author: McDONALD, Chief Justice.

text:
    A. B. COWAN TRANSFER COMPANY, Appellant, