author: BARROW, Chief Justice.

text:
    Erasmo LOPEZ, Appellant, v. Martin GARZA et al., Appellees.
    No. 14645.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 3, 1968.
    Rehearing Denied Jan. 31, 1968.
    Pope & Pope, Rio Grande City, for appellant.

      Frank R. Nye, Jr., Alex W. Gabert, Rio Grande City, for appellees.
   BARROW, Chief Justice.

Appellant, Erasmo Lopez, brought this suit against appellees, Martin Garza and his four adult children, to recover on an open account for materials used in the construction of an addition to a variety store owned by appellees in Rio Grande City, Texas. The issue in dispute is the amount of ready-mix concrete furnished to appel-lees by appellant. A take-nothing judgment was entered after a non-jury trial.

The trial court found that “Lopez failed to establish by a preponderance of the evidence the essential elements of Plaintiff’s ground of recovery involving the claim that on or about the 24th day of June, 1966, Plaintiff furnished 83 yards of ready-mix, 27 yards of sand and 6 yards of re-mix to Defendant for which he was not paid by Defendant.” Appellant urges that there is no evidence or insufficient evidence to support this finding, and that the court disregarded the greater weight and preponderance of the evidence. He also urges that the court erred in permitting the ap-pellee Garza, Jr., to testify as to the amount of concrete used in this construction, as his testimony was based on hearsay.

Four witnesses testified in this suit. In April, 1966, appellees commenced construction of an addition to their variety store. Appellant leveled their lot and agreed to furnish the ready-mix needed in this construction for $14.00 a cubic yard, as well as other building materials. It is undisputed that appellees have paid appellant a total of $2,200.00. It is also undisputed that $140.00 was owed for the fill sand and re-mix furnished to this job. It cannot be said, after an examination of this record under the “no evidence” test that appellant has conclusively shown that he is entitled to recover for 81 cubic yards of ready-mix as urged by him. On the other hand, the evidence conclusively shows that appellant has not been paid for all the ready-mix furnished to appellees.

Appellant testified that he had furnished 196 cubic yards of ready-mix. He did not claim that any delivery records were kept, and his testimony was based on mathematical calculations made by him from the dimensions of the two slabs, walls and concrete columns. Included in his calculation is a shrinkage figure of 20% which he testified was normally used in construction work. Appellant testified that he billed appellees for 196 yards of ready-mix, although the invoices furnished to appellees by appellant appear to total 231 yards.

Appellee Martin Garza, Jr., testified that he determined the amount of concrete necessary for this construction by measurements made of the slab and walls after they were poured. He furnished these dimensions to an “expert” who told him how to compute the cubic yards of ready-mix necessary to fill same. From these calculations he determined that 133 and 23/27 yards were used, and he added an additional five yards for tolerance and because he was unable to determine the amount used in construction of the columns. He admittedly knew nothing about shrinkage of concrete and did not allow any percentage for same. Appellees called as their witness Pablo Pena, who was an experienced builder, and he testified that from 10 to 20 per cent should be allowed for shrinkage, “at least 10%.” On cross-examination, he testified that he had measured the addition at the request of appellant and that in his opinion 166 cubic yards of ready-mix were necessary for this construction plus an additional 10% for shrinkage.

Mr. Jose Molina, although the contractor on at least part of the job, was not called by either party. Appellees did call Jesus Prochavez, a bricklayer who had worked on this job for Mr. Molina, to testify as to some of the dimensions of the building. He also said that during the construction one of the forms gave way and about two yards of concrete poured out. Appellant testified that at least seven yards were lost when this form broke.

This record established that when a minimum shrinkage of 10% is applied to the-minimum amount of ready-mix necessary for the job appellant was not paid for all the ready-mix delivered by him irrespective of the amount lost when the form gave way. There is evidence to support the trial court’s finding that appellant had not established that he was owed for material in the amounts alleged by him; however, the trial court improperly concluded that appellees therefore were entitled to a take-nothing judgment. Judgment should properly have been entered for at least such minimum amount to which appellant was entitled over the amount of $2,200.00 paid by appellees.

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

      . Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965).


source: Caselaw Access Project

author: PHILLIPS, Chief Justice.

license: Public Domain

text:
    Thomas D. McGILL et ux., Norene McGill, Appellants, v. Charles C. McGILL, A. B. McGill and Dave McGill, Appellees.
    Nos. 11560, 11561.
    Court of Civil Appeals of Texas. Austin.
    Jan. 17, 1968.
    Clyde Vinson, Justin A. Kever, San Angelo, for appellants.
    Wilsor., Logan, Lear & Massey, Tom Lear, San Angelo, for appellees. „
   PHILLIPS, Chief Justice.

This lawsuit involves a dispute between brothers over the division of the family ranch. Tom McGill and wife Norene Mc-Gill are the appellants here and the appel-lees, Charles, A. B. and Dave are the brothers of Tom McGill.

The lands involved are known as the Mc-Gill Ranch located in Sterling, Tom Green and Irion Counties, Texas. The parents of the parties hereto acquired eight sections of land many years ago and resided thereon. Since the sections were not contiguous, the use of the sections in Irion County were exchanged with Ela Sugg for the use of similar size sections which were contiguous in Tom Green and Sterling Counties. This resulted in an 8-section ranch in Sterling and Tom Green Counties which has been operated as a unit for many years.

On April 1, 1952, after the death of their father, all of the brothers and sisters of the family, together with their mother, agreed to lease the family ranch to Tom and a partner as Tom was planning to retire from an oil company and desired to go into the ranching business. By virtue of various arrangements, Tom McGill, stayed in possession of the McGill Ranch until April, 1960, at which time he, as lessor, and as lessee, entered into a written lease for a consideration of twenty-five thousand six hundred dollars for a period of five years, with the understanding that he would construct a residence, and all costs up to a sum of five thousand dollars would be deducted from the annual payments to the lessors in the lease. This was to be done at the rate of twenty cents per acre per year. In addition, he was to withhold the sum of five cents per acre for removing pear from the land to be applied to use in connection with the Government program for removing pear.

Appellee A. B. (Bruce) McGill acquired all of the interest of his brothers and sisters after the death of the surviving mother, except the interest of Dave, Charles and Tom McGill, which was Wai each. Bruce McGill owns Ysi.

At the expiration of the 1960 lease, the appellees requested Tom McGill to join with them in a sale or to vacate all the land except one section. Tom refused to do this and stayed in possession of the entire ranch without a lease during the year ending June 1, 1966. As early as February, 1966, the appellees advised the defendant that he must vacate the property or pay at the rate of two dollars per year per acre. They further advised him that he could segregate all of his livestock on Section 22.

In all of these matters the appellant failed to do anything and continued to use the property.

In November, 1966, Tom moved his stock on to six hundred ninety acres, being a part of Section No. 38 where the principal improvements are located, and the adjoining section belonging to Ela C. Sugg. On November 1, 1966, Tom McGill advised appellees that he was turning the property back to them except that he was keeping the six hundred ninety acres. Parts of his stock continued to run on the remainder of the ranch.

The trial court in its preliminary decree found that the contribution of the parties, whether in moneys or service or both, to any and all improvements on said land have been substantially in proportion to their respective interest and that no party is legally entitled to any preference of location with respect to improvements.

The trial court entered a judgment on June 1, 1967, appointing three commissioners to partition the lands into two parcels, 7⅜4 in one parcel to appellees, and Wsi in one parcel to appellant, Thomas D. McGill, adjudging “that the contributions of parties (whether in money or services or both) to any and all improvements on said lands have been substantially in proportion to their respective interests, and no party is legally entitled to any preference of location with respect to improvements,” and that “any improvements,” are to be considered in fixing the value of each tract of land; appointed commissioners to make partition, partitioning the land so as to give appellees 7%i of the entire value in one parcel, and appellants ⅝4 of the entire value in one parcel, insofar as the surface of the lands was concerned, and appellant *⅜4 of the actual oil, gas and mineral acres owned by all parties in the lands, and appellees 7%i of the actual oil, gas and mineral acres owned in all said lands.

The Commissioners, appointed in this judgment of June 1, 1967, filed their Report July 5, 1967, which divided the surface of the lands into two parcels. Part No. 1 of the surface estate to be all of Survey No. 38, and parcel No. 2 comprising the surface of all the rest of the lands, and mineral parcel No. 1 composed of all the minerals in the south 506 acres of Section 38 and the mineral parcel No. 2 composed of all the minerals in the remainder of the lands; the value of the surface of Parcel No. 2 to be $38,494.-80, the value of the mineral Parcel No. 1 to be $5,060, and the mineral value of Parcel No. 2 to be $33,563.80; and allotted surface Parcel No. 1 and mineral Parcel No. 1 to appellants, and surface Parcel No. 2 and mineral Parcel No. 2 to appellees, with the provision that appellants “pay to plaintiffs the sum of $7,609.15 — because $7,-609.15 worth of land segregated from Survey 38 would be practically valueless to plaintiffs, and it would unduly reduce the usability of the other part of said Survey 38 to take $7,609.15 worth of land away from it.”

The trial court entered a final decree of partition putting into effect the partition so made by the Commissioners on June 1, 1967.

It is from this final decree of partition that appellants have perfected their appeal to this Court.

We affirm.

Appellants are before this Court on two points of error, the first being that of the trial court in not specifically directing the Commissioners to allot appellants’ share of the entire acreage to Section 38, upon which appellants had their homestead.

We overrule this point. As we read the ultimate report of the Commissioners appointed by the court, which report was approved by the court in its final decree, appellants received the major portion of Section 38 where all the improvements that they desire are situated except for a portion of land that had been cleared of pear.

There is, apparently, no dispute as to the fractional interests allotted the parties by the court.

Appellants’ second point of error is that of the court in not determining the improvements made on Sections 38 and 22 by appellants and the enhancement of value thereof and in failing to instruct the Commissioners to give credit to appellants for such improvements so made by them with their labor and expenditures.

We overrule this point.

