author: RICHARDS, Justice.

text:
    Chester R. MORRIS, Appellant, v. Anthony P. ROUSOS, Appellee.
    No. 10973.
    Court of Civil Appeals of Texas. Austin.
    Filed Jan. 31, 1962.
    Rehearing Denied Feb. 14, 1962.

      Chester R. Morris, San Antonio, per se.
    Will Wilson, Atty. Gen., Pat Bailey, Asst. Atty. Gen., Taylor & Tyler, Austin, for appellee.
   RICHARDS, Justice.

This is an appeal from an order overruling appellant’s motion to set aside and dissolve a temporary injunction which enjoined and prohibited appellant from taking any further action in a suit filed by appellant in the United States District Court of New Mexico against appellee. The injunction was granted May 3, 1960 in the 53rd District Court of Travis County in a consolidated cause in which appellant was plaintiff and the University of Texas and others including appellee were defendants and was to remain in full force and effect until such time as the consolidated cause had been disposed of by final judgment. On December 29, 1960 the Trial Court entered a summary judgment denying appellant any relief in his suit against the University of Texas and all other defendants including appellee. Appellant’s appeal from the adverse judgment was dismissed on January 10, 1962 by the Supreme Court of Texas in Cause A-8624, University of Texas et al. v. Morris, 352 S.W.2d 947 (not yet reported in the State Reports) now pending on appellant’s Motion for Rehearing.

On appellant’s appeal from the order of May 3, 1960 granting the temporary injunction this Court reversed the judgment of the Trial Court and set aside the injunction. Morris v. University of Texas et al., Tex.Civ.App., 337 S.W.2d 169. On application for writ of error the Supreme Court of Texas reversed the decision of this Court and affirmed the judgment of the Trial Court wherein appellant was enjoined from prosecuting his suit in the United States District Court of New Mexico against ap-pellee until the consolidated cause had been finally determined. University of Texas et al. v. Morris, Tex., 344 S.W.2d 426. Since the Supreme Court’s opinion details the proceedings granting the injunctive order of May 3, 1960, it is unnecessary to restate them here.

While the consolidated cause, Morris v. University of Texas et al., supra, was pending on application for writ of error before the Supreme Court of Texas, on September 6, 1961 appellant filed in the 53rd District Court of Travis County, Texas, his motion to set aside and dissolve the injunction which motion was overruled by the Trial Court on November 10, 1961.

It is our opinion that the Trial Court was without jurisdiction to hear or dispose of appellant’s motion to set aside and dissolve the injunction, the validity of which had been previously affirmed by the Supreme Court of Texas. (344 S.W.2d 426). When the appeal from the final judgment rendered December 30, 1960 in the consolidated cause was perfected to this Court which appeal is now pending before the Supreme Court of Texas, the Trial Court was thereafter prohibited from taking any further action in the cause with respect to the subject of the appeal. Ex parte Travis, 123 Tex. 480, 73 S.W.2d 487, 489; Railroad Commission of Texas v. Roberts, Tex.Civ.App., 332 S.W.2d 745, no writ history; 3 Tex.Jur.2d, Appeal and Error, Sec. 342.

Therefore until final disposition of the appeal in Morris v. University of Texas et al. by the appellate courts, the 53rd District Court of Travis County, Texas, is without jurisdiction to hear or entertain any motion to change, modify or dissolve the order entered May 3, 1960 granting the temporary injunction.

Judgment is here rendered dismissing for want of jurisdiction of the Trial Court the motion filed by Chester R. Morris on September 6, 1961 to set aside and dissolve the injunction and setting aside all subsequent proceedings and orders thereon. No costs shall be taxed against appellee.

      . During submission of this appeal appellant stated that if Ms motion for re-bearing was overruled, be intended to request the Supreme Court of the United States to grant writ of certiorari.


source: Caselaw Access Project

author: BOYD, Justice.

license: Public Domain

text:
    B. B. ADAMS, Jr., Appellant, v. HOOD COUNTY SAND & GRAVEL COMPANY, Inc., Appellee.
    No. 16295.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 19, 1962.
    Rehearing Denied March 2, 1962.
    Elmo Irby, Fort Worth, for appellant.
    Lattimore & Lattimore and Hal M. Latti-more, Fort Worth, for appellee.
   BOYD, Justice.

A. H. Minshew sued J. R. Faulkner for debt. This was Cause No. 9620-C. Later, Minshew and B. B. Adams, Jr., sued Faulkner and Hood County Sand & Gravel Company, Inc., on a note which had been executed by Minshew, Adams, Faulkner, and the corporation, and which had been paid by Minshew and Adams. This was Cause No. 9883-C. Minshew, Adams, and Faulkner owned all the stock of the corporation. In this suit Minshew and Adams caused a writ of sequestration to be issued and served upon property of the corporation which they claimed was covered by a chattel mortgage to secure the note on which they had filed suit. This suit was settled, and as a consequence Faulkner acquired the interest of Minshew and Adams in the corporation.

Faulkner filed a cross-action in Cause No. 9620-C, impleading Adams, and asked for judgment, for actual damages against Minshew and Adams in the sum of $15,000.00 and for exemplary damages ■ in the sum of $5,000.00 for wrongful issuance and service of the writ of sequestration. The corporation intervened in Cause No. 9620-C, asking for judgment for actual damages in the sum of $8,000.00 and exemplary damages in the sum of $30,000.00i against Minshew and Adams for wrongful issuance and service of the writ of sequestration. The cross-action along with the intervention was severed from Minshew’s' suit and became Cause No. 9620-C-l.

Minshew died before the trial of No.-9620-C-l, and the cause was dismissed without prejudice as to Minshew, his heirs and legal representatives. It proceeded to trial with Faulkner and the corporation as plaintiffs and Adams as defendant. There was a'verdict for the corporation against Adams for $2,250.00 actual damages. Judgment was rendered accordingly and Adams appeals. ‘

In the affidavit for sequestration in No. 9883-C, Minshew and Adams swore that they feared that “defendant” would injure, ill-treat, waste or destroy, or remove the property out of the county during the pen-dency of the suit.

In the case at bar the jury found that Adams did not have probable grounds for fearing that J. R. Faulkner would injure, ill-treat, waste or destroy, or remove the property out of Hood County during the pendency of Cause No. 9883-C; that Hood County Sand & Gravel Company suffered loss of net profits as a direct and proximate result of the business being closed down by reason of the service of the writ of sequestration ; that $2,250.00 would fairly and reasonably compensate the corporation for such loss; that Adams acted with malice in causing the sequestration proceedings to be instituted; but that the corporation was not entitled to any exemplary damages.

Appellant says that no judgment should have been rendered in favor of the gravel company because no issue was submitted as to whether appellant had probable cause for fearing that the company would injure, ill-treat, waste or destroy, or remove the property out of Hood County; and that a finding as to lack of grounds for fearing that Faulkner would do so will not support a judgment for the company. No objection was made to the form of the issue, and the court’s attention was not called to the omission of the corporation from the issue. The only obj ections to that issue were that there was not sufficient evidence of probative value to’ show that áppellant did not have probable grounds “for fearing”; and that the evidence shows that there were probable grounds for appellant to fear the removal or waste of the assets.

The jury found that appellant acted with malice in causing the sequestration proceedings to be instituted, and the charge defined malice to mean ill will, bad or evil motive, or such gross indifference to the rights of others as 'would amount to a wilful or wanton act. Moreover, there was no objection to the failure to submit an issue as to whether appellant had probable grounds for fearing that the sand and gravel company would ill-treat, waste, destroy, or remove the mortgaged property from Hood County. It appears that Faulkner was sole owner and practically, if not completely, controlled its operation. It having been found that the company suffered loss of net profits as a result of the closing down of the business by the service of the writ of sequestration, we are of the opinion that it will be presumed that the court found this issue in such manner as will support the judgment. Rule 279, Texas Rules of Civil Procedure.

Appellant insists that his motion for instructed verdict and his motion for judgment non obstante veredicto should have been granted because, he says, there was no evidence of probative force to-show that appellee lost any net profits by reason of the operations being shut down by the service of the writ of sequestration. He invokes the rule laid down in Southwest Battery Corporation v. Owen, 131 Tex. 423, 115 S.W.2d 1097, to the effect that where claimed profits are too uncertain or speculative, recovery can not be had. In that case, however, the plaintiff was permitted to recover. We think the true rule applicable to the case at bar is that uncertainty as to whether there was damage may be fatal, but not so where the uncertainty is as to the amount of damage. Southwest Battery Corporation v. Owen, supra. See also Pace Corporation v. Jackson, 155 Tex. 179, 284 S.W.2d 340; Grand Prairie Gravel Co. v. Joe B. Wills Co., Tex.Civ.App., 188 S.W. 680, error refused.

The evidence was ample and largely un-contradicted that appellee lost several sales of sand and gravel by reason of the closing down of the business. Faulkner testified that the closing down deprived the corporation of the sale of sand and gravel to. one construction company of 2,200 yards from which a net profit of $1,100.00 would have been realized; it was deprived of another sale from which a profit of $795.00 would have been made; another, where a profit of $1,050.00 would have been made; another, where a loss of $300.00 was sustained, and another, where there was a loss of $250.00; and still another sale of 22,000 yards was lost by the closing down of the plant, with a loss of $11,000.00 in profits. The names of the proposed purchasers were given, along with the amounts which they desired to purchase.

We have considered all of appellant’s points and believe that reversible error is not reflected.

