author: GRISSOM, Chief Justice.

text:
    GRAYSON ENTERPRISES, INC., Appellant, v. TEXAS KEY BROADCASTERS, INC., Appellee.
    No. 3942.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 19, 1965.
    Rehearing Denied May 21, 1965.

      Wagstaff, Alvis, Pope, Doscher & Charl-ton, Abilene, Douglas E. Bergman, Dallas, for appellant.
    McMahon, Smart, Sprain, Wilson & Camp, Abilene, Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellee.
   GRISSOM, Chief Justice.

Texas Key Broadcasters, Inc. sued Texas Telecasting, Inc. and Grayson Enterprises, Inc. in Taylor County. Grayson filed a plea of privilege seeking to have the case transferred to Dallas County, where it resides. Grayson’s plea of privilege was overruled and it has appealed.

Texas Key Broadcasters, Inc., hereinafter called Broadcasters, contended that it was entitled to maintain the suit in Taylor County by virtue of the provisions of exception 5, Article 1995, that

“If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him * * * in such county * *

Broadcasters alleged that in December, 1960, it entered into a contract with Texas Telecasting wherein it leased to Broadcasters a micro-wave transmission system between Fluvanna, which is in Scurry County, and the transmitter site of KPAR, in Nolan County, which transmitter site was subsequently, by oral modification of that contract, changed to Taylor County; that in June, 1960, Telecasting and Broadcasters a micro-wave transmission system which Telecasting leased to Broadcasters a transmitter site in Nolan County and other real and personal property for one hundred twenty months; that Grayson acquired the rights and assumed all obligations of Telecasting. The contract leasing the microwave transmission system between Scurry and Nolan Counties is known as exhibit A. The contract leasing the transmitter site in Nolan County and other real and personal property is known as exhibit B. Both were attached to plaintiff’s petition.

Broadcasters alleged that in paragraph 1 of exhibit A Telecasting agreed to operate and maintain said micro-wave system and make such repairs as were necessary to assure its continuous operation; that defendants breached said provision and failed to operate and maintain said micro-wave system and make such repairs as were necessary for its continuous operation; that by virtue of paragraph 3 of exhibit A defendants were required to make a diligent effort to repair and restore service on said system; that they breached that agreement ; that defendants failed (a) to maintain a routine inspection and checking program of the micro-wave system at reasonable intervals; (b) to assign capable and skilled employees to checking and maintaining the system; (c) to promptly attend to restoration of service over said system when it was interrupted or impaired and (d) to keep standby engines in proper repair.

Broadcasters further alleged that by reason of the breach of said micro-wave lease contract consideration therefor had failed and Broadcasters was entitled to a rescission, or a termination thereof; that because of the inadequacy of the signal transmitted over said system and interruptions and failures, Broadcasters had been compelled to procure said signal from another source at a higher price and had thereby been damaged. It alleged that in paragraph 13 of exhibit A it was agreed that exhibits A and B were collateral and that any default by Broadcasters of the terms of one should constitute a default of the other. Broadcasters sought judgment cancelling the micro-wave lease or its termination in March, 1964. It also sought damages for breach of said micro-wave lease contract.

The micro-wave transmission system lease provided that Telecasting would lease to KPAR, (Broadcasters), a micro-wave transmission system between Fluvanna, Scurry County, at which point the signal of a Lubbock station would be picked up, and the then transmitter site of KPAR in Nolan County, and that Telecasting would operate and maintain said micro-wave system and make such repairs as were necessary to insure its continuous operation. Paragraph 3 of said lease provided that Telecasting would not be liable to KPAR for interruption of program transmission over said system caused by anything not under its control other than making a diligent effort to repair and restore service. Paragraph 13 provided that said contract was collateral to its lease of the transmitter site, shown by exhibit B, and that to guarantee performance of the transmitter site lease KPAR assigned to Telecasting the net proceeds of national sales. It further provided that any default “by KPAR” (Broadcasters) of the terms of the micro-wave lease would be deemed a default of the transmitter site lease and that any default “by KPAR” of the transmitter site lease would be deemed a default of the terms of the micro-wave system lease.

Exhibit B, the lease by Telecasting to Broadcasters of its transmitter site “in Nolan County” and certain real and personal property stored or installed “in Abli-lene” shows a lease by Telecasting to Broadcasters of land in Nolan County on which the transmitter was located and certain properties stored or installed in a building in Abilene. It expressly excepted from the transmitter site lease the electronic equipment in the transmitter site building. The transmitter site lease was for one hundred and twenty months. Following approval of the Federal Communications Commission of a transfer of the license from the lessor to the lessee, the consideration to be paid for said transmitter site lease was $799,440.00, payable in one hundred and twenty installments.

In the lease of the transmitter site, exhibit B, Telecasting whose obligations were assumed by Grayson, agreed to pay one-half of the cost of replacement of any major electronic equipment. Broadcasters agreed to furnish lessor space for its microwave transmission facilities in said transmitter site building “located in Nolan County.” Paragraph (a) of Subdivision 7 of the transmitter site lease provided that, if it became necessary to remove the electronic facilities, then located in Nolan County, the parties would share equally the expense of its relocation. Paragraph (d) of the transmitter site lease, exhibit B is as follows: “The terms and provisions of this lease are to be performed in Nolan and Taylor Counties, Texas.”

The contract the breach of which is the basis of Broadcasters’ cause of action is the micro-wave system lease, exhibit A. Broadcasters contended that it could maintain the suit in Taylor County by virtue of exception 5, Article 1995. In answer to Broadcasters controverting plea, Grayson answered that the micro-wave system lease was not performable in Taylor County, but expressly provides for delivery of a microwave signal in Nolan County and that said lease was for a period of one hundred and twenty months from December 1, 1960; that said lease had not been modified in writing and that any oral modification could not be enforced because it was in contravention of the Statute of Frauds. Grayson contended the court erred in overruling its plea of privilege because Broadcasters failed to prove a contract in writing performable in Taylor County within exception 5, Article 1995, but, on the contrary, the micro-wave contract is in writing and expressly provides for delivery of a microwave signal in Nolan County.

The micro-wave lease expressly provides for a lease to Broadcasters of a micro-wave system between Scurry County and Nolan County. About five months before execution of the micro-wave lease, Telecasting had leased to Broadcasters its transmitter site and equipment. Broadcasters alleged an oral modification of said contract relocating the transmitter site in Taylor County and that defendants had recognized such relocation in writing; that the micro-wave system lease provided that defendants were to operate and maintain that system and make such repairs as were necessary to assure continuous operation to Broadcasters’ transmitter and to make a diligent effort to repair and restore service on said system and, therefore, said contract was performable in Taylor County under exception 5. The transmitter site was moved to Taylor County in January, 1962. There is no instrument in writing modifying the micro-wave system lease, exhibit A. Exhibit B, the transmitter site lease, was modified by an oral agreement that the transmitter site should be moved from Nolan to Taylor County. To sustain venue in Taylor County under exception 5 Broadcasters was required to allege and prove a written contract by defendants to perform the obligation which is the basis of this suit in Taylor County, expressly naming Taylor County or a definite place therein by such writing. Broadcasters’ suit is based upon a breach of the micro-wave system lease contract, exhibit A, which does not provide for its performance in Taylor County. It expressly provides for delivery of a signal to Nolan County. Broadcasters seem to contend that the micro-wave system lease was orally modified. If we assume an oral modification of that contract, such oral modification cannot support venue in Taylor County under subdivision 5. The written contract alone must be considered in determining the right to maintain the suit in Taylor County under that exception. Exception 5 requires that the written contract expressly name the particular county, or place therein, in which the defendant has contracted to perform the obligation sued upon. In the language of exception 5, ap-pellee’s suit was upon or by reason of the obligation of the lessor, and its assumptor, stated in exhibit A. The written contract alone can be looked to. Broadcasters cannot sustain venue under exception 5 by implication. It alleged that since appellant recognized in writing modification of the transmitter site lease and removal of that site to Taylor County that performance in Taylor County was provided for. So far as the question under discussion is concerned the transmitter site lease, exhibit B, and its modification cannot support a conclusion that the defendants contracted in writing to perform the duties alleged to be breached in Taylor County because the only contract and breaches alleged refer to the micro-wave system contract, exhibit A, whereby defendants agreed in writing to deliver a signal from Scurry to Nolan County and to mantain and repair that system. The place for performance of the obligations alleged to have been breached was expressly stated in the micro-wave system lease to be Nolan County. That contract did not name Taylor County as the place where defendants were to perform those obligations. We hold that Broadcasters have not established the right to maintain this suit in Taylor County under exception 5, Article 1995. Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610; Johnston v. Personius, Tex.Civ.App., 242 S.W.2d 471; Sidebottom v. Juliff, 259 S.W. 235; Blanco v. Rowell, 347 S.W.2d 641; Harvey v. Bain, (Sup.Ct.), 168 S.W.2d 234, 237; Rorschach v. Pitts, 151 Tex. 215, 248 S.W.2d 120, 123; Farmers’ Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675, 678.

Appellee specifically pleaded that portion of exception 23, Article 1995, that permits a suit against a private corporation to be brought in the county in which the cause of action or a part thereof arose. It alleged facts showing applicability of exception 9a, which permits a suit based upon negligence to be brought in the county where the defendant’s negligence which was a proximate cause of plaintiff’s injury occurred. We hold that appellee alleged and proved the venue facts required to maintain its suit in Taylor County under exceptions 23 and 9a. Under those exceptions evidence was material that the transmitter site had been changed to Taylor County to show that a part of the cause of action arose and negligent acts occurred in Taylor County. Those exceptions do not require proof of the written agreement necessitated by the provisions of exception 5. Drexler v. Architectural & Commercial Sales, Tex.Civ.App., 375 S.W.2d 550, 553; Leonard v. Abbott, (Sup.Ct.), 366 S.W.2d 925, 927.