In their lease contract with appellants, appellees gave appellant Tom McGill five thousand dollars worth of credit with respect to the house which he received in the partition and also an acreage credit for pear cleared.

The portion allotted appellants is apparently the heart of the ranch which includes the house, outbuildings and a major portion of the cleared or improved land.

The testimony indicates that the outlying sections are not as productive for pasture nor have they been cleared for crops.

The only evidence of major improvements upon the property (with the exception of testimony from the County agent as to land cleared of pear) came from appellant Tom McGill himself and these alleged expenditures, wholly unsupported by proof such as cancelled checks or the equivalent, were sharply contested by appellees. Likewise, the value of the improvements made by appellants’ own labor such as shallow water tanks and terracing, was vigorously disputed.

Appellants did not request any findings of fact or conclusions of law. Consequently all valid presumptions will be indulged in favor of the judgment.

We are unable to find any reason to set aside the partition made by the Commissioners or to reverse the judgment of the trial court based thereon.

The judgment of the trial court is affirmed.

Affirmed.

      . There are two records before us inasmuch as there were appeals from the order of partition and the final judgment approving the Commissioner’s report. The questions presented in each record are the same and are disposed of in one opinion.


author: WILSON, Justice.

text:
    Opal Chesnutt CALAME et vir, Appellants, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, General Motors Acceptance Corporation and Gordon Rountree Motors, Ltd., Appellees.
    No. 4658.
    Court of Civil Appeals of Texas. Waco.
    Jan. 18, 1968.

      Flahive & Ogden, R. M. Ogden, Austin, for appellant.
    McLaughlin, Clark, Fisher, Gorin & McDonald, Bryan, Wilson, Olson & Stem, Waco, for appellee.
   OPINION

WILSON, Justice.

Appellants sued three defendants, all of whom filed motions for summary judgment. The motion of the first defendant was sustained and an interlocutory take-nothing judgment was rendered as to that defendant June 1, 1967. On June 9, 1967, a telegram apparently sent by appellants’ attorney directed to the trial judge was delivered to the judge’s office. It referred to the cause number, and read: “Please note our objection to granting of motion for summary judgment in favor of” the first defendant. “We will appeal this order if necessary at rendition of final judgment against” the other two defendants.

By summary judgment rendered August 16, 1967, it was ordered that appellants take nothing against the other two defendants.

A letter from appellants’ counsel dated August 4, 1967 addressed to the trial judge was received by the judge August 7, 1967. It gave the style and number of the cause, and stated: “We have your letter of July 31, 1967. This is to serve notice that the plaintiffs intend to appeal the motion for summary judgment granted in favor of the” two defendants. “We have previously given notice of our intention to appeal motion for summary judgment in favor of” the first defendant. The letter indicates a copy was sent to appellees’ counsel. There are other unauthenticated letters included in the transcript, which are not a part of the record, and which cannot be considered by us.

Appellees say that under these facts no notice of appeal was given as required by Rule 353, Texas Rules of Civil Procedure, and we have no jurisdiction.

The Rule authorizes two methods of giving notice of appeal: (1) in open court as therein provided, or (2) “filed with the clerk.” A notice of the latter type “shall be sufficient if it state the number and style of the case, the court in which pending, and that appellant desires to appeal from the judgment or from some designated portion thereof.”

The Rule “will be liberally construed in favor of the right of appeal.” Hunt v. Wichita County Water Improvement Dist. No. 2, 147 Tex. 47, 211 S.W.2d 743, 744.

The telegram alone obviously does not comply with the Rule. Neither letter nor telegram was filed with the clerk; but Rule 74, prescribing that papers required by the Rules shall be filed with the clerk, provides an alternative: “that the judge may permit the papers to be filed with him.” In our opinion, application of the rule is not confined to pleadings, as appellee contends.

The telegram and letter were prematurely filed; both antedated the final judgment. Rule 306c declares, however, that no “notice o': appeal shall be held ineffective because prematurely filed.”

When a liberal construction of the Rules is applied to the letter it is sufficient, in our opinion, to constitute an effective notice of appeal. Appellees’ contention is overruled.

Plaintiff, Mrs. Caíame, sued the appel-lees, Prudential, General Motors Acceptance Corporation and an automobile dealer. She asserted • rights as a third-party beneficiary under a contract entered into by her elderly brother-in-law, J. E. Carson, deceased.

The petition alleged facts as follows: Carson applied to and obtained creditor’s life insurance on his life under a group policy issued by Prudential in favor of G. M. A. C. to secure payment of part of the purchase price of an automobile bought from defendant dealer and financed by G. M. A. C. The parties had made similar contracts in prior years by which plaintiff became the registered owner of the automobiles, paying half of the purchase price and half of the credit insurance premiums. It was “the understanding with” the dealer that she had such interest in the automobile, and the dealer agreed that the present purchase would be “the same deal” as the previous car purchases, and that if Carson died before extinguishment of the debt and lien, G. M. A. C. would be paid by Prudential. Defendants had knowledge of the previous arrangements, and each received a consideration thereunder, it was alleged.

Carson died thereafter and the insurer refused to pay G. M. A. C., which repossessed the car. Judgment was sought against all defendants in the amount of the insurance, statutory penalty and attorneys’ fees. Defendants pleaded defenses not necessary to summarize. Prudential also pleaded Carson was not in good health, as he represented, when the policy was issued. .No relief was sought on behalf of Carson’s estate.

Appellant’s affidavit, attached to her answer to appellees’ motion for summary judgment, recited that she and Carson purchased the car in question; that she was the registered owner and it was repossessed from her; that Carson signed the conditional sales contract under which he became obligated to pay the purchase price balance; that she paid half of the premium and an installment on the debt; that the dealer’s salesman told “us” that the insurance on Carson’s life would pay off the obligation, and the dealer “knew I had a direct interest in the purchase”; that there were no direct dealings with Prudential or G. M. A. C.

The record, after every favorable inference is accorded to appellant, negatives existence of any material issue of fact as against the dealer, Gordon Rountree Motors, Ltd. The only averments relating to a purported cause of action against this defendant are that the car was sold “with knowledge” of the corporation that plaintiff “had a direct interest in the automobile”, and was making payments on it, and that “it was the understanding between Gordon Rountree Motors, Ltd., Mr. J. E. Carson and Opal Chesnutt Caíame that if Mr. Carson died before extinguishment of the first lien, the lien would be paid in full by” the insurance company to G. M. A. C. It was alleged plaintiff and Carson dealt only with the corporation’s salesman. It was alleged the dealer’s salesman represented “that a policy of insurance would be issued” by Prudential, “and that the transaction would be handled entirely as the transactions had been handled” in prior years. Nothing inconsistent with the facts shown to surround the present transaction is evidenced concerning previous dealings.

Plaintiff contends the summary judgments in favor of Prudential and G. M. A. C. are unwarranted because she is a third-party beneficiary of the insurance contract. Although a third person may sue to enforce a contract made for his benefit, “to entitle him to enforce such provision it must be shown that the contracting parties intended to make same for his benefit. The intention of the contracting parties in this respect is of controlling importance.” Banker v. Breaux, 133 Tex. 183, 128 S.W.2d 23, 24. It is presumed parties intended to contract only for themselves, and it will be enforced for the benefit of third parties only if it clearly appears the contracting parties so intended. Citizens Nat. Bank v. Texas & P. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003, cert. den.; Knox v. Ball, 144 Tex. 402, 191 S.W.2d 17, 21, 164 A.L.R. 1453.

The motions of defendants, plaintiff’s reply, as well as the judgment, recite that plaintiff’s deposition was before the trial court and was considered in rendering summary judgment. It is not in the record, and we are unable to decide from the incomplete record that the judgment is erroneous under the applicable rules governing actions of this type by third persons. It is presumed the deposition authorized the judgment. Alexander v. Bank of America National Trust and Savings Ass’n., Tex. Civ.App., 401 S.W.2d 688, writ ref.

Affirmed.


author: PEDEN, Justice.

text:
    Harley Arthur HILL, Jr., Appellant, v. Mary Kathleen HILL, Appellee.
    No. 15205.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Jan. 25, 1968.
    Rehearing Denied Feb. 8, 1968.

      O’Neal, Waitz & Henderson, Joseph L. Waitz, Houma, La., Skipwith & Muirhead, Ray Carlton Muirhead, Houston, for appellant.
    Jack Harrison, William W. McNeal, Alvin, for appellee.
   PEDEN, Justice.

This is a second appeal involving the limiting of visitations of a father with his two small children. In an opinion dated June 16, 1966, the judgment of the trial court was affirmed, as it related to a divorce and to property rights; it was reversed and remanded as it related to the visitation rights of the appellant and to the custody and support of the children. The first judgment provided that the father’s visits were to occur only when he had obtained written permission from the children’s mother.

In the trial court this case was again tried without a jury by the same judge who had previously done so. By agreement of counsel the testimony from the previous trial was introduced and made part of the record.

Appellant is no longer seeking custody of the children. After hearing additional testimony, the trial court denied visitation to appellant; no child support payments were ordered. Appellant, who was the defendant in the divorce and visitation proceedings, appeals from the denial of visitation rights.

The appeal lists nineteen points of error; the first asserts that it was error for the trial court to deny an oral application for a continuance based on the absence of a prospective witness.

Both sides had announced ready for trial when the hearing began earlier that day; then the appellee offered all his evidence and appellant offered the testimony of all his witnesses except that of a psychiatrist; appellant’s attorney testified in support of his application for continuance that he had expected the psychiatrist to appear and testify as to the results of his recent examination of the appellant, but that he had been told the doctor was sick. No affidavits were filed in support of the motion, and opposing counsel did not consent to the continuance. The witness’ unavailability by reason of illness was not properly established by the attorney’s hearsay testimony; the subpoena was issued on the day of the trial and the witness’ deposition had not been taken, so due diligence was not shown. The application for a continuance does not meet the requirements of Rule 251 or Rule 252, Texas Rules of Civil Procedure, and the denial of the application does not amount to an abuse of discretion. Fritsch v. J. M. English Truck Line, 151 Tex. 168, 246 S.W.2d 856 (1952).