The judgment is affirmed.


author: COLLINGS, Justice.

text:
    Harry A. DIAMOND, Appellant, v. TEXAS INTERNATIONAL SULPHUR COMPANY, Appellee.
    No. 3664.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 8, 1961.

      Clawson, Jennings & Clawson, Houston, for appellant.
    Herbert N. Lackshin, Houston, for ap-pellee.
   COLLINGS, Justice.

Harry A. Diamond brought suit seeking to have 15,000 shares of stock of the defendant, Texas International Sulphur Company, alleged to be owned by him, transferred to his name on the books of the defendant. Plaintiff also sought a temporary mandatory injunction to require the transfer of the stock to his name pending a final determination of this cause. After hearing, the trial court denied the temporary injunction and plaintiff has appealed.

Appellant’s pleadings and the evidence indicate that in July of 1957, appellant Diamond loaned $20,000.00 to one M. A. S. Makris and, thereafter, received as security for the loan what purported to be stock certificates representing 15,000 shares of stock in Texas International Sulphur Company, The certificates were endorsed in blank by Makris, whose name appeared on the certificates as owner. In 1960 Makris advised appellant that he could not repay the loan and, in effect, released to appellant any claim or interest he had in the certificates. Thereafter, in May or June of 1960, appellant requested the transfer agent of Texas International Sulphur Company to transfer such stock certificates to his name on the books of the corporation. He was advised by both the transfer agent and appellee that no transfer would be made because no such stock was of record on ap-pellee’s books and was never issued or authorized. Appellant’s pleading and evidence indicate that this was the first time that he knew of any claimed infirmity, or defect, in the stock certificates.

The pleading of appellee, Texas International Sulphur Company, included a general denial and special pleadings to the effect that the certificates alleged to be owned by appellant were invalid in that they were never issued or authorized to be issued by appellee; that the certificates were not manually signed by an officer of the defendant corporation as required; that ap-pellee never received any consideration for the purported issuance of such certificates and that appellant was not a holder in due course.

Appellant’s contention in his one point of error is that the trial court erred in refusing his petition for a temporary mandatory injunction requiring appellee to transfer the stock certificates on its books since the status quo, pending a final determination of title, can only be maintained by requiring a stock transfer. The point is overruled.

Generally, a temporary mandatory injunction will issue only for the purpose of maintaining or restoring the status quo pending a final disposition of a case. Story v. Story, 142 Tex. 212, 176 S.W.2d 925. The status quo to be preserved by a temporary injunction or a temporary mandatory injunction is “the last, actual, peaceable, noncontested status which preceded the pending controversy.” Transport Company of Texas v. Robertson Transports Inc., 152 Tex. 551, 261 S.W.2d 549.

The status quo in this case was the status existing before the controversy arose concerning the issuance of the stock. Before this controversy arose the books of Texas International Sulphur Company did not show, nor do they now show, that the stock in controversy has been issued. Ap-pellee denies that such stock was issued or authorized. The trial court properly held that to require appellee to transfer shares represented by the questioned certificate before a determination of their validity would not maintain the status quo. Cornett v. Reynolds, Tex.Civ.App., 289 S.W.2d 660; Parrino v. Dubois, Tex.Civ.App., 220 S.W.2d 305; McKee v. City of Mt. Pleasant, Tex.Civ.App., 328 S.W.2d 224.

The action of the trial court in refusing to grant the temporary mandatory injunction was also proper because there was no showing that the granting of such relief was necessary to prevent extreme hardship, injury and damage to appellant, and that no other adequate means existed to afford him relief. Dallas Independent School District v. Daniel, Tex.Civ.App., 323 S.W.2d 639, (Ref. N.R.E.).

It is also a general rule that the granting or refusal of a temporary injunction is within the sound discretion of the trial court which will not be disturbed on appeal unless an abuse of that discretion is shown. Harris County v. Bassett, Tex.Civ.App., 139 S.W.2d 180, (Writ Ref.), and Cooper v. Milam, Tex.Civ.App., 256 S.W.2d 196. In our opinion no abuse of discretion is shown.

The judgment is affirmed.


text:
    JANUS FILMS, INC., Appellant, v. CITY OF FORT WORTH et al., Appellees.
    No. 16304.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 26, 1962.
    Rehearing Denied March 2, 1962.

      Tobolowsky, Hartt, Schlinger & Blalock, and Grover Hartt, Jr., Dallas, for appellant.
    S. G. Johndroe, Jr., City Atty., and Fred M. Sullivan, Asst. City Atty., .Fort Worth, for appellees.
   BOYD, Justice.

Janus Films, Inc., appeals from a judgment denying its petition for a temporary injunction against the City of Fort Worth, members of the Censor Board of such city, and members of the Board of Referees.

We quote from appellant’s brief: “Appellant, owning the national distribution rights of the motion picture ‘The Virgin Spring’, had licensed this picture to the Capri Theatre in Fort Worth. The management of that theatre was denied a permit to exhibit the picture unless the ‘rape scene’ was removed from the film. On an appeal from the Censor Board to a Board of Review created by the Fort Worth Ordinance, Appellant entered the administrative proceedings to protect its rights as owner of the film. From an order of the Board of Review refusing a permit to show the picture, the Appellant brings this suit seeking a temporary injunction (1) restraining and enjoining the Appellees from interfering with the exhibition of the picture in Fort Worth, (2) restraining the Appellees from applying capricious and private standards of taste or judgment in deciding whether to grant a license for the exhibition of a motion picture in the City of Fort Worth, and (3) restraining Appel-lees from judging a picture by any standard other than the determination of whether to the average person, applying contemporary community standards the dominant theme of the material taken as a whole appeals to the prurient interest.”

In its verified petition appellant alleged that the picture was produced in Sweden, imported into the United States, and distributed in this country through channels of interstate commerce; that the picture had received the award of the Academy of Motion Picture Arts and Science as the best foreign picture for the year 1960.

The city’s Ordinance No. 2475 provides that no person shall present to the public an exhibition of any picture of any character by means of moving picture films,. or give or present to the public any other form of theatrical entertainment within the corporate limits of the City of Fort Worth without securing and holding a permit for such exhibition from the Board of Censors for the City of Fort Worth. A violation of the ordinance would subject the person to a fine not exceeding $200.00; each day and each time the ordinance is violated constitutes a separate offense.

The ordinance provides that no permit shall issue for the exhibition of motion pictures (or other forms of entertainment) which are, in the opinion of the Board of Censors, indecent or injurious to the morals of the citizens of Fort Worth, or which would tend to promote or encourage indecency, immorality, or racial or sectional prejudice, or juvenile delinquency.

Appellant contends that the City cannot restrict or inhibit the showing of the picture because of the terms of Article 527, Vernon’s Ann. Penal Code, the pertinent parts being as follows:

“Whoever shall knowingly * * * exhibit any * * * motion picture film * * * which is obscene, * * * shall be fined * * *.

“For purposes of this article the word 'obscene’ is defined as whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests. Provided, further, for the purpose of this article, the term ‘contemporary community standards’ shall in no case involve a territory or geographic area less than the State of Texas. * * *

“The provisions of this Act shall not apply to any motion pictures produced or manufactured as commercial motion pictures which (1) have the seal under the Production Code of the Motion Picture Association of America, Inc.; or (2) legally move in interstate commerce under Federal Law; or (3) are legally imported from foreign countries into the United States and have been passed by a Customs Office of the United States Government at any port of entry.

“The provisions of this Act shall not apply to any daily or weekly newspaper.”

We do not think that Article 527 is applicable to the situation here. The City’s powers do not derive from any legislative act but from Article 11, Section 5, of the State Constitution, Vernon’s Ann.St. It is a home rule city, and its charter powers are plenary, subject of course to the limitation that its charter and ordinances shall contain nothing inconsistent with the State and Federal Constitutions or the general laws enacted by the Legislature. City of Fort Worth v. McDonald, Tex.Civ.App., 293 S.W.2d 256.

There is not available to us all the evidence which was before the trial court. The Judge of that court saw the entire film at a theatre in Dallas. Appellant introduced advertisements and reviews. Some stills are in the record, as well as the testimony of witnesses who saw the show. “This, as to be expected,” to quote from the dissenting opinion in Empire Pictures Distributing Co. v. City of Fort Worth, 5 Cir., 273 F.2d 529, “was about as revealing as program notes to a symphony concert.”

Appellant agrees that obscenity is not a protected form of speech or press. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. But it insists that the Board of Censors, in judging whether the picture is obscene, used standards other than the determination of whether “to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest,” this being the test laid down in Roth v. United States, supra.

It is difficult if not impossible to judge the standard of taste used by the Board of Censors except by judging the kind of film for which the Board refused to issue a permit. If the show in question is obscene according to the test laid down in Roth, it cannot be said that the Board used the wrong standard.

Since obscenity is not a protected form of speech or press, and accepting the definition of obscenity laid down in the Roth case, a question for the trial court was whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest. We think this exact question is not before this court. Before we may reverse the judgment it must appear that the film is not obscene according to the Roth test. We cannot say that the trial court erred in failing to so hold when evidence available to, and which doubtless was considered by, that court is not available to us

The judgment of the court was that the application for injunction be denied. There were no separate findings of fact or conclusions of law. No judgment shall be reversed on appeal unless there was error amounting to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rules 434 and 503, Texas Rules of Civil Procedure.

One prayer for relief was that the court declare that the ordinance is unconstitutional and violates the rights of free communication “unless the sole standard for the refusal of a license be on the determination that the picture is obscene and that in determining the question of obscenity the only valid test is: ‘Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.’ ” The ordinance does not employ the word “obscene”; but “indecent” is synonymous with “obscene”. Webster’s New International Dictionary. In the dissenting opinion in Empire Pictures Distributing Co. v. City of Fort Worth, 5 Cir., 273 F.2d 529, where the same ordinance was under consideration, from which appellant quotes in its brief, it was said: “This leaves only material which, in the opinion of the Board, is ‘indecent’ or that which would tend to ‘promote or encourage indecency.’ And as to this it is further limited as the parties and the court below concede that the ordinance term ‘indecent’ is synonymous with ‘obscene.’ ” In appellant’s brief it is said: “It would not be difficult to prove that motion pictures depicting the sex act, together with various forms of perversion, would offend the standard of every community throughout the State.” We cannot say from this record that the “Rape Scene,” which we have not viewed, is not indecent and is not obscene.

In our determination of the appeal we do not consider how far a court should go in restraining the enforcement of municipal penal ordinances.

We have considered all of appellant’s points and think that reversible error is not reflected.

The judgment is affirmed.


author: BELL, Chief Justice.

text:
    Dolores HAYES et vir, Appellants, v. HOME INDEMNITY COMPANY, Appellee.
    No. 13881.
    Court of Civil Appeals of Texas. Houston.
    Feb. 22, 1962.
    Rehearing Denied March 15, 1962.

      George Donalson, Jerome Pope, Ralph Chambers, Houston, for appellants.
    Butler, B inion, Rice & Cook, W. N. Blanton, Jr., Houston, for appellee.
   BELL, Chief Justice.

Appellant sought recovery of workmen’s compensation because of an injury she received to her back while working for Vector Manufacturing Company. On trial a jury awarded her compensation for 8 weeks, the period of time it found her to be totally incapacitated. The jury found there was no partial disability. The jury also found that a prior compensable injury contributed 50% to the temporary total incapacity which it had found. The court rendered judgment that appellant take nothing because it was established that appellee had already paid appellant the full compensation for 8 weeks total disability.

Appellant complains of the submission of issues inquiring as to whether she had suffered a prior compensable injury which contributed to the disability for which she sought compensation. Too, there was an issue as to whether her disability, if any, after July 18, 1959 was caused solely by the previous compensable injury. The complaints are that there was no evidence to support submission; the answers of the jury finding favorably to appellee were so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong; and that the mere submission of the issues amounted to a comment on the weight of the evidence.

We hold, viewing the evidence most favorably in support of the issues, that there was evidence of probative force supporting them. Viewing the jury’s answers to these issues in the light of all of the evidence, we hold such answers not to be so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong.

Further, the answers become immaterial because the jury found appellant suffered only temporary total disability of 8 weeks. The appellee had paid full compensation for this period of time and there was no recovery or effort to recover hy appellee of any amount it had paid. Appellant received the full amount she was entitled to under the jury finding of 8 weeks total disability. The effect of the court’s judgment was to disregard the jury’s answers to the issues complained of.

Neither do we think the submission of the issues constituted a comment on the weight of the evidence.

Appellant next contends the trial court erred in overruling her motion for new trial based on misconduct on the part of the bailiff in charge of the jury. She asserts that the jury asked for the deposition of her witness, Dr. Klingman, and the bailiff told the jury it was not in evidence. It was not in evidence though parts of it had been read in evidence.

We cannot appraise this complaint because there is no bill of exception. There is nothing in the record before us that shows what occurred. There is merely the appellant’s motion for new trial to which is attached an alleged photostatic copy of a deposition by the bailiff. This does not suffice. Appellant urges the alleged error is fundamental and we should notice it. Even if it were fundamental error, which we do not think it is, we could not consider the asserted error because if fundamental in character it must be apparent on the face of the record. No error is shown by the properly authenticated record.

Appellant’s final complaint is of the court’s admission in evidence of a copy of a report of a doctor witness for appellee that had been sent to the Industrial Accident Board. The theory of appellant on appeal is that it was hearsay. She contends it was harmful particularly because the jury had this report with them in the jury room and the jury had been told by the bailiff that Dr. Klingman’s deposition was not in evidence. The narrative report was that of Dr. Henry.

The report was admitted after appellant’s husband had testified that Dr. Henry had told him after the myelogram was run that appellant had a herniated disc. Too, appellant then introduced a drawing she said Dr. Henry made for her husband showing a herniated disc. The narrative report showed only a recurrent back sprain. Dr. Henry at this stage had not testified. He did later testify without objection and his testimony was in substance the same as his narrative report.

The appellant merely objected to the admission in evidence of the report. Counsel gave no ground for his objection. A general objection that the narrative report is inadmissible does not suffice to preserve any error. McCormick and Ray, Texas Law of Evidence, §§ 22 and 24.

We are of the view that over proper objection it would not have been admissible when offered. However, the evidence developed so that it would have been properly admitted later on. Dr. Henry became a witness who testified appellant only had a recurrent back sprain. It would have been permissible for appellant to impeach him by her husband’s testimony that Dr. Henry had told him she had a herniated disc. When the witness had thus been impeached, he could be bolstered by showing a previous statement consistent with his testimony. The evidence, as the case finally ended, was properly before the court. It just didn’t get there by the correct procedure.

The judgment of the trial court is affirmed.


author: CHADICK, Chief Justice.

text:
    NATIONAL TITLE & ABSTRACT COMPANY et al., Appellants, v. Robert Paul SHAVER et al., Appellees.
    No. 7314.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 6, 1962.
    Rehearing Denied March 13, 1962.
    C. C. Renfro, Renfro & Ewing, Dallas, for appellant.
    Robert H. Thomas, Strasburger, Price, Keller, Miller & Martin, Dallas, for appel-lee.
   CHADICK, Chief Justice.

The plaintiffs sued in the trial court for indemnity payable under the terms of a title insurance policy. Judgment awarding a recovery was entered. The judgment is reversed and the case rendered.

The pleading and proof in the trial court and the briefs of the parties in this court make determination of whether or not the rights vested in the owner of a pipeline right-of-way easement were excepted from the guaranty of a policy of title insurance decisive of the appeal. The answer must be in the affirmative.

In July, 1915, J. W. Tate and Laura Tate granted Lone Star Gas Company an easement to lay, maintain and operate pipeline and appurtenances thereto over and through a thirty acre tract of land in the S. Huitt Survey of Dallas County. The instrument evidencing the grant was filed with the County Clerk and recorded in the Deed Records of Dallas County in August of the same year. The title insurer failed to discover this instrument in its examination of the title before its policy issued.

Robert Paul Shaver and William Hugh Roberson, the appellees, acquired 2.35 acres out of the 30 acre Tate tract by conveyance from William Harvey Vaughn and Lilly Vaughn in March, 1948. The Tates became the common source of title of ap-pellees and the gas company. The National Title and Abstract Company as agent for Alamo Title Company issued Shaver and Roberson an owner’s title insurance policy which guaranteed that a good and indefeasible title was vested in them to the 2.35 acre tract subject to a described lien, restrictive covenants affecting the property, discrepancies in areas and boundaries which a correct survey would show, current taxes, and the “rights of parties in possession”. Only the last exception bears on the case.

At the date of the Vaughn Deed, Lone Star Gas Company had in operation a high compression gas transmission pipeline that traversed the 2.35 acre tract. The line was buried four feet under the surface, but was walked every week by an employee. Gas service to the Vaughn residence was furnished from a tap on the line. The appel-lees did not discover the existence of the pipeline at or before the date of the title policy, and had no actual notice of the right-of-way easement.

The “Basic Manual of Rules, Rates and Forms” promulgated by the Board of Insurance Commissioners permits title insurers to insert as a general exception to the policy’s guaranty the language “rights of parties in possession”. The Manual does not define the scope of this exception, but does describe it as a general exception and prescribe the condition of its use. No issue is raised in this case as to the propriety of the insertion of the exception in the policy. On the contrary the appellees’ pleading alleges that good and indefeasible title was guaranteed, subject to the exceptions set out in the policy.

No case from this or another jurisdiction has been cited in which a court has construed the language of this exception. Nor is there evidence that it has a special meaning when used in a title insurance policy though the regulations referred to indicates that its use in the title insurance business is of sufficient concern to require regulation.

The record in this court contains nothing to suggest that in ascertaining the intent, purpose or effect of the exception that the words employed should be given any other than their plain, ordinary and accepted meaning. The applicable rule is clearly stated in Hall v. Mutual Ben. Health & Accident Ass’n, Tex.Civ.App., 220 S.W.2d 934, wr/ref. See also Hale v. Allstate Insurance Company, Tex., 344 S.W.2d 430; Insurance 24B Tex.Jur. 97, Sec. 29.

Considering the exception’s desig.. and the plain, ordinary and accepted meaning of its wording it must be held that it excludes from the operation of the policy guaranty the recorded easement of the Lone Star Gas Company which was being actively used in the conduct of the gas company’s business as the time the policy was written, though neither insurer nor assured had actual knowledge of the easement or the gas company’s rights thereunder.

In their brief appellees request a decision on their second crosspoint but state that a remand is not desired. Decision on the crosspoint under such circumstances is not necessary to disposition of the appeal, and therefore is omitted.