To sustain venue under exception 23 appellee was required to allege and prove by a preponderance of the evidence that (1) appellant was a private corporation; (2) that it had a cause of action against appellant and (3) that said cause of action, or a part thereof, arose in Taylor County. The venue facts under exception 9a are specifically set out in the statute. Broadcasters alleged and introduced evidence of said venue facts sufficient to sustain the implied findings necessary to support the judgment. See Transit Grain & Commission Co. v. Snapp, (Sup.Ct.), 148 S.W.2d 233; Stone Fort National Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674, 676; Mercantile Bank & Trust Co. v. Schuhart, 115 Tex. 114, 277 S.W. 621.

Appellee was entitled to maintain the suit in Taylor County under exceptions 9a and 23, unless that right was defeated by that section of the Statute of Frauds, Article 3995, which provides that no action shall be brought upon an agreement which is not to be performed within one year unless it is in writing and signed by the party sought to be charged. Ordinarily, defenses going to the merits of a case are immaterial in deciding the venue facts. But, under some exceptions some of the essential issues to recovery on the merits and to establish venue are identical. Appellant cites cases which assume or tend to support its contention that when a suit cannot be brought on a contract because it violates the Statute of Frauds such an independent affirmative defense may be asserted against a venue exception which requires proof of the existence of a cause of action as a venue fact, as exception 23 does. Victoria Bank & Trust Company v. Monteith, 138 Tex. 216, 158 S.W.2d 63, 67; Faver v. Leonard, Tex.Civ.App., 383 S.W.2d 201. We do not think such a defense can be considered in determining the venue issues presented here under exceptions 9a and 23. We think the Statute of Frauds, asserted by appellant as a defense to said venue issues, presents a defense material only in a determination of the merits. Austin Road Company v. Anderson, 146 Tex. 553, 209 S.W.2d 595, 597; Page v. Paterson, Tex.Civ.App., 180 S.W.2d 660, 662; Texas Plains Lodge No. 105 etc. v. Cleghorn, Tex.Civ.App., 207 S.W.2d 109, 113; Davis v. Texas Life Insurance Co., Tex.Civ.App., 22 S.W.2d 960, 961; Dallas Joint Stock Land Bank v. Harrison, 131 S.W.2d 742, 744; 60 Tex.Jur.2d 82; Clark’s Venue in Civil Actions 247. But, assuming for present purposes that such a defense may be asserted to defeat the right to maintain venue in Taylor County where existence of a cause of action is an essential venue fact by showing that because of that statute ap-pellee cannot bring such a suit, if appellant’s defense under Article 3995 is applicable to the facts of this case and has not been ■waived, appellee cannot prove the existence of a cause of action and, therefore, cannot maintain its suit in Taylor County under exception 23.

The question then is, is such defense applicable to the facts of this case? In Garcia v. Karam, 154 Tex. 240, 276 S.W.2d 255, 257, the question was whether proof of an oral modification of a certain written contract was prohibited by the Statute of Frauds. In determining that question the Supreme Court said:

“To answer the question thus presented, we should look to- the written contract before modification and to the character of the modification itself. If neither the portion of the written contract affected by the subsequent modification nor the matter encompassed by the modification itself is required by the Statute of Frauds to be in writing, then the oral modification will not render the contract unenforceable.”

If the contract sued upon had provided for delivery of the signal to appellee’s transmitter site, without incidentally stating its location, as it did, it would have complied with the statute and oral proof of location of the site would have been admissible to show where a part of the cause of action arose or the negligence act occurred. The incidental statement in the contract sued upon that the transmitter site was in Nolan County was not required by the Statute to be in writing. We think, therefore, that the Statute is not applicable here. 26 Tex.Jur.2d 155. However, regardless of that conclusion, in any event appellant cannot use the Statute as a defense because the oral agreement has been fully executed by the parties, appellee has spent its money on said relocation and appellant had accepted its benefits. Newsom v. Newsom, (Sup.Ct.), 378 S.W.2d 842, 844. See also 26 Tex.Jur.2d 264, 270. Johnson v. Neeley, Tex.Civ.App., 36 S.W.2d 799, 802, [Writ Dis.); McCreless Shopping Village v. Burton, Tex.Civ.App., 352 S.W.2d 802, 803, (Ref. N.R.E.); Pou v. Dominion Oil Company, Tex.Com.App., 265 S.W. 886; Anderson v. Eliot, Tex.Civ.App., 333 S.W.2d 654, 655, (Writ Ref.); Showalter v. MacDonell, 83 Tex. 158, 18 S.W. 491; Gulf Production Company v. Continental Oil Company, 139 Tex. 183, 164 S.W.2d 488, 491.

We hold that appellee has established the venue facts necessary to maintain the suit in Taylor County under exceptions 23 and 9a only. All points not specifically passed on are overruled. The judgment is affirmed.


source: Caselaw Access Project

author: WALTER, Justice.

license: Public Domain

text:
    Rachel Saunders BEYNON et vir, Appellants, v. Dale Lee CUTBERTH, Appellee.
    No. 3974.
    Court of Civil Appeals of Texas. Eastland.
    April 23, 1965.
    Rehearing Denied May 21, 1965.

      Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellants.
    Robert L. Templeton, Amarillo, for ap-pellee.
   WALTER, Justice.

Dale Lee Cutberth filed suit against Rachel Saunders Beynon and her husband James E. Beynon for damages resulting from an automobile collision. Based on a verdict, judgment was rendered that the plaintiff recover $40,757.40 from the defendants. The defendants have appealed.

Appellant Mrs. Rachel Saunders Beynon testified substantially as follows: I am seventy years of age and I have lived in Amarillo about 39 years. I was going to my daughter’s home the day the accident occurred. I stopped at the stop sign on Wolflin Street and proceeded on down Austin Street. I looked down the street and didn’t see anyone, turned on my blinkers and as I approached my daughter’s driveway Cutberth’s car hit my car. I talked to the officer who investigated the wreck. I told him it was my fault “because I didn’t look when I turned in there.”

The jury found that Mrs. Beynon turned her vehicle to enter the driveway when such movement could not be made with safety, that she failed to give a signal of her intention to make a left turn, that said acts constituted negligence and a proximate cause of the collision. The jury also found that Mrs. Beynon failed to keep a proper lookout which was a proximate cause of the collision. The jury did not convict Cutberth of any act of contributory negligence. The jury awarded Cut-berth $757.40 for orthopedic appliances. In answer to issue 13, the jury awarded $43,000.00 for physical pain, mental suffering and diminished earning capacity. The court found that the jury’s answer of $43,-000.00 was not supported by the pleadings and reduced it to $40,000.00. Appellants contend there is no evidence to support the jury’s answer to issue 13.

Appellee Cutberth testified substantially as follows:

After I had the collision with Mrs. Bey-non, my right arm hurt. The accident happened between 8:30 and 9:00 a. m. on Saturday, September 28th, 1963. Before the accident I was in real good health. I worked» at the Village Plymouth as a car salesman. I was feeling a bit nervous, but I worked the rest of the day. The next day I was stiff and sore. “Well, Sunday, I was hurting all up and down my back and leg. My right leg.” The following Tuesday or Wednesday I went to see Dr. McMennamy, a chiropractor. He gave me some adjustments and heat treatments. I took these treatments for about three weeks. I had pain in my neck and right arm. My hand feels numb and at night “it goes plumb to sleep on me.” I was having severe headaches. Dr. McMennamy’s treatment seemed to help my headaches and pain in the neck, but not my back and leg. Thereafter I went to Dr. Citron for about a month. About the middle of October I went to the orthopedic place and had a brace made. I am still wearing the brace. At the same time I got a cane. I used the cane for about four months.

Thereafter, I went to Dr. Stout. I went to the hospital in February and was placed in traction. Today I am not feeling very good. My back hurts all the time. I am making about half as much money since the accident as I made before. Cutberth introduced medical testimony that he had been placed in the hospital and placed in traction for his back condition. Dr. Stout testified:

“Well, he has this spondylolisthesis with this compression, and he will have pressure on his back from now on in varying degrees, according to what he does, whether he wears his brace all the time or whether he goes ahead and has surgery on it, or what he does.

“He is not going to get over it unless he has complete surgery of it and gets complete relief, which he may not completely get relief that way.”

Mrs. Dale Cutberth testified that during her 13 years of married life with Dale Cut-berth he had been in good health and had no back trouble. The record shows that Cutberth has a life expectancy of forty one years.

We find that the foregoing testimony and other facts and circumstances in evidence constitutes some evidence of probative force which supports the jury’s answer to the damage issue. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

Appellant contends jury misconduct occurred because the jury considered and discussed the fact that she had $50,000.00 insurance coverage.

Members of the jury testified as follows:

Mrs. Casey testified there was no discussion of insurance. Mr. Randolph testified that insurance was not discussed. Mr. Bartholomew testified there was no mention of insurance in their deliberations. He was foreman of the jury. After they had reached a verdict and after he had signed it, they knocked on the door for the court. They had to wait fifteen or twenty minutes. While they were waiting some mention was made of insurance in a casual way. Ruth Barnett testified that after the jury had answered the damage issue there was a discussion about insurance. Mr. Glass testified that after their deliberations were completed and while they were trying to get out of the jury room there was some general talk about insurance. Noral C. Coffer testified that there was a discussion of insurance but that, as he recalls, it was after the damage issue was answered. Appellant contends that the jury during their deliberations discussed the possibility that Cutberth might undergo a back operation in the future which operations are only about 80% successful and also discussed the cost and expense of such an operation. She contends this constitutes jury misconduct. The testimony from the jurors on these matters was inconsistent and contradictory.

Appellant has the burden of proving by a preponderance of the evidence that such misconduct occurred and that such misconduct probably resulted in injury to them. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462. Whether or not misconduct occurred is a question of fact but whether or not injury probably resulted is a question of law. Rule 327, Texas Rules of Civil Procedure. Trousdale v. Texas & New Orleans Railroad Company, Tex.Civ.App., 264 S.W.2d 489, affirmed 154 Tex. 231, 276 S.W.2d 242. Where the testimony is inconsistent and contradictory the court in passing upon the credibility of the witnesses may disregard the testimony. Monkey Grip Rubber Company v. Walton (Tex.Com.App.), 122 Tex. 185, 53 S.W.2d 770. The court is also warranted in finding there was no misconduct where the testimony is conflicting. Price v. Biscoe (Tex.Com.App.), 141 Tex. 159, 170 S.W.2d 729. The testimony of the jurors was so uncertain and conflicting the court was warranted in finding that no misconduct occurred. However, if we be mistaken about this, when we consider the matter in the light of the entire record, we find there is no showing that such misconduct, if any, probably resulted in injury to appellants.