Appellant’s second point asserts that the trial judge erred in his finding of fact that appellant is not a fit and proper person to visit with the children of the parties. Appellant’s basis for the point is not clear, but we assume from his argument on this point that he contends that the evidence is insufficient to support the court’s finding. The children are a girl who was almost seven when the second' hearing was held, and a boy (born after the parties’ separation) who was almost four at the time of such hearing.

As stated in our earlier opinion in this case, at 404 S.W.2d 641, it is the general rule in Texas that the right of a parent to visit with his children placed in the custody of the other parent by the divorce decree will not be completely denied except where there are extreme grounds to support such a denial. Liddell v. Liddell (Tex.Civ.App.1930), 29 S.W.2d 868, n. w. h.

Visitation is ordinarily to be encouraged, because it is important to the normal emotional development of children for them to know that they have the interest and love of both parents. The welfare of the children is of primary importance and concern to the court, and the trial court has the duty to exercise sound discretion in determining whether a parent is morally fit to have visitation periods with the children.

While appellant denies most of the testimony about his acts of alleged misconduct, which are apparently the basis of the trial court’s findings, the trial judge heard and observed the witnesses while they were testifying. It is our duty to view the conflicting evidence in the light most favorable to the findings of the trial court.

In our earlier opinion in this cause we upheld a finding by the trial court that appellant was not a fit person to see and visit the children without strict limitations and safeguards being placed upon said visitation privileges.

We now hold that the trial court’s finding based on the evidence adduced at both trials that appellant was not a fit person to visit with the children is not so against the great weight and preponderance of the evidence as to be clearly wrong.

Appellant’s points of error III through XIV are leveled at other findings of fact which show that appellant’s unfitness is extreme enough to support a denial of visitation; appellant argues that such findings are based on insufficient evidence or no evidence.

We hold that there is sufficient evidence to support each of them with the exception of Finding of Fact No. 11, which was attacked by appellant’s Point of Error No. XI. The Finding was: “It would be impractical and unfair to the welfare of both the minor children for Defendant, Harley Arthur Hill, Jr., to be allowed to visit only with the minor son, Walter Cranford Hill.” In view of our holding on appellant’s second point, however, this lack of sufficient evidence is not determinative of this appeal.

Appellant’s remaining five points are addressed to the conclusion of law filed by the trial court, complaining that the record fails to show that appellant is the type of person who should be denied visitation. We overrule these points. The court having found that appellant was not a proper person to visit with the children is authorized to deny such visitation. Liddell v. Liddell, supra.

The judgment of the Trial Court is affirmed.


author: CADENA, Justice.

text:
    Harry Lee CARTER, Appellant, v. Lady P. BRADY, Individually and as Independent Executrix of the Estate of Frank T. Brady, Deceased, Appellee.
    No. 14602.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 8, 1967.
    Rehearing Denied Jan. 24, 1968.
    See also Tex.Civ.App., 400 S.W.2d 620.

      Cofer, Cofer & Hearne, Austin, Tom Y. Banks, San Antonio, for appellant.
    Carl Wright Johnson, Matthews, Nowlin, Macfarlane & Barrett, W. F. Nowlin, San Antonio, for appellee.
   CADENA, Justice.

Appellant, Harry Lee Carter, seeks to compel appellee, Lady P. Brady, individually and as independent executrix of the estate of her brother, Frank T. Brady, who died September 5, 1954, to reimburse him, out of assets of the estate not the subject of specific testamentary disposition, for excessive payments made by him in satisfaction of a lien on portions of the estate. In this connection, Carter also seeks to compel Lady Brady to render an accounting, and his pleadings include a prayer for the closing of the independent administration. The district court, where the suit was originally filed, sustained Lady Brady’s plea in abatement and dismissed Carter’s action.

Testator’s holographic will was admitted to probate September 28, 1954, and since then the administration of the Brady estate has been the source of a series of legal disputes. The nature of the prior litigation must, of necessity, be discussed in the course of this opinion. Insofar as the provisions of the will are concerned, it is only necessary, for the purpose of deciding this case, to note that testator devised to his friend, Gladys Nichols, certain realty, referred to herein as the Brady Building, in San Antonio, and that Lady Brady, in addition to receiving specific devises and bequests, was also named as the recipient of the residuary estate. At the time of his death, testator was indebted to the San Antonio Loan & Trust Company in the sum of $756,602.00, which indebtedness was evidenced by a promissory note secured by a deed of trust on certain lands in Harris County and Bexar County, including the Brady Building.

On September 29, 1955, Gladys Nichols, the devisee of the Brady Building, filed suit No. F-96,477, in the District Court of Bexar County, seeking, among other things, a construction of the Brady will and the appointment of a receiver to take control of certain assets of the estate. In her answer, Lady Brady sought a construction of the will and asked for instructions relating to the administration of the estate. Gladys Nichols then dismissed her action but remained in the case as a defendant, filing an answer in which, in addition to setting forth her contentions concerning the proper interpretation of the will, she sought to compel Lady Brady to render an accounting. The trial court, after severing all questions relating to accounting, proceeded to hear the will construction aspects of Cause No. F-96,477, with the accounting features of the case remaining on the docket for separate trial as Cause No. F-96,477-A. Insofar as here relevant, the result of the will construction litigation was a judgment that the Brady Building, which had been devised to Gladys Nichols, was entitled to exoneration from the indebtedness against it out of property of the estate not the subject of specific testamentary disposition. Brady v. Nichols, 308 S.W.2d 100 (Tex.Civ.App. — San Antonio 1957, writ ref’d n. r. e.); 158 Tex. 382, 312 S.W.2d 381 (1958).

In May, 1958, Carter intervened in Cause No. F-96,477-A, the accounting features of the original suit, alleging that in 1957 Gladys Nichols had conveyed to him an undivided one-half interest in the Brady Building. In December, 1958, Carter and Gladys Nichols filed their cross-action against Lady Brady in that proceeding, alleging mismanagement of the estate and seeking an accounting.

In January, 1960, in litigation unconnected with the administration of the Brady estate, an agreed judgment was entered decreeing that the 1957 deed from Gladys Nichols to Carter was intended merely as security for a debt of $70,000.00 owed to Carter by Gladys Nichols. The judgment allowed Carter recovery against Gladys Nichols in the amount of $70,000.00, and fixed a second lien in his favor against her interest in the Brady Building. This judgment, however, postponed sale of the Brady Building under such lien until after March 1, 1961.

Meanwhile, Lady Brady, as independent executrix of the Brady estate, reduced the amount of the debt owed to San Antonio Loan & Trust Company to $500,000.00. This was accomplished by applying to such indebtedness the net proceeds of the sale of Harris County lands which were subject to the lien, and by paying to San Antonio Loan & Trust Company, out of funds belonging to the Brady estate, the sum of $147,141.70. The remaining indebtedness of $500,000.00 was then refinanced by the Alamo National Bank, with the original note and deed of trust lien being transferred to the bank, making the bank the holder of the first lien on the Brady Building.

In 1961 Lady Brady found a purchaser willing to pay $650,000.00 for the Brady Building if a judgment authorizing the sale, binding on Carter, the junior lien-holder, was obtained from a court of competent jurisdiction. Lady Brady filed suit in April, 1961, naming Carter as one of the defendants, alleging the necessity for the sale of the Brady Building. Carter objected to such sale and tendered, unconditionally, into court the sum of $660,891.70, representing the $513,750.00, principal and interest, allegedly due the first lienholder, Alamo National Bank, and $147,141.70, funds of the Brady estate, which had been used to reduce the initial indebtedness. In connection with such tender, Carter released all liens and claims which he might have against the Brady estate, other than the Brady Building, and against the beneficiaries under the will, other than Gladys Nichols, “except as the residuary estate * * * upon a proper final accounting may be liable to exonerate the indebtedness against the Brady Building.”

On May 11, 1962, the district court entered judgment to the effect that sale of the Brady Building was not necessary and, consequently, authorization of such sale was refused. This judgment further ordered payment of the sums of $513,750.00 and $147,141.70, tendered into court by Carter, to the Alamo National Bank and to Lady Brady, executrix, respectively, with the provision that the amount paid to Lady Brady was to be accounted for in the final accounting and closing of the administration. In addition, the judgment declared that Carter was subrogated to the Alamo National Bank’s first lien, insofar as the Brady Building and the residuary estate of Frank T. Brady were concerned. Because of the payment of $147,141.70 by Carter, the court decreed that he was subrogated to the liens held, successively, by the San Antonio Loan & Trust Company, Lady Brady, independent executrix, and the estate of Frank T. Brady against the Brady Building, and that, as to the “entire indebtedness” Carter “has become subrogated insofar as the residuary estate of Frank T. Brady, deceased, is concerned.” No appeal was taken from this judgment.

On May 8, 1962, Carter obtained execution and order of sale in connection with the foreclosure of his second lien, and at the sheriff’s sale held on June 5, 1962, he purchased the interest of Gladys Nichols in the Brady Building. He then requested Lady Brady to release the Brady Building from the administration and to surrender possession thereof to him. Lady Brady then petitioned the district court for permission to surrender possession of the Brady Building to Carter, and, on October 14, 1962, despite the objections of Gladys Nichols, an order was entered directing the release of the Brady Building from the independent administration and surrender of possession thereof to Carter, on condition that Carter hold Lady Brady harmless from all claims arising out of such surrender of the building to him and his operation thereof. This order expressly recited that nothing contained therein should be construed as affecting the rights of the parties under the judgment entered on May 11, 1962, which denied authorization of sale of the Brady Building and established rights accruing to Carter as the result of his payment of $660,891.70, as detailed above. Lady Brady delivered possession of the Brady Building to Carter on November 1, 1962.

On July 14, 1964, Carter, by application filed in the probate court, sought to compel the closing of the independent administration of the Brady estate. In his application Carter, after reciting payment by him of the sum of $660,891.70 and the provisions of the judgment of May 11, 1962, establishing his subrogation rights, asserted that there was no need for further administration of the estate and that there remained in the residuary estate the sum of $300,-000.00. He also demanded that Lady Brady be compelled to render an accounting, and that the assets remaining in the residuary estate be delivered to him.