The judgment of the trial court must be reversed, and judgment here rendered that the appellees take nothing by their suit. It is so ordered.


author: YOUNG, Justice.

text:
    Flora HENRY, Appellant, v. Homer ROUNTREE et ux., Appellees.
    No. 15937.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 9, 1962.
    Rehearing Denied March 9, 1962.

      Odeneal & Odeneal, Dallas, for appellant.
    Brundidge, Fountain, Elliott & Bateman and Ralph D. Churchill, Dallas, for ap-pellees.
   YOUNG, Justice.

The suit was for establishment of a private easement over land; the defense, abandonment thereof by way of adverse possession for the statutory period of (ten year statute of limitations). At close of evidence, the court withdrew the case from consideration by the jury and rendered judgment for appellees establishing their easement rights by way of final injunction, and the appeal followed.

Appellant, Mrs. Flora Henry, originally owned both of these properties (City #5935 and 5941 — Bryan Parkway) ; she and her husband selling the latter numbered house and lot to Earl C. Scott and wife on January 18, 1946. The deed after describing the land sold contained the following recital : “Grantors herein also grant to grantees herein, their heirs, executors, administrators and assigns, an easement for driveway or passageway over and across the following described property, together with free ingress, egress and regress at all times”. Then followed detailed field notes of a strip of land 5 x 96.5 feet in size off the east side of the Henry’s adjacent property. On January 19, 1948, Mrs. Ada Dun-ham, formerly Mrs. Earl C. Scott, conveyed the same property (5941 Bryan Parkway) to Camella Gray, who on October 11th, 1957 conveyed to Homer Rountree and wife, present owners and appellees. Each of these mesne conveyances or deeds also included the easement as above recited in the prior Henry-Scott deed. In 1959 the Rountrees attempted to construct the driveway contemplated by aforesaid easement but were prevented by Mrs. Flora Henry, (now a single woman), from completing same. This precipitated the instant suit for mandatory injunction resulting in the judgment for appellees as prayed.

Mrs. Henry testified that she had continued to use and occupy the strip as before the deed to Earl C. Scott; that in 1946 she had placed concrete slabs in the easement strip as a walkway; having rented a room to various tenants from time to time, no date shown; planted St. Augustine grass on the strip, mowing same, additionally devoting it to flowers and rose bushes; that in 1946 grantee, Earl C. Scott, had erected a fence from the common rear alley toward the front, which had extended about 20 feet into the easement property. The testimony of other witnesses was to the effect that Mrs. Henry had conducted a kindergarten for a time in the rear room of her home, the children using the easement as a playground. It is not disputed that ap-pellees and their predecessors in title had made no use of the easement space until the attempted construction of driveway in 1959. Mrs. Rountree stated in this connection that they would not have purchased the property had the deed not contained the driveway privilege and that it was not until 1959 that they were able to do the necessary financing. On the other hand it was the testimony of Mrs. Henry that her first personal knowledge of the easement rights was in October 1959; and that she had signed the 1946 deed without reading it, the ■deal being handled by her then husband Joe Henry. And obviously the first knowledge had by appellees of this hostile claim was in 1959.

The “adverse possession” contemplated by Art. 5510, Vernon’s Ann.Civ.St. (10 year statute of limitations) is defined in Art. 5515 as “an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.” Having continued in possession of the easement after the 1946 deed, such actual holding on part of Mrs. Henry, without more, could not be deemed adverse. Hers was the further burden of showing that said continued use and occupancy of the strip was inconsistent with and hostile to the 1946 grantees and their assigns over the 10-year period. Otherwise, her possession would be presumably subservient to the title which she had conveyed and consistent with it. Texas Practice, Vol. 5, (Limitations) § 872.

“One who sells a lot to be used as city property, which at the time is inclosed in a field, cannot successfully set up the statute of limitations against the grantee merely because the latter fails to take actual possession, and permits it to remain in the ■original inclosure. In order to make the plea of limitation effectual in such case, he must show some notorious act of ownership over the property, distinctly hostile to the claim of the grantee; and the adverse possession after this must continue for a sufficient length of time before suit to complete the statutory bar. The ‘possession must not only be actual, but also visible, continuous, notorious, distinct, and hostile, and of such a character as to indicate unmistakably an assertion of claim of exclusive ownership in the occupant.’ ” Evans v. Templeton, 69 Tex. 375, 6 S.W. 843. See also American Nat’l. Bank of Beaumont v. Wingate, Tex.Civ.App., 266 S.W.2d 934.

In our opinion the testimony adduced on behalf of appellant lacked much of satisfying the test of a “visible, continuous, notorious, distinct, and hostile, (possession) and of such a character as to indicate unmistakably an assertion of claim of exclusive ownership * * Evans v. Templeton, supra.

Judgment of the trial court is affirmed.

WILLIAMS, J., not sitting.


author: HUGHES, Justice.

text:
    Willis R. WINTERS, Appellant, v. C. H. LANGDEAU, Receiver of State National Life Insurance Company, Appellee.
    No. 10932.
    Court of Civil Appeals of Texas. Austin.
    Feb. 21, 1962.
    Rehearing Denied March 14, 1962.

      Russell & Tomlin, Pecos, for appellant.
    Cecil C. Rotsch, John R. Grace and Horace Wimberly, Austin, for appellee.
   HUGHES, Justice.

This suit was brought by C. H. Langdeau, Receiver of State National Life Insurance Company, against Willis R. Winters, appellant, to recover on a promissory note executed by Winters to the Insurance Company, prior to receivership, and to foreclose a deed of trust lien on certain real property given to secure payment of the note. Permanent receivership was granted July 6, 1960.

Appellant answered by pleading, under oath, total failure of consideration for the note. He also, by cross action, sought cancellation of the deed of trust as a cloud on the title to his land described in it.

On March 7, 1961, the Receiver filed motion for summary judgment. This motion was granted, the Court rendering judgment against appellant on the note and foreclosing the deed of trust lien.

Appellant’s original answer contained the-following sworn allegation:

“The Defendant says that in the month of December, 1959, one W. L. Bridges, Jr., who was then an officer and agent of State National Life Insurance Company, a Texas corporation, then and there acting within the course and scope of this authority as an executive of said corporation, came to Reeves County, Texas, where this Defendant resides and solicited this Defendant to execute the note and deed of trust sued on in this cause upon the representation and promise to this Defendant that the proceeds of said note would be delivered to this Defendant in the month of February, 1960, or about such time when this Defendant expected to require such funds for the purpose of financing the construction and installation of concrete ditch linings for farmers operating in Reeves County, Texas. That said Defendant, relying upon the promise and agreement of W. L. Bridges, Jr., who was then and there acting for and on behalf of State National Life Insurance Company a corporation, as an executive officer thereof, executed and delivered the note and deed of trust sued on in this cause and attached to Plaintiff’s petition herein as Exhibits A and B, respectively. The said W. L. Bridges, Jr. further represented to this Defendant at such time that he needed said obligations to show as assets of said State National Life Insurance Company and that the proceeds of said note would be duly made available and disbursed to this Defendant upon demand in the month of February, 1960, or some time around such ■date. This Defendant alleges and shows to the Court that demand was made upon said State National Life Insurance Company to deliver to this Defendant the proceeds of said note in the month of February, 1960, but that such demand for delivery of said funds was refused, and said State National Life Insurance Company has ever since wholly failed and refused to deliver the proceeds of said note to this Defendant, to his damage in the sum of Sixty-Seven Thousand Five Hundred & No/100 ($67,500.00) Dollars.” Italics added.

These allegations were amplified and carried forward in appellant’s first amended original answer and cross action but with the allegation that Bridges represented that he needed the note to show as assets of the Insurance Company omitted.

Appellee’s motion for summary judgment was based on the pleadings on file and the affidavit of Mr. Langdeau. This affidavit (3-7-61) was to the effect that the material allegations of appellee’s first amended petition were true, and of his knowledge known to be true.

An amended affidavit was filed by Mr. Langdeau on April 24, 1961. Attached to this affidavit as an exhibit was a correct reproduction of a check dated December 29, 1959, payable to the order of Willis R. Winters in the principal sum of $67,500.00 signed by the State National Life Insurance Company by M. L. Bishop and W. L. Bridges, Jr. and drawn on the First National Bank of Richland, Texas. This check bears the endorsement of Willis R. Winters and by perforated letters and figures shows that, after having passed through several banks, it was paid January 5, 1960.