Appellants contend that appellee’s counsel committed error in his argument to the jury. Appellants’ counsel made the following objection to the argument:

“We feel that this argument is improper because the Court had charged the jury it is his obligation and duty to prove his injuries; it is not my duty, so therefore, we feel that he is out of line.” The record does not show that the court made a ruling on this objection.

“Before a judgment is reversed because of argument of counsel two things must appear: the argument must be improper, and it must be such as to satisfy the reviewing court that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.” Aultman et vir v. Dallas Railway & Terminal Company, 152 Tex. 509, 260 S.W.2d 596. We have carefully considered the argument. We do not think the nature of the argument was such as was reasonably calculated to cause and probably did cause the rendition of an improper judgment.

We find no merit in appellants’ contention that the court erred in permitting traffic investigator Perkins to give his estimate of appellee’s speed prior to the collision. Perkins had been a traffic investigator with the Amarillo Police Department approximately eighteen months at the time of trial. His job was to investigate automobile accidents. He testified that he had investigated hundreds of accidents since September, 1963. He examined the cars at the scene of the accident. He examined the skid marks of Cutberth’s car and found 43 feet of skid marks. He was asked if he could estimate the speed of an automobile after investigating the scene of the accident, measuring the skid marks and making an examination of the pavement. He answered “Estimate, yes, sir.” Appellants’ objection was that “no qualifications or factual basis had been shown from which the witness could testify.” He then testified that he estimated the speed of Cut-berth’s car at twenty five to twenty eight miles per hour before he applied his brakes and before the collision. Cutberth testified he was driving between twenty and thirty miles per hour. Jerry Blanscet had been following Cutberth’s car since he left home and was about two car lengths behind him. He was a witness to the accident. He testified he was traveling about twenty seven miles per hour. The appellant pleaded that appellee was guilty of negligence in driving his automobile at an excessive rate of speed. Appellant offered no evidence on appellee’s speed. The testimony of officer Perkins on speed was cumulative of the testimony of Cutberth and Blanscet which was admitted without objection. In Whitener v. Traders and General Ins. Co., 155 Tex. 461, 289 S.W.2d 233 the Supreme Court said:

“Since another witness corroborates the account given by plaintiff-petitioner of the way and manner in which he received the alleged injury, the testimony of Ellis is not controlling but cumulative only and this Court in that case will ordinarily not reverse for erroneous ruling on admissibility of evidence.”

We have considered all the evidence and have concluded that the award of $40,000.00 is not excessive. World Oil Co., Inc. v. Hicks, 129 Tex. 297, 103 S.W.2d 962; Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835; Wilson v. Freeman, 108 Tex. 121, 185 S.W. 993.

We have considered all the evidence and have concluded that the jury’s award of $43,000.00 in answer to issue number 13, which was reduced by the court to $40,-000.00 to conform to the pleadings, is not contrary to the weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

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

The judgment is affirmed.


author: DAVIS, Justice.

text:
    GULF STATES PAINT COMPANY, Appellant, v. KORNBLEE COMPANY, Inc., Appellee.
    No. 7633.
    Court of Civil Appeals of Texas. Texarkana.
    April 13, 1965.
    Rehearing Denied May 18, 1965.

      Sam Dawkins, Jr., Dallas, Eastham & Meyer, Houston, for appellant.
    Ralph W. Currie, Muse, Currie & Kohen, Dallas, for appellee.
   DAVIS, Justice.

Plaintiff-appellee, Kornblee Company, Inc., sued defendant-appellant, Gulf States Paint Company, Inc., for the breach of an alleged oral and written warranty on a roofing product manufactured by appellant. The case was tried before a jury. The jury answered the special issues that were submitted in favor of the appellee. Judgment was entered for the appellee for the sum of $6,924.95, plus $830.99 interest. The interest was probably calculated as being due from and after May 5, 1962. The trial court denied “job overhead costs” in the amount of $2,077.48. Appellant has perfected its appeal and brings forward six points of error.

History

Appellee alleged that it commenced buying the roofing product upon which the suit is based prior to September 28, 1959. The evidence showed that the appellee bought the roofing product from a man by the name of W. R. Johnson, who was doing business under an assumed name of: “Roofers Research Institute of San Antonio, Texas.” Johnson purchased the roofing product from Modern Paint Company in San Antonio, Texas. Modern Paint Company purchased the roofing product from appellant, whose residence and place of business is Houston, Harris County, Texas. Appellee did not allege that Johnson was an agent of appellant. During the trial of the case, appellee attempted to prove that Johnson was the agent of appellant, but appellant timely objected thereto. Its objections were overruled and appellee attempted to prove circumstances that would make Johnson the agent of appellant. Appellant objected to the testimony on the ground that it was hearsay, and that you cannot prove an agency by the agent himself. The trial court was in error in admitting the testimony.

Appellee attempted to prove that Johnson, as agent of appellant, gave an oral warranty that the product was guaranteed for five years. This testimony was objected to and was inadmissible. Appellant did give appellee a written warranty on September 28, 1959. Omitting the heading and signature, the warranty reads as follows:

“We guarantee that your Polyvinyl Acetate Roof Coating (Fibrated) as manufactured by us under your name of Kool Roof will give a minimum of 5 years service and will not in itself crack, chip, peel or chalk off when applied over composition roofing, composition shingles, built-up roofs, including gravel and slag rock type, when applied according to directions as to proper thinning and application over properly prepared surfaces.
“We cannot take responsibility for application over previously coated surfaces such as mixtures of sand and cement and other foreign coatings or roofing that is shifting and cracking.”

Appellant admitted the written warranty, but it denied the agency or any warranty prior to the date of the written warranty. It defended the case on the grounds that the roofing product was not applied according to directions, and as to proper thinning and application over properly prepared surfaces; and that it was not responsible for applications over previously coated surfaces, such as mixtures of sand and cement and other foreign coatings or roofing that is shifting and cracking. The appellant offered much evidence to show that the roofing product was not properly thinned and was not properly applied.

Opinion

By its first two points, the appellant takes the position that the trial court erred in failing to hold, as a matter of law, that W. R. Johnson was not an agent of appellant; and, there was no competent evidence before the court or the jury to show that Johnson was an agent of appellant. The trial court admitted much testimony by the witness A. A. Kornbleuh, President of Kornblee Company, Inc., as to certain statements that were made to Kornbleuh by Johnson, over the objections of appellant. The trial court improperly submitted issues to the jury on the theory that Johnson was the agent of appellant. The two special issues submitted by the trial court inquiring as to Johnson’s authority read as follows:

“Do you find from a preponderance of the evidence that before plaintiff Kornblee Company, Inc. made its first purchase of materials manufactured by defendant Gulf States Paint Company, W. R. Johnson was authorized by the defendant Gulf States Paint Company to advise the plaintiff that such materials were guaranteed by the defendant for a minimum of five years, and that such guarantee in writing would be supplied plaintiff by the defendant Gulf States Paint Company?
“Do you find from a preponderance of the evidence that before plaintiff Kornblee Company, Inc. made the first purchase of materials manufactured by the defendant Gulf States Paint Company, W. R. Johnson did advise plaintiff Kornblee Company, Inc. that such materials were guaranteed by the defendant Gulf States Paint Company for a minimum of five years, and that such guarantee in writing would be supplied?”

An agency is ordinarily a relation created by an agreement between the parties. The relation must be a meeting of the minds in establishing the agency, and the consent of both the principal and the agent is necessary. There are cases where the consent may be implied rather than expressed. 3 Am.Jur. (2) 428 III, “Creation and Existence of Agency”; 2 T.J.2d 436 to 449 ; 3 Am.Jur.2d 428 to 433 ; 2 C.J.S. Agency § 1, p. 1023. There was no proof of any agreement between appellant and Johnson that would create an agency. There was no proof of any consideration paid by appellant to Johnson that would create an agency. 2 C.J.S. Agency § 19, p. 1043. There was no proof that Johnson was the implied agent of appellant. 2 C.J.S. Agency § 23, p. 1045. The statements that were testified to by Kornbleuh which were allegedly made by Johnson were inadmissible to prove the agency or the scope of the agent’s authority. 2 T.J. 2d 728, Sec. 267; Minneapolis-Moline Company v. Purser (Tex.Civ.App.) 361 S.W.2d 239, W.R., N.R.E.; Gray v. Armstrong (Tex.Civ.App.) 364 S.W.2d 485, N.W.H.; Pharr v. Medaris Company (Tex.Civ.App.) 345 S.W.2d 428, N.W.H.; Archie Lacy Truck Lines v. Smith (Tex.Civ.App.) 350 S.W.2d 216, N.W.H. The points are sustained.

By its third and fourth points, appellant says the trial court erred in not holding that an oral five year warranty of Gulf States Products was within the statutes of frauds, Art. 3995, R.C.S., and unenforceable. If the oral agreement had been proved to have been made by appellant and later reduced to writing, this point would not be well taken. But in view of the evidence, there was no such proof, and under the record in this case, these points must be sustained.

By its fifth point, appellant says the trial court erred in refusing to submit issues to the jury as to the amount of damages to which the appellee was entitled. After the trial court had submitted its charge to the appellant, it objected and excepted to the charge. Along with the objections and exceptions, the appellant prepared and submitted two issues to the trial court to be submitted to the jury inquiring about the damages that the appellee had suffered. These special issues were refused by the trial court.

The trial court inserted the following sentence in its judgment: “During the trial of said cause the parties agreed that there was no issue of fact to be submitted to the jury respecting the amount of plaintiff’s damages, since in this respect the testimony was uncontradicted and undisputed.” A careful examination of the entire record in this case will show that no such agreement was entered into by appellant. The objections and exceptions were made to the court’s charge and the special issues were submitted immediately before the court’s charge was presented to the jury. Immediately after the jury had returned its verdict the appellant filed a motion for new trial in which he raised the same issues in the motion for new trial. The appellee takes the position that the agreement as inserted in the judgment probably satisfies the provisions of Rule 11, Texas Rules of Civil Procedure. Rule 11 reads as follows:

“No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.”