The probate court sustained Lady Brady’s plea in abatement and dismissed the application. On appeal to the district court the same judgment was rendered. This Court affirmed the dismissal, holding that Carter, not being a “distributee,” had no standing to file, an application to close the independent administration under Section 152 of the Probate Code, V.A.T.S. Carter v. Brady, Tex.Civ.App., 400 S.W.2d 620 (1966, no writ).

Carter then returned to the district court where Cause No. F-96,477-A (the accounting features severed from the suit originally filed in September, 1955) was still pending. On July 26, 1966, he filed his third amended answer and cross-action in that proceeding. In that pleading Carter, after outlining substantially the history of the administration and its attendant litigation as set forth above, asserted his right to reimbursement from the residuary estate, by way of subrogation and exoneration, for excessive payments made by him as junior lienholder to protect the Brady Building from sale under the first lien against it and other portions of the Brady estate. After alleging mismanagement of the estate by Lady Brady, Carter demanded an accounting for the purpose of determining whether there remained assets in the residuary estate, asserting that a true accounting would reveal the existence of such assets to which he alleged he was entitled. Finally, contending that there was no need for further administration, he prayed that the independent administration be closed.

Once again, Lady Brady interposed a plea in abatement which was sustained and Carter’s cross-action was dismissed. It is Carter’s appeal from this action of the trial court which is now before us.

The order of the court sustaining the plea in abatement and dismissing Carter’s action is couched in general terms, without indicating the basis for the ruling.

That portion of Lady Brady’s pleading which is designated as her amended plea in abatement consists of more than seven pages. It consists, in part, of a recital of the history of the administration of the estate; a summary of the various suits filed in connection with such administration and the results of each suit; a history of the manner in which Carter acquired his second lien against the Brady Building and the events leading up to his payment of the sum of $660,891.70 and the acquisition by him of the subrogation rights under the judgment of May 11, 1962; and a narrative describing his subsequent foreclosure of his second lien, acquisition of. title to the Brady Building, assumption of possession thereof, and continued possession and operation of the Brady Building since November 1, 1962. The plea then alleges that Carter, by electing to acquire title to the Brady Building and inducing Lady Brady to surrender possession of the building to him, as owner, conclusively elected to abandon whatever rights he might have acquired by virtue of his payment of the $660,891.70 and under the judgment of May 11, 1962. Lady Brady then contends, still seeking abatement of Carter’s action, that when Carter acquired title to the Brady Building his rights as junior lienholder, as well as his rights resulting from his subrogation to the first lien, were destroyed by operation of the doctrine of merger. Finally, Lady Brady alleged that Carter was not a party in interest to the proceedings, and contended that the judgment dismissing Carter’s application to close the administration, filed in the probate court, and the affirmance of such dismissal by this Court in Carter v. Brady, supra, was a conclusive adjudication of Carter’s lack of standing to maintain the present action.

It is apparent that many of the allegations contained in the plea in abatement do not constitute grounds for abating Carter’s suit. The allegations asserting that Carter, by demanding and receiving, as owner, possession of the Brady Building, conclusively elected to pursue his rights as owner, thus abandoning his rights as junior lienholder and his rights acquired by way of subrogation, as well as any rights he might have had to exoneration from the residuary estate, present matters which are conclusive answers or defenses to the merits of Carter’s cause of action. The same is true of the contention that the rights now being asserted by Carter were destroyed by operation of the doctrine of merger, when he acquired the fee simple title to the Brady Building. Whenever the subject matter of a defensive plea is that the claimant cannot maintain a suit at any time with respect to the cause of action which he is asserting, such matter should be pleaded in bar, while facts which merely defeat the present proceeding and do not establish that claimant is forever precluded should be pleaded in abatement. Pucek v. Koppa, 32 S.W.2d 248 (Tex.Civ.App.— Waco 1930, no writ); 2 McDonald, Texas Civil Practice, § 7.04, pp. 615-616 (1950). It is not appropriate to attempt to determine the merits of claimant’s asserted cause of action upon the hearing on a dilatory plea such as a plea in abatement.

Since these portions of the plea in abatement are insufficient as such, they can furnish no support for the action of the trial court in sustaining the plea. In this connection, the record reflects that, at the time of the hearing on the plea, all parties, including the court, were proceeding on the assumption that the hearing was limited to the determination of matters relating to abatement of Carter’s action.

Essentially, Carter’s claim was that, because of the moneys paid by him, as junior lienholder, to protect the Brady Building from sale for the purpose of satisfying the lien indebtedness against it, and because he had acquired the interest of Gladys Nichols in the Brady Building, he had a right to reimbursement from assets of the residuary estate. Basically, then, he was asserting a claim against the residuary estate and against Lady Brady, individually as residuary legatee. Since, during various stages of the protracted litigation, Lady Brady had filed exhibits showing that there were no assets in the residuary estate, Carter, after alleging mismanagement, sought the aid of the court in determining whether there were, in fact, assets which were subject to his claim. Hence, he, understandingly, sought to compel an accounting.

The probate court has no jurisdiction to determine the validity of claims against an estate being administered by an independent executor. The district court or county court has jurisdiction of suits involving claims against such an estate. Rowland v. Moore, 141 Tex. 469, 174 S.W.2d 248 (1943). The amount of the claim asserted by Carter was within the jurisdiction of the district court. It is also settled that the district court has original jurisdiction to compel an independent executor to render an accounting. O’Connor v. O’Connor, 320 S.W.2d 384 (Tex.Civ.App.— Dallas, 1959, writ dism’d). It thus appears that the district court had power to determine the validity of Carter’s claim and to compel an accounting.

In her brief, as in her plea in abatement, Lady Brady contends that, in fact, Carter has no claim against the residuary estate or against her as residuary legatee. As pointed out above, these are questions relating to the merits of the case and are not properly raised by plea in abatement.

If Carter does, in fact, have a claim against the residuary estate or against Lady Brady, certainly he has standing to assert such claim in a court. Perhaps, as Lady Brady insists, he has no claim, but no exception was leveled at the sufficiency of his pleadings, and it is impossible to treat the plea in abatement as a special exception. The trial court certainly did not treat it as a special exception, nor did the parties. This is made abundantly clear by the fact that Lady Brady thought it necessary to introduce evidence in support of the plea. The order sustaining shows on its face that it is based on the evidence heard by the trial court.

We reject the contention that the dismissal, affirmed by this Court in Carter v. Brady, supra, of Carter’s abortive attempt to compel a closing of the administration and to compel an accounting and collect his claim by application filed in the probate court is a conclusive adjudication that Carter has no standing to assert his claim in the district court. As far as this Court’s opinion in that case is concerned, it does no more than hold that, since Carter is not a person named in the will, nor a person who would be entitled to any portion of the estate under the statutes of descent and distribution, he is not a “dis-tributee” within the meaning of § 152 of the Probate Code which authorizes dis-tributees to compel a closing of an independent administration. This is made clear by the following language from that opinion: “No one other than a distributee can force the closing of an independent administration. Harry Lee Carter is not a dis-tributee, and therefore he cannot compel the closing of the Frank T. Brady Estate,” 400 S.W.2d at p. 622.

It is true that, in his application to close the administration, Carter alleged that he had a claim against the residuary estate, alleged mismanagement, and sought an accounting and recovery of the money he alleged was due him. But, as pointed out above, the probate court, as such, has no power to determine the validity of claims against an estate in the process of independent administration. Nor is the probate court vested with general power to compel an independent executor to render an accounting. Gonzalez v. Gonzalez, 309 S.W.2d 111 (Tex.Civ.App. — Fort Worth 1958, no writ). Under these circumstances, it cannot be said that the action of the probate court in sustaining a plea in abatement and dismissing Carter’s application could operate as a conclusive adjudication concerning questions which that court had no power to decide. These same considerations operate to limit the effect of the orders of the district court, exercising appellate jurisdiction, and of this Court, to simple determinations of the fact that Carter had no standing to compel a closing of the administration.

Without passing on the question of whether a district court has jurisdiction to entertain an application to close an independent administration, we hold that, as explained in our opinion in Carter v. Brady, supra, Carter is not a party authorized under § 152 of the Probate Code to institute such proceedings. Therefore, insofar as Carter’s pleadings in the district court sought to compel a closing of the administration, the sustaining of the plea in abatement was proper.

That portion of the case by which Carter seeks to compel the closing of the administration of the estate of Frank T. Brady, deceased, is severed from the remainder of the case, and as to it the order of dismissal is affirmed. Insofar as Carter’s action seeking to establish a claim against the residuary estate and Lady Brady, as independent executrix and individually, and seeking an accounting is concerned, the judgment of the trial court dismissing the action is reversed and the cause is remanded for further proceedings.


author: BARRON, Justice.

text:
    Charles Davis LOWE, Appellant, v. The TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 73.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Feb. 7, 1968.
    Rehearing Denied Feb. 21, 1968.

      R. E. McDaniel, Winnie, for appellant.
    Joe Resweber, County Atty., Gus Drake, Asst. County Atty., Houston, for appellee.
   BARRON, Justice.

This is an appeal from a judgment of the County Civil Court at Law No. 1 of Harris County, Texas, suspending the Texas operator’s license and all motor vehicle registration receipts and license plates of Charles Davis Lowe until deposit is made by Lowe under the provisions of Article 6701h, Vernon’s Ann.Tex.Civ.St., Texas Safety Responsibility Law. Appeal from the orders of the Texas Department of Public Safety was timely made by Lowe to the County Court.