Appellant’s affidavit, filed April 24, 1961, in answer to appellee’s motion for summary judgment repeats and amplifies the substance of his allegations in the first amended original answer but contains these additional statements:

“That W. L. Bridges, Jr. made no statement to this affiant that State National Life Insurance Company was not solvent and was not in a position to lend such funds, and this affiant had no reason to believe State National Life Insurance Company was in any financial difficulty or that such State National Life Insurance C-.npany could not validly contract and agree with this affiant to advance the full face amount of any promissory notes delivered by this affiant to said insurance company.
“Affiant further deposes and says that on or about December 29, 1959, he executed and delivered to State National Life Insurance Company the promissory deed of trust note sued on in Cause No. 117,880, pending in this Court, and that on or about December 30, 1959, this affiant executed and delivered to State National Life Insurance Company the promissory note sued on in Cause No. 117,879 pending in this Court, and to secure said notes, executed and delivered the respective deeds of trust sought to be foreclosed in said respective causes. That said notes were executed and delivered for the sole and only purpose of the affiant obtaining the full amount of the principal shown on the face of each of said notes, for use in his business, and were not intended as an accommodation to State National Life Insurance Company, and were not intended as accommodation notes, and were not intended by this affiant to be used for any other purpose than to evidence the indebtedness of this affiant to State National Life Insurance Company for funds which this affiant expected State National Life Insurance Company to deliver to him, upon demand. * * *
“Affiant further deposes and says that any statements made in the pleadings in this cause that might be construed as an admission or assertion that this affiant delivered the aforesaid notes and deeds of trust for accommodation purposes, or for the purpose of bolstering the apparent assets of State National Life Insurance Company, are completely false and untrue, and this affiant states unequivocally that the execution and delivery of said respective notes and deeds of trust was for the purpose of acquiring the full amount of the funds represented by said notes, in cash, and not for any other purpose whatsoever. * * *
“Affiant further deposes and says that at some time during the month of January 1960 or in the early part of the month of February 1960, the exact date being unknown to this affiant, he did call upon State National Life Insurance Company to deliver to him the proceeds of the above described promissory notes. That when he made such demand, officials of State National Life Insurance Company advised this affiant that the company was in the hands of the State Insurance Commission, and that it would be impossible for the company to deliver the proceeds of such notes. Affiant further deposes and says that he has never, at any time, received any funds whatsoever from State National Life Insurance Company in payment for the notes sued on in said Cause No. 117,879 and No. 117,880. * ⅜ H=
“Affiant further deposes and says that about the time that said attorney filed said pleas of privilege, he, the said attorney for affiant, instructed the affiant to pay the accrued and delinquent installments due on the notes sued on in said causes, in order, that, if said payments were accepted, acceleration of maturity of said notes would be waived, and acceleration of maturity could not thereafter be exercised, as regards either of said notes upon which such delinquent installments had been accepted. Affiant further deposes and says that it was not until some time subsequent to the date affiant had made such payments, that the affiant advised his said attorney that he had never received the proceeds of said promissory notes or either of them.”

In a supplemental affidavit filed by appellant April 26, 1961, he states:

“I have read the amended affidavit of C. H. Langdeau filed in this cause in further support of his motion for Summary Judgment pending herein, and have examined a reproduction of a certain check dated December 29, 1959, No. 134, made payable to the order of Willis R. Winters for the sum of $67,-500.00, purportedly drawn by State National Life Insurance Company on the First National Bank, Richland, Texas. I am not able to recall all of the conversations which occurred between myself and W. L. Bridges, Jr., on the occasion of the issuance of said check, but I do hereby categorically state that I never received the proceeds thereof; that I never, to this date, personally deposited said check to any account against which I could draw funds; that said check was never delivered out of the possession of the said W. L. Bridges, Jr. and was retained by him at all times, upon the understanding and agreement that the funds would remain in the hands of W. L. Bridges, Jr., as an officer, agent and executive of State National Life Insurance Company, until such time as I should demand the amount thereof as proceeds of the promissory note sued on in this cause.
“I am not able to state what person, firm or corporation may have received said check, but to the best of my knowledge and belief the proceeds thereof were retained by State National Life Insurance Company, and that if State National Life Insurance Company did not retain the funds represented by said check, that the same were retained by W. L. Bridges, Jr., acting for and on behalf of State National Life Insurance Company. I do hereby further depose and state that it was my understanding that said check was issued purely as a matter of record and for the purpose of making a bookkeeping and accounting entry thereon, and that I should not be required to pay any portion of the proceeds of the promissory note sued on herein, except to the extent that I actually drew said funds from said State National Life Insurance Company.
“I have recently discussed the transaction out of which this litigation ensued, with W. L. Bridges, Jr., in an attempt to refresh my memory regarding the circumstances surrounding the issuance of the check attached to Plaintiff’s amended affidavit, but was unable to learn from W. L. Bridges, Jr. exactly what disposition was made of said check. The said W. L. Bridges, Jr. did, however, state to me that in all probability said check was simply redeposited shortly after its issuance, to the account of State National Life Insurance Company, to be held in a suspense account until such time as I requested delivery to me of the funds due me for my promissory note.”

It is our opinion that the affidavits established, as a matter of law, appellant’s liability on the note in suit.

Appellant seems to have been a vacillating affiant. He first swore, through his attorney, that the note and mortgage was needed to show as assets for the Insurance Company, and that the proceeds of the note would be made available to him in February, 1960. (Appellant’s original petition filed July 13, 1960.) No mention in this pleading was made of the check dated December 29, 1959 for $67,500.00, endorsed by him which was paid seven days later.

On April 18, 1961, appellant swore in answering appellee’s motion for summary judgment that the statement made in his former sworn pleading to the effect that the note was given to bolster the assets of the Insurance Company was false. In this affidavit, appellant also swore that he called upon the Insurance Company in January or early February 1960, to pay him the amount of his note but that payment was refused. He did not refer to or mention the Company’s check of December 29, 1959, payable to and endorsed by him for the full amount, and ultimately paid.

In this affidavit appellant also admitted that he made payments on this note after the institution of this suit. Appellant attempts to swear these admissions away on the tenuous ground that his attorney instructed him to make such payments.

On April 24, 1961, appellant filed an affidavit in which he, for the first time, mentioned the December 29, 1959 check, and this was in response to the affidavit by Mr. Langdeau in which the existence of the check was first revealed.

When we read and analyze the statements in this affidavit regarding the check along with other sworn testimony of appellant, we are convinced that appellant does not factually explain away the effect of his conduct in receiving and endorsing the check for the amount of his note. The check was a good check. Appellant did not receive or endorse it under compulsion. His act in endorsing the check and surrendering it to someone else was a voluntary act for which he, in our opinion, is fully responsible.

Where did the proceeds of this check go? The affidavits do not show. Surely it was incumbent upon appellant to show that this money was returned to the Insurance Company if appellant is to claim any benefit based on such fact.

The unsworn statement appellant attributes to W. L. Bridges, Jr. regarding the check is patently insufficient to establish the disposition of the check. Appellant frankly admits that he “was unable to learn from W. L. Bridges, Jr. exactly what disposition was made of said check.” The “probabilities” declared hy Mr. Bridges were only that, and were not factual statements required by Rule 166-A, Texas Rules of Civil Procedure. Furthermore, they are hearsay. When such statements were made by Mr. Bridges he was not then an officer of the Insurance Company. See: Box v. Bates, 346 S.W.2d 317, Supreme Court.

All statements in the affidavit of April 24, 1961, made by appellant to the “best of his knowledge and belief” are not in compliance with Rule 166-A requiring such affidavits to be made on “personal knowledge.” An affidavit made on “knowledge and belief” is insufficient as an affidavit, unless authorized by a special statute. See: Affidavits, 2 Tex.Jur.2d Sec. 23.

We accept appellant’s statement that he never received the proceeds of this check and that he never “personally” deposited this check to any account against which he could draw checks. The fact remains that appellant endorsed this check and thus made possible its cashing by some unknown person. Appellant’s statement that this check was never delivered out of the possession of Mr. Bridges and was retained by him at all times under an agreement that he would hold such funds for appellant is conclusively refuted by the record. The check was cashed. Its proceeds are, for all the record shows, gone with the wind.

It is our opinion that appellant’s affidavits do not raise an issue of fact sufficient to constitute a defense to this suit.

The judgment of the Trial Court is affirmed.

Affirmed.

      . This portion of the answer was introduced in evidence on the summary judgment hearing.

      . The original of this cheek was among the files of the Insurance Company now in the hands of the Receiver, Langdeau.


author: COLEMAN, Justice.

text:
    Frank “Chunky” VOLKMER, Jr., et al., Appellants, v. Wanda Grace CHASE et al., Appellees.
    No. 13799.
    Court of Civil Appeals of Texas. Houston.
    Feb. 15, 1962.
    Rehearing Denied March 8, 1962.

      Larkin Thedford, Edna, Guittard & Henderson, Richard Henderson, Victoria, for appellants.
    Cullen B. Vance, Edna, for appellee S. E. Chase, guardian of the estate of Catherine Carolyn Chase, a minor.
    Thomas R. Bell, Edna, for appellee, Wanda Grace Chase, a minor.
   COLEMAN, Justice.

This is a suit for construction of the will of Charles Albert Chase, Deceased.

Charles Albert Chase and his wife, Vivian E. Chase, executed identical wills on the 20th day of April, 1959. Thereafter, in October, 1959, they were divorced. On the 8th day of March, 1960, Charles Albert Chase died. The will which gives rise to this suit was admitted to probate by the County Court of Jackson County, Texas, and appellant, Frank “Chunky” Volkmer, Jr. qualified as independent executor of the estate as provided by the will. On the 25th day of May, 1960, this suit praying that the will be construed was filed in the District Court of Jackson County by the executor and Vivian E. Chase as guardian and next friend of Donna Kay Chase.

Charles Albert Chase had three children, Donna Kay, Wanda Grace and Catherine Carolyn, each born of a different marriage. These children are all parties to the suit. The necessity for an interpretation of the will arose by reason of Section 69, Probate Code of Texas, V.A.T.S., which reads:

“If the testator is divorced after making a will, all provisions in the will in favor of the testator’s spouse so divorced, or appointing such spouse to any fiduciary capacity under the will or with respect to the estate or person of the testator’s children, shall be null and void and of no effect.”