Counsel for appellant did not approve the judgment, and it was not entered until more than 120 days after the date of the trial. The only witness to prove appellee’s damages was the testimony of the witness Kornbleuh, an interested party. There was a conflict in the evidence, and as a matter of law, a verdict by the jury was essential. 56 T.J.2d 459, Sec. 208. The testimony of an interested witness requires that a special issue be submitted. 56 T.J. 2d 550, Sec. 210. In a recent decision relating to this point it was held that the refusal of the trial court to submit an issue on the construction cost of a building, it “was not in any way controverted or disputed”, was error. Warlick Press, Inc. v. Lantex Construction Company (Tex.Civ.App.), 375 S.W.2d 349, N.W.H.; See, also, Jas. T. Taylor & Son, Inc., v. Arlington Independent School District, 160 Tex. 617, 335 S.W.2d 371; Flack v. First Nat. Bank of Dalhart, 148 Tex. 495, 226 S.W.2d 628. The point is sustained.

By its sixth point, appellant says the trial court erred in allowing interest as damages when the claim of the appellee was for an unliquidated amount based upon a breach of contract. Actually, there was no pleading in the plaintiff’s petition that would allow the court to grant such interest. The only thing that is said in the petition is: “ * * * plaintiff have judgment against the defendant for its damages in the principal amount of $10,000.00, plus all cost of suit and interest to the extent permitted by law * * Interest, as damages, may be allowed on unliquidated demands whether arising out of breach of contract or from a tort. 17 T.J.2d 107, Sec. 28. In this case, there was no specific allegation of the date of the breach of the warranty. If the appellee had alleged the date of the breach of the warranty, the date of the breach of the warranty would have created an issue of fact to be submitted to the jury. Interest must be asked for specifically or be embraced in the aggregate amount as damages. 17 T.J.2d 266, Sec. 200. The point is sustained.

Appellee brings forward a cross-point where it says the trial court erred in refusing to award recovery for its “job overhead costs” incurred in doing the respray job. It takes the position that there are no Texas cases to support such recovery, and attempts to cite some out of State cases that will support its theory of the law. There is no specific pleading of any job overhead costs. The appellant objected to the same for that reason, and objected to it on the theory that there was no law in Texas that would permit such recovery. Under the facts as shown in this case, the appellee made the normal charges for the job re-sprays that it made on the original spraying jobs. The “job overhead” expense includes telephone, insurance, repairs to equipment, depreciation, salary, utilities, etc. The re-spray job did not increase such expense to the extent that the appellee could recover the same because such would constitute a double recovery. Appellee charged the same price for the re-spray job that it charged for the original spray jobs. There was no extra expense involved.

Appellant takes the position that the ap-pellee is not entitled to present his cross-point of error because the appellee did not file a motion for new trial as required by Rule 324, R.C.P. It cites Wagner v. Foster, 161 Tex. 333, 337, 341 S.W.2d 887. Since the appellee complained of the trial court not entering a judgment for it for the specific amount, he is probably required to file a motion for new trial. In Arrington v. Paschall (Tex.Civ.App.), 352 S.W.2d 866, Judge Williams had this to say relative to a cross-point of error:

“Appellees’ seventh cross-point reads: ‘In the event the Court does not grant appellees a new trial for the reasons stated, then appellees would show that the answers of the jury were based upon misconduct and this cause should be remanded to the trial court so the trial court may then pass on a motion for new trial based upon jury misconduct.’ We must sustain this cross-point. Rule 324, T.R.C.P., as amended 1957; Hughes, Inc. v. Moran, Tex.Civ.App., 325 S.W.2d 829. The judgment is reversed and remanded to the trial court with instructions to render judgment for the defendants. After judgment is rendered the plaintiffs may file a motion for new trial based on jury misconduct, as requested in their seventh cross-point of error.” (Emphasis added).

Whether or not the appellee is entitled to present his cross-point of error, he is not entitled to recover under the pleading in the case, or under the law. The cross-point is overruled.

The judgment of the trial court is reversed and the cause is remanded.


author: HUGHES, Justice.

text:
    Mrs. Irene NELSON et al., Appellants, v. BLANCO INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 11280.
    Court of Civil Appeals of Texas. Austin.
    March 24, 1965.
    Rehearing Denied April 14, 1965.
    See also Tex.Civ.App., 386 S.W.2d 636.

      Moursund & Ferguson, Johnson City, for appellants.
    Cofer, Cofer & Hearne, K. Mack Kidd, Austin, for appellees.
   HUGHES, Justice.

This suit was instituted about June 25, 1964, by Mrs. Irene Nelson, C. M. Johnson, Clyde Moore and some other eighty or more residents or property taxpayers of the Blanco Independent School District, an incorporated school district of Blanco County, Texas, against such district and against the members of the Board of Trustees of such district and against named individuals “who claim and assert themselves to be a Board of Equalization” of such district and against one W. W. Hall and against Joy Brussel, assessor-collector of taxes for such district, the purpose of such suit being to have declared invalid all tax proceedings by or on behalf of such district for the year 1964 which are inconsistent with the tax renditions made by plaintiffs to the county tax assessors-collectors in Hays, Kendall and Blanco Counties, portions of such Counties being in the Blanco Independent School District, and the assessments made by such officers, and to procure injunctive relief to assure this result.

The defendants below, appellees here, filed a plea to the jurisdiction of the Court. A hearing was held on appellants’ petition for a temporary injunction and on appel-lees’ plea to the jurisdiction of the Court, following which the trial court entered judgment denying injunctive relief, sustaining the plea to the jurisdiction and decreeing that appellants take nothing by their suit.

Blanco Independent School District is a County line district located partly in Blan-co, Hays and Kendall Counties. Prior to January 1, 1964, taxpayers in the District rendered their property and paid their taxes to the County Assessors-Collectors in Blanco and Hays Counties and to its own assessor-collector in Kendall County.

On September 9, 1963, the Board of Trustees of the District adopted a resolution finding it advisable that the taxes of the District be assessed and collected by an assessor-collector for the District and providing for the appointment of an assessor-collector and a Board of Equalization for the rendering, assessing and equalizing of the values of property for taxation and for the collection of taxes in the District. We quote the following from such resolution :

“1. Each person,, partnership and corporation owning property within the limits of said School District shall, between January first and April first of each year, render to the tax assessor-collector of such district a full and complete sworn inventory of the property owned, possessed or controlled by him, her or them, within the limits of said school district on the first day of January of the current year.
“2. The tax assessor-collector of the school district shall, on the first Monday in April, or as soon thereafter as practicable, ascertain what property situated within the limits of the school district has not been rendered for taxation and he shall assess same at what he believes to be the true value thereof. The tax assessor-collector shall make up a list of all properties rendered to him or assessed by him together with the valuations rendered or assessed and shall submit same to the Board of Equalization on the second Monday in April, or as soon thereafter as may be practicable, for its inspection, approval, correction and equalization, and said Board of Equalization shall examine said list and appraise, correct and equalize said lists of property. * * *
“5. The tax assessor-collector shall bring before the Board of Equalization all the assessment lists or books and the Board of Equalization shall equalize as nearly as possible all property within the limits of the school district, lowering the value of property if they are satisfied it is too high, and if too low they shall raise the value of the property to a proper figure. Such Board shall also have the power to correct any errors appearing on the assessment lists or books.
“6. In all cases where the Board of Equalization shall raise the value of any property on the assessment lists or books they shall, after having examined such lists or books and corrected all errors appearing therein, adjourn to a day not less than ten (10) nor more than fifteen (15) days from the date of adjournment, such day to be fixed in the order of adjournment, and shall cause the secretary to give written notice by mail to the owner of such property or the person rendering the same of the time to which said Board has adjourned and that such owner or person rendering the property may at that time appear and show cause why the value of such property should not be raised. The Board may also require the Secretary to have such notice published in a newspaper of general circulation in the school district. * * *
“12. All statutes of the State of Texas pertaining to the levying, assessment and collection of ad valorem taxes, penalties, interest and costs, applicable to or available to the school district, are hereby specifically adopted and made a part of this order insofar as they relate to the school district and are applicable.”

On September 12, 1963, the Board of Trustees notified the assessor-collector of taxes in Hays and Blanco Counties that effective the end of the current year the District would assess and collect its own taxes and expressing thanks for past courtesies.

The Board of Trustees attempted to employ an assessor-collector of taxes but was unsuccessful in finding one who would act until Mrs. Joy Brussel was appointed on May 25, 1964, and qualified on June 2, 1964.

During the entire period, January 1 to April 1, in which the taxpayers of the District were required to render their property for taxation there was no assessor-collector of the District to whom they could be rendered although Art. 7202, V.T.C.S., gives the Board of Equalization the authority to remedy this situation. Appellants made no renditions except as some were made to the County assessors-collectors.

Mrs. Brussel, who qualified as assessor-collector for the District on June 22, 1964, testified that she made no attempt to procure renditions from taxpayers in the District after she assumed office and that she had been furnished no forms for that purpose by the Board of Trustees. No renditions for 1964 were made to her by any taxpayer after she took office.

On November 1, 1963, the Board of Trustees had employed, by contract, W. W. Hall Associates to evaluate all the property, real or personal, within the District for the purpose of “equalizing the values of such property for taxation.”

Under this Contract, Mr. Hall evaluated the real property in the District and some of the personal property and prepared cards for each taxpayer reflecting the fair cash market values of the properties as appraised by him. These cards were delivered to Mrs. Brussel in May 1964. She took these cards and calculated 25% of the values placed thereon by Mr. Hall and this amount was fixed by her as the assessed value of the property for tax purposes. She was instructed in this regard by the Board of Equalization which had been appointed by the Board of Trustees in November 1963. Following this procedure, Mrs. Brussel sent each taxpayer a notice of the assessed value of his real property in which it was stated that if in the opinion of the taxpayer the value was excessive he should inform her before June 19, 1964, that a hearing before the Board of Equalization was desired. None of appellants so informed her.