Requests for admissions were made by the Department under Rule 169, Texas Rules of Civil Procedure on February 27, 1967, by which it was requested that Lowe admit the following: that Lowe was the owner of the vehicle involved in an accident on February 20, 1966, and that he was the operator of same; that the accident occurred on a public thoroughfare; that Leslie Melvin Loftis and Cynthia Ann Loftis sustained property damage and personal injuries as a result of the accident with Lowe in the sum of not less than $1,000.00; that at the time Lowe did not have liability insurance and that he had not furnished the Department evidence of compliance with the Safety Responsibility Act or that he had been excepted therefrom; that notice was sent by the Department requiring a deposit of $1,100.00, that no deposit was made and that the notices had been received by Lowe. Other subsidiary facts were also requested supporting the above essential facts. Appellant answered by stating in an unsworn document that this suit seeks to exact a penalty and that appellant refused to make the admissions requested because same would violate the appellant’s Fifth Amendment rights under the Federal Constitution and would also violate his Texas constitutional rights. The claim was made that this suit is criminal in nature and that appellant’s constitutional guarantee against self-incrimination is applicable. It was further stated in the answer that conclusions of law were sought by appellee, and that appellant did not know the amount of damages sustained by the injured persons because he was not an expert. Appellant’s answer to request for admissions was filed March 1, 1967.

On July 10, 1967, Lowe filed request for admissions by the Department requesting that it be admitted that not as much as $100.00 in damages was suffered by any person in the accident, that no person received personal injuries and that the total losses to all parties did not amount to as much as $100.00. The admissions of appellant were requested after motion for summary judgment had been filed by the Department on July 7, 1967, praying that the Department’s requests for admissions, not having been satisfactorily answered by Lowe, be deemed by the trial court to be admitted and summary judgment entered by the court by reason of such admissions.

On motion of the Department of Public Safety, the trial court, on August 11, 1967, struck the request for admissions filed by Lowe. The order was based upon Article 340, V.A.T.S., which prohibits admissions by the County or District Attorney in any suit in which the State is a party if such admissions prejudice the rights of the State.

On September 1, 1967, the trial court entered summary judgment against Lowe suspending the license and plates above described until the required deposits were made, and in effect, upheld the administrative action of the Department of Public Safety. Attached to the motion for summary judgment were the unanswered requests for admissions, deemed admitted by the trial court, and an affidavit of T. G. Ferguson, Manager of Safety Responsibility, Texas Department of Public Safety, reciting the substance of the reports and demands filed in his office and which were sent to Lowe. Appellant, Lowe, has appealed to this Court from the judgment of the trial court.

Rule 169, T.R.C.P., is clear as to the effect of failing to file a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. In this case the requests were properly served upon Lowe. He chose to rely upon his alleged constitutional right not to incriminate himself. It is a settled principle that a license or permit to drive an automobile on the public highways and streets is a privilege and not property or a property right, and is subject to reasonable regulations under the police power in the interest of public safety and welfare. A licensee cannot accept the privileges granted him by the State, and when suspension of the privilege is sought, refuse to give information pertaining thereto under a claim of self-incrimination. Gillaspie v. Department of Public Safety, 152 Tex. 459, 259 S.W.2d 177; Kent v. United States, 157 F.2d 1 (5th Cir., 1946), cert. denied, 329 U.S. 785, 67 S.Ct. 297, 91 L.Ed. 673. See also Breithaupt v. Abram, 352 U.S. 432, footnote 2, 77 S.Ct. 408, 1 L.Ed.2d 448. Since the decision in the Gillaspie case, the Legislature has provided that the suspension or revocation of a license shall be considered as a penalty and subject to executive clemency as any other fine or punishment. Art. 6687b, Art. I, Sec. 1(r), V.A.T.S. But it was the intention of the Legislature only to subject such suspension to executive clemency, thus permitting a pardon or remission of the fine or punishment. Therefore, in suspending appellant’s license, the Department of Public Safety was not attempting to recover a penalty, forfeiture or escheat within the purview of Article 5, Sec. 8, of the Texas Constitution, Vernon’s Ann.St. Neither the Federal Fifth and Fourteenth Amendments nor similar rights under the Texas Constitution are applicable here. See Allen v. State, 410 S.W.2d 52 (Tex.Civ.App.), no writ, and cases cited.

It was further contended in appellant’s so called answer that all requests called for conclusions of law. We overrule such contention. The request for admissions clearly called for admissions of fact. Appellant further asserted that inasmuch as he was not an expert, he did not know how much damage was suffered by the parties to the accident. This reason, even if it had been sworn to, is clearly evasive and not in compliance with Rule 169. See Sanchez v. Caroland, 274 S.W.2d 114 (Tex.Civ.App.), no writ hist.; McPeak v. Texas Dept. of Public Safety, 346 S.W.2d 138 (Tex.Civ.App.), no writ hist.; Drake v. Texas Dept. of Public Safety, 393 S.W.2d 320 (Tex.Civ.App.), writ ref., n. r. e.

We hold that the trial court did not err in deeming the requests for admissions admitted, nor did it abuse its discretion by such action. Masten v. Masten, 165 S.W.2d 225 (Tex.Civ.App.), writ ref.; Frierson v. Modern Mut. Health & Accident Ins. Co., 172 S.W.2d 389 (Tex.Civ.App.), writ ref., w. o. m.; Ware v. Texboro Cabinet Corp., 350 S.W.2d 47 (Tex.Civ.App.), writ dismd.; and see 45 Tex. Jur.2d 543, et seq. It was within the discretion of the trial court to deem appellee’s requests for admissions as admitted and to be true. Because appellant failed to make any effort to comply with Rule 169, and because the reasons assigned were insufficient, the trial court’s action in rendering summary judgment was proper. Lozano v. Kazen, 313 S.W.2d 894 (Tex.Civ.App.), no writ; Wood v. Department of Public Safety, 311 S.W.2d 274 (Tex.Civ.App.), no writ; Palm v. La Mantia Bros. Arrigo Co., 287 S.W.2d 208 (Tex.Civ.App.), writ ref., n. r. e. A claim that the admissions called for hearsay testimony is improper and a clear evasion. Montgomery v. Gibbens, 245 S.W.2d 311 (Tex.Civ.App.), no writ.

The trial court did not err in striking appellant’s request for admissions. The matters requested for admission of the Department were the exact converse of matters already requested by appellee approximately four months prior to appellant’s request, and no answer was made. The trial court was empowered to regard appellant’s request as an attempt to evade the Department’s requested admissions. While we do not agree with the contention of appellee that appellant’s request called for a violation of Article 340, V.A.T.S., by seeking an admission from the County Attorney against the State, we deem the above reasons sufficient to warrant the trial court’s action in striking appellant’s request for admissions under the circumstances.

Most of the contents of the affidavit of T. G. Ferguson filed in support of the motion for summary judgment were based upon hearsay statements of Mr. Ferguson regarding the reports and documents filed with the Department of Public Safety. The affidavit cannot be considered in support of the trial court’s judgment so far as it relates to Mr. Ferguson’s hearsay statements concerning the information obtained by the Department. Copies of admissible records themselves, properly authenticated, should have been submitted.

Appellant complains that the Department’s pleadings are insufficient to sustain the judgment below, and that the burden of proof is upon the Department to prove each element of its case showing its right and authority to suspend the license, registration receipts and license plates of Lowe. However, the Department assumed the burden of proof, and appellant, by his failure to answer requests for admissions, provided the Department with sufficient evidence to sustain the summary judgment. The requests for admissions stood admitted, and there was obviously no fact issue for the court to determine. While appellee should have expressly filed a cross-action and fully alleged its case against appellant, its answer did contain the necessary allegations in general terms to the effect that Lowe was involved in a motor vehicle accident of such a nature as to place him within the provisions of the Safety Responsibility Act resulting in the issuance of the orders complained of, and that Lowe had wholly failed to comply with the provisions of the Act applicable to him within the time and in the manner therein provided. There was no exception to the pleadings, and any specific objection thereto was waived. Rule 90; Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562.

Finding no reversible error, the judgment of the trial court is affirmed.


author: MASSEY, Chief Justice.

text:
    Ted F. DUNHAM, Appellant, v. Morris L. STEPHENS, Appellee.
    No. 16884.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 19, 1968.
    Rehearing Denied Feb. 16, 1968.
    John P. Ritchie, George M. Ritchie, Mineral Wells, for appellant.
    Payne Roye and Gerald Weatherly, and Gerald Weatherly, Graham, for appellee.
   OPINION

MASSEY, Chief Justice.

Morris L. Stephens, plaintiff, sued Ted F. Dunham, defendant, for damages for breach of contract to drill a well seeking oil or gas. Trial was to the court without a jury. Judgment was rendered for plaintiff for damages in the amount of $24,580.00. The defendant appealed, i

Reversed and rendered.

The cause of action stated in plaintiff’s petition was as follows: •

“II. On or about the twenty-second day of June, 1966, plaintiff and defendant entered into a certain written contract, whereby defendant agreed to take a Farm Out on land situated in Jack County, Texas, and agreed under said contract to commence the actual drilling of a well on said tract of land, said well to be drilled to the depth sufficient to penetrate the Ellenburger formation which is approximately 5,365 feet, and said drilling was to be commenced on or before midnight July 18, 1966. Plaintiff agreed and thereby became bound to assign an undivided one-half interest in and to said leasehold estate, containing 242.01 acres bearing proportionate part of a %sth of %ths overriding royalty to be reserved in said agreement. * * * The defendant herein agreed in said agreement to be bound by the conditions, covenants, and stipulations which said agreement provides concerning the leasehold estate, which is the subject matter of this action. * * *

“VI. As the direct, proximate, and (on and immediately before June 22, 1966, as well as July 18, 1966) reasonably foreseeable result of defendant’s said failure to perform said contract, plaintiff has been damaged in the total sum of $24,588, * * * because: If said contract had been performed, plaintiff would have (as was reasonably foreseeable by, and known to and in the contemplation of, both parties when said contract was made), as the direct, proximate, and then and there reasonably foreseeable result thereof, been enriched in the total sum of $24,580, because thereby the reasonable market value of plaintiff’s one-half working interest in his leasehold of about 242 acres, described in the paragraph numbered 2 in said contract, would practically certainly have been increased from a value of $2420 to the value of $20,000, and the reasonable market value of plaintiff’s subject ¾6 of ⅞ overriding royalty interest would practically certainly have been increased from a value of $1000 to the value of $8000 — making a total enrichment of $24,580, which plaintiff, as aforesaid, irretrievably lost as the aforesaid direct result of defendant’s nonperformance of said contract, to plaintiff’s aforesaid damage of $24,580 with legal interest thereon from July 18, 1966. Moreover, plaintiff at all times has been and is wholly unable in any manner to reduce or prevent this damage which resulted from defendant’s nonperformance of his said contract. And, for any and all work, expense, and trouble which his performance of his said contract might have required, defendant would have been compensated as provided in the paragraph numbered 3 in his said contract.”