The will which was admitted to probate provided:

“I.
“I give, devise and bequeath to my beloved wife, Vivian Eleena Chase, all of my property in fee simple of every kind and description of which I may die seized and possessed or in which I may have an interest or expectancy, whether real, personal or mixed, and wherever situated, to use, sell, or other wise dispose of in any manner she sees fit or deems proper.
“II.
“Should my wife, Vivian Eleena Chase, precede me in death, or should we lose our lives simultaneously as in a common disaster or whiiin such proximity as not to have ample time to make a new Will or should I fail to make a new Will, then and in that event, I give, devise and bequeath to Frank ‘Chunky’ Volkmer, Jr., as Trustee, and in trust for the use and benefit of my children, Catherine Carolyn Chase and Donna Kay Chase, all my property set forth in Paragraph I., said Trustee shall act without bond and shall have the following powers, rights and duties:
“III.
“I hereby appoint my wife, Vivian Eleena Chase, Independent Executrix of this my Last Will and Testament and direct that no bond shall be required of her and that no other action shall be had in the County Court or in any other court in relation to the settlement of my said estate than the probating and recording of this, my Will, and the return of a statutory inventory, appraisement and list of claims of said estate and of all claims due or owing by me at the time of my death. In the event of the death or inability of my wife, Vivian Eleena Chase, or should she for any reason be unable to serve and act as Independent Executrix, then I appoint Frank ‘Chunky’ Volkmer, Jr., Independent Executor under this Will and of my estate and direct that the foregoing shall apply to him and that no bond shall be required of him.”

Appellants contend that the trial court erred in holding that Charles Albert Chase and Vivian Eleena Chase contracted and agreed to make joint and mutual wills, and further erred “in holding that the will of Charles Albert Chase was not a valid will by reason of failure of consideration and that he died intestate.”

We do not consider it necessary to determine whether or not the will of Charles Albert Chase was executed pursuant to a contractual agreement. The judgment admitting the will to probate necessarily determined the several facts required to be proved by Art. 3348, Vernon’s Ann. Civ.St., as a prerequisite to probate. Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 169 A.L.R. 1. Whether or not the will was executed pursuant to a contract, and whether or not the consideration for the contract has failed, the will of Charles Albert Chase was a valid will and the judgment admitting it to probate cannot be attacked collaterally. Winston v. Griffith, 133 Tex. 348, 128 S.W.2d 25, Tex.Com.App., opinion adopted; Aniol v. Aniol, 127 Tex. 576, 94 S.W.2d 425, Tex.Com.App., opinion adopted. While the courts of this State may not make effective the disposition of the property as provided by Paragraph I of the will by reason of Section 69 of the Probate Code, the provision for the appointment of Frank “Chunky” Volkmer, Jr., as independent executor was effective and the record reflects that he qualified as such and is engaged in the performance of his duties. Boyles v. Gresham, 153 Tex. 106, 263 S.W.2d 935.

Appellee, S. E. Chase, Guardian,’by cross-assignment contends that the court was correct in holding that the wills were contractual, but erred in failing to impound the property of Vivian E. Chase to guarantee the performance by her of the contract. Assuming that, as the trial court held, the wills were executed pursuant to a contract, and that after Vivian E. Chase accepted benefits under the will of Charles Albert Chase for her daughter, her will became irrevocable, a position which we do not concede, yet Vivian E. Chase has the right to use her property and to sell any or all of it. Certainly nothing in the will prohibits the free use and alienation of her property. The only right which the Chase children could assert against Vivian E. Chase, if in fact they have any right, would be a right in equity to have the property which she might own at the time of her death subjected to the terms of the contractual will, and, possibly, a right to have fraudulent transfers set aside. Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588; Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876. The trial court did not err in failing to impound the property owned by Vivian E. Chase. Richardson v. Lingo, Tex.Civ.App., 274 S.W.2d 883, ref., n. r. e.; Wyche v. Clapp, 43 Tex. 543.

Appellant urges that the trial court erred in holding that Paragraph II of the will of Charles Albert Chase is of no force and effect. An ambiguity exists since the testator provided, as one of the conditions on the happening of which legal title to the property should vest in the named trustee, “or should I fail to make a new will”. Read literally, apart from the preceding language of the paragraph, this clause would require a disposition of the property different from that provided in Paragraph I and would be entirely inconsistent with the intent of the testator ascertained from a reading of the entire instrument. The only reasonable construction to be given this paragraph that will give effect to all of the language used requires that the paragraph read: “Should my wife, Vivian Eleena Chase, precede me in death and I should fail to make a new will, or should we lose our lives simultaneously as in a common disaster or within such proximity as not to have ample time to make a new will, * * In other words the testator intended to bequeath the property to the trustee only in the event that he and his wife died in a common disaster, or, after the death of his wife, he was unable to make a new will or for some reason neglected to do so. Such a construction of the will is required by the well established rules for the construction of wills applicable to the facts of this case. Rust v. Rust, Tex.Civ.App., 211 S.W.2d 262, aff’d 147 Tex. 181, 214 S.W.2d 462. Here testator and his wife had been divorced for several months prior to his death. We must presume that he knew the provisions of his will. The devise to the trustee is clearly conditioned on the death of Vivian Eleena Chase. If in fact he knew that a divorced wife cannot take by the will of her former husband, his intention obviously was to leave his property to an executor for distribution to his heirs at law. If in fact he did not know the law, his intention, as determined by the terms of the will, was to leave his property to his former wife. If, as is more likely true, he either had forgotten the terms of his will, or merely had neglected to prepare a new will after his divorce, the courts have no authority to determine the disposition which he would have made of his property. It should he noted that he made provision for the appointment of an alternate executor in the event Vivian Eleena Chase died or “for any reason be unable to serve”. The trial court correctly held that Paragraph II was a contingent bequest and that the contingency has not occurred and no property rights vested by reason thereof. White v. Taylor, 155 Tex. 392, 286 S.W.2d 925; Fain v. Fain, Tex.Civ.App., 335 S.W.2d 663. Appellant has cited in support of his proposition that the will should be construed so as to make effective the bequest to the children “if for any reason his wife did not take” such cases as Sanger v. Butler, 45 Tex.Civ.App. 527, 101 S.W. 459, writ ref.; Lewis v. Walker, Tex.Civ.App., 162 S.W. 30, error ref.; Fitzgerald v. Ayres, Tex.Civ.App., 179 S.W. 289, error ref.; Loving v. Rainey, Tex.Civ.App., 36 S.W. 335, and cases from other jurisdictions. None of these cases held that the trial court, or this court, could supply provisions in a will omitted by oversight, but in each case the court either found from the terms of the will the intention of the testator which could be enforced by the court without doing violence to the language of the will, or found that what appeared to be a condition could be interpreted as merely descriptive. Goodson v. Goldsmith, 131 Tex. 418, 115 S.W.2d 1100, holding that when a will devises a life estate with remainder over, failure of the life estate affects it only and not the life estate, was cited as persuasive, but we think that this line of cases is not applicable to the situation present here. The property descended to the heirs of Charles Albert Chase, subject to the rights of Frank “Chunky” Volkmer, Jr., in his capacity as independent executor of the will. Waller v. Gilliland, 231 S.W.2d 939, Tex.Civ.App., writ ref.; Amos v. Amos, 217 S.W.2d 902, Tex.Civ.App., writ ref., n. r. e.

Appellee, Wanda Grace Chase, complains of the judgment of the court with reference to the manner in which the court costs were apportioned. We do not find that the court abused its discretion in this respect.

The attorney for Wanda Grace Chase, who was cited by publication, was awarded a reasonable attorney’s fee by the trial court. In this connection the judgment also recited: “PROVIDED, HOWEVER, if further appeal is made, then further reasonable attorney fees shall be allowed.” Said attorney has moved this Court to tax as costs an additional attorney’s fee for the work which he has performed on this appeal.

The quoted provision of the judgment is of no force or effect. Preferred Life Insurance Company v. Dorsey, 281 S.W.2d 368, Tex.Civ.App.

“The determination as to whether an attorney’s fee awarded by a trial court is excessive in amount is, of course a proper exercise of the appellate jurisdiction of the Court of Civil Appeals. But the fixing by it of an attorney’s fee, when such issue has not been determined by the trial court, would constitute the exercise of an original rather than an appellate jurisdiction.” (Smith v. Texas Co., 53 S.W.2d 774, Tex.Com.App.)

The judgment of the trial court will be reversed only in so far as it holds that Frank “Chunky” Volkmer, Jr., does not have the power and authority to act as independent executor.

Reversed and rendered in part and in part affirmed.


author: MASSEY, Chief Justice.

text:
    Pauline GREEN, Individually and as Next Friend for Patricia Ann Green, et al., Appellants, v. AMERICAN GENERAL INSURANCE COMPANY et al., Appellees.
    No. 16291.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 2, 1962.
    Rehearing Denied March 2, 1962.
    Passman, Jones & Whitener, and Bill C. Hunter, Dallas, for appellant.
    Bailey & Williams, and James A. Williams, Dallas, for appellee American General Ins. Co.
    Strasburger, Price, Kelton, Miller & Martin, and Royal H. Brin, Jr., Dallas, for appellee Superior Ins. Co.
   MASSEY, Chief Justice.

Plaintiff Pauline Green, acting individually and as next friend of her minor children, brought suit against defendants American General Insurance Company and Superior Insurance Company, to collect the benefits afforded to Howard Lewis by certain policies of liability insurance. Predicate for the action so brought lay in an antecedent suit the same plaintiffs had prosecuted to judgment against Lewis. An execution levied upon Lewis under the judgment was returned nulla bona. It was the plaintiffs’ contention in the subsequent suit that the defendants were liable, under and by virtue of the policies of insurance.