With respect to personal property, it appears that the tax records of Blanco County were used for this purpose by Mr. Hall for the District, and that no inquiries were made regarding the inventory or value of such property except as to taxpayers who appeared before the Board of Equalization. The records so used were not signed by the taxpayers, and no notice was given them by the Assessor for the District or by the Board of Equalization that such personal property had been assessed for taxation.

These appellants, either in person or by attorneys, appeared before the Board of Equalization on June 23, 1964. Their purpose in that appearance seems to have been, not to establish that the assessed values of their properties were excessive, but that the tax procedures had been irregular and that the assessments were invalid. The relief that they sought from the Board of Equalization was that it accept the renditions and valuations which they had made to the Counties as the renditions and valuations for the District for the year 1964. The valuations in these renditions were substantially less than the assessed valuations. The Board of Equalization refused to grant this request and appellants departed.

Members of the Board of Equalization testified and each stated that the Board had not adjourned, was in recess and that it would entertain any complaint which any appellant might wish to bring before it regarding the assessed value of his property.

Art. 7145, V.T.C.S., provides, “All property, real, personal or mixed, except such as may be hereinafter expressly exempted, is subject to taxation, and the same shall be rendered and listed as herein prescribed.”

All property shall be listed (rendered) for taxation between January 1st and April 30th when required. Arts. 7151, 7168, 7169 and 7189, V.T.C.S., Humble Oil and Ref. Co. v. State, 3 S.W.2d 559, Waco Tex. C.C.A., writ ref.

The rendition or listing shall be made to the assessor of taxes of the taxing unit. Arts. 7185 and 7189, V.T.C.S.

If the tax assessor is satisfied with the valuation as rendered in said list, he shall so enter the same; if he is not satisfied with the valuation, he shall refer the same to the Board of Equalization of the County for its action, and shall immediately notify the person from whom he received said list that he has referred said valuation to the Board of Equalization. Art. 7185. However, Art. 7211, V.T.C.S. provides, in part, “ * * * if the assessor is satisfied that the value is below the reasonable cash market value of such property, he shall at once place on said rendition opposite each piece of property so rendered an amount equal to the reasonable cash market value of such property at the time of its rendition, and if such property shall be found to have no market value by such officer, then at such sum as said officer shall deem the real or intrinsic value of the property; and if the person listing such property or the owner thereof is not satisfied with the value placed on the property by the assessor, he shall so notify the assessor, and if desiring so to do make oath before the assessor that the valuation so fixed by said officer on said property is excessive; such officer to furnish such rendition, together with his valuation thereon and the oath of such person, firm or officer of any corporation, if any such oath has been made, to the commissioners’ court of the county in which said rendition was made, * *

In Cook v. Galveston, H. & S. A. Ry. Co., 5 Tex.Civ.App. 644, 24 S.W. 544, San Antonio C.C.A., no writ history, it is stated:

“Before a tax can become a charge upon property, it is necessary that a list of taxables should be made by the officer to whom by law that duty is intrusted. Cooley, Tax’n, 351. The officer upon whom such duty is imposed by the laws of this state is the assessor of taxes, who is required to take a list of taxable property in his county and assess the value thereof in the manner specified by law. * * * The rendition of property for taxes by its owner, and the listing of it by the assessor, in compliance with the law, are provisions made for the benefit and protection of the individual taxpayer; and they must be complied with in order to create a lawful demand upon the citizen for his property, for it is only by means of the requirement of official action that he can be protected against arbitrary and capricious action.”

Of similar import is the following quotation from Sullivan v. Bitter, 51 Tex.Civ.App. 604, 113 S.W. 193, San Antonio, no writ history:

“The commissioners’ court sitting as a board of equalization has no power under the law to assess property for taxes. The authority to assess property, save in exceptional cases, is vested in the assessor of taxes of the several counties of the state, and the method of making such assessments is plainly pointed out by statute. See title 104, c. 3, Rev.St. 1895. ‘An assessment of necessity involves at least two things, to wit, a listing of the property to be taxed in some form, and an estimation of the sums which are to be a guide in the apportionment of the tax.’ Cooley on Taxation (4th Ed.) 596. An assessment by the properly constituted authority is absolutely essential to support a tax. * * * In the absence of a statute authorizing it, a board of equalization cannot assess property not listed and valued by the assessor. Cooley on Taxation, 776, 777. In this state such board ‘has no power to add to the rolls property not previously assessed or to take from them property which they embrace.’ ”

Fully supporting these views is Republic Ins. Co. v. Highland Park Ind. School Dist., 57 S.W.2d 627, El Paso Tex.C.C.A., writ ref.—Dismissed.

Applying the statutes above cited and the principles thus enunciated to the undisputed facts of this case we hold:

(1) The renditions made by appellants to the assessor-collector of Blanco, Hays and Kendall Counties are ineffective as renditions to the District for the reason that such assessor-collectors were without any authority to receive them for the District. The assessor-collector for Blanco County was the sheriff, John Stevenson. He did not attempt or purport to act as the assessor-collector for the District after being notified by the District in September, 1963, that it would assess and collect its own taxes.

(2) The assessments made by the assessor-collector for the District, Mrs. Brussel, are invalid for the reason that appellants have, without fault on their part, been deprived of a statutory and valuable right in not having been afforded the opportunity to render their property to the assessor-collector for the District, and they were also deprived of the right to have the independent judgment of such assessor exercised in respect to such renditions.

(3) The Board of Equalization for the District should consist of three members only.

(4) Appellants are entitled to injunctive relief against the enforcement of the invalid assessments made by the assessor and their consideration by the Board of Equalization. See City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414.

(5) The Contract made by the District with W. W. Hall Associates is a valid Contract. Pritchard & Abbott v. Patrick H. McKenna, 162 Tex. 617, 350 S.W.2d 333. We quote from that opinion, “Each of the various elected officials, including the Assessor-Collector, has the sphere that is delegated to him by law and within which the the Commissioners Court may not interfere or usurp. But that is not to say that the functions of the Board of Equalization and those of the Assessor-Collector are so diverse that information may not be lawfully contracted for and obtained by the Equalization Board because it may likewise be of aid to the Assessor in the performance of his duties. It is the duty of the Assessor as well to determine the value of all taxable property in the county.”

We emphasize that such private appraisal is to be used by the assessor and the Board of Equalization as an aid in the performance of their statutory duties and not as a delegation of such duties nor as a substitute for them.

We reverse the judgment of the trial court and remand this case with the following instructions:

(1) Overrule appellees’ plea to the jurisdiction.

(2) Grant appellants a temporary injunction enjoining the Board of Equalization of the District from equalizing the assessments presented to it for inspection by the assessor herein as to appellants and from using such assessments in any manner and enjoining the District from collecting or attempting to collect any taxes from appellants herein for the year 1964, except as they may be voluntarily paid to it, until the properties of appellants subject to taxes are assessed according to law, upon the giving of proper security.

(3) Grant appellants a permanent injunction upon final hearing perpetuating the temporary injunction if the basic facts are substantially as they appear in this record.

This judgment shall be without prejudice to the right of the District to again assess and value the property of appellants in accordance with law and to collect such taxes as may be due thereon. Republic Ins. Co. v. Highland Park Ind. Sch. Dist., 141 Tex. 224, 171 S.W.2d 342, Art. 7346, V.T.C.S.

Since it is obvious that the time prescribed by law for appellants to render their property to the assessor of the District and for such assessor to prepare his lists is long passed, it will be incumbent upon appellants to make such renditions within a reasonable time and the assessor should fix a reasonable time therefor. The other steps will follow as reasonably and expeditiously as possible, including a reasonable time within which appellants may pay the taxes lawfully due by them after the Board of Equalization has completed its duties in the premises (See Arts. 7206 and 7219, V.T.C.S.,) without the payment of penalties and interest.

We have heretofore issued an injunction in this case to protect our appellate jurisdiction. This injunction will expire when our appellate jurisdiction expires. This will be when the Supreme Court grants a writ of error herein, if it does, or when our judgment herein becomes final.

Reversed and remanded with instructions.

ON APPELLEES’ MOTION FOR REHEARING

Prior to our decision in this case, we overruled appellees’ motion to dismiss this appeal. The motion was based on the contention that this was an appeal from an interlocutory order and was controlled by Rule 385, Texas Rules of Civil Procedure and Art. 4662, V.T.C.S. If the order or judgment from which this appeal was taken was interlocutory, appellees’ motion should be sustained because the record was not timely filed.

The judgment reads, in part, as follows:

“It is, therefore, ORDERED, ADJUDGED and DECREED by the Court that Defendants’ Pleas to the Jurisdiction set out in Paragraphs AI, II, and IV of said Plea to the Jurisdiction be, and they are hereby, sustained.
“It is further ORDERED, ADJUDGED and DECREED by the Court that Plaintiff’s Application for a Temporary Injunction be, and it is hereby, in all things denied, and that plaintiffs take nothing by their suit against the defendants.
“It is further ORDERED that all costs of suit in this behalf expended be, and they are hereby, taxed against the plaintiffs, for which let execution issue.”

It is our opinion that this is a final judgment and appealable as such.

Appellees assert that we erred in not giving controlling effect to Art. 7193, V.T.C.S., which provides:

“Art. 7193. [7551] [5107] Duty in such cases
“In all cases of failure to obtain a statement of real and personal property from any cause, the assessor of taxes shall ascertain the amount and value of such property and assess the same as he believes to be the true and full value thereof; and such assessment shall be as valid and binding as if such property had been rendered by the proper owner thereof.”

Since there was no tax assessor to fail “to obtain a statement of real and personal property from any cause” from taxpayers within the time prescribed, it is our opinion that this statute is not applicable.

The motion is overruled.

Motion overruled.

      . See Art. 2791, Vernon’s Ann.Civ.St.

      . See Art. 1060a, V.A.C.S.

      . Five members were appointed to this Board although Art. 1048, V.A.C.S., provides for a Board of three members.