By reference to the contract, which was made a part of plaintiff’s petition and also introduced in evidence on trial, it is noticed that the defendant was to receive the interest stated in plaintiff’s petition after the well was completed and then only subject to condition, the condition being that the same be completed as a producing well with all the necessary equipment required to produce said well.

Nevertheless we overrule the third of the defendant’s points of error wherein he contends that the contract was no more than an option contract and not an absolute binding operation to drill a well. Application of the tests appropriate to the determination of the rights, duties and obligations for which the contract made provisión satisfies us that defendant was thereby obligated to make performance by actually drilling, the commencement to be on or before midnight on July 18, 1966.

Though plaintiff’s case was proved according to and under the pleadings the measure of damages therein stated and upon which the judgment was rendered was erroneous. The allegations and proofs were incomplete in that there was no showing that plaintiff would have (in the event defendant had begun drilling operations as provided by the contract) sold his unencumbered interest — which would or could have been retained subject to complete control by him in the event the drilling operations resulted in a producing well — at such appropriate time as would have enabled him to realize the “enrichment” which he alleged in his petition. It is neither affirmatively shown that plaintiff would have made such character of sale during the time drilling operations proceeded as would have enabled him to obtain the alleged enrichment nor that it was within the contemplation of the parties at the time they entered into the contract that plaintiff’s aforesaid interest or any part thereof would be sold.

It was shown, however, by plaintiff’s own testimony, that at the material time he had not decided whether he would sell or attempt ■ to sell. In said respect he testified, “Well, I wasn’t planning on keeping it either, I was just going to wait until they got started drilling.” We do not believe that it could be said to have been reasonably foreseeable at any material time that as the result of the defendant’s failure to perform under the contract the plaintiff would sustain damages by reason of a resulting failure to make a profit by consummating a sale. Furthermore there was no evidence from which any inference might be made that any such sale could have been consummated. For want of evidence in said respects we would be obliged to hold against the plaintiff even if there was no question of propriety or insufficiency in his pleadings.

A recent case bearing upon the law applicable in a case such as this is Martin v. Darcy, 357 S.W.2d 457, 4 A.L.R.3d 278 (San Antonio Civ.App.1962, writ ref. n. r. e.). The reported case is followed in 4 A.L.R.3d 284 by the Annotation: “Right and Measure of Recovery For Breach of Obligation to Drill Exploratory Oil or Gas Wells”. In addition to those authorities cited in Martin v. Darcy, supra, the defendant has cited as applicable the cases of Fain v. Texas-Hanover Oil Company, 354 S.W.2d 949 (Austin Civ.App.1962, writ ref. n. r. e.); Logan v. Elliott, 61 S.W.2d 157 (Fort Worth Civ.App.1933, writ dism.); Riddle v. Lanier, 136 Tex. 130, 145 S.W.2d 1094 (1941); and Westgate-Greenland Oil Co. v. Mack, 164 S.W.2d 31 (San Antonio Civ.App.1942, writ ref. w. o. m.).

We do not consider as applicable authority the cases cited by the plaintiff predicated upon principles of law applicable to damages resulting by reason of undelivered or improperly messaged telegrams. Other authorities cited by plaintiff we consider to support rather than to contradict those of the defendant. Particularly do we believe that to be true as applied to Restatement of the Law, Contracts, Secs. 329 to 332, inclusive, especially Sec. 331, “Degree of Certainty Required in Establishing the Amount of Profits and Losses; Alternative Methods”.

Judgment of the trial court is reversed and judgment here rendered in behalf of the defendant and that the plaintiff take nothing by his suit.


author: COLEMAN, Justice.

text:
    Ruth SALVATO, Individually, etc., Appellant, v. The VOLUNTEER STATE LIFE INSURANCE COMPANY et al., Appellees.
    No. 15130.
    Court of Civil Appeals of Texas. Houston.
    Jan. 25, 1968.

      Fuhrhop & Green, John R. Green, Dickinson, for appellant.
    Dibrell, Dibrell & Greer, G. William Rider, Galveston, for appellee, Volunteer State Life Ins. Co.
   COLEMAN, Justice.

This is a suit for declaratory judgment to determine whether a wife, appointed community survivor of the estate of her incapacitated husband under Article 157 of the Probate Code of the State of Texas, V.A.T.S., has the power to require an insurance company to change the beneficiary of an insurance policy on the life of her husband so as to make herself beneficiary of the policy rather than the estate of the husband. The trial court entered its judgment to the effect that the community survivor has no power to change the beneficiary, and no power to make herself beneficiary.

The material facts in the case were submitted to the trial court as stipulations! In May, 1961, Joseph Ben Salvato, Jr., purchased from the Insurance Company, ap-pellee, a policy of life insurance with community funds of his marriage to Ruth Sal-vato. All premiums have been paid with community funds. Mr. Salvato is now, and has been for several years, incompetent. He is unconscious and will remain in this condition for the remainder of his life. The insurance policy in the sum of $110,-000.00 is incontestable under the laws of the State of Texas. The beneficiary of the policy is designated therein as the “executors, administrators, or assigns of the insured.” Aside from certain provisions immaterial to the issues in this case, the policy provides that the beneficiary will be changed by the company on receipt of a written notice signed by the insured. On the 20th day of March, 1962, the Juvenile and County Court at Law No. 2 of Galveston County, Texas, a court having probate jurisdiction, in Cause No. 27,266, styled “In re: Temporary Guardianship for Joe Salvato, Jr., Incompetent,” entered an order reading, in part, as follows:

“Ordered that the Applicant, Ruth Sal-vato, is empowered and given full power to manage, control and dispose of the entire community estate of Ruth Salvato and Joe Salvato, Jr., including the part which the incompetent, Joe Salvato, Jr., would legally have power to manage in the absence of such incompetency, and no administration, community or otherwise is necessary.”

By instrument dated February 10, 1965, apparently on a form furnished by the Company, the Insurance Company was “authorized and requested” to “amend” the contract of insurance in question by changing the beneficiary to “Mrs. Ruth Salvato, wife of insured, and if Mrs. Ruth Salvato does not survive the insured then the beneficiary shall be the executors, administrators or legal representatives of the estate of Mrs. Ruth Salvato.” The children of Joe Salvato, Jr., by a prior marriage opposed the application for a change of the beneficiary of the policy. The Insurance Company did not change the beneficiary in accordance with the request of Mrs. Sal-vato, but filed this action for declaratory judgment instead.

The community estate includes certain real property and a business, the J. B. Sal Company. There is testimony that all of the profits from the business, about $25,000.00 a year, are used to pay the hospital bill for the care of Mr. Salvato. The revenue from the real property is sufficient to pay the taxes and maintenance on the buildings. The value of the community estate, aside from the business, is probably in excess of $250,000.00. Joseph Ben Salvato, Jr., owns certain separate property. The premium on the policy is $500.00 per month. The hospital bills have been paid with community funds.

Section 157, V.A.T.S., Vol. 17A (Probate Code), as amended Acts 1957, 55th Leg., p. 53, ch. 31, § 5, provides:

“Whenever a husband or wife is judicially declared to be incompetent, the other spouse, in the capacity of surviving partner of the marital partnership, thereupon acquires full power to manage, control, and dispose of the entire community estate, including the part which the incompetent spouse would legally have power to manage in the absence of such incompetency, and no administration, community or otherwise, shall be necessary. Guardianship of the estate of the incompetent spouse shall not be necessary when the other spouse is competent unless the incompetent spouse owns separate property, and then as to such separate property only. The qualification of a guardian of the estate of an incompetent spouse does not deprive the competent spouse of the right to manage, control, and dispose of the entire community estate as provided in this Code.”

In the case of Brown v. Lee, 371 S.W.2d 694 (1963), the Supreme Court of Texas said:

“A 1957 amendment to article 23(1), Vernon’s Ann.Civ.Stats., enlarged the statutory definition of ‘property’ so that it now includes ‘insurance policies and the effects thereof.’ The legislature has thus aligned Texas with other community-property states in adhering to the theory that the right to receive insurance proceeds payable at a future but uncertain date is ‘property’. Such property is said to be in the nature of a chose in action which matures at the death of the insured. * * *
“When purchased with community funds, the ownership of the unmatured chose logically belongs to the community, unless it has been irrevocably given away under the terms of the policy, i. e., where the purchaser has, without fraud, foreclosed any right to change the named beneficiary as in Evans v. Opperman, 76 Tex. 293, 13 S.W. 312 (1890). The proceeds at maturity are likewise community in character, except where the named beneficiary is in fact surviving, in which case a gift of the policy rights to such beneficiary is presumed to have been intended and completed by the death of the insured.”

The policies considered in Brown v. Lee, supra, contained a designation of the estate of the husband as alternate beneficiary. While this fact was not discussed in the opinion, it would appear that the court necessarily held that the husband, as manager of the community, was without power to divert community assets to his separate estate by this device. See contra, Warthan v. Haynes, 288 S.W.2d 481 (Tex.Sup.1956).

The right to receive the proceeds of the policy in question is property in the nature of a chose in action maturing at the death of Mr. Salvato. The ownership of the unmatured chose constitutes a portion of the community estate of Mr. and Mrs. Salvato.

While Sec. 157 of the Probate Code clearly provides that the wife of an incompetent should have the same power to deal with the community property as her husband previously possessed, there is authority for the proposition that the right to change the beneficiary reserved in an insurance policy is a right personal to the insured. Howard v. Imes, 256 Ala. 298, 90 So.2d 818 (1956); Anno., 84 A.L.R. 366; 21 A.L.R.2d 1191.