The insurance companies filed motions for summary judgment, and following hearing of said motions summary judgment was rendered in the companies’ behalf and that plaintiffs take nothing by suit against them on such insurance policies. From this judgment the plaintiffs appealed.

Judgment affirmed.

On April 13, 1958, the automobile driven by Lewis upset in Louisiana and resulted in injuries causing the death of plaintiffs’ decedent, a passenger in the car. Lewis owned an automobile on which there was a policy of liability insurance. The automobile being driven at time of the fatal upset, however, was a borrowed car. This vehicle was also covered by a policy of liability insurance, although in a separate company. Hence, the occasion of two rather than a single insurance company as the defendants in the instant case. One company, under a “non-waiver agreement” taken from Lewis, defended him in the tort suit brought by plaintiffs. After judgment was obtained against Lewis plaintiffs brought this action against the companies, who answered with a plea of res adjudicata and estoppel by judgment.

At first glance it would seem that the doctrine of res adjudicata would not be available to companies to be plead as a defense to the action brought on the policies issued by them by reason of the fact that the companies were not parties to the former suit between plaintiffs and Lewis. There is a well-defined exception, however, such as typified in the instant situation, where the companies’ liability to plaintiffs is secondary and derivative. If the jury had determined in the suit of plaintiffs against Lewis that Lewis was not negligent and therefore not liable to plaintiffs, then the companies would have been acquitted of all liability along with Lewis, for their liability could only have been secondary and derived from the primary liability of Lewis.

As applied to issues posed in the instant suit, which was finally disposed of by virtue of the finality of the judgment in the prior suit, either party would have been entitled to set up the plea of res adjudicata. Therefore, even though Lewis’ liability was established by the judgment of the prior suit, it is determined from a reference to said judgment that the judge who entered it did so despite the fact that the jury found that plaintiffs’ decedent assumed the risk of injury, because of the jury’s further findings, on special issues in which the burden was cast upon the plaintiffs, that said decedent was at the time of injury an employee of Lewis and was furthermore engaged in the course of said employment. We believe that the effect of the plea advanced, coupled with the evidence bearing thereupon, established as a matter of law that plaintiffs’ decedent was, at the time of his injuries resulting in death, an employee in his status as such for Lewis. See 26 Tex.Jur., p. 14 et seq., “Judgments”, Ch. XI “Res Judicata—Conclusiveness and Merger”, § 354 “Manner of Operation”, § 437 (on p. 179) “(Judgment as an Estoppel)—In General”; 24A Tex.Dig., “Judgment”, 678 “Privity in general”; Stanolind Oil & Gas Co. v. State, 1940, 136 Tex. 5, 145 S.W.2d 569; Eastland County v. Davisson, 1929 (Tex.Com.App.), 13 S.W.2d 673; Restatement of the Law, Judgments, § 107 “Rights of Indemnitee and Indem-nitor Inter Se After Judgment Against One of Them”.

It follows that the only matter for inquiry by the trial court, having taken notice of the matters as to which the parties’ rights stood as having been adjudicated, was the state and condition of the contracts applicable to the liability of Lewis. Under said contracts the liability of both companies was conditional and specifically excluded the liability of either as applied “to bodily injury to any employee of the insured arising out of and in the course of (1) domestic employment by the insured, if benefits therefor are in whole or in part either payable or required to be provided under any workmen’s compensation law, or (2) other employment by the insured; * * The state of the record was such that rendered it apparent to the trial court that the companies’ motions for summary judgment should be granted unless there remained an issue for trial on the question of whether the decedent was a “domestic employee” of Lewis at time of his injuries, and, conditioned upon an affirmative showing that He was in such employed status, whether there remained an issue for trial on the question of whether workmen’s compensation benefits were payable or required tó bé provided.

We believe that the state of the proofs before the court established that plaintiffs’ decedent was not a “domestic employee” at the material time and place, obviating further inquiry conditioned upon the existence of an issue upon the question or upon a finding that said decedent was such character of employee. In other words, we hold that said decedent,- an employee of Lewis, was engaged in employment other than connotated by the term “domestic employment”.-.

The prodfs of which we speak lie in the deposition -of Lewis, which deposition was taken' in the course of the preparation for trial of the 'plaintiffs’ suit against Lewis. Indeed, it is to be noted from the affidavits of attorneys' for one of the companies and for • plaintiffs that attempts to locate Lewis met with failure. There was no attempt to delay the hearing on the motions for summary'judgment because thereof and there is no complaint that said hearing was premature.

Plaintiffs, through counsel, objected to any consideration of the deposition of Lewis. .'-The companies insisted that it was proper to be considered as an “affidavit” under provisions of Texas Rules of Civil Procedure 166-A, .“Summary Judgment”. Depositions taken in cases in which motions for summary judgment were filed have always, been considered proper, but in Texas, at least, the propriety of the use of ⅜ deposition taken in another and- different cause has not been determined.

Plaintiffs contend that since the effect of T. R. C. P. 213, “Depositions as Evidence”, prohibits use of depositions in and of themselves to prove or disprove any fact in a cause' other than that in which they were taken, the deposition of Lewis, which was taken in the suit of plaintiffs against him for tort damages, would be inhibited under the same rule. The companies' contrarily contend that such deposition was proper to be considered by the court on hearing motions for summary judgment since affidavits ordinarily used, and provision for which is prescribed by the rule, would not be admissible in the event of trial of issues. The companies carefully point out that a distinction is to be made between the character of proof proper to be considered in determining whether there is an issue to be tried, and evidence proper to he adduced upon any trial decided to be necessary.

Taking note of the fact that plaintiffs predicate their entire objection to the consideration of Lewis’ deposition upon the theory that such would be inhibited by provisions of T.R.C.P. 213, the point of error is overruled. Our holding in this regard, that the deposition was properly received and considered, is confined to the circumstances of this particular case, and to the single matter of fact use thereof established.

Judgment is affirmed.


author: BOYD, Justice. MASSEY, Chief Justice

text:
    ARLINGTON INDEPENDENT SCHOOL DISTRICT, Appellant, v. JAMES T. TAYLOR & SON, INC., et al., Appellees.
    No. 16279.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 9, 1962.
    Rehearing Denied March 16, 1962.

      Brown, Herman, Scott & Young, and Ardell M. Young, Fort Worth, for appellant.
    McGown, Godfrey, Logan & Decker, John W. McMackin and Warren W. Ship-man, III, Fort Worth, for appellees.
   BOYD, Justice.

This is an appeal by Arlington Independent School District from a summary judgment in favor of James T. Taylor & Son, Inc., and the corporation’s surety, Seaboard Surety Company.

This is the second appeal of the case. In the first appeal, Arlington Independent School District v. James T. Taylor & Son, Inc., et al., 322 S.W.2d 548, a summary judgment for the appellees was reversed by this court; on writ of error, the Supreme Court affirmed (160 Tex. 617, 335 S.W.2d 371) but for reasons other than those assigned by this court. Since the facts are fully set out in the two opinions referred to, our statement will be brief. Appellant will be referred to as School District, and appellee James T. Taylor & Son, Inc., will be referred to as Taylor or contractor.

Taylor was low bidder by about $36,-000.00 on a construction job for School District. The bid had been prepared by Hicks, Taylor’s estimator. Taylor contended that in totalling the figures the estimator made a mistake in addition in the amount of $100,-000.00; that is, the bid submitted was that amount less than what was intended to be submitted. The contract was awarded to Taylor, which Taylor refused to sign or carry out. School District then awarded the contract to the next low bidder, which was $36,278.00 higher than Taylor’s bid. School District sued Taylor for that amount.

This court reversed the former summary judgment on the grounds that the burden was on Taylor to prove by clear and convincing evidence that the mistake was non-negligent, and that School District knew or suspected that a mistake had been made. The opinion stated, however: “We believe that the record before us unquestionably shows that an honest mistake had been made by the contractor.” It was pointed out that Hicks was an interested witness, and that J. O. Taylor, who, on behalf of the contractor, executed the bid and bond, and who had occasion to examine Hicks’ figures before the bid was submitted, did not give a deposition or make an affidavit in support of the motion for summary judgment.

The Supreme Court did not agree with this court that the burden was on Taylor to show by clear and convincing evidence that the mistake was not due to its own negligence and that the School District either knew or had reason to know of the mistake before accepting the bid. That Court said:

“Most of the cases and legal writers affirm the proposition that equitable relief will be granted against a unilateral mistake when the conditions of remediable mistake are present. These conditions generally are: (1) the mistake is of so great a consequence that to enforce the contract as made would be unconscionable; (2) the mistake relates to a material feature of the contract ; (3) the mistake must have been made regardless of the exercise of ordinary care; and (4) the parties can be placed in status quo in the equity sense, i. e., rescission must not result in prejudice to the other party except for the loss of his bargain. * * * It is said in 43 American Jurisprudence, Public Works and Contracts, Sec. 63, p. 805:
“ ‘As a general rule, equitable relief will be granted a bidder for a public contract where he has made a material mistake of fact in the bid which he submitted, and upon the discovery of that mistake acts promptly in informing the public authorities and requesting withdrawal of his bid or opportunity to rectify his mistake, particularly where he does so before any formal contract is entered into.’
“ * * * it seems settled that when testimony comes from an interested party and is of such a nature that it cannot be readily contradicted if untrue, an issue relating to the credibility of the witness is presented. * * * We therefore conclude that there was an issue of fact to be determined by the jury as to whether a mistake was in fact made. * * * If there is raised an issue of fact as to whether the mistake was the result of such carelessness or lack of good faith in calculation which violates the positive legal duty in making a bid, then the court should inquire whether such mistake was wholly caused by the failure to exercise at least that minimum degree of care which a public authority in the position of the School District may reasonably expect all of its bidders to exercise in the light of the circumstances of the transaction and the practice of the trade.”