      . 386 S.W.2d 636.


author: COLLINGS, Justice.

text:
    Donald LADEHOFF, Appellant, v. Howard E. BOXWELL et al., Appellees.
    No. 3976.
    Court of Civil Appeals of Texas. Eastland.
    April 23, 1965.
    Rehearing Denied May 21, 1965.
    Lumpkin, Watson, Dunlap & Smith, Amarillo, for appellant.
    Monning & Monning Amarillo, for ap-pellees.
   COLLINGS, Justice.

Howard E. Boxwell and Joe A. Allred brought suit in Potter County against Donald Ladehoff, seeking to recover $26,-600.34, with interest, alleged to be due under the terms of a contract in writing. The defendant filed a plea of privilege to be sued in Oldham County, the place of his residence. Plaintiffs filed a controverting affidavit asserting the right to maintain venue in Potter County under subdivision 5 of Article 1995, Vernon’s Ann.Tex.Civ.St. The plea of privilege was overruled and Donald Ladehoff has appealed.

It is undisputed that the residence of Ladehoff at all times material is and was in Oldham County. The controversy concerning venue involves the question of whether the contract which is the basis of this suit provides for payment of money by appellant in Potter County or at a definite place therein as contemplated by subdivision 5 of the venue statute.

The record shows that appellant and ap-pellees each owned an undivided one-third interest in certain real and personal property situated in Deaf Smith County. On April 13, 1961, appellees Boxwell and All-red, entered into a contract in writing with respect to this property with appellant, Ladehoff. The contract gave Ladehoff an option to purchase the interests of appellees, so that Ladehoff would become the sole owner of all the real and personal property.

Appellant exercised the option in accord with the terms of the contract. Paragraph 3 of the contract deals with the rights and obligations of the parties in the event of exercise of the option. Subparagraph d of paragraph 3 deals with the rights and obligations of the parties as to ensilage located in two pits on the property. After providing the determination of the amount of usable ensilage on hand in the pits and that Ladehoff should have the duty to care for, use and make sales of, and account for this ensilage, subparagraph d provides as follows :

“He shall sell it for the best price reasonably obtainable, but at no less than $6.00 per ton. If he feeds his own livestock any of that ensilage, he shall account for all so used at the rate of $6.00 per ton. He shall deliver all sums of money so received or collected, or for which he shall become obligated, to The First National Bank of Amarillo. The sums so delivered shall be credited entirely to the reduction of the principal balance of the ‘ensilage note’ now held by First National Bank * * *. Op-tionee shall continue to sell the ensilage and deliver all receipts therefrom to First National Bank at Amarillo, Texas, and all such sums shall be credited to the unpaid principal amount of the renewed three year note * * * The delivery of all receipts from the sale of ensilage shall be made by Op-tionee no less frequently than every 60 days during such three year period. During any 60 day period when no ensilage has been sold or used, that fact shall be reported to First National Bank ‡ * * 99

Appellees indicate that they do not dispute appellant’s contention that the “ensilage note” mentioned in the contract cannot be the basis for maintaining venue in Potter, but they do rely upon the provisions of the written contract. Appellees’ suit as shown by their pleadings was brought to collect all amounts due them under the terms of the written contract which provided for sale, or use by appellant, of the ensilage in certain pits. Appellees point out that the contract obligates appellant to perform an obligation, that is, to “deliver all receipt” from the sale of ensilage to “The First National Bank at Amarillo, Texas.” Appel-lees contend that by such writing appellant contracted to deliver such receipts to a specific place, that is, to the First National Bank at Amarillo and that the record shows the location of such bank to be in Potter County. The record does show that the First National Bank of Amarillo is located in Potter County, Texas.

Appellant’s contention is, in effect, that he did not by the instrument in question contract in writing to perform the obligations therein imposed upon him in Potter County or at a definite named place in such county. We sustain this point. The contract provides that appellant will deliver the proceeds of the sale of such ensilage to the First National Bank of Amarillo, not that he will perform such obligation at the First National Bank of Amarillo. The place of performance provided for in the contract is “at Amarillo”. The question is whether a promise to pay at Amarillo is a promise to pay in Potter County. In our opinion this question must be answered in the negative. This is true because portions of the City of Amarillo, the designated place of performance, are located in two counties, in Potter County and in Randall County. Appellant’s obligation under the contract could be complied with by performance in either of the two counties. This does not show a written contract performable in a particular county or at a particular named place therein as required by subdivision 5 of the venue statute. Great Western Loan and Trust Co., Inc. v. Montgomery, Tex.Civ.App., 376 S.W.2d 92.

No evidence was introduced showing that Amarillo was located in both Potter and Randall Counties and no request was made to the trial court to take judicial notice of such fact. Ordinarily, courts will take judicial notice of the city which is the county seat of a certain county. Such judicial notice is taken because the fact that a county seat is located in the county is so well known and so easily ascertainable that proof will not be required. Amarillo is the county seat of Potter County. It is well known by the people of that community that part of the city is in Potter County but it is also well known that part is in Randall County. The existence of this fact is well known in that portion of the State and is easily ascertainable with certainty from unimpeachable sources. The Texas Almanac shows that Amarillo is partly in Potter County and partly in Randall County. The Official Highway Travel Map of the Texas Highway Department indicates that Amarillo is partly in Potter County and partly in Randall County. Appellant states in his brief that Amarillo is in the two counties and appellee does not deny the statement. Under these circumstances common sense requires that judicial notice be taken of the fact that the City of Amarillo is situated in the two named counties and it would not be good sense to require formal proof of the fact. See Texas Law of Evidence, McCormick and Ray, page 170 and Harper v. Killion, Tex.Civ.App., 345 S.W.2d 309. This case was affirmed by our Supreme Court in an opinion set out in 162 Tex. 481, 348 S.W.2d 521, which held:

“ * * * that a district court sitting in Cherokee County can judicially notice the certain and indisputable fact of common knowledge that the entire city of Jacksonville is located in such county, and that the Court of Civil Appeals properly did so in this case notwithstanding the district court was not formally requested so to do and did not formally announce that it had done so.”

The judgment is reversed and the cause remanded with instructions to transfer the case to the District Court of Oldham County.


author: WILSON, Justice.

text:
    AMERICAN LIFE AND ACCIDENT INSURANCE COMPANY, Appellant, v. Frances HUVAR, Appellee.
    No. 4349.
    Court of Civil Appeals of Texas. Waco.
    April 22, 1965.

      Morgan & Shropshire, David B. Owen, Fort Worth, for appellant.
    W. C. Gray, Jr., Sealy, for appellee.
   WILSON, Justice.

Both insurer and insured moved for summary judgment in appellee’s suit to recover benefits under two policies of health and accident insurance issued by appellant. Ap-pellee-insured’s motion was granted; appellant’s was overruled.

Insured alleged she was hospitalized on a specified date for relief of sickness which required three surgical operations for which she incurred listed expenses aggregating $2401.15, of which she alleged $1416 was due under the policies. She pleaded appellant had paid $1316 of the latter amount, leaving a balance of $100 sued for, together with 12% statutory damages and $500 attorneys’ fees. Insurer answered asserting policy limitations on the amount of charges for operating room and anesthesia, and that insured had endorsed and cashed drafts bearing a release, which she accepted as full payment of all claims; and she was estopped to claim further payment. Insured failed to answer requests for admissions under Rule 169, Texas Rules of Civil Procedure that she had endorsed and cashed such checks, and that the release on two of them had been erased after delivery to her.

An affidavit of a physician was attached to insured’s motion. In addition to numerous conclusions as to the construction and effect of the policies, this affidavit recited insured was confined in a hospital on a named date for relief of sickness, requiring three operations and anesthetics. “The details of this sickness and its treatment,” it was said, “are stated and set out in various medical and hospital records” not attached.

Insured apparently relied before the trial court on the conclusions in the doctor’s affidavit such as: “by virtue of said policies of insurance defendant became liable”, etc., for there is no other proof in the record of the amounts of expenses incurred, what they were for, whether they were for separate “sicknesses” so as to avoid the admitted policy limitation, or whether they were actually incurred. Factual aspects of the alleged release and estoppel are not referred to. There is no proof concerning attorneys’ fees for which summary judgment was rendered.

When both parties move for summary judgment the burden is upon each to establish clearly his right thereto, “and neither party can prevail because of the failure of the other to discharge his burden.” Tigner v. First Nat. Bank of Angleton, 153 Tex. 69, 264 S.W.2d 85. The conclusions in the affidavit, of course, will not authorize the judgment. Rule 166-A, Tex.Rules Civ. Procedure; Bates v. Smith, 155 Tex. 443, 289 S.W.2d 215, 217. In determining whether or not a fact issue exists under Rule 166-A, the test is whether movant would be entitled to an instructed verdict in a conventional trial. Valley Stockyards Co. v. Kinsel, Tex.Sup., 369 S.W.2d 19, 20. The record does not authorize rendition of judgment for appellee. Reversed and remanded.


text:
    Lois Jean WILKERSON, Appellant, v. John SLAUGHTER et al., Appellees.
    No. 7649.
    Court of Civil Appeals of Texas. Texarkana.
    April 27, 1965.
    C. B. Bunkley, Jr., Dallas, for appellant.
    Neil Brans, Dallas, J. S. Simkins, Corsi-cana, for appellees.
   DAVIS, Justice.

Appellant-defendant, Lois Jean Wilkerson, filed an application to probate the will of Cellie Davis in the Probate Court of Dallas County, Texas. An order was entered on October 3, 1963, admitting the will to probate. Appellees-plaintiffs, John B. Slaughter, et al, on March 6, 1964, filed suit to set aside the order admitting the will to probate. Appellees’ contention in the trial of the case was that the will was not executed in the manner and form as required by law in that the two devisees, Bernice Sanders and Harry E. Sanders, signed the will as witnesses, and that the will was void. The probate court entered an order setting aside the judgment, holding the will to be void. An appeal was taken to the district court. Judgment was entered in the district court declaring the order of the probate court admitting the will to probate to be void, and ordering the same set aside from the probate docket. Appellant has perfected her appeal and brings forward one point of error.

By her point, appellant says the trial court erred in setting aside the qrder of the probate court admitting the will of Cellie Davis to probate and holding said order void, and in failing to show that said will was not executed in the manner required by law.

