hours on Saturday, March 13. For subsequent periods his testimony showed the following record of hours worked by plaintiff :

For two-week period ending April 2,. 1965 — no hours
For two-week period ending April 16,. 1965 — 16 hours (two Saturdays)
For two-week period ending April 30, 1965 — no hours
For two-week period ending May 14, 1965 — 16 hours (two Saturdays)
For two-week period ending May 28, 1965 — 16 hours (two Saturdays)

To sustain his charge that plaintiff knowingly gave false testimony as to her employment, defendant read into the record portions of the testimony given by plaintiff at the hearing on her motion for alimony pendente lite. We detect therein no false testimony by plaintiff insofar as relates to her employment status on the date when she testified or as to her future employment arrangements. The only inaccuracy which we discern is found in her statement, when testifying as to her past part-time employment, that “I worked one day a week, two days the next week.” For a two-week period this should have resulted in her working twenty-four hours. The testimony of defendant’s witness Gibbons showed that in the pay period ending February 5, 1965, plaintiff worked for Porter Paint Company 30 hours and in the period ending March 5, 1965, she worked 31½ hours. However for the period ending February 19, 1965, she worked no hours. And so for three successive two-week periods, instead of working a total of seventy-two hours, his testimony shows that she worked a total of only 61½ hours. The misrepresentation so made by her above quoted statement presented her situation in a light less favorable to her than the facts justified, although the difference is only a slight one. We cannot regard this inaccuracy as other than inadvertent and unintentional and certainly immaterial. It gives no support to defendant’s charge that “Plaintiff knowingly gave false testimony as to her employment.”

Evidence of the plaintiff’s needs and of defendant’s ability to pay is quite sufficient to support the trial court’s order.

Defendant’s assignments of error are found to be wholly unsubstantiated and accordingly the order appealed from must be affirmed.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly, judgment is affirmed.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.


author: TOWNSEND Commissioner. PER CURIAM:

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. Kate Ray KUHN et al., Defendants, Kate Ray Kuhn, Defendant-Appellant.
    No. 32458.
    St. Louis Court of Appeals. Missouri.
    Feb. 21, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied March 17, 1967.

      William B. Spaun, Hannibal, for appellant.
    Robert L. Hyder, Joe Bill Carter, Howard C. Wright, Jr., Jefferson City, for respondent.
   TOWNSEND Commissioner.

The condemnation petition herein was filed December 22, 1961, in connection with the relocation of Highway 61 in Marion County. Commissioners were appointed by the court and made their report on January 9, 1962. Being dissatisfied with the Commissioners’ assessment of damages for the appropriation, defendant landowner filed her exceptions to their report on January 16, 1962. Jury trial was had on September 22 and 23, 1965, resulting in a verdict and judgment of $7100 in favor of defendant. She has appealed, following the overruling of her motion for a new trial.

Defendant, a lady seventy-six years of age at the time of trial, conducted her own case without the aid of counsel. Her motion for new trial complained generally of the inadequacy of the award and of three evidentiary matters whose significance in arriving at a determination of the damages was for the jury and which were plainly before the jury for its consideration. No errors in the conduct of the trial were charged. Under such circumstances the motion preserved nothing for review. Supreme Court Rules 79.03 and 83.13(a).

In view of this state of the record, defendant’s counsel upon appeal to this court sought to invoke the “Plain Error” rule, Supreme Court Rule 79.04, and contended that “Plain errors affecting substantial rights may be considered although not raised in trial court, nor preserved for review in motion for new trial. Manifest injustice or miscarriage of justice would result if rule were not applied in this case.”