The only showing by way of depositions and affidavits as to the mistake, if any, and the circumstances surrounding it, was by Hicks, Williams, vice president, and J. O. Taylor, president, of the contractor. They were all interested witnesses.

The School District had no opportunity to cross-examine either Taylor or Williams. Hicks, who took Taylor’s bid to the School Board meeting a few minutes before the bids were opened, said he got excited when he learned that Taylor’s bid was so much lower than the next low bid. One of the bidders said something to him about there being an error in his bid. Some of the School Board members asked him if he was certain Taylor could do the work for that amount of money. He said that next morning, upon examination of the data which he had not taken with him to the bid opening, he learned of the mistake.

In Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, the court said:

“ ‘All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment.’ * * * The general rule is that if a motion involves the credibility of affiants or deponents, or the weight of the showings or, it is said, a mere ground of inference, the motion will not be granted.”

In speaking of summary judgments in 13 Texas Bar Journal, p. 473, Judge Stayton said:

“Neither will the remedy be awarded where the issue is inherently one for a jury or judge trial, as generally in instances of intent; exercise of judgment, of discretion, of reasonable care; * * * or the like.”

We think the School District had the right to go to the jury on the questions as to whether in fact a mistake was made, and, if so, whether it came within the classification of remediable one, the elements of which are set out in the opinion of the Supreme Court on the former appeal.

The judgment is reversed and the cause remanded.

MASSEY, Chief Justice

(concurring).

I concur in the opinion of Justice BOYD.

For the sake of any necessary future use I believe that the opinion should include reference to the fact that perforce the holding of the Supreme Court on the former appeal no valid and binding contract may be made between a public agency and a bidder on a public contract which purports to bind the latter, despite an error which might exist in the amount for which the bidder offered to perform, to enter into a contract and give bond for the faithful performance of the public contract upon acceptance of the bid, — except it be that the offer in a mistaken amount was the result of such carelessness or lack of good faith in calculation as to amount to a violation of the bidder’s positive duty in making the same.

Language of the contract sought to be enforced by the School District may be found in the former opinion of this court, 322 S.W.2d 548, 550 (right hand column), as same appears from the contractor’s bid bond. Therefrom it is evident that the contractor intended to bind and obligate himself to the School District upon an acceptance by the latter of the bid offer of the former.

As I understand the Supreme Court holding, it engrafts an exception to one of the basic public policies of our state,' that which generally affirms the right of parties to contract and to have their contracts enforced by the courts.

The case is discussed in 15 Southwestern Law Journal at page 344. The summary judgment feature is discussed at page 377,


text:
    DALTON STEAMSHIP CORPORATION, Appellant, v. W. R. ZANES & COMPANY, Appellee.
    No. 16287.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 2, 1962.
    Rehearing Denied March 2, 1962.

      Baker, Botts, Andrews & Shepherd, Gene T. Bonner and B. D. McKinney, Houston, for appellant.
    Bowyer & Thomas, and Richard C. Bex-ten, Dallas, for appellee.
   MASSEY, Chief Justice.

Plaintiff, W. R. Zanes & Company, brought suit against defendant, Dalton Steamship Corporation, upon a cause of action which we believe should properly be termed breach of contract. Judgment was for plaintiff and defendant appealed.

Judgment reformed and affirmed.

Plaintiff was a freight forwarder. It was essentially a factor in view of the services it performed and obligations it discharged in behalf of its principal. The principal, as applied to the transaction in question, was a firm known as CASCO. The property in question as applied to this case was some 220 drums of tallow which CASCO had sold or was selling to a firm which may be referred to as Sovereign. Plaintiff was in some respects the factor or agent for Sovereign, but as applied to the situation in this case plaintiff’s action in connection with its agency for Sovereign was never instituted, the time for any performance having never arisen. At least the effect of the findings and judgment of the trial court establishes such as the fact, and from our examination of the record the action of the trial court found adequate support therein and will not be disturbed.

Defendant was a steamship agent. For purposes of this case a steamship agent is a person, firm or corporation which acts as an agent for ships of its various principals when in port, making arrangements as necessary to keep the ships fueled, supplied, and cargoed. Defendant dealt with plaintiff in connection with the 220 drums of tallow, the objective of the transaction being for such tallow to be delivered by plaintiff, in behalf of CASCO, — to Sovereign, — to defendant in behalf of a steamship it represented, with the objective that the tallow be shipped over the ocean.

At time the tallow was about to arrive in Houston, Texas, at the port where it was intended that it be taken on the ship for ocean transport, plaintiff discovered that CASCO was experiencing financial difficulties. CASCO was indebted to plaintiff as the result of prior transactions having similarity to that involving the 220 drums of tallow, in the sum of $1,237.14. CASCO was or became indebted to plaintiff on account of fees and expenses paid, commissions, etc., in the further sum of $306.55. The total of CASCO’s indebtedness thereby became the amount of $1,543.69.

Plaintiff decided that it would be wise to take steps to protect itself. It desired to handle matters so that it would be enabled to collect the full amount owed it by CAS CO. It entered into contract with defendant with the intent to accomplish such objective and to delay delivery to Sovereign pending the collection of the $1,543.69. Obviously the intent was to maintain and preserve the plaintiff’s constructive “possession” of the tallow. Plaintiff handed its “delivery order” to defendant, with the following stated on its face: “Note to Dalton SS: When this deliver is completed a negotiable dock receipt is to be issued in the name of CASCO Chemicals Company for the account of the shipper and returned to W. R. Zones & Company. No other dock receipt is to be issued either negotiable or non-negotiable.” A Mr. Pruitt, for defendant, orally agreed with Mr. Wolf, for plaintiff, that the bill of lading would not be issued without surrender of the “dock receipt” for the tallow in question, issued by the defendant upon its receipt of the tallow. The “dock receipt” issued by the defendant upon arrival of the tallow bore printed language which read, “Ocean bill of lading covering this shipment to be issued only upon surrender of this Dock Receipt and cargo to be covered with insurance by shippers.”

Defendant, in breach of its agreement with plaintiff, did release the drums of tallow, and it was taken on board ship and well out to sea when plaintiff discovered the fact. Plaintiff’s “possession” was defeated no less than in a case of theft. Although the circumstances were never explained, Sovereign received “Ocean Bill of Lading” to the tallow from or through the agency of the defendant. Plaintiff tried to collect its debt from CASCO, but by such time CAS CO was insolvent and being operated by a creditor’s committee. Plaintiff was unable to collect.

As applied to the 220 drums of tallow plaintiff had a common law factor’s lien in the amount of $306.55. It is true that the total owed plaintiff, and which he believed would have been collected had defendant continued to hold the tallow as agreed, was $1,543.69, with $1,237.14 of such indebtedness accrued in prior transactions. If plaintiff had a written agreement with CAS CO giving it the right to assert a lien upon the 220 drums of tallow, it neither plead nor proved such fact. In such circumstances plaintiff’s lien would have been worth $1,543.69 if the tallow was worth that much, although it was never shown to have had such value, under provisions of statute. Vernon’s Ann.Tex.Civ.St., Title 90 “Liens”, Art. 5506c, “Lien upon merchandise in favor of factor advancing money.” Having shown no such agreement with CASCO it will be presumed that plaintiff’s lien upon the 220 drums of tallow was a mere common law lien.

At common law the debt must have been incurred for some service or work rendered by claimant on or in connection with the property against which the lien is asserted and cannot extend to and include indebtedness otherwise accrued between the parties even though it might have accrued under circumstances which created the right of common law lien in the claimant as to other property.

Plaintiff’s damages are to be measured by the value of the thing lost through the breach of contract on the part of the defendant. The thing lost was the lien, the value of which was $306.55. The $1,237.14 indebtedness owing to plaintiff by CASCO was an unsecured debt. Absent any provision of contract between plaintiff and CASCO the former would have no right to hold the tallow as against the latter in any hypothesized dispute between the parties (plaintiff and CASCO) and would have been compelled to yield up possession of the tallow upon a tender of $306.55. Although it might be that but for the defendant’s breach of contract CASCO would have paid plaintiff its entire debt, in order to avoid delay and make certain that delivery of the tallow was made to its purchaser, nevertheless the law would not take cognizance of that possibility. Rather must we consider what the law would have decreed and compelled as fixing the rights of the parties.

The trial court erred in rendering judgment in favor of plaintiff and against defendant for attorney’s fees. Plaintiff insists that V.A.T.S., Art. 2226, “Attorney’s fees”, entitled it to judgment for such fees as against CASCO under the theory of “labor done, material furnished”, etc., and that defendant became liable therefor in the place and stead of CASCO under the circumstances of the case. Provisions of the Article may not be so extended. Furthermore, defendant’s liability to plaintiff is for damages for breach of contract of a type where no existing statute makes provision for any additional award of attorney’s fees.

Judgment is reformed so as to decree that W. R. Zanes & Company have and recover of and from Dalton Steamship Corporation its damages in the amount of $306.55, with legal interest from the date of the judgment in the trial court.

As so reformed judgment is affirmed.

Costs of appeal are to be adjudged equally against the parties.