author: DIXON, Chief Justice.

text:
    PRECISION MOTORS, Appellant, v. James V. CORNISH, Appellee.
    No. 16851.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 24, 1967.
    Rehearing Denied March 31, 1967.

      Geo. C. Chapman, of Thompson, Knight, Simmons & Bullion, Dallas, for appellant.
    John H. Marks, Jr., John H. Hall and Royal H. Brin, Jr., of Strasburger, Price, Kelton, Martin & Unis, Dallas, for appel-lee.
   DIXON, Chief Justice.

James V. Cornish brought suit against Lotus Southwest, a corporation, and William W. Browning, Jr., doing business as Precision Motors, seeking damages for alleged false representations in regard to a 1964 Lotus Elan Two Seater automobile. Cornish alleged (1) that Lotus Southwest and Browning, acting in concert in the sale of the car to him on June 8, 1964, falsely represented that it was a new car, when in fact it had been used as a demonstrator and show car; and that (2) when the engine in the car burned out in late July or early August 1964 they replaced it with an engine which they represented was new, but which in fact was a used engine taken from a wrecked car.

At the conclusion of the evidence a motion for instructed verdict was sustained in favor of Lotus Southwest. Thereafter on November 16, 1965 a jury returned a verdict finding that the representation of Jerry Howell, Browning’s salesman, that the car was new was not false; but that the later representation of Browning or his agent that the replacement engine was a new engine was false. The jury found damages in the amount of $2,000, though Cornish had pleaded for only $600 damages resulting from the installation of a used engine instead of a new one in place of the burned out engine.

On December 10, 1965, more than three weeks after the return of the verdict of the jury, appellee filed his Fourth Trial Amendment in which he increased his claim of damages from $600 to $2,000 alleged to result from appellant’s fraud in replacing the burned out engine with a used engine instead of a brand new engine.

The court took the case under advisement and on March 23, 1966 rendered judgment that appellee take nothing against Lotus Southwest, but that appellee have judgment against Browning for $2,000. Since the jury found that Browning’s representation that the car was new when sold to appellee was not false, the $2,000 judgment against Browning was not based on said representation. It was based solely on the alleged misrepresentation that the replacement engine was new.

No appeal has been taken from the judgment in favor of Lotus Southwest. The only appeal before us is that of Browning from the judgment against him for $2,000 based on his or his agent’s alleged false representation that the replacement engine was a new engine.

FACTS

Lotus Southwest is a corporation which imports and distributes Lotus automobiles over a territory of eight states. It makes a few retail sales but mainly sells on a wholesale basis to retail dealers. The Lotus is a foreign-made car manufactured in England. Homer Rader is President of Lotus Southwest. He is also President of Classified Parking System. Edward R. Tucker is a stockholder, Secretary-Treasurer and General Manager of Lotus Southwest. Rader and Tucker own all of the shares of stock in Lotus Southwest.

Precision Motors is a sole proprietorship of William W. Browning, Jr. He is engaged in the business of selling various makes of foreign-made cars, including the Lotus.

Lotus Southwest and Precision Motors are separate business concerns. In their ownership and control they are altogether independent of each other. However, Lotus Southwest under a rental agreement with Precision Motors occupies part of the premises leased by Precision Motors from the owner of the property. The two concerns also engage in business transactions with each other, mostly as a wholesale distributor on the part of Lotus Southwest and a retail dealer on the part of Precision Motors.

Title to the Lotus cars sold by Precision Motors is retained by Lotus Southwest until the cars are sold. Until that time the cars are placed with Precision Motors on a consignment basis. When an agreement for the sale of a car is reached between Precision Motors and its customer, title is transferred from Lotus Southwest to Precision Motors and immediately from Precision Motors to the purchasing customer. This procedure was followed in the sale of the car in controversy to appellee Cornish. Prior to the sale the car had been in possession of Lotus Southwest for about six months.

The judgment in this case is based on the jury’s affirmative answers to Special Issues Nos. 10 through 16 of the court’s charge. Special Issue No. 10 is as follows:

“Do you find from a preponderance of the evidence that at the time of the replacing of the engine in the Lotus automobile in question William W. Browning, Jr., or any agent acting for him, represented to J. V. Cornish that the replacement engine was a new engine ?
“Answer ‘Yes’ or ‘No.’
“ANSWER Yes” (Emphasis ours.)

The others of the above named issues were conditioned on an affirmative answer to Special Issue No. 10. They inquired whether (11) said representation was false; (12) whether it was made to induce Cornish to accept the engine; (13) whether he believed and relied on the representation; (14) whether he would not have accepted the engine but for the representation; and (15) whether he was damaged. In answering Special Issue No. 16 the jury found damages in the amount of $2,000.

The only testimony in the record that Cornish was to receive a new engine to replace the burned out engine was offered by Cornish himself. When Cornish complained about the burned out engine a conference was held about the matter. This conference was attended by appellee Cornish, Homer Rader, President of Lotus Southwest, Miss Joni Reid, office manager and bookkeeper for Precision Motors, and a Mr. Harrington, also an employee of Precision Motors. We reproduce the testimony of Cornish:

“A. Well, when we got back, I had a kind of a four-way conference With Mr. Rader and Mr. Harrington, who was with Precision at that time, and with another female employee of Precision Motors, whose name I don’t know.
“Q. Well, is Rader the Homer Rader that has been mentioned here that was with Lotus?
“A. Yes, sir.
“Q. And what was the outcome of the conference?
“A. Well, Homer said that he personally would see that a new engine was installed in the car, and he elaborated on this a bit. He said he didn’t mean just a new engine block, but a complete new engine, you know, being carburetor and accessory parts, would be substituted in my car for my engine.” (Emphasis ours.)
******
“Q. And your testimony is that it was Homer Rader, who told you that they would put in for you a brand new en-ginef
“A. Yes, sir.” (Emphasis ours.)

Edward R. Tucker, Secretary-Treasurer and General Manager of Lotus Southwest, testified that he went to West Texas to see about a Lotus car which had been in a wreck. Lotus Southwest purchased the wrecked car. The body and frame of this car, according to Tucker, had been damaged, but the engine was undamaged. The car had been driven only 746 miles. Lotus Southwest had the car brought back to Dallas. It was the engine from this car which replaced the burned out motor in the Cornish car. Lotus Southwest kept the engine taken from the Cornish car. The replacement engine was owned and furnished by Lotus Southwest, not by Precision Motors. The deal with Cornish to replace the burned out motor with another motor was handled by Homer Rader of Lotus Southwest.

About a week after the deal between Ra-der and Cornish was made the replacement engine was installed without charge to ap-pellee Cornish. Lotus Southwest and Precision Motors shared the expense of installing the engine.

OPINION

Appellant Browning, doing business as Precision Motors, bases his first, second, fourth, fifth, sixth and eighth points in substance on his contention that there was no evidence to support the jury’s answer to Special Issue No. 10.

We agree with appellant. The jury’s answer to Special Issue No. 10 found that William W. Browning, or some agent acting for him represented to J. V. Cornish at the time of the replacing of the engine that the replacement engine was a new one. We. find no evidence that Browning, or any agent of his, or any other person represented to Cornish as a past or present existing fact that the replacement engine which was being installed in the car was a new engine.

Cornish relies on his own testimony to support the jury’s answer to Special Issue No. 10, but even his own testimony does not support the jury’s answer. His testimony is that it was a statement by Homer Rader upon which he relied. An analysis of Cornish’s testimony discloses that:

1. Neither appellant Browning, nor any of his employees made the alleged false representation.
2. It was Homer Rader, President of Lotus Southwest, who stated that Cornish would receive a new engine. (This was about a week before the replacement was installed.)
3. Rader’s statement was a promise looking to the future — it was not a misrepresentation as to a past or present existing fact.
4. Rader’s statement did not undertake to bind Precision Motors. He said that he personally would see that a new engine was installed in the car.

We find no evidence that Browning authorized Rader to act as his agent in making the promise. And there is no pleading or proof either of apparent authority or of ratification.

Since Rader's statement was in the nature of a promise of an act to be performed in the future (not a misrepresentation of a past or present existing fact) it was not a fraudulent misrepresentation unless it was proved that at the time he made the promise Rader did not intend to perform it. The burden was on Cornish to prove such intent. Mere failure to perform a promise is not of itself evidence of intent not to perform. Such failure might under some circumstances serve as a basis for a suit for a breach of contract, but in the absence of intent not to perform it does not constitute fraud. Medina v. Sherrod, 391 S.W.2d 66 (Tex.Civ.App., 1965, no writ hist.); Billy Baker Mobile Homes, Inc. v. Foster, 390 S.W.2d 385, 387 (Tex.Civ.App., 1965, no writ hist.); Mason v. Mid-Continent Supply Co., 374 S.W.2d 922, 928 (Tex.Civ.App., 1964, ref. n. r. e.); Reynolds v. Steves, 356 S.W.2d 200 (Tex.Civ.App., 1962, no writ hist.); Rapid Transit Ry. Co. v. Smith, 98 Tex. 553, 86 S.W. 322, 323; Swink v. City of Dallas, 36 S.W.2d 222, 227 (Comm.App. holdings approved); 25 Tex.Jur.2d 682-687; 37 C.J.S. Fraud § 116, pp. 440-441. We find no evidence in the record that Rader did not intend to perform his promise.

In his brief on appeal appellee says that Browning’s employees, Reid and Harrington, were present at the conference and heard Rader make the statement in question, therefore it was their duty to speak out; and that by their silence they made their employer Browning a party to a fraudulent misrepresentation. In support of this view appellee cites us to the holding in Bucyrus-Erie Co., et al. v. Smith, 168 S.W.2d 896 (Tex.Civ.App., 1943, no writ hist.), in which case there was a dissenting opinion.

We do not consider the above cited case in point here because the fact situations are not analogous. Bucyrus-Erie was a venue case. It involved a misrepresentation of a past and present existing fact. Among other differences it did not, as in the instant case, involve a situation where the speaker made a promise that he would personally see to it that a certain thing would be done in the future. Appellant’s first, second, fourth, fifth, sixth, seventh and eighth points are sustained.

In his third point appellant complains because no issue was submitted with regard to any agent of Browning’s acting within the scope of his employment in representing that the replacement engine was a new one. In his twelfth point he complains because appellee did not plead or prove the proper measure of damages and' no special issue was submitted based on the proper measure of damages. Appellant’s thirteenth point is also based on the alleged erroneous measure of damages. In his objections and exceptions to the court’s charge appellant did not object on the grounds mentioned in the above points on appeal. The question of the improper submission of issues because based on the wrong measure of damages was not preserved for our review. Employment Advisors, Inc. v. Sparks, 368 S.W.2d 199 (Tex.Sup., 1963). Appellant’s third, twelfth and thirteenth points are overruled.

Appellant’s ninth point is that the evidence was insufficient to support the jury’s answer to Special Issue No. 10 — that is, that the answer was contrary to the overwhelming weight and preponderance of the evidence. We have held that there was no evidence to support the jury’s answer. We hold that whatever evidence there may have been, if there was any, was insufficient to support the jury’s answer. The ninth point will be sustained.

Appellant’s tenth, eleventh, fourteenth and fifteenth points charge error in overruling his motion for judgment non ob-stante veredicto because there was no evidence to support the jury’s answers to Special Issues Nos. 11 through 16. The sixteenth point charges there was insufficient evidence to sustain said answers. All of these issues were conditioned on an affirmative answer to Special Issue No. 10. Since we have held that there was no evidence to support the jury’s answer to Special Issue No. 10 it follows that there was no evidence to support the jury’s answers to Issues Nos. 11 through 16. Points ten, eleven, fourteen, fifteen and sixteen are sustained.

In his seventeenth point appellant says that it was error to overrule his special exception to appellee’s general pleading of $600 damages, being the cost of repairs to the engine made in New York. The costs were not itemized. The exception should have been sustained. The evidence adduced in support of the costs was a statement, not itemized, in a deposition of a New York automobile mechanic made from memory. It included several items which were not shown to have any connection with defects in the replacement engine. Appellee admitted that he had been in an accident with the car in Pittsburgh, Pennsylvania just prior to having these repairs made in New York. Moreover, the mechanic, who was appellee’s witness, frankly admitted that the labor charges were excessive. The seventeenth point is sustained.

In his eighteenth and nineteenth points appellant says that it was error for the court to permit appellee to file his Fourth Trial Amendment whereby he increased his claim for damage from $600 to a sum in excess of $2,000. For the first time ap-pellee pleaded (1) that he had spent $900 instead of $600 for repairs on the automobile; and (2) that he had expended $508 in monthly payments on the automobile after the engine was replaced; and (3) had lost the value of the Morgan automobile which he had traded in when he bought the Lotus; and (4) had repairs done at other places in Fort Worth, Pennsylvania, New York and Dallas; and (5) had lost the use of his car for two months while it was in the shop in New York — all of such items and expenses resulting from the representation that the second engine placed in the car was new and all to appellee’s damage in excess of $2,000.

The jury verdict was returned November 16, 1965; the Fourth Trial Amendment according to the district clerk’s record, was filed more than three weeks later on December 10, 1965. Leave to file the pleading according to the judge’s notation was granted about six weeks later on December 30, 1965.

Rules 66 and 67, Vernon’s Texas Rules of Civil Procedure, provide for trial amendments and for amendments to conform to issues tried without objection. The latter rule provides that such amendments may be filed with leave of the court upon motion “any time up to the submission of the case to the Court or fury.” (Emphasis ours.)

Appellee has not pointed out to us any evidence in the record that he had spent $900 instead of $600 for repairs, or the cost of repairs done in Fort Worth and other places in Pennsylvania,' New York and Dallas, or that he had lost the use of the car for two months while it was in the repair shop in New York, or' the value of such loss of use. There is evidence that before having the car repaired in New York Cornish had driven the car more than 8,000 miles and had himself had an accident in the car while driving it in Pittsburgh, Pennsylvania.

A New York mechanic testified by deposition that the repair bill in New York was $600, but he did not undertake to itemize the costs. He stated frankly that the labor charges were excessive. His company had repaired the bumper, the interior door panel and other parts of the car which are not shown to have any connection with the fact that the replacement engine was not new. Furthermore, most of the repairs on the car over a period of a month and a half in Texas were made by Precision Motors without any charge or expense whatever to Cornish. And on at least one occasion Precision Motors had furnished Cornish with an automobile to drive while the Lotus was being repaired and had even furnished him with free gasoline tickets.

The Fourth Trial Amendment cannot be justified on the ground that it served to make the pleadings conform to the evidence for we do not find evidence to support the additional items of damage alleged for the first time in the Fourth Trial Amendment. Appellant had excepted to appellee’s original pleading of $600 damage in an effort to obtain an itemization of the alleged damages, but his exception had been overruled.

Although a trial court has broad discretionary powers in the matter of permitting a trial amendment to be filed, we think it was error to do so under the circumstances of this case, especially since the amendment was filed after the return of the jury verdict. Tillery v. Tillery, 304 S.W.2d 156 (Tex.Civ.App., 1957, no writ hist.); Ragsdale v. Lindsey, 254 S.W.2d 843 (Tex.Civ.App., 1952, ref. n. r. e.). Appellant’s eighteenth and nineteenth points are sustained.

Because we find no evidence to support the jury’s findings of fraud on the part of appellant William W. Browning, Jr. we reverse the judgment of the trial court and here render judgment that appellee take nothing by his suit.

Reversed and rendered.


source: Caselaw Access Project

author: NYE, Justice.

license: Public Domain

text:
    William T. HAFER, Appellant, v. Sid PRASHNER, d/b/a Acme Upholstery, Appellee.
    No. 275.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 30, 1967.
    Paul D. Little, Corpus Christi, for appellant.
    Virgil Howard, of Wade & Howard, Corpus Christi, for appellee.
   OPINION

NYE, Justice.

This is a suit on a note against the appellant and his wife given in payment for the reupholstering of a sofa and chain Judgment was granted in the justice court for the sum of $199.00 and appeal was perfected to the County Court at Law No. 2 in Nueces County by the husband, the appellant herein. A non-jury trial de novo was had and judgment again rendered jointly and severally against the appellant and his wife. The husband has perfected his appeal to this Court.

Shortly after appellant and his wife were married, the wife Edythe Hafer employed the Acme Upholstery Company to reupholster a sofa and chair. At the time that the work was authorized to be done, Mrs. Hafer signed her husband’s name, as well as her name, to a note and chattel mortgage. The wife, contemporaneously with the delivery of the note, gave to the appellee as partial down payment a check written on her husband’s bank account and purportedly signed by her husband. Subsequently, the chair and sofa were delivered to the appellant’s home in the country. Very shortly thereafter, the appellant and his wife were separated. No payment was made on-the note to the appellee. Hence this suit.

The appellant’s first point is that the trial court erred in denying his plea in abatement and motion to dismiss the suit against him. As we understand appellant’s contention, it is based upon the fact that the promissory note and chattel mortgage were forgeries and because his former wife had forged his name to the note, no cause of action could be based thereon. This plea in abatement was first urged in the justice court. In answer to this plea, the appellee filed a written amended petition, pleading three separate alternative theories for recovery against the appellant: (1) that the husband had authorized his wife to enter into the contract for reupholstering of the sofa and chair; (2) in the alternative, that if the husband did not expressly authorize his wife to contract for the services, he acquiesced in and ratified her contract upon receiving the finished sofa and chair in his home and by using the same with the knowledge that the work had been obtained on credit; and (3) that in any event the services contracted for by the wife Mrs. Hafer, were necessaries, and that the husband as head of the family, was liable therefor.