It appears to be the generally accepted rule, however, that the guardian of an incompetent may exercise the right to change the beneficiary designated in a policy on the life of the incompetent if by the change the ward is benefited, and if the guardian is duly authorized to make such a change of beneficiary by a court of competent jurisdiction. United States v. Tighe, 229 F.Supp. 680 (U.S.D.C., Miss., 1964); Parry v. Parry, 316 Mass. 692, 56 N.E.2d 875 (1944); In re Degnan, 122 N.J.Eq. 470, 194 A. 789 (1937); Zuber v. Zuber, 93 Ohio App. 195, 112 N.E.2d 688 (1952).

The authorities cited, and others found therein, make it clear that the rights considered “personal” are subject to legislative control. In this instance once Mr. Salvato was adjudicated incompetent, Mrs. Salvato became manager of the community property, empowered, without court approval, to exercise all rights, with reference to the community assets, which Mr. Salva-to had previously been authorized to exercise. The right to change the beneficiary reserved to Mr. Salvato in the insurance policy under consideration is such a right. While Mrs. Salvato would not be acting in a purely representative capacity as in the case of a guardian, since she is a joint owner, it seems clear that Section 157 of the Probate Code authorizes the wife, when acting as surviving partner of the marital partnership, to act for the husband in exercising rights reserved to him in contracts made by him for the community estate. We hold, therefore, that a wife, acting in the capacity of surviving partner, can exercise the right reserved in a policy of life insurance to change the beneficiary previously designated by the husband.

Neither the insurance company nor those now named as beneficiaries in the policy have legal standing to question the validity of the action of Mrs. Salvato in naming herself as beneficiary once it is established that she has the right to request a change of beneficiary. The right of the insurance company is determined by the provisions of the policy and the action requested is not prohibited thereby. It is the duty of the Company to comply with the request once it is presented in compliance with the terms of the policy. The beneficiaries presently named in the policy have no vested interest in it which they may protect. Volunteer State Life Ins. Co. v. Hardin, 145 Tex. 245, 197 S.W.2d 105 (1946).

We do not determine the question of whether the designation of Mrs. Salvato as beneficiary will carry the same legal effect as would follow had she been designated beneficiary by Mr. Salvato. A question as to the ownership of the proceeds of this policy may well arise on the death of Mr. Salvato, the answer to which may be difficult to predict in light of the change made in the definition of “property” by Section 1 of Art. 23, V.A.C.S. See McCurdy v. McCurdy, 372 S.W.2d 381 (Tex.Civ.App., Waco, 1963); Comment, 18 Baylor Law Review 627 (1966).

Such questions are not properly the subject for a declaratory judgment under the circumstances of this case. No jus-ticiable controversy concerning the eventual ownership of the funds exists at this time. Mrs. Salvato may find it prudent in the management of the community estate to request another change in the beneficiary. The question of ownership of the proceeds of the policy must be determined in light of the facts existing at the time of the death of the insured. California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960); Cowan v. Cowan, 254 S.W.2d 862 (Tex.Civ.App., Amarillo, 1952).

The judgment of the Trial Court is reversed and judgment is here rendered that Mrs. Ruth Salvato, acting in the capacity of surviving partner of the marital partnership with Joseph Ben Salvato, Jr., has the same authority to act as did her husband in requesting the change of beneficiary submitted to the Insurance Company with respect to the policy of insurance in question, and that the Insurance Company is bound by the terms of the policy to make the requested change.

Reversed and rendered.


text:
    Grace GREENE, Appellant, v. Garth C. BATES et al., Appellees.
    No. 15041.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Jan. 11, 1968.
    Rehearing Denied Feb. 1, 1968.

      Ellis F. Morris, Houston, for appellant.
    Otto A. Yelton, Jr., Houston, for ap-pellees.
   COLEMAN, Justice.

This is a suit to recover money allegedly paid under duress. The cause was submitted to a jury, but the trial court rendered a judgment for the defendant notwithstanding the verdict.

By reason of certain business transactions appellant, Grace Greene, became acquainted with Mrs. Betty Parker, an employee of Home Title Company. They became friendly and periodically had coffee together. Mrs. Parker told appellant that the president of the Lockwood National Bank loaned a contractor payroll money and that a mortgage company loaned him construction money; that this money was deposited with the Home Title Company and that she was trustee of the fund and disbursed the money as it became due to the contractor. Mrs. Parker said that the banker cashing the payroll check made a $100.00 brokerage fee and that she, Mrs. Parker, made $100.00.

In June, 1962, Mrs. Parker called appellant and told her the banker was out of town and asked her if she would like to make the brokerage fee by cashing the check. She told appellant that there would probably be several opportunities for her to cash such checks. Appellant agreed that she would like to make the fee and Mrs. Parker issued a check in the sum of $1,523.14 payable to the Wells Insurance Agency, the trade name under which appellant conducted an insurance agency. This check was dated June 8, 1962 and was signed by Mrs. Parker and another employee of the title company. It bore this notation:

Lien Due
Floyd Stewart
James Stewart
16/9 Ralston Addition

Appellant took the check to the bank, cashed it, and delivered the proceeds to Mrs. Parker, less the $100.00 “brokerage,” and took her receipt for the money. On the same day appellant opened a bank account in the name “Wells Investment Company” and deposited $100.00 in the account.

On June 28, 1962 Mrs. Parker delivered to appellant a check on the Home Title Company account in the amount of $2500.00 payable to Wells Investment Company. It bore this notation:

Refund
Barnett Magids
15/A Holman 10 Acres

Appellant deposited this check in her account and issued a check on her account in the sum of $2400.00 payable to Betty Parker. Each of these checks, in due time, was cashed by the bank.

In May, 1963, appellant called Home Title Company for some information and talked to Bert Cadell, an attorney connected with the Company. When he learned her name, he told appellant that they had been looking for her and wanted to talk to her about a check from Betty Parker to Wells Investment Company. He told her that Betty Parker stole the money and that he would have the bonding company get in touch with her. She later called Mr. Cadell back and asked him to explain, but he told her: “ * * * I would just forget about it. We will talk to you.”

Appellant testified:

“So I hung up the second time and I was more concerned about it and I made a third call. I insisted on knowing what he was talking about because being in the insurance business and being alone, you can’t be too careful of your reputation, and the insurance company’s and so forth. He was still evasive with me. I was petrified. I even cried because I was so upset because he wouldn’t tell me anything.”

The next morning appellant called Mr. Garth Bates, who was the president of Home Title Company. She testified with regard to this conversation as follows:

“Mr. Bates got on the phone and he was polite in the beginning. He politely informed me that he was sorry that I got myself into this mess, but ignorance is no excuse for the law and there is only one thing he wants and that is his money, and I could either pay him back the money or deal with the bonding company, and if I deal with the bonding company the bonding company will then file charges with the District Attorney’s office, and Betty Parker would be involved in a felony matter and I would be involved, I would take my chance.”

On cross-examination appellant testified:

Q The gist of the conversation that you are talking about, the threat that you are complaining of here, is that Mr. Bates said he was going to turn it over to the bonding company, and the bonding company might file charges against Betty Parker and you would become involved ?
A He didn’t say that they might file charges. He told me I could either pay him back or deal with the bonding company and the bonding company was turning Betty Parker over to the District Attorney’s office and she would be involved in a felony matter and I would be involved too.”

There was testimony that Mr. Bates knew at the time of his conversation with appellant that Betty Parker had used this same pattern of operation in getting others to cash checks for her. Mr. Bates testified that he knew that Mrs. Parker had illegally-taken the money and that Mrs. Greene got $200.00 of it.

The evidence shows that appellant had several days to reflect on this matter; that she discussed the matter with her family; that she secured the services of a lawyer who was present during at least two of the conversations with Mr. Bates and advised her not to pay the money to the Home Title Company. Despite the advice of her lawyer she paid the Title Company $4,023.14, and secured a full release of all its claims against her growing out of the cashing of the two checks.

Only one issue was submitted to the jury. It follows:

“Do you find from a preponderance of the evidence that the acts and words of defendant Garth Bates with respect to the repayment of the $4,023.14 to Home Title Company by the Plaintiff constituted duress?
“Answer ‘We do’ or ‘We do not’.
Duress is defined as any action, either mental, physical or otherwise, which causes another person to act contrary to his own free will or submit to a situation or condition against his own volition or interest. It is the exercise by one party of sufficient influence over another to destroy the free agency of the other.”
«* * * »
“ANSWER TO SPECIAL ISSUE NO. 1_We do_.”

Since judgment was rendered non obstante veredicto, only that evidence which supports the jury’s verdict can be considered, and if there is any evidence of probative value which, with inferences that may be properly drawn therefrom, will reasonably support the verdict of the jury, the verdict cannot be disregarded. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958); Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682 (1955) ; Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952).

On the other hand if the trial court should have granted appellees’ motion for instructed verdict, the trial court properly entered judgment non obstante veredicto. Brooks v. Taylor, 359 S.W.2d 539 (Tex.Civ.App., Amarillo 1962), ref., n. r. e.

It is well settled that where one voluntarily pays money to another on a claim of right, with full knowledge of all the facts, in the absence of fraud, duress, or compulsion, the money cannot be recovered back merely because the party at the time of payment was ignorant of or mistook the law as to his liability. Pennell v. United Ins. Co., Inc., 150 Tex. 541, 243 S.W.2d 572 (1951).

The subject of duress is treated in The Restatement of The Law of Contracts, Ch. 16, § 492, et seq. Duress is defined as “any wrongful threat of one person by words or other conduct that induces another to enter into a transaction under the influence of such fear as precludes him from exercising free will and judgment, if the threat was intended or should reasonably have been expected to operate as an inducement.”

Comment f. under Section 492 states: “Not only must fear be produced in order to constitute duress of the second type but the fear must be a cause inducing entrance into a transaction, and though not necessarily the sole cause, it must be one without which the transaction would not have occurred.”