The will as executed by Cellie Davis had three witnesses, viz.: Bernice Sanders, Harry E. Sanders, and Mrs. D. J. Tunley. Horace Andrew Willard, a notary public, took the affidavits and acknowledgments to the will. When the will was admitted to probate only two witnesses testified, viz.: Mrs. D. J. Tunley and Horace Andrew Willard. In the will, Cellie Davis left everything she had to Harry E. Sanders and Bernice Sanders.

In the trial of the case in the district court, appellees offered in evidence the deposition of the witness Willard and the will. Appellant offered in evidence the will and both of the depositions that were presented in the probate court. The deposition of the witness Tunley proved the will. The witness Willard testified that he saw the deceased sign the will, and that he witnessed her signature. The record shows that he took the affidavits and acknowledgments. His testimony is sufficient to corroborate the testimony of the witness Tunley. It seems that the testimony that was offered in evidence in the district court was sufficient to actually prove the execution of the will, and the bequest to Harry E. Sanders and Bernice Sanders was not rendered void.

Sec. 61 of the Texas Probate Code, V. A.T.S. reads as follows:

“Sec. 61. Bequest to Witness: Should any person be a subscribing witness to a will, and also be a legatee or devisee therein, if the will cannot he otherwise established, such bequest shall be void, and such witness shall be allowed and compelled to appear and give his testimony in like manner as if no such bequest had been made. But, if in such case the witness would have been entitled to a share of the estate of the testator had there been no will, he shall be entitled to as much of such share as shall not exceed the value of the bequest to him in the will.” (Emphasis added).

Sec. 62 of the Texas Probate Code reads as follows:

“Sec. 62. Corroboration of Testimony of Interested Witness: In the situation covered by the preceding Section, the bequest to the subscribing witness shall not be void if his testimony proving the will is corroborated by one or more disinterested and credible persons who testify that the testimony of the subscribing witness is true and correct, and such subscribing witness shall not be regarded as an incompetent or non-credible witness under Section 59 of this Code.”

Under Section 62 of the Texas Probate Code there is an “INTERPRETATIVE COMMENTARY” which reads as follows:

“In Scandurro v. Beto [Tex.Civ.App.] 234 S.W.2d 695 (1950), it was held that where one witness was a devisee under the will, but the other was not, and the will was proved by the witness who had no interest thereunder, the will should not be probated because the statutes required that wills be witnessed by two 'credible’ witnesses, and, under the statute which is now Section 61 of the Code, a witness receiving a bequest was not a credible witness. The last clause in this Section is intended to repudiate the holding in that case, and to incorporate into the Code the contrary holding in Ridgeway v. Keene [Tex.Civ.App.] 225 S.W.2d 647 (ref. n. r. e., 1949).”

In the Scandurro case, supra, one of the witnesses was a devisee under the will. The will was proved by a witness who had no interest thereunder. The will in this case was proved by a witness who had no interest thereunder; and, whose testimony was sufficiently corroborated by the other witness. In the Scandurro case the court held :

“We are of the opinion that this state is committed to the rule that a credible witness to a will must be a competent witness, that is, one who receives no pecuniary benefits under its terms. It is true Mrs. Beto was not called upon to testify in the proceedings below. The will was proven solely upon the testimony of Mrs. Gandy, the only competent attesting witness. This procedure would have been in compliance with the law had there been another competent attesting witness, and under such circumstances the bequest to Mrs. Beto would not have been void. A will can be proven by one competent attesting witness, but it takes two competent attesting witnesses to sustain a valid will. Mrs. Beto being a subscribing witness to the will and a devisee thereunder, therefore, is not a competent witness unless she relinquishes or the court revokes her pecuniary interest under its provisions. The policy of the law is to uphold a will when it can be done. Under the above cited authorities, this will is not void but to sustain it and prevent it from failing in its entirety for the lack of the required number of competent attesting witnesses, Mrs. Beto must become a competent witness, and to make her such a witness it is necessary that she receive no pecuniary benefits under its terms.”

Sections 61 and 62 of the Texas Probate Code were amended in 1955. A will does not become void when a witness is a legatee or devisee, provided the will can be proven by other witnesses. In 1962 the Court of Civil Appeals in Eastland, Connor et al. v. Purcell, 360 S.W.2d 438, w. r., n. r. e., held that a witness offered in support of application to probate a nuncupative codicil to a will was not disqualified by statute to testify, although he was named in the will as executor, and the codicil was not void. The appellants in the Connor case took the same position as the appellees in this case by asserting that the facts showed that one of the witnesses was not a credible witness. In this case, there were three witnesses and the notary public. The will in this case having been proved by another witness and the testimony being sufficiently corroborated by another witness, the trial court was in error in setting aside the probate of the will. The point is sustained.

The judgment of the trial court is reversed and judgment is here rendered that the appellees take nothing.


author: HIGHTOWER, Chief Justice. STEPHENSON and PARKER, Justices

text:
    Roy MORRELL et al., Appellants, v. The STATE of Texas, Appellee.
    No. 6722.
    Court of Civil Appeals of Texas. Beaumont.
    April 22, 1965.
    Rehearing Denied May 19, 1965.

      Houston Thompson, Silsbee, for appellants.
    W. G. Walley, Jr., Beaumont, for appel-lee.
   HIGHTOWER, Chief Justice.

This appeal by the condemnee is from an unsatisfactory award of a jury in the court below for the value of 0.40 acres of land. The jury, answering the only issue submitted, placed a value of $5,325.00 on the land. Appellant’s sole contentions for reversal of the case are based upon alleged misconduct of the jury in arriving at said value.

Two expert appraisers testified in behalf of the appellee, giving their highest estimate of the value of the property as $5,325.-00 and $5,075.00, respectively. The only other appraisal witness was appellant himself, who stated the value to be $12,000.00. The pertinent part of the only ground in appellant’s amended motion for new trial upon which he predicates his six points of error here is:

“That while the jury was deliberating and before the jury had answered special issue number one, one of the jurors suggested that the jury answer special issue number one $5400.00; the foreman was under the mistaken impression that the jury’s answer was restricted to $12,000.00, $5325.00 or $5075.00, each number being the exact appraisal value placed upon the property taken by one of the three appais-ers, the foreman did then tell the other jurors that the jury was restricted by law to one of these three figures and could not answer a sum in between; that the other members of the jury believed the foreman’s recitation of law to be correct and answered special issue number one $5325.00 because of the statement of the foreman; that said act on the part of the jury was misconduct which prejudiced this defendant’s rights and deprived him of a fair trial. * * * »

The only juror called to testify in support of appellant’s contentions that misconduct did indeed occur was Mr. J. D. Whalen, who gave the following testimony:

«* * *
“Q. Mr. Whalen, do you remember if, before all had decided the answers to the special issues that were submitted to you, whether it was * * * whether there was any discussion as to the limits of what you all could decide in that case?
“A. Well, best of my memory, I think one of the jurors, one of the colored ladies, made the statement * * * how much she said, I don’t recall * * * whether we could go over that, and to be honest, I believe the foreman of the jury ^ ^ ^
“Q. Mr. Barlow?
“A. Mr. Barlow, was under the impression we were not to go over either one of the bids that the State gave.
MR. WALLEY: I didn’t understand.
“A. We could not go over the bid, over the amount that the state had, that the appraiser had given. The State had two appraisers, I believe.
“Q. All right. Now, when you say that you couldn’t go over the amount the appraiser gave, you mean by that Mr. Brown’s appraisal and Mr. Hall’s?
“A. Yes.
“Q. Now, was Mr. Barlow under the impression, and did he say that you could not find the answer in relation to what Mr. Morrell had said, twelve thousand dollars?
“A. Yes, sir.
“Q. All right. Now, did he tell you that was his understanding of the law, and the Court’s charge?
‘‘A. Well, as well as I remember; yes, sir.
“Q. All right. Now, and I believe you all did find, in answer to Special Issue Number One, the highest of the State’s appraisers * * *
“A. Yes, sir.
‡ ‡ ‡ ‡ ‡ ‡
“Q. When this colored woman * * Do you remember whether she suggested the' figure of fifty-four hundred dollars?
“A. No, I do not. I don’t recall just exactly what figure she gave. I really don’t.
“Q. When she started that discussion and Mr. Borrell said his understand was you could not go over that, was that the jurors’ understanding after he said that? Was that the way you understood it?
“A. Yes, sir; I believe it was.
“Q. Did you feel under those circumstances, the highest * * *
“A. The highest bid would be the best we could give him; give him the benefit of the doubt.
“Q. The highest amount you could give would be the figure given by the highest State’s appraiser, who was Mr. Brown?
“A. Yes, sir.
“Q. Mr. Whalen, did anyone mention giving a higher figure than fifty-three hundred and twenty-five dollars?
“A. Now, sir, I believe one of the colored women did. She mentioned a figure, I believe, but I don’t recall what figure she gave.
“Q. You are not certain of that?
“A. No, I’m not.
“Q. Did you all discuss the evidence that had been presented to you by the witnesses?
“A. Yes, sir.
“Q. And you finally found a figure you all thought was fair ?
“A. Yes, sir.
“Q. Did you intend to follow the Court’s charge and find a figure based on what he told you was the preponderance of the evidence, the believable testimony?
“A. Yes.
“Q. Did anyone suggest the figure Mr. Morrell testified to, twelve thousand dollars?
“A. No, I wouldn’t say, because I can’t remember exactly.”

Appellant’s points of error are met by several counterpoints, arguments and authorities of appellee’s which we have no doubt are sufficient to compel affirmance of the trial court’s judgment. A careful study of appellant’s motion for new trial and the testimony alleged to support the same, reveals material discrepancies existing between the two. Actually appellant has failed to allege and prove, and vice versa, that misconduct did occur and, if so, that it was harmful. As a matter of brevity, however, we find it unnecessary to further refer to or determine the merits of the parties’ respective contentions.

It is obvious that the testimony of juror Whalen as above set out is conflicting in its context. While it might tend to appear in one portion to sustain the contentions of appellant, in the other, which we again quote for convenience, it does not:

“Q. Did you all discuss the evidence that had been presented to you by the witnesses?
“A. Yes, sir.
“Q. And you finally found a figure you all thought was fair?
“A. Yes, sir.
“Q. Did you intend to follow the Court’s charge and find a figure based on what he told you was the preponderance of the evidence, the believable testimony?
“A. Yes.”