Defendant was the owner of a farm of 180 acres, of which 23.58 acres were taken by the appropriation. The relocated, limited access highway runs diagonally across the 180 acres and leaves the defendant with a tract of about 59 acres north and one of 98 acres south of the new highway. The highway crosses a ravine where a fill of forty feet was necessary. A tunnel, 350 feet long, six feet wide and seven feet high, runs under the highway from defendant’s north tract to her south tract and provides drainage. Before the new highway construction defendant had a free flowing spring, which is now situated within the northern portion of the right-of-way; in the course of highway construction this spring was enclosed in a concrete box built to bedrock and from it a twenty-four inch concrete pipe lead to a concrete basin built on defendant’s property so that the flow of water was moved from the right-of-way area and the direction of flow diverted to the northern tract, leaving the southern tract without water supply; the spring and the enclosure now rest at the bottom of a slope of the forty-foot fill. Defendant complained of two so-called “entrances” to her north and south tracts; there was conflicting testimony as to whether or not these actually gave access to the respective tracts or simply amounted to roadside parking places with precipitous drops of forty and thirty-eight feet respectively. Defendant’s witnesses gave testimony as to the cost of fencing along both sides of the highway. Of the 23.58 acres taken, five acres were tillable ground; the balance is hilly and timbered.

Three appraisers, plaintiff’s witnesses, testified that they were of opinion that defendant’s damages from the taking totalled $7,000. The only other testimony as to damages was that of defendant who expressed the opinion that the value of the farm had been reduced from $54,000 to $40,000. The latter estimate was made after prompting by the court and after defendant had testified: “I said the value was less $7000 for the damage and $7000 for the price of the land.”

The court gave the jury instructions in the form prescribed by M.A.I. 9.02 and 15.01.

Defendant’s contention that the verdict was against the weight of the evidence cannot be sustained; that position is untenable in view of the testimony of the appraisers hereinafter reviewed.

On this appeal the principal points asserted by appellant-defendant were:

1. The court erred and abused its discretion in denying defendant’s request that the jury have a view of the premises, a request to which plaintiff had readily acceded.

2. The court erred in not sustaining defendant’s motion to strike the testimony of three appraisers who testified as to the damages suffered by the taking.

As to the first of such points, the judge stated his views in the following language:

“I have never been very favorable toward that simply because of the difficulty that you get into by interested parties making statements which are not in the evidence, can never be in the transcript, and my experience has been that it only leads to more trouble * * *. If the jury would insist, or even indicate that they would enjoy going there to see this, the Court would have no particular objections, but I don’t think it is going to help you one earthly bit. You will get out there and somebody will make this statement, then somebody else will make that statement. There is no record, there is no court reporter there, there’s no logic to it, there’s no system of questioning, and I think we will be making a mistake in this case.
This highway and the property, I suspect every juror here knows where Mrs. Kate Kuhn lives, and certainly knows Highway 61, the old 61 that we traveled for many years, and we know the new divided highway between here and Palmyra not very far out of Hannibal, and I just can’t see the advantage of having this jury go out there. If you just drove by, it would help nothing. You would have to get out of the cars, go up the hills and valleys and see it all, over to the south and over to the north, otherwise there would be no earthly use for you to go there, so the Court is going to refuse the request, even though both the attorney for the Highway Department and the property owner have agreed that the jury might go out there, and this Court is not — I am not strong against it, but I have the feeling that it would be far better for this jury to determine this case according to the evidence as they have heard it from the witness stand, and seen it from the exhibits. Therefore the Court is not going to direct the jury to go out and view this area.”

1. It was long ago held by the Supreme Court that “A view is not a matter of right but rests in the sound discretion of the trial judge as to whether it is proper or necessary to enable the jury to obtain a clearer understanding of the issues involved or to make a proper application of the evidence.” City of St. Louis v. Worthington, 331 Mo. 182, 52 S.W.2d 1003, 1010. To this statement, the Supreme Court added: “It is only when there has been a flagrant abuse of this discretionary power that this court will interfere.” Here the reasons which moved the court to deny the request have been amply set out above. We find such reasons to be sound ones. There was no abuse of discretion.