Appellee contends in his first and second counter points that the trial court’s decision should be affirmed since it is supported by an independent ground .of recovery to which no error is assigned by appellant in his brief; and that there is evidence of probative force that appellant authorized his wife to contract for appellee’s services.

Findings of fact and conclusions of law were not requested by the appellant or filed. Where no request for findings is made and if no findings of fact are filed and contained in the judgment, all issues are conclusively presumed to have been found' in such a way as to support the judgment of the trial court. Bishop v. Bishop, 359 S.W.2d 869 (Tex.Sup.1962); Appellate Procedure in Texas, Section 7-11, page 7-14.

There was evidence that Edythe Hafer either had her husband’s bank account number, his check book or knew the bank account number and had authority to issue the check and make the contract. There was further evidence that the appellant authorized his wife to enter into the contract and ratified her acts when he accepted and received the sofa and chair at his home. The appellee testified in the trial in the county court at law that Mrs. Hafer,had testified in the justice court that she executed the contract in question and signed her husband’s name with his permission and with his full knowledge. The appellant did not deny that she had made such a statement. The appellee established that Mrs. Hafer was a co-defendant in the justice court with the appellant herein, and that the appellant was present when Mrs. Hafer testified that she was authorized by her husband to enter into the contract. It is apparent from the record that the appellant had an opportunity to cross examine Mrs. Hafer in the previous proceedings. The appellee developed in the record in the county court that Mrs. Hafer’s whereabouts were unknown to both parties and that she was unavailable to testify in the county court. The appellant makes no complaint here of the admission of the wife’s testimony and other related evidence that would authorize the trial court to render judgment against this appellant on this ground of recovery.

Statements made in evidence in a previous judicial proceeding may be received upon a subsequent trial as evidence of the truth of such statements where the witness who gave the evidence upon the former hearing is unavailable and the party against whom the evidence is now offered had the opportunity to cross examine the witness at the former trial on the same issue as that upon which the evidence is now offered. 1 McCormick & Ray, Texas Evidence § 941 p. 719 (2d ed. 1956) “Exception to the Hearsay Rules — Evidence in Previous Proceedings”; Maryland Casualty Co. v. Lee, 165 S.W.2d 135 (Tex.Civ.App.—Galveston 1942, wr. ref’d); Lone Star Gas Co. v. State (1941) 137 Tex. 279, 153 S.W.2d 681.

We have considered all of appellant’s points, none of which present reversible error. Appellee’s counter points 1 and 2 are sustained.

Judgment of the trial court is affirmed.


author: FANNING, Justice.

text:
    SUN-X INTERNATIONAL COMPANY, Inc., Appellant, v. Arthur J. B. WITT, Appellee.
    No. 7797.
    Court of Civil Appeals of Texas. Texarkana.
    March 7, 1967.
    Rehearing Denied April 4, 1967.

      Arthur L. Forbes, Houston, for appellant.
    James C. Slaughter, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellee.
   FANNING, Justice.

Plaintiff-appellant, Sun-X International, Inc., a Texas corporation, with its principal offices in Houston, Harris County, Texas, filed suit in a District Court of Harris County, Texas, against defendant-appellee, Arthur J. B. Witt, a resident of California, alleging breach of a certain distributor-dealer contract. Service of process was effected upon defendant-appellee under Art. 2031b, Vernon’s Tex.Rev.Civ.Stat.Ann. Defendant-appellee, pursuant to Rule 120a, Tex.R.Civ.P., filed his special appearance objecting to the trial court’s in personam jurisdiction on the ground that he was not amenable to the process issued by the Texas court. The trial court, after hearing the evidence adduced, sustained appellee’s special appearance, and dismissed plaintiff-appellant’s suit for want of personal jurisdiction over defendant-appellee. Plaintiff-appellant has appealed.

The trial court filed findings of fact and conclusions of law, to-wit:

“FINDINGS OF FACT
“1. Plaintiff, a Texas corporation, sued defendant, an individual who resides in the State of California for actual and exemplary damages for breach of a distributor-dealer contract. Plaintiff does not attempt to recite in such pleadings what the breach consisted of and sues for a lump sum representing actual and exemplary damages. Service was made upon the defendant under Article 2031(b) TRCS and defendant made a special appearance and challenged the jurisdiction of the Court.
2. In August of 1964 the defendant received a solicitation from L. L. Brown, an employee of plaintiff, from a California telephone location, in the interest of getting defendant to accept a dealership relationship with plaintiff, covering its products and in response to such solicitation the defendant signed plaintiff’s distributorship-dealer contract on August 24, 1964 in California, such contract, together with Exhibits, being Plaintiff’s Exhibits 1, 2 and 3.
3. Such distributor-dealer contract was accepted by Mr. Don R. Manthey in Houston Harris County, Texas, in keeping with the provisions of the contract.
4. The contract authorizes the defendant to serve as dealer within the prescribed limits of California for plaintiff’s product, a liquid plastic material applied to plate glass surfaces. The contract further provides for the purchase of delineated materials to the extent of $5,-952.00, which sum was deposited with L. L. Brown at the time the distributorship-dealer contract was executed.
5. Additionally, the contract provides for the defendant to purchase a certain gallonage of plaintiff’s plastic material during each succeeding twelve months period, beginning six months after date of execution and for such gal-lonage to increase for successive periods. The contract does not provide where payment for such material is to be made or where such material is to be shipped.
6. Plaintiff made shipments in keeping with the terms of the contract from Houston, FOB that point, and on subsequent dates the plaintiff made material shipments, FOB Houston, Texas, to defendant, in response to orders.
7. In keeping with contractual provisions plaintiff printed and published pertinent bulletin service material and mailed them to defendant and correspondence was exchanged between an employee of plaintiff and defendant, advising, among other things, some of the problems and techniques applicable to effect marketing of plaintiff’s product.
8. The contract provides that plaintiff will keep defendant informed through a dealer bulletin service and that national advertising shall be made by plaintiff of the product to be distributed by defendant and plaintiff conducted a direct mail campaign from Houston in connection with the marketing of its product in California, such activity being designed to redound to the benefit of plaintiff and defendant through encouragement of product acceptance.
9.All marketable material and advertising and promotional media were dispatched FOB Houston and all activities on the part of defendant in the interest of marketing through dealerships of plaintiff’s product occurred in California and the defendant has never resided in Texas, has not been in Texas at any time material to any of the inquiries involved in this litigation, maintains no office or agent in Texas, and has never conducted any business undertaking in Texas incident to plaintiff’s business, beyond the extent set forth above.
“CONCLUSIONS OF LAW
“1. Defendant did not purposefully do any act or consummate a transaction in the State of Texas, the acceptance of the contract in Texas, the shipments and mailings from Texas being insufficient to satisfy such requirements and therefore ‘minimal contact’ was wanting.
2. Plaintiff failed to show by pleading and evidence that plaintiff’s cause of action for breach of contract arose out of any act or consummated transaction in the State of Texas, if it be considered that there was such an act.
3. The assumption of jurisdiction by the Court in which this cause pends under the attending facts aforesaid, would offend traditional notions of fair play and substantial justice, after considering the quality, nature and extent of the defendant’s activity as same relates to Texas and the relative convenience of the parties, the benefits and protection of the laws of Texas afforded the parties and the basic equities of the situation.
4. Therefore this suit cannot be said to be one to enforce an obligation that arose from a privilege the defendant exercised in Texas.
5. If Section 4, Article 2031(b) is to receive a literal interpretation and therefore a part of the overall contractual obligation is performable in Texas, which is true here, will vest jurisdiction over the defendant, such provision violates the due process clause of the 14th Amendment and is unconstitutional.”

The trial court also filed additional findings of fact and conclusions of law shown below.

Appellant on appeal contends that the trial court erred in failing to specifically find that appellee’s activities were of the nature and kind contemplated by Article 2031b, §§ 3 and 4, Texas.Rev.Civ.Stat.Ann. Appellee by his first counterpoint contends that Art. 2031b, Tex.Rev.Civ.Stat.Ann., does not authorize service on the appellee because it was intended to apply only to the fullest permissible reach under the United States Constitution and its application under the facts in this case would violate the due process clause of the 14th Amendment to the U. S. Constitution, and that therefore the trial court did not err in holding that Art. 2031b, was inapplicable to confer in personam jurisdiction over appellee. By his second counterpoint appellee contends that the trial court did not err in holding Art. 2031b, Tex.Rev.Civ.Stat.Ann., unconstitutional when applied to the facts of the case at bar.

For a comprehensive analysis of Art. 2031b, Tex.Rev.Civ.Stat.Ann., and Rule 120-a, Tex.R.Civ.P., see Thode, In Per-sonam Jurisdiction; Art. 2031b, the Texas “Long Arm” Jurisdiction Statute; and the Appearance to Challenge Jurisdiction in Texas and Elsewhere, 42 Texas Law Review 279, 303-310 (1964). Also in this connection see Wilson, In Personam Jurisdiction over Non-residents; An Invitation and a Proposal, 9 Baylor Law Review 363 (1957); Counts, More on Rule 120a, 28 Texas Bar Journal, 95, 96 (February 1965).

From the evolution of the decisions of the U. S. Supreme Court with respect to service on non-resident defendants in in personam actions from Pennoyer v. Neff, (1877), 5 Otto 714, 95 U.S. 714, 24 L.Ed. 565, through International Shoe Co. v. State of Washington (1945), 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; McGee v. International Life Ins. Co. (1957), 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223; and Hanson v. Denckla (1958), 357 U.S. 235, 78 S. Ct. 1228, 2 L.Ed.2d 1283, we think it can be said that it is now the law that there are three basic factors which should coincide if jurisdiction over a non-resident defendant is to be entertained, to-wit: (1) The non-resident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation. In this connection see O’Brien v. Lanpar Co., 399 S.W.2d 340 (Tex.1966).

The factors to be considered in determining whether or not there have been minimum contacts with the forum are stated in Hearne v. Dow-Badische Chemical Company, 224 F.Supp. 90 (S.D.Tex.1963) as follows:

“(1) The nature and character of the business;
(2) The number and type of activities within the forum;
(3) Whether such activities give rise to the cause of action;
(4) Whether the forum has some special interest in granting relief; and
(5) The relative convenience of the parties.”

We quote from Professor Thode’s article, supra, 42 Tex.Law Review p. 301-2-3, in part as follows:

“The McGee decision was thought by some writers to establish the proposition that suit based on any business contact with the state of the forum would be sufficient to support personal jurisdiction over a non-resident defendant, assuming proper out-of-state notice. The 1958 decision of the Supreme Court of the United States in Hanson v. Denckla demonstrates that such an interpretation is too broad. In Denckla it was pointed out that McGee involved an insurance contract, and that the business of insurance, like that of control of motor vehicle traffic on the highways and the selling of securities, is something that falls within the permissible scope of regulation under the state’s police power. The defendant in Denckla was a corporate Delaware trustee who was being sued in Florida. The defendant’s contacts with Florida consisted of correspondence which primarily involved remitting trust income to the donor who had moved to Florida after setting up the trust, and in making changes in instruments at the request of the donor in Florida. The Supreme Court held that there were not sufficient contacts for the Florida court to obtain jurisdiction over the nonresident trustee by out-of-state service.
“ ‘The unilateral activity of those who claim some relationship with a nonresident cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protection of its laws * *
“The Supreme Court also issued general words of caution:
“ ‘It is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. See Vanderbilt v. Vanderbilt, 354 U.S. 416, 418, 77 S.Ct. 1360, 1 L.Ed.2d 1456, 1459. These restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has the “minimal contacts” with that State that are a prerequisite to its exercise of power over him.’
«* * *
“In summation, there are limits upon the power of a state to bring a nonresident defendant-individual or corporate into the courts of that state on the basis of out-of-state service. ‘Doing business’ is still the test for state regulation, but the limits on jurisdiction for the purpose of suing a nonresident are greatly enlarged. These limits are determined by the ‘minimum contacts’ test, and the contacts cannot be merely fortuitous, but must be purposefully made by the defendant. Further, the litigation must grow out of these contacts, and notice must be properly given to defendant.”

It is undisputed that appellee is a resident individual of California and that he had no office, agents or employees in Texas and had not been in the State of Texas for any reason at any time pertinent to the inquiry here. On the other hand, appellant was a Texas corporation and an international distributor for DuPont glass tinting products and it sends agents and employees throughout the United States and 40 or 50 foreign countries to solicit dealerships for its products. Appellee had never heard of appellant until a representative of appellant called him in California about appellee becoming a dealer in appellant’s products in a certain territory in California. All of the negotiations surrounding the signing of the distributor-dealer contract in question occurred in California and appellee paid $5,952.00 by check delivered to appellant’s agent in California at the time of the signing there. This check was in payment of goods and services to be provided by appellant to appel-lee. The contract was signed by appellee and appellant’s representative in California at the time the check was delivered; the contract also provided that it would not be valid until accepted by appellant. Appellant’s employee sent the check and contract to appellant in Houston, Harris County, Texas, where the appellant accepted the contract and check, which check was paid.

Pursuant to the contract, appellee was granted a license or franchise for appellant’s goods only in certain areas of California. Appellee did not distribute appellant's goods or solicit customers for those goods in Texas. A representative of appellant traveled to California and there trained appellee to apply appellant’s products. The contract provided that appellee commencing 180 days after acceptance was to .purchase from appellant a certain amount of goods per month, and that under certain circumstances appellant could terminate the contract. The contract was accepted August 27, 1964. Appellant filed suit alleging in general terms that appellee breached the contract on December 16, 1964, (less than 180 days from the date of the acceptance of the contract) and which date was not within the period of time appellee was to purchase goods or materials from appellant other than those paid for by the check previously given by ap-pellee to appellant’s employee in California. Pursuant to the contract, appellant printed certain material and provided services in mailing same for appellee. The contract did not specifically provide that appellant was to pay anything to appellee in Houston, Harris County, Texas.

Appellant, among other things, contends that because the contract provided that it was not valid until accepted and that such acceptance occurred in Houston, Harris County, Texas, that same had the effect of the defendant purposefully doing some act or consummating some transaction within the forum State of Texas, which would amount to such a “minimal contact” sufficient to satisfy the requirements of the 14th Amendment to the U. S. Constitution.

We do not believe that the entering into the contract by the appellee under the circumstances of this case was such a “purposeful act” which would sufficiently satisfy the requirements of “minimal contacts” required by the 14th Amendment to the U. S. Constitution. In this connection see the following authorities: Baughman Manufacturing Co. v. Hein, 44 Ill.App.2d 373, 194 N.E.2d 664 (1963); Grobark v. Addo Machine Co., 16 Ill.2d 426, 158 N.E. 2d 73 (1959); Agrashell, Inc. v. Bernard Sirotta Co., 344 F.2d 583 (2nd Circ. 1965). In Baughman, supra, it was held that even though the distributorship agreement sued upon was signed in Illinois by the parties, the defendant distributor did not have sufficient minimum contacts in Illinois necessary for the acquisition of in personam jurisdiction over him there, since his distributorship territory was limited to another state, and since he maintained no office and transacted no business in Illinois. Also the case of Agrashell, supra, we think, disposes not only of appellant’s reliance upon the acceptance of the contract by appellant in Texas as sustaining jurisdiction over appellee, but also of its reliance on the contractual provision that the contract was to be construed by the laws of.Texas. We quote in part from Agrashell, supra, as follows:

“Sirotta [third-party plaintiff] contends that certain acts by Hammons [third-party defendant over whom service was obtained by the New York long-arm statute] preceding the performance of the sales contracts constituted a transaction of business in New York * * * . It points out that Hammons solicited orders from Sirotta by mail and telephone to New York; that the contracts with Hammons were executed by Sirotta in New York; and that Hammons agreed that the principal contract between them should be interpreted in accordance with New York law. Sirotta also argues that the sales contracts were concluded in New York because the last acts necessary to their making occurred there.
“In Hanson v. Denckla * * * [the Court then quotes the purposeful act rule from Hanson which has previously been referred to herein]
“We fail to see in what material respect Hammons invoked the benefits and protections of New York law merely by negotiating and concluding goods contracts through the mails and by telephone with persons residing in New York. Other courts, construing similar state laws in like cases, have also found that these contracts are insufficient to give personal jurisdiction over the foreign corporation. Grobark v. Addo Machine Co., 16 Ill.2d 426, 158 N.E.2d 73 (1959) Erlanger Mills, Inc. v. Cohoes Fibre Mills, Inc., 239 F.2d 502 (4th Cir.1956). By contrast, in two leading cases relied on by Sirotta, representatives of the foreign corporations went to the forum states in person to negotiate the contracts. * * * There the corporate representatives were protected by the laws of the forum states in a direct physical sense.
“Nor do we regard as decisive the fact that Hammons agreed that one of the contracts should be interpreted in accordance with New York law, or the allegation that all of the contracts were concluded in New York. The choice of law provision cannot be construed as a voluntary submission by Hammons to the personal jurisdiction of the New York courts in the absence of any express contractual understanding to that effect. * * * ” (Interpolations ours.)

Appellant also relies upon the fact that “Appellee further purchased all of the materials under the contract in Harris County, Texas.” This is true because title passed to appellee when the materials and equipment were delivered by appellant to a common carrier, F.O.B. Houston, Harris County, Texas. These goods were not picked up by appellee in Houston; they were shipped by common carrier from Houston to California. Appellee was never present in Houston. We think that the mere fact that the goods were shipped by appellant to appellee F.O.B. Houston pursuant to the contractual provision that “all sales to be F.O.B. point of shipment”, does not make appellee amenable to in personam jurisdiction in Texas under the facts in this case. In M. Katz & Son Billiard Products, Inc. v. G. Correale & Sons, Inc., 26 A.D.2d 52, 270 N.Y.S.2d 672 (1955) it was stated in part as follows:

“This action is to recover the agreed price of a quantity of billiard cues and triangles sold by plaintiff to a New Jersey corporation. * * *
“In accordance with the practice of the parties extending over many years, one of defendant’s employees in New Jersey had ordered the goods by telephone, and plaintiff had shipped them to New Jersey by common carrier F.O.B. its factory in New York City. Payment in the past presumably was made by remittance from New Jersey. These contacts with this state do not appear to constitute 'purposeful acts’ here [in New York] sufficient to sustain jurisdiction * * *.” (Interpolation ours).

Also in L. D. Reeder Contractors of Arizona v. Higgins Industries, Inc., 265 F.2d 768 (9th Circ. 1959) the court in discussing whether the defendant had done any “purposeful act” in California, stated:

“Whether the flooring was delivered, F.O.B., New Orleans, freight allowed to point of destination, or F.O.B. some point in California, seems to be in dispute. We do not consider either method of operation particularly important, and certainly it is not controlling.”

“Other acts relied on by appellant have been considered and none of them are deemed to be sufficient “purposeful acts” on the part of appellee.

The findings of fact of the trial court are amply supported by evidence of probative force.

It is our view, under this record, that appellee by no “purposeful act” availed himself of the privilege of conducting activities within the forum State of Texas from which the alleged cause of action arose or was connected therewith, and thus did not invoke the benefits and protections of the laws of Texas. It is our further view, under this record, after considering the traditional notions of fair play and substantial justice, and after further considering the quality, nature and extent of activity in the forum state, the relative convenience of the parties and the basic equities of the situation, that appellee did not have the requisite “minimum contacts” with the forum state to be required to submit to the jurisdiction of the forum state in the suit at bar, under the decisions of the Supreme Court of the United States and the other authorities hereinbefore referred to.

We hold the trial court rendered a correct judgment which should be affirmed.

The judgment of the trial court is affirmed.

      . “FINDINGS OF FACT
      “1. That Don. R. Manthey was the vice-president of Sun-X at the time he accepted the distributor-dealer contract on behalf of Sun-X.
      2. Sun-X’s dealer bulletin service was edited, published and printed in Houston, Harris County, Texas.
      3. Sun-X conducted the research and development work referred to in the distributor-dealer contract in Houston, Harris County, Texas.
      4. Sun-X printed the advertising and promotional material called for in the distributor-dealer contract in Houston, Harris County, Texas.
      5. Sun-X printed the stationery items and other printed forms called for in the distributor-dealer contract in Houston, Harris County, Texas.
      6. The request, being numbered 6 in Plaintiff’s ‘Requested Additional Findings of Fact’, is denied for such is not pertinent to any issue tendered for decision in this cause and evidence relating to the subject matter of such request was not admitted into the record because of per-tinency thereof.
      “ADDITIONAL CONCLUSIONS OF LAW
      “1. The first Requested Conclusion of Law is not subscribed to and is not made in this cause and was not intended to be encompassed by any previous Conclusion of Law made. The Conclusion of Law incorporated in paragraph 6 of the previous filing by the Court was intended to embrace law pronouncements as contained in Lone Star Motor Import v. Citroen Cars Corporation [D.C.], 186 F Sup 48 (reversed on other grounds [5 Cir.] 288 F(2d) 69).
      2. Defendant Witt did not have substantial connection with the State of Texas and therefore to require him to defend Plaintiff’s cause of action in a Texas forum would deprive him of the due process of law guaranteed by the 14th Amendment of the Constitution of the United States.”


author: BARROW, Chief Justice. CADENA, Justice

text:
    Orvis J. POOLER et al., Appellants, v. Charles E. KLOBASSA, Appellee.
    No. 14565.
    Court of Civil Appeals of Texas. San Antonio.
    March 29, 1967.

      Hope, Henderson & Hohman, San Antonio, for appellants.
    Hobart Huson, Jr., San Antonio, for ap-pellee.
   BARROW, Chief Justice.

Appellants, Orvis J. Pooler and Ella Mae Lee, joined by her husband, James Lee, brought this suit against appellee, Charles E. Klobassa, to recover damages under the Wrongful Death Statute (Arts. 4671-4678, Vernon’s Ann.Civ.St.) for the death of their sixteen-year-old son, Kenneth N. Pooler. The jury found primary negligence and damages against appellee, however, a take-nothing judgment was entered on jury findings of contributory negligence of the deceased.

On January 3, 1965, at about 8:00 p. m., Kenneth and his friend, Mike Follette, were both struck by appellee’s car which was proceeding west on Bandera Road in the City of San Antonio. The two boys were walking west on the north side of the roadway at the time they were struck. The point of impact, that is, whether same was on or off the paved portion of the roadway, was a vigorously disputed issue. Mike testified that he and Kenneth were walking about three feet off the pavement, with Kenneth on his left, when they were suddenly struck from behind. Appellee testified that he was proceeding west in the outside lane of this four-lane road at the time of the impact. Neither Mike nor appellee saw the other prior to the impact. There were two other witnesses to the incident, but neither was able to determine the point of impact.

Appellants’ first point complains of the trial court’s action in permitting the police officer, Joe Valadez, to give his opinion as to the point of impact and the cause thereof based upon conjecture and speculation. Valadez was parked in his squad car about a block east of where the boys were struck. Valadez observed appellee’s car as it passed him, and he testified there was nothing unusual about its operation, other than it was going just over the legal speed of 45 mph. As appellee’s car proceeded on west, Vala-dez saw it suddenly veer to the right and then back to the left. Valadez anticipated that something had happened, although he did not actually see an accident, and he immediately started after the car. As he neared the scene of the accident, he saw Mike’s body near the pavement and Kenneth’s body about 120 feet further west. Appellee’s car went about 100 feet beyond Kenneth’s body and was backing up at the time Valadez stopped near Kenneth’s body.

Valadez testified without objection that Kenneth’s body was about 120 feet west of the point of impact and Mike was near “the designated point of impact.” Appellee’s attorney then asked if he determined the point of impact relative to the pavement. On voir dire examination by appellants’ counsel Valadez freely admitted that he had been unable to determine from his investigation whether the impact had occurred on or off the pavement. There was no debris or tire marks. His designated point of impact was based entirely on the assumption that Mike was lying near the point of impact. Valadez testified that he “didn’t know how far — if he might have knocked the body any distance or if they might have fell out when he hit them, so, strictly a guess, I guessed that Mr. Follette was not knocked any distance. In other words, where he was laying we took as the point of impact.” He also was permitted to testify that there was a thorny bush growing just off the pavement “and we just made a guess that they probably might — at this point might have walked around the bush onto the pavement.” (Emphasis added.)

The trial court erred in admitting this testimony. There was no showing that the officer determined the point of impact as a result of his investigation. Cf. Mesa Trucking Co. v. King, Tex.Civ.App., 376 S.W.2d 863, writ ref’d n. r. e. Rather, it was admittedly based entirely upon conjecture and speculation. The applicable rule is set forth in 2 McCormick & Ray, Texas Law of Evidence, § 1399, as follows: “The general theory upon which opinions of lay witnesses are received likewise excludes opinions which are purely speculative or conjectural in their nature. Thus, the surmise or supposition of a witness with regard to some fact as to which he is no better equipped than the jury to draw inferences, is inadmissible.” See also: Flores v. Missouri-Kansas-Texas R. R. Co., Tex.Civ. App., 365 S.W.2d 379, writ ref’d n. r. e.; Flores v. Barlow, Tex.Civ.App., 354 S.W.2d 173, writ ref’d n. r. e.; Jenkins v. Hennigan, Tex.Civ.App., 298 S.W.2d 905, writ ref’d n. r. e.; Koonce v. Perales, Tex.Civ.App., 268 S.W.2d 683, no writ; Union Bus Lines v. Moulder, Tex.Civ.App., 180 S.W.2d 509, no writ. Furthermore, it cannot be said that appellants invited this testimony by asking the officer on voir dire if he could determine the point of impact other than by speculation and guesswork.

We cannot say, however, after an examination of the entire record that this error amounted to such a denial of the rights of appellants as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.

Valadez freely admitted, both on direct and on cross-examination, that he was unable to determine the point of impact and was simply making a guess. In view of this frank admission, we cannot see that this testimony was of much value to the jury or could have influenced them in any event. Particularly so as compared to the testimony of Valadez and Mr. Popham, a witness called by appellants, that they made a careful examination on several occasions and neither was able to find any tire marks to show that appellee’s car had left the pavement before the accident. Mr. Popham testified that when he saw the brake lights come on, appellee’s car was in or near the right-hand driving lane. The car was not veering when it passed Valadez. There was testimony that appellee’s car would have veered to the right, when it struck the boys. The photographs clearly demonstrated the thorny bush and the location of the two boys after the accident. The rank speculation of Valadez added nothing to what the jury was able to see for itself from the admissible evidence in the case. We therefore conclude that although this evidence related to a crucial issue, the erroneous admission was harmless. Rule 434, Texas Rules of Civil Procedure.

The jury found that Kenneth failed to keep a proper lookout; that he negligently failed to walk on the left side of the highway or its shoulder, and that he walked along the shoulder near the paved portion of the highway in a manner contrary to the way an ordinarily prudent person would have done under similar circumstances. Each of these acts of contributory negligence was found to be a proximate cause of the occurrence in question.

Appellants complain that the trial court erred in submitting the lookout issue since there was insufficient evidence to warrant the submission of same and furthermore the deceased owed no duty to keep a lookout to his rear. These are “no evidence” points. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

It is significant that the boys were not walking on the left side of the roadway or its shoulder facing traffic from the opposite direction as required by Art. 6701d, § 81 (b), Vernon’s Ann.Civ.St. The evidence is uncontroverted that the headlights on ap-pellee’s vehicle were burning, however, there is no evidence to indicate that Kenneth saw same prior to being struck. In Gonzalez v. Perry, Tex.Civ.App., 390 S.W.2d 382, writ ref’d n. r. e., this Court said: “It has been definitely decided in this State that a pedestrian under certain circumstances and surroundings must keep a lookout to his rear for approaching automobiles.” In Plata v. Gohman, Tex.Civ. App., 359 S.W.2d 163, writ ref’d n. r. e., this Court upheld findings of improper lookout although the pedestrian was walking on the left side of the road. 2A Blashfield, Cyclopedia of Automobile Law and Practice, § 1415, states the pedestrian’s duty in this situation as follows: “A pedestrian on the highway at night on whichever side he walks must exercise ordinary care, in the situation in which he puts himself and under the circumstances surrounding him. * * * So one who uses the roadway without taking any precautions for his own safety, though he can see the lights of an automobile which strikes him long before it reaches him, is guilty of contributory negligence barring recovery for the injury received.”

When this record is examined under the “no evidence” test, we cannot say that the trial court erred in submitting the issue relating to lookout on the part of Kenneth. See also Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958); Hardage v. Rouly, Tex.Civ.App., 349 S.W.2d 616, writ ref’d n. r. e. This finding of contributory negligence is sufficient to support the take-nothing judgment entered against appellants. It is therefore unnecessary to discuss appellants’ points complaining of the submission of the other two acts of contributory negligence found against Kenneth.

The jury found that appellee was operating his vehicle while under the influence of intoxicating liquor at the time of the accident. There was considerable evidence relating to this issue and the jury’s finding is fully supported by the evidence. Another issue was submitted to the jury, without objection, as to whether such act constituted negligence. The jury answered that it did not, and therefore, under the conditional submission instructions, did not answer the proximate cause issue. Since the jury found other acts of primary negligence proximately causing the occurrence, appellants were not harmed by the jury’s negative answer to the negligence issue or their failure to answer this proximate cause issue.

Appellants urge as their final point that there is a fatal and irreconcilable conflict between the jury’s answers to Issues Nos. 5 and 15. The jury found in response to No. 5 that appellee did not drive “the vehicle he was operating so as to go off of that portion of the highway improved, designed, asphalt paved and ordinarily used for vehicular traffic” and strike Kenneth. By No. 15 it found that at the time and on the occasion in question Kenneth was not “walking upon the paved portion of the highway in question in a manner contrary to the way in which a person of ordinary prudence, in the exercise of ordinary care, would have done under the same or similar circumstances.” It is seen that these two issues do not inquire about exactly the same thing, and therefore are not necessarily conflicting. In any event, such a conflict would not be fatal to the entry of the judgment under the rule laid down in Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985 (1949). See also Bay Petroleum Corp. v. Crumpler, 372 S.W.2d 318 (Tex.1963); Siratt v. Worth Construction Co., 154 Tex. 84, 273 S.W.2d 615 (1954).

The judgment of the trial court is affirmed.

CADENA, Justice

(concurring).

I concur in the result solely on the basis of the jury’s findings to the effect that decedent’s negligent failure to walk on the left side of the highway, facing traffic approaching from the opposite direction, was a proximate cause of the accident. These findings are supported by the evidence and are sufficient, in themselves, to preclude recovery by plaintiffs.


author: CLAUDE WILLIAMS, Justice.

text:
    Joseph L. PELEJ, Appellant, v. Kathryn Anne WINANS, Appellee.
    No. 16858.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 24, 1967.
    Rehearing Denied March 31, 1967.

      James L. Mitchell, of Braecklein, Mitchell, Thorpe & Lewis, Dallas, for appellant.
    Donald J. Hahn, Jr., of McCulloch, Ray, Trotti & Hemphill, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

This is an appeal from a judgment of the Juvenile Court of Dallas County awarding increased child support payments.

The facts are undisputed. Joseph L. Pelej and Kathryn Anne Winans, formerly liusband and wife, were divorced in June 1961 by judgment of the Superior Court of Union County, New Jersey. The judgment of the New Jersey court awarded custody of the two minor children of the parties to Kathryn Anne and ordered Joseph to pay ■$166.66 per month as child support, in addition to which he was to furnish certain medical and insurance benefits to the ■children. The only domicile maintained by •the parties during their marriage was in the State of New Jersey. In October 1964 Kathryn Anne obtained an order from the Superior Court of Union County, New Jersey authorizing her to take the children ■of the parties to the State of California where she established residence. She remarried in California and was living in that state at the time she brought this action. The father of the children did not remarry but continued to live with his parents in Union County, New Jersey and claimed to be a resident of New Jersey at the time of the institution of this action. However, Joseph L. Pelej was employed by Socony-Mobil Oil Company and he had been sent by such company to the State of Texas and had lived in the State of Texas for about thirteen months and in the County of Dallas for about eight months prior to the time he was personally served with citation in this cause.

This suit was brought in the Juvenile Court of Dallas County by Kathryn Anne Winans seeking primarily an increase in child support payments based upon allegations of changes in conditions which had resulted in increased cost of maintenance.

Joseph L. Pelej answered with a plea in abatement in which he challenged the jurisdiction of the Juvenile Court to hear the cause. Subject to the plea in abatement defendant filed his original answer in which he denied that reasons existed justifying increased child support payments.

The court overruled the plea in abatement and proceeded to hear the case without the intervention of a jury. In his judgment the court found that there had been a material change of condition since the rendition of the existing order for the support of the children in question and that the children are in need of increased support which defendant was able to pay. The court decreed that defendant father should pay the sum of $200 per month as child support.

From this judgment appellant appeals on the sole point that the Juvenile Court of Dallas County, Texas was without jurisdiction of the subject matter of this suit. Appellant does not raise any question concerning service of process upon him in Texas nor does he question the amount of child support payments awarded appellee. He contends that since neither he nor ap-pellee, nor the children involved, live in Texas the Juvenile Court of Dallas County had no right or authority in law to take any action involving the question of increased child support payments.

As we stated in Rader v. Rader, Tex.Civ.App., 378 S.W.2d 371, the Juvenile Court of Dallas County is not a constitutional district court as provided in Art. 5, Sec. 8 of the Constitution of Texas, Vernon’s Ann.St. and having general jurisdiction therein provided. It is a special court created by the SSth Legislature, Acts of 1957, Chapter 511, p. 1490, and being Art. 2338-9, Vernon’s Ann.Civ.St. It is a court of limited jurisdiction, being confined to the powers delegated to it by Section 3 of Art. 2338-9, V.A.C.S. The section entitled “Jurisdiction of Juvenile Court” reads as follows:

"The Juvenile Court shall have jurisdiction concurrent with the District Courts in Dallas County of all cases involving adoptions, removal of disability of minority and coverture, wife and child desertion, delinquent, neglected or dependent child proceedings, Reciprocal Support Act and all jurisdiction, powers and authority now or hereafter placed in the District or County Courts under the juvenile and child welfare laws of this State; and of all divorce and marriage annulment cases, including the adjustment' of property rights and custody and support of minor children involved therein, alimony pending final hearing, and any and every other matter incident to divorce or annulment proceedings as well as independent actions involving child custody or support of minors, change of name of persons; and all other cases involving justiciable controversies and differences between spouses, or between parents, or between them, or one of them, and their minor children, which are now, or may hereafter be within the jurisdiction of the District or County Courts; and all cases in which children are alleged or charged to be dependent and neglected children or delinquent children as provided by law. All cases enumerated or included above may be instituted in or transferred to the Juvenile Court.” (Emphasis supplied.)

In 1942 our Supreme Court in Ex Parte Roberts, 139 Tex. 644, 165 S.W.2d 83 held that there is no statutory authority for a district court to compel the payment of support and maintenance of children of divorced parents in a new and independent suit not involving the custody of the child or children.

In 1947 the court in Lane v. Mangum, Tex.Civ.App., 203 S.W.2d 945, was confronted with a similar situation where the divorce decree had been obtained by the husband in.a foreign jurisdiction but made no provision for support of minor children of the parties and it was there held that an order could not be thereafter entered by a court in this state upon a suit by the divorced wife to require the former husband to make fixed periodic contributions of support to the children. The court, recognizing the need for legislative action on this question said:

“Only the legislature can provide legislation which would empower the courts in an independent civil suit for the custody of the children to order the father to make fixed periodical contributions for their support, and this has not been done. If it can be said that the facts of this case expose a loophole in Article 4639a, the remedy lies with the legislature.”

In 1957 the Legislature enacted Art. 2338-9, V.A.C.S., above quoted, and the plain language that Act reveals that the Juvenile Court of Dallas County shall have jurisdiction of independent actions involving support of minors as well as all other cases of the indicated type which are or may be placed with the jurisdiction of the district and county courts. It would seem, therefore, that the Legislature has eliminated any question that may have heretofore existed concerning the right to institute an independent action in the Juvenile Court of Dallas County, Texas for child support alone.

Inasmuch as this action involves only child support, and is not one involving custody, it is an in personam action to determine the appellant’s duty to support his children. Risch v. Risch, Tex.Civ.App., 395 S.W.2d 709. Being an in personam action the only question involves personal jurisdiction over the appellant. He raises no question here with reference to the validity of personal service on him in Dallas County. He cannot question the right of appellee to seek recourse in the Texas courts to enforce the rights of her children. Since custody is not involved it is not an in rem action nor is it required that the children be residents of Texas. So the issue is simplified. The wife is properly in Texas. The husband is properly served in Texas. The statute authorizes the Texas courts to entertain an independent action for child support. Accordingly, we hold that the Texas court had jurisdiction.

Appellant argues that the effect of the Texas judgment is to confront him with obedience of two separate support judgments, one in New Jersey for $166.66 and another in Texas for $200. While appellant’s fears and apprehension are anticipatory we do not believe there is any basis for his exposure to double payments. The Texas decree was carefully worded so as not to interfere with any of the other remaining portions of the New Jersey decree. It merely awarded the sum of $200 as child support in a new and independent action brought in a court having jurisdiction over the parties and subject matter. We must assume that the New Jersey court would give full faith and credit to the Texas decree insofar as it relates to the matters within the Texas court’s jurisdiction.

Finding no merit in appellant’s contentions presented we overrule same and affirm the judgment of the trial court.

Affirmed.

       Art. 4639c, V.A.C.S. relates only to cases where the decree of a sister state is silent as to custody and support and provides that in such eases suit may be brought for custody and support in the county where the children actually reside.


author: DAVIS, Justice.

text:
    The WILLIAM J. BURNS INTERNATIONAL DETECTIVE AGENCY, INC., Appellant, v. GENERAL ELECTRIC SUPPLY COMPANY, a Division of General Electric Company et al., Appellees.
    No. 7777.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 31, 1967.
    Rehearing Denied Feb. 28, 1967.

      C. B. Stanley, Houston, for appellant.
    Ray A. Gipson, Baker, Botts, Shepherd & Coates, Houston, for appellees.
    E. W. Solomon, James P. Sheppard, Mrs. Kathleen C. Glass, Houston, for inter-pleader.
   DAVIS, Justice.

This appeal is the result of two garnishment proceedings. One by the William J. Burns International Detective Agency, Inc., hereinafter called “Burns”, and one by General Electric Supply Company, a Division of General Electric Company, hereinafter called “General Electric”, against Stewart Title Company. Judgment was rendered in favor of General Electric and Burns has perfected its appeal. It brings forward 14 points of error.

HISTORY

James P. Sheppard and wife, Cherie Jacqueline Sheppard, and Kathleen C. Glass were in the process of building a 38 unit apartment in the City of Houston, Harris County, Texas. It appears that at or prior to the time the construction was completed they became involved with the contractor and several of their creditors. Burns had been employed as a guard to guard the property during the construction, and the}' were indebted to Burns in the amount of $1,838.25. Burns filed a suit against Sheppard, et al, and recovered judgment for the indebtedness, and $400.00 attorneys fees, on May 26, 1964. Burns abstracted this judgment and filed a garnishment proceedings against the Stewart Title Company and had them served with a writ of garnishment on June 12, 1964.

Delta Electric Corporation furnished material in the construction of the project, and in August of 1963, it assigned its account to General Electric. General Electric filed a mechanic’s and materialman’s lien affidavit on February 14, 1964, against James P. Sheppard, et al. General Electric then filed suit against Sheppard, et al, and had issued a writ of garnishment that was served on Stewart Title Company on June 15, 1964.

Stewart Title Company filed a plea in abatement, answer, and a verified bill of interpleader. General Electric took a judgment against Chandler, et al, on August 25, 1964.

A motion to consolidate the garnishment proceedings was filed and granted.

By several of its points, Burns says the trial court erred in holding that there was competent evidence to prove that there was any balance due to Delta Electric Corporation, or to prove a valid mechanic’s and materialman’s lien.

This case has caused this writer much concern. It seems that there must be a valid mechanic’s and materialman’s lien to take any priority over funds that had been previously garnisheed by a creditor. It is true that a mechanic’s and mate-rialman’s lien is assignable. Gollnick v. Fry et al., (1930), 119 Tex. 23, 23 S.W.2d 677, opinion adopted by the Supreme Court. It seems that it is necessary for the person, firm or corporation who may sell or furnish material that goes into the construction of a building must be the one to file and perfect a mechanic’s and materialman’s lien. If they sell the account to a third person, regardless of the connection between the parties, the third person cannot perfect a mechanic’s and materialman’s lien under the statutes of the State of Texas. Art. 5452, et seq. Vernon’s Ann.Rev.Civ. St.

The appellee tried to offer the mechanic’s and materialman’s lien in evidence, but it was objected to on the ground that it was invalid. The judgment was offered in evidence and a similar objection was made to the judgment on the ground that it foreclosed on an invalid mechanic’s and materialman’s lien.

There are no cases in point that gives a person holding a mechanic’s and materialman’s lien that has been perfected by the lienholder the superior right to those of a prior attaching creditor who has already secured a judgment and garnisheed the money. A mechanic’s and material-man’s lien may be defeated in court and it does not seem to take effect until after judgment. 26 T.J.2d 729, § 52 and authorities cited therein. 26 T.J.2d 730, Sec. 53, reads in part as follows:

“The garnishment that is prior in time is the' one that is prior in right, and subsequent writs of garnishment cannot impair or affect the rights of the gar-nishor acquired under the writ first served. * *

See the authorities cited.

The trial court made a finding of fact that: “The lien securing the construction loan on the above described property has been foreclosed and such property no longer belongs to James P. Sheppard.” There is no evidence of any such procedure in the record. Burns raises a point of error to this effect. There were other findings of fact made by the trial court that the money in the hands of the garnishee was part of the proceedings of a loan made for construction of the building. There is no evidence of this effect; or, the evidence is insufficient. Burns raises a point of error to this effect.

The mechanic’s and materialman’s lien was not created within 90 days as provided by the statutes. (August, 1963, to February, 1964). The party who delivered the material to the job did not perfect the mechanic’s and materialman’s lien.

The judgment of the trial court is reversed and rendered.

ON MOTION FOR REHEARING

Appellee has filed a motion for rehearing, wherein it points out that we were in error in reversing and rendering the judgment of the trial court. It takes the position that we should have reversed and remanded the cause. The appellee might have furnished material to the job in question. It could have perfected its mechanic’s and materialman’s lien. These facts may be shown upon a retrial of the case. Appellee may also show the mechanic’s and materialmen’s lien was created less than 90 days after the materials were furnished. In reversing and remanding the case, we do not intend to hold that if the appellee had a mechanic’s and material-men’s lien that was filed before the appellant garnisheed the money, the appellee would be entitled to same. 26 Tex.Jur. 2d Sec. 753. We still hold that the party who delivered the material to the job must be the one who perfects the mechanic’s and materialmen’s lien. There were other findings of facts made by the trial court that should not be made unless there is proof or stipulations to support the same.

The judgment of the trial court is reversed and remanded.


author: DENTON, Chief Justice.

text:
    Dewayne GRAHAM, Appellant, v. TRUCK EQUIPMENT COMPANY OF AMARILLO, INC., Appellee.
    No. 7697.
    Court of Civil Appeals of Texas. Amarillo.
    April 3, 1967.
    Merchant & Barfield, Amarillo, J. Jerry Merchant, Amarillo, of counsel, for appellant.
    Lumpkin, Watson & Smith, Amarillo, Stephen P. Killough, Amarillo, of counsel, for appellee.
   DENTON, Chief Justice.

A default judgment was rendered in favor of Truck Equipment Company of Amarillo, Inc., against Dewayne Graham on a sworn account. Three days after the rendition of the default judgment, the defendant filed an unsworn answer. Ten days after the rendition of the judgment the defendant filed a motion to set aside the default judgment and to grant a new trial which was timely overruled.

The plaintiff filed its petition on a sworn account for services rendered on March 17, 1966. Valid service was had on the defendant on April 1, 1966. The defendant employed the attorney of record on April 10, at which time he delivered to him the citation and petition which had been served upon him. The default judgment was rendered on April 25, 1966. Defendant’s answer was filed April 28, 1966.

In the defendant’s motion for new trial, it alleges there was no lack of diligence on the part of the defendant and the failure to timely file an answer was not the result of negligence on his part; that the defendant’s attorney dictated an answer consisting of a general denial to his secretary on or about April 10 and instructed her it was to be filed in the County Clerk’s office on or before the Monday next after the expiration of twenty days from the date of service. The motion further alleged; “ * * * however, it was the understanding of said attorney’s secretary, Mrs. L. K. Cheatheam, that said answer was not to be prepared or filed until after said defendant had paid said attorney a portion of the fee that was agreed upon between defendant and defendant’s attorney.” It is further alleged a portion of the attorney’s fee was received in the mail on April 26, 1966, a day after the default judgment was entered. The defendant’s allegations of a meritorious defense were: “That he has a good and meritorious defense the the cause of action alleged in the Plaintiff’s Original Petition in that there was a failure of consideration on the part of the plaintiff in that he did not correctly repair the defendant’s truck according to plaintiff’s agreement and further that defendant was required to go elsewhere and have his truck repaired after plaintiff had finished with his so-called repairs on defendant’s truck.”

The correct rule applicable to motions to set aside default judgments entered on failure of a defendant to file an answer is stated in the landmark case of Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 as follows: “A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.”

Upon defendant’s request a hearing was set on the motion for new trial for June 10, 1966. Although the record does not disclose whether the defendant and his attorney appeared for the hearing, no evidence has been brought forward in a statement of facts. The order overruling the motion for new trial does not recite that evidence was heard nor that the defendant and his attorney were present.

Tested by the rule laid down in Craddock, it is clear that although the failure of the defendant to file an answer was not intentional or the result of conscious indifference, it was not due to an accident or mistake. By defendant’s attorney’s own allegations, his secretary understood the answer was not to be prepared or filed until the defendant paid the attorney a portion of his fee. There is no showing whether this was or was not the agreement between the defendant and attorney. He received a portion of such fee one day after the default judgment was entered. These allegations do not satisfy the requirements of the Craddock rule.

The rule in Craddock also provides a new trial should be granted if the defaulting defendant “sets up a meritorious defense”. This quoted language was recently interpreted by the Supreme Court in Ivy v. Carrell, Tex., 407 S.W.2d 212. There the court said: “This does not mean that the motion should be granted if it merely alleges that the defendant ‘has a meritorious defense.’ The motion must allege facts which in law would constitute a defense to the cause of action asserted by the plaintiff, and must be supported by affidavits or other evidence proving prima facie that the defendant has such meritorious defense.” (Emphasis added). Even if it could be said the motion for a new trial contains allegations of facts which would constitute a meritorious defense to the plaintiff’s cause of action, the defendant wholly failed to prove such defense prima facie. The trial court therefore did not err in overruling the motion for a new trial.

The judgment of the trial court is affirmed.


text:
    H. W. BRADFORD, Appellant, v. Harold BRADY, Appellee.
    No. 16900.
    Court of Civil Appeals of Texas. Dallas.
    March 31, 1967.
    Thomas J. Cook, Dallas, for appellant.
    Victor C. McCrea, Jr., of Estep, Waters, Benthul & McCrea, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

This is an appeal from a summary judgment for plaintiff in a suit to recover liquidated damages growing out of a contract for the sale of real estate. Harold Brady brought the action against H. W. Bradford alleging that both parties, joined by their wives, had entered into a written contract whereby Bradford was to purchase from Brady a house and lot for a stipulated consideration. The contract provided that the purchaser had deposited the sum of $500 and that in the event purchaser should fail to consummate the contract for any reason (with certain exceptions not here applicable) that the seller should have the right to retain the cash deposit as liquidated damages. Brady alleged that Bradford had not carried out his part of the contract and therefore the $500 deposit should be forfeited to him. Bradford answered with the contention that the contract between the parties had been entered into subject to the condition precedent that purchaser would be able to obtain proper financing. He contended that the check for the deposit of the sum of $500 contained a notation that it was “escrow money on 1902 Marydale contingent on financing.” Bradford alleged that he had attempted to obtain financing but had failed to do so and therefore the contract was ineffective and unenforceable.

Brady filed his motion for summary judgment, properly verified, and supported by answers of Bradford to request for admissions of fact. Bradford filed no answer to the motion for summary judgment but did file an affidavit in which he stated that the real estate agent handling the transaction had told him that the contract would be “no good if I could not obtain financing.” He also stated in the affidavit that his wife gave the agent a check to cover the escrow deposit, which check was a part of the contract, and which contained the notation with reference to contingent financing. The trial court sustained Brady’s motion and rendered judgment for plaintiff in the sum of $500.

Appellant Bradford brings forward four points of error in which he attacks the judgment but in oral argument before this court concedes that he relies principally upon his first two points. By these points he urges reversal because the written contract and the check with the notation upon it constitute inseparable instruments which must be construed together and when this is done the condition precedent concerning financing was admittedly not complied with and therefore the contract became voidable or at least a jury issue was presented regarding the intention of the parties.

Being an appeal from a summary judgment the only question presented to us is whether the record as presented to the trial court, as well as here, reveals the existence of issuable facts which should have been submitted to a trier of fact. The burden is upon appellant to demonstrate the existence of genuine issues of fact. In this instance he has attempted to do so by contending that although the written contract which he admittedly executed was unambiguous yet contemporaneously with the execution of such contract he, or his wife, delivered a check for earnest money with a notation thereon which would vary the terms of the original contract to such an extent as to create an issue of fact relating to the intention of the parties. We are convinced that the established law is contrary to appellant’s contention.

The contract signed by all parties in this case is perfectly clear and unambiguous. Its terms are definite and precise. The condition of default and liquidated damages is set forth in plain and specific language. The contract also provides that: “This contract embodies the complete agreement between the parties hereto and cannot be varied or terminated except by the written agreement of the parties.” The only reference to financing in the body of this contract is that the loan, which will cover the principal consideration of the transaction, is “to be arranged for by the purchaser.” It is undisputed that the financing was not arranged and that the check for the deposit was returned by the bank with the notation “Insufficient Funds”.

Appellant seeks to apply sound legal principles which say that prior or contemporaneous agreements between the parties which are collateral to and integrated within the original agreement must be construed together to determine the intention of the parties. However, in advancing this contention appellant overlooks certain necessary elements which give verity to the rule he relies upon. It is true that prior or contemporaneous agreements which are collateral to an integrated agreement and which are not inconsistent with and do not vary or contradict the express or implied terms or obligations thereof may be enforced. 17 Tex.Jur., Evidence, § 370; McCormick & Ray, Texas Law of Evidence, 2d Ed., § 1631. However, in this instance the contemporaneous writing relied upon by appellant does definitely attempt to vary or contradict the express or implied terms and obligations of the basic contract. To allow such to be done would give violence to the well established rule of law that when parties have reached a valid agreement with respect to a particular subject matter, prior or contemporaneous inconsistent agreements may not be enforced. 17 Tex.Jur., Evidence, §§ 352, 353; McCormick & Ray, Texas Law of Evidence, 2d Ed., § 1601.

Our Supreme Court in Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, in a comprehensive opinion by Justice Calvert, reviewed the law relating to contemporaneous inconsistent agreements and held that to permit same to be applied would violate the parol evidence rule, which is not a rule of evidence at all, but a rule of substantive law. The court also pointed out that the familiar “parol evidence rule” does not countenance a distinction between the written or oral efforts to vary the plain and unambiguous terms of a written agreement.

The applicable rule is stated in 23 Tex. Jur.2d, p. 500, as follows:

“As a general rule, in the absence of fraud, accident, or mistake, extrinsic evidence is inadmissible to vary, add to, or contradict the terms of a valid written instrument that on its face is complete and unambiguous. In other words, unless a writing on its face rebuts in some manner the presumption that it is complete, inconsistent extrinsic evidence, either oral or written, is inadmissible to vary or add to the terms of the instrument.”

There being no allegations of fraud, accident or mistake relating to the execution of the basic contract, the trial court was perfectly justified and required by law to disregard the alleged contemporaneous written memorandum which would obviously be inconsistent with and vary the terms of the basic instrument which is plain and unambiguous. Accordingly, no issue of fact was presented and appellant’s points 1 and 2 are overruled.

By his third and fourth points appellant contends that issues of ratification of mutual mistake are presented. As stated, appellant filed no answer to appellee’s motion for summary judgment and presented no extrinsic evidence in opposition thereto other than his affidavit which contains nothing but conclusions and hearsay recitations. We have carefully reviewed the record and find no basis for support relating to these contentions and they are overruled.

The judgment of the trial court is

Affirmed.