This latter portion of the evidence being to the effect that, notwithstanding the other matters discussed, the jury, in their final analysis, resolved to, and did, arrive at the market value of appellant’s property in accordance with the court’s instructions to resolve their answers from a “preponderance of the evidence * * * the greater weight of credible evidence.”

There were no express findings of facts or conclusions of law found by the trial court; therefore, we must presume that said court found all controverted or conflicting facts in support of its judgment overruling the motion for new trial and that no misconduct occurred. The testimony of juror Whalen being conflicting, the decision of the trial court on the question is binding on appeal. Brawley v. Bowen (Tex.) 387 S.W.2d 383, and cases there cited.

Affirmed.

STEPHENSON and PARKER, Justices

(concurring).

We concur in the disposition of this case, but for the following reasons only. The appellant’s motion for new trial states the error in the trial court was the statement by the foreman of the jury that they were restricted by law to one of the appraised values given by the witnesses, and could not answer a sum in between. A careful reading of the four pages of testimony presented on the motion for new trial establishes that there is no evidence to support this contention. This is simply a case in which appellant has failed to prove the alleged misconduct set forth in his motion for new trial. Further, a study of appellant’s motion for new trial and the testimony alleged to support the same shows that according to the motion for new trial that the highest amount of money mentioned by any juror for the damages was $5400.00. The jury answered this issue with the sum of $5325.00. However, from the evidence had upon the hearing on the motion for new trial it does not appear that any amount of damages was mentioned by any juror except $5325.00 and no votes were taken by the jurors upon any amount except the $5325.00. It does not appear that any juror changed his mind. Appellant has not shown that the statement made by the foreman of the jury in this case induced any other juror to' change his answer. Further, the entire record fails to disclose in any other manner that injury probably resulted to the petitioners. Texas Rules of Civil Procedure, Rule 327; Trousdale v. Texas & New Orleans Railroad Co., 154 Tex. 321, 276 S.W.2d 242 (S.Ct., Feb. 16, 1955). This court must presume that the trial court in overruling appellant’s motion for new trial found that although the misconduct of the foreman was upon a material matter, that from the entire record there was no evidence that injury probably resulted to appellant.


author: NORTHCUTT, Justice.

text:
    Sam R. ELLIOTT, Appellant, v. JACKSON PETROLEUM COMPANY, Inc., Appellee.
    No. 7445.
    Court of Civil Appeals of Texas. Amarillo.
    March 15, 1965.
    Rehearing Denied April 5, 1965.
    Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellant.
    Clayton, Kolander, Moser & Templeton, Amarillo, for appellee.
   NORTHCUTT, Justice.

This suit was brought by Jackson Petroleum Company, Inc. against Sam R. Elliott to recover the unpaid price of certain cattle and for damages caused by the failure of Elliott to accept certain cattle as he had agreed. Elliott answered and asked for damages caused by failure of Jackson Petroleum Company, Inc. to deliver cattle as contracted to do. Judgment was granted for Jackson Petroleum Company for the sum of $8,014.66. Elliott agrees that he owed Jackson the sum of $8,014.66, but is entitled to an offset to the extent of his damages caused by Jackson’s failure to deliver the calves as contracted. From the judgment of the court both parties perfected this appeal. Hereafter the parties will be referred to as Jackson and Elliott.

On June 7, 1963, Elliott, as purchaser, contracted in writing with Jackson, as seller, to purchase 1,200 head of Hereford and Angus steers and heifer calves branded “JP.” The contract provided for a sale price on the steers of twenty-six cents per pound and on the heifers of twenty-four cents per pound. Approximately eight hundred head were to he delivered July 15, 1963, and the balance on October 15, 1963. The cattle were located on the Jackson ranches near Duncan, Oklahoma. Simultaneously with the execution of the contract Elliott paid to Jackson $12,000.00 as part payment being $10.00 per head.

On July 15, 1963, Elliott was at the Jackson ranches to receive the 800 head of cattle but only received 591 head. It was at that time their first disagreement was had. Elliott contended he demanded the 800 head' and that there was sufficient cattle at the ranch to comply with the contract. Jackson contended the calves demanded by Elliott were too young to he delivered. Elliott at the time he received the 591 head paid for them, the payment being made by applying $5,910.00 of the original $12,000.00 and the balance by check. This left $6,090.00 of the original $12,000.00 to be applied on the balance of the cattle when delivered on October 15, 1963. On October 15, 1963, Elliott was at the Jackson ranch to receive the remaining cattle provided for under the contract. Jackson contended he had the proper number of cattle to deliver on October 15, 1963, and offered to deliver them to Elliott but that Elliott refused to take them as provided in the contract. Elliott contended the cattle offered were not the cattle he purchased and only accepted 136 head. Elliott offered to pay for the 136 head but Jackson refused to accept payment but demanded Elliott take the balance of the 1,200 head but Elliott refused. Jackson brought this suit to recover for the value of the 136 head and for his damages caused by Elliott’s failure to take the remaining cattle to make up the 1,200 head. Jackson pleaded Elliott was entitled to a credit of $6,090.00 of the original $12,000.00 paid.

Elliott contended that on July 15, 1963, when he went to receive the 800 head of cattle he told Jackson he had resold the cattle to Bud Harrell and unless Jackson delivered the cattle as contracted it would get him in bad with Harrell. The contracts of resale by Elliott to Harrell were introduced in evidence and Harrell was present at the Jackson ranches on July 15 and October 15 to take the cattle and testified he had bought the calves from Elliott.

The case was submitted to a jury upon seventeen special issues. There were no objections made to the charge of the court. In answer to the special issues the jury found Jackson offered to deliver approximately 800 calves on July 15, 1963, but refused to deliver the approximate 800 calves which were to be delivered under the terms of the written contract and that the calves tendered to Elliott by Jackson on October 15, 1963, did not comply in all material respects with the contract but the calves offered were not inferior quality. The jury further found that a substantial portion of the cattle Jackson offered to deliver to Elliott on October 15, 1963, were not branded “JP” and that Jackson did not have on July 15, 1963, 209 head of calves which complied with the contract which Jackson could have delivered to Elliott. The jury also found Elliott on July 15, 1963, told Jackson he had contracted to resell the cattle involved to Bud Harrell. The jury further found the sum actually received by Jackson from the sale of the 449 head of calves sold on October 17, 1963, at Oklahoma City Auction was $44,-239.35, and were sold at the best price obtainable and at the best market obtainable and that the total contract price of the calves offered for delivery by Jackson to Elliott at the Jackson ranch on October 15, 1963, was $49,030.04.

The judgment of the court did not in any manner set out the findings of the jury and granted judgment for Jackson for the sum of $8,014.66, which was the balance due for the 136 head of calves accepted by Elliott on October 15. We consider the granting of the judgment for the sum of $8,014.66, is a finding by the court against the claims of Elliott and Jackson for damages.

Elliott presents his appeal upon three assignments of error. All of these points deal with the failure of the trial court to grant him an offset to the sum due to Jackson for the 136 head of cattle to the extent of his damages caused by the breach of the contract by Jackson. Jackson by his first nine counterpoints replying to Elliott’s points of error, contends the court was correct in the matters assigned by Elliott as errors. Jackson’s tenth point of error is as follows:

“The conclusive evidence and findings of the jury show no breach of contract by the appellee — only breach of the contract by the appellant.”

We do not believe this is a proper assignment of error but should we be wrong in our belief in that matter, such statement is not correct. There is sufficient evidence as to a breach of the contract by Jackson and was so found by the jury. By Jackson’s eleventh and last point of error it is the mere statement that the findings of the jury show Jackson was entitled to an additional sum of $4,790.69.

We are of the opinion, and so hold, that when Elliott told Jackson he had resold the cattle in question on July 15, 1963, that put Jackson on notice of any damages Elliott would have because of Jackson’s failure to deliver the cattle as contracted. Elliott had resold the calves for a profit of two cents per pound and no^ other damages other than what he had suffered by being deprived of the cattle he had bought could be shown. Jackson had sold the calves to Elliott to be delivered on July 15 and October 15 and was notified-of Elliott’s obligation to deliver the same calves to Bud Harrell and all that was left for Jackson to do at that time to avert any damages to Elliott was to make delivery as he had contracted to do. Bourland v. Choctaw, O. & G. Ry. Co., 99 Tex. 407, 90 S.W. 483; Brooks Supply Co. v. Hines, Tex.Civ.App. 223 S.W. 709 (writ dismissed); Knox v. Farmers’ State Bank of Merkel, Tex.Civ.App., 7 S.W.2d 918 (writ refused).

The obligation to be performed by Elliott under the contract was to receive the cattle he contracted to buy at Jackson’s ranch and to pay for them. It is undisputed that Elliott went to the ranch to receive the calves on the dates the calves were to be delivered and paid for the ones he received on July 15, 1963. He received 136 calves on October 15 and offered to pay for them but payment was refused because he did not take all the calves tendered to him at that time. Jackson’s obligation under the contract was to deliver the calves he sold on the dates specified. The effect of the jury’s answers to the special issues is that Jackson failed and refused to deliver the calves as he had contracted to do. Consequently, if Elliott was damaged by Jackson’s failure to deliver as contracted, he would be entitled to judgment for the amount he was damaged.

The trial court having failed to grant any damages to Elliott we think the judgment should be reversed as to that portion of the judgment. We are able to ascertain part of Elliott’s damages under this record; but since we are unable accurately to determine from the record the amount of his damages and his right to recover damages and the breach of the contract being severable, it is necessary to reverse only that part of the judgment as to the amount of Elliott’s damages. Rule 434, Texas Rules of Civil Procedure; Texas Employment Commission v. Brasuell, Tex.Civ.App., 235 S.W.2d 950 (writ dismissed); Lubbock Independent School Dist. v. Owens, Tex.Civ.App., 217 S.W.2d 186 (writ refused).

That portion of the judgment refusing Elliott any damages as an offset is reversed and remanded with instructions that the amount of Elliott’s damages be determined. In all other respects the judgment is affirmed.