2. Three appraisers who inspected the property in January 1962 testified as to the elements of damage suffered by defendant. One appraiser was regularly employed by the Federal Land Bank of St. Louis as an appraiser of farm lands. The others were appraisers for savings and loan associations in Hannibal and each acted also as real estate broker. Each of the latter gentlemen had resided in Hannibal for more than forty years and each asserted his familiarity with real estate values in Marion County. In arriving at his finding of damage, each of the three appraisers took into consideration comparative sales, that is, actual sales of real estate of like kind and quality — as one expressed it, “Used what I thought the property was worth by using comparative sales of property that I knew had sold.” Of the acreage taken, two of the appraisers put a value of $100 per acre on eighteen and one-half acres of brush and timbered land and a value of $200 per acre on five acres of cultivable land (the third appraiser was not questioned as to these specific values).

Mr. Sajban, the appraiser for the Federal Land Bank, summarized the technique of appraising by reciting the steps taken— going to the real estate in question, driving where one can drive, walking when necessary, observing the property thoroughly, measure and value buildings if any, determine the type and condition of fencing, observe topography, ascertain the amount of cultivable, pasture, woods and waste land, the water supply and the location of the land with relation to roads and towns; then by taking into consideration sales of comparative property, arrive at a valuation, which means “what it is worth on the market”.

Besides determining the value of the 23.58 acres taken the appraisers made allowance for the cost of fencing on both sides of the highway ($1765), for-bulldozing roads from the entrances provided at defendant’s property lines ($100), for the cost of constructing a pond on defendant’s south tract to take the place of the spring water diverted to the north tract, for the inconvenience that would be caused in crossing the highway with farm equipment, for inefficiency in operating some smaller and odd shaped fields whose size and shape resulted from the highway construction. Each appraiser found damage to defendant of $7000.

The only other testimony as to damage was that of defendant. She placed an overall value of $300 per acre on the farm before the appropriation. From that point forward her method of computing her damages is confusing and at points non-understandable, all illustrated by the following excerpts from her testimony:

“A. I am asking $300 an acre for 24.58 acres that the highway took. * *
Q. That comes to a sum of $7374.00, is that correct?
A. Yes, sir.
THE COURT: Now is that your total damage you are asking?
A. No, sir. I’m asking $300.00, the value in my opinion, of the price of the land. * * *
THE COURT: * * * but now for my benefit, you are talking — when you say $300.00, are you talking about 24.58 acres, or 198?
A. $300.00 damage for the 24.58 acres. That is not the value of the land. That is the damage that I am asking.”

[Plaintiff’s motion for a directed verdict for the defendant for $7374 was thereafter denied].

“Q. What, in your opinion, was the value of this property after the date that the right of way was acquired by the Highway Department? In other words, after January 9, 1962, what in your opinion was the value of this property?
A. The damage was $7000.00, take $7000 off of your $54,000.00.
Q. That would be $7000.00 — the fair market value would be reduced by $7000.-00?
A. Yes. The land along old 61 is worth $1000.00 per acre.”

[At this point plaintiff moved for a directed verdict of $7000 for defendant].