Comment g. reads:

“Acts or threats cannot constitute duress unless they are wrongful, even though they exert such pressure as to preclude the exercise of free judgment. But acts may be wrongful within the meaning of this rule though they are not criminal or tortious or in violation of a contractual duty. Just as acts contracted for may be against public policy and the contract vitiated for that reason, though the law imposes no penalty for doing them, so acts that involve abuse of legal remedies or that are wrongful in a moral sense, if made use of as a means of causing fear vitiate a transaction induced by that fear, though they may not in themselves be legal wrongs.”

Section 943 of the Restatement states that duress may be exercised by threats of wrongful imprisonment, and, in comments c. and d. explains the meaning of “threats of wrongful imprisonment” as used in the section as follows:

“c. Duress by imprisonment for crime and threats of such imprisonment stand on a different footing from imprisonment on civil process or threats thereof. If a person accused of crime is not guilty, or if his imprisonment is for any reason illegal, clearly a transaction brought about by fear due to imprisonment or threat of it is made under duress. But even if the accused is guilty and the process valid, so that as against the State the imprisonment is lawful, it is a wrongful means of inducing’the accused to enter into a transaction. To overcome the will of another for the prosecutor’s advantage is an abuse of the criminal law, which is made for another purpose. Such imprisonment, therefore, may amount to duress and threat of arrest on a criminal charge may similarly be duress.
“d. A threat of criminal prosecution is not in terms a threat of imprisonment, but in effect it ordinarily is a threat of imprisonment and also, irrespective of whether the prosecution is likely to be followed by imprisonment, it is a threat of bringing disgrace upon the accused. Threats of this sort may be of such compelling force that acts done under their influence are coerced, and the better foundation there is for the prosecution, the greater is the coercion.”

This statement of the law is supported by respectable authority in Texas. In Gray v. Freeman, 37 Tex.Civ.App. 556, 84 S.W. 1105 (1905), opinion by Justice Fly, the court said:

“Again it has been held that mere threats of a criminal prosecution do not constitute duress unless there is a threat of immediate and unlawful imprisonment. This doctrine has been also modified, and it is held that the guilt or innocence of the wronged party, or the lawfulness or unlawfulness of the threats, are immaterial.”

In the same opinion the court quotes from an opinion of the Supreme Court of Alabama in the case of Hartford Fire Ins. Co. v. Kirkpatrick, 111 Ala. 456, 20 So. 651, as follows:

“ ‘It was never contemplated in the law that either the actual or threatened use or misuse of criminal process, legal or illegal, should be resorted to for the purpose of compelling the payment of a mere debt, although it may be justly owing and due, or to coerce the making of contracts or agreements from which advantage is to be derived by the party employing such threats. Ample civil remedies are afforded in the law to enforce the payment of debts and the performance of contracts, but the criminal law and the machinery for its enforcement have a wholly different purpose, and cannot be employed to interfere with that wise and just policy of the law that all contracts and agreements shall be founded upon the exercise of the free will of the parties, which is the real essence of all contracts.’ ”

The court concluded that duress is the deprivation by one person of the will power of another by putting such other in fear for the purpose of obtaining by that means some valuable advantage of him. It also approved as the law of this State a statement that the means by which that condition of mind is produced, and whether such condition was in fact produced, were questions of fact for the jury.

Substantially the same statement of the law was made by Fly, Chief Justice, in his opinion for the court in the case of Sabinal State Bank v. Ebell, 294 S.W. 226 (Tex.Civ.App., San Antonio 1927). This case was followed in Pfeuffer v. Haas, 55 S.W.2d 111 (Tex.Civ.App., Austin 1932), where attention was also directed to Houston Ice & Brewing Co. v. Harlan, 228 S.W. 1090 (Tex.Com.App., 1921, judgment adopted). These cases cite Landa v. Obert, 78 Tex. 33, 14 S.W. 297 (1890), and in the Harlan case the court states that Landa v. Obert is often cited as committing the Supreme Court of Texas to the proposition that if one has been wronged as the result of a violation of the criminal law, it is not duress to threaten him with criminal prosecution. The court in Harlan found it unnecessary to determine whether this interpretation of the Landa case was correct, but cast doubt on the validity of that interpretation. It stated, however, that duress may be predicated upon a threat of lawful imprisonment where the purpose of the threat is to exact a consideration wholly disconnected from the offense for which prosecution is threatened; where the purpose and effect of the threat is to exact an unconscionable bargain ; and where the purpose and effect of the threat is to obtain a payment or other pecuniary advantage from a near relative of the party threatened.

In the Harlan case the plaintiff’s husband was short in his accounts with his employer, who informed him that the shortage must be settled at once. Mr. Harlan told Autrey, the employer’s representative, that the only thing he could offer was his homestead. Autrey inquired whether Harlan’s wife would sign the deed and Harlan stated that he thought she would. Autrey did not talk to Mrs. Harlan. He did not mention to Mr. Harlan the fidelity bond or say anything about probable or possible prosecution. Harlan told his wife that he was short in his accounts and that unless the homestead was conveyed to cover the shortage, the matter would be turned over to the bonding company and he would be prosecuted. After thoroughly discussing the matter, Mrs. Harlan told her husband that she would sign the deed if he was short in his accounts. He told her he knew he was short. A few days later she executed the deed, but went with him to deliver it “to find out for sure he was really short in his account.” She was shown the audit and the deed was delivered. The value at which the property was taken was less than the shortage.

The court held that giving full force to all of the testimony favorable to plaintiff, and indulging every favorable presumption which the evidence will justify, it cannot be said that Autrey, either directly or indirectly, threatened to make use of any criminal process himself or to be in any way instrumental in causing it to be used in regard to plaintiff’s husband.

Appellee stresses this portion of the opinion:

“Harlan had no means of making up the shortage, and was given several months in which to do so, but failed. The inevitable consequence of his continued failure to settle was for the brewing company to call upon the surety company to make good the loss. That was a right given by law to the brewing company; and, construing the evidence as warranting the conclusion thát a threat, either express or implied, was made to resort to that security, certainly it cannot be said that such threat could in any sense constitute duress.”

Appellee cites cases involving the doctrine of duress of property, or business compulsion, holding that it is never duress to threaten to do that which a party has a legal right to do, and as a general proposition this is a correct statement of the law. Ulmer v. Ulmer, 139 Tex. 326, 162 S.W.2d 944 (1942); Dale v. Simon, 267 S.W. 467 (Tex.Com.App.1924, judgment adopted). These cases, however, are not applicable to a fact situation raising duress by reason of a threat of wrongful imprisonment, as that term is used in the Restatement.

In Landa v. Obert, supra, the Supreme Court held:

“Upon another trial of this cause, if the evidence shall show that Landa had employed lawyers to bring a civil suit against Obert for an amount of money which he claimed had been embezzled by him, and that Landa and his attorneys, or both, informed him of the charge against him, and of their purpose to institute such civil suit, and also informed him, or by any means gave him to understand, that he was charged with being guilty of the crime of embezzlement, and either threatened to cause him to be prosecuted for that offense or made known to him that one result of filing such civil suit would be to so direct the attention of others to the matter as to lead to a criminal prosecution, and his imprisonment on the charge, and that Obert was not in fact guilty of the charge, and was not indebted to Landa, and that he was through such representations or proceedings induced to fear that if he did not accede to the demands then being made upon him, he would incur the danger of imprisonment, and if under the influence of the fears so created, and otherwise unwillingly, he surrendered the money and notes now in controversy to Landa or his attorneys, he will be entitled to a judgment in his favor * * * ” (emphasis added).

In this case the jury might have believed that Mr. Bates made the statement to Mrs. Greene previously quoted, although this was a disputed issue of fact. A reasonable person might have concluded that this conversation constituted a covert threat that felony charges would be filed against Mrs. Greene, as well as Betty Parker, unless Mrs. Greene paid the money demanded. Considering the testimony in the light most favorable to Mrs. Greene, and drawing all reasonable inferences from it, and discarding all adverse testimony, we conclude that there is testimony which would require the submission of the issues necessary to establish the cause of action based on duress.

Since an instructed verdict for the defendant would not have been proper, the motion for judgment non obstante veredicto should not have been granted. Hicks v. Matthews, 153 Tex. 177, 266 S.W.2d 846 (1954) ; Robertson v. Rig-A-Lite Company, 394 S.W.2d 838 (Tex.Civ.App., Houston 1965, n. w. h.).

By cross-point appellee assigned error to the action of the trial court in overruling his objection to the definition of “duress” submitted in the court’s charge. This point must be sustained.

The issue as submitted did not require a finding that there be a threat to prosecute Mrs. Greene. While the definition may be correct in the abstract, it is not correct as applied to the facts of this case in that the element of unlawful threat is omitted. There would be no duress if Mr. Bates’ testimony was believed. He testified that she came to his office with her lawyer, and they discussed the matter. He stated to her that he would not “attempt to tell her what her liabilities were, and she could ask her own lawyer.” He testified: “Now, I am handling this as all other claims. I must present my claim to the bonding company before I can be paid. * * * I didn’t ask her to pay it. I didn’t demand that she pay it.” He stated that he did not have any discussion with her about her being in trouble.

Issues of fact were raised as to whether or not there was a threat, express or implied, made by Mr. Bates to prosecute, or secure the prosecution of, Mrs. Greene for a felony offense; and whether or not the threat so overcame the will of Mrs. Greene as to cause her to pay the money to Home Title Company; and whether, in the absence of such threat, she would have paid the money voluntarily. Here the jury did not find facts from which the trial court could determine the existence of duress as a matter of law. The case, in effect, was submitted on a general charge. In such a case the definition must call to the attention of the jury the necessary elements of duress. The objection made pointed out with sufficient clarity wherein the definition was in error. The error was properly preserved. Yellow Cab & Baggage Co. v. Green, 154 Tex. 330, 277 S.W.2d 92 (1955).

The judgment of the Trial Court is reversed and the cause is remanded to the Trial Court.

PEDEN, J., not participating.