“THE COURT: Mrs. Kuhn, the measure of damages is the difference in the value of the farm before, and the value of the farm after the taking.
A. Yes, sir.
THE COURT: And you have just finished saying that the damage is $7000.-00.
A. Oaken from the $54,000.00.
THE COURT: That’s right. Now is that the amount you are asking this jury as your total damage, $7,000.00? Now, you are trying to divide something in— and add something else. This question he asked you, and you don’t have a lawyer, but the question he asked you was exactly proper, and he asked you what the value of your farm was before this taking, before this road, and you said $54,000.00. His next question was, what was the fair, reasonable market value of your farm immediately after the taking and after the road was built, and you said ‘my damage is $7000.00, take 7 from 54.’
A. And $300.00 an acre for the value.
THE COURT: Well, you’re adding something else. The Court should sustain his motion and this law suit would end right now. If you had a lawyer, it would end right now, because you have said that your damage is $7000.00. If that is what you mean, fine. But I’ve gathered from some other things that you have said that you are trying to — you add something else onto it.
A. I do.
THE COURT: But his question was the pure legal question which is the measure of damages. * * * if that is what you are saying that your difference is before — your value before was $54,000.00 and your value after was less $7000.00, that’s all right, you may say that, but I want you to know what you are doing.
A. I said the value was less $7000.00 for the damage and $7000.00 for the price of the land.
THE COURT: Well, then, you shouldn’t say less $7000.00 then, you should say less $14,000.00.
A. I shouldn’t divide it, then ?
THE COURT: No, Ma’am, because his question doesn’t divide it, neither does the law divide it, so if you want to make a different answer, the Court is going to give you an opportunity to answer that question differently.
A. Well, I will double the sum and make it $14,000.00 damage.
THE COURT: All right.
MR. CARTER: Q. As I understand your testimony, then, Mrs. Kuhn, it is your opinion that the property would sell for $54,000.00 prior to the date of the road going through there?
A. Yes, sir.
Q. That a reasonably prudent purchaser, purchasing from a reasonably prudent seller, would pay only the price of $40,000.00 after this road was constructed?
A. I told you I couldn’t count in my head. (Hesitates) That’s right, $40,000.-00.
Q. This is what a reasonably prudent purchaser, we are talking about. We’re not talking about what you, as an individual, may feel that you have been inconvenienced, or damaged, or the things that have been done to you, is this correct?
A. That I have been damaged, and the price has been reduced of the farm to $40,000.00.
Q. Is that correct? A. That is correct.”

It is clear from this testimony that defendant, in asserting that her damages were $14,000, was basing such claim upon two elements: 1. — The value of the acreage actually taken and 2. — The damages to the balance of the farm. As to the first element, she was asserting a value of $300 per acre and rounded the claim off at an even $7000. She offered no evidence to substantiate the claim that the land actually taken was worth $300 per acre; in no way did she negate the opinions of qualified appraisers that such land had a value of only $2850. As to the second element: The defendant has specified those injuries to the remaining land and its uses which she believes have been suffered — the diversion of the spring waters and their contamination, the lack of ready access to certain small fields and their isolation which at one point was comprehensively stated as “the inconvenience of not being able to get to the 59 acres which is worthless to me now.” Having previously estimated her total damages at $14,000, defendant states that approximately one-fourth of total damage was to be attributed solely to such inconvenience. Defendant thereafter lumped the inconvenience, the loss of the spring, drilling a well (“you owe me a well, the Highway does”) all together to account for one-half her damage. Defendant had computed her total damage at $600 per acre, related to the acreage taken, and then upon cross-examination allocated that damage in the way last indicated — approximately one-fourth to inconvenience, which by subtraction left one-fourth for loss of and replacement of spring water. And so we come around again to a valuation of $7000 for the land taken. There is nothing in the record from which it can be determined with any degree of plausibility that the inconvenience had a negative value of $3500 or that the diversion of the spring waters resulted in a loss of $3500. Defendant’s estimates of such damages must be relegated to the field of speculation.

Defendant’s motion to strike the testimony of the appraisers was based principally upon a charged inadequacy of inspection of the premises. She recited that the inspection occurred in sub-zero temperatures, when there was snow on the ground, with a 20-mile wind, and that she was not invited to accompany the appraisers although they were brought to the premises by representatives of the Highway Commission. The testimony of appraisers Sajban and Schneider shows that they travelled the area by car as far as the way was passable and on foot explored the acreage to be taken, climbing up the steep slopes and down in the valley; and observed the topography and the relation of the land appropriated to the balance of defendant’s farm. We cannot find either impropriety or inadequacy in the inspection made as the basis for the subsequent appraisal. Defendant’s motion to strike was properly overruled.

Under Supreme Court Rules 79.03 and 83.13(a), defendant’s motion for new trial preserved nothing for review. However in view of defendant’s insistence in this Court upon the application of Rule 79.-04, we have examined the record more extensively perhaps than has been necessary to determine whether the errors alleged in defendant’s brief actually existed and were “plain errors affecting substantial rights”. We cannot discern any such plain errors as are contemplated by the rule and do not find that injustice or miscarriage of justice has resulted.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly, judgment is affirmed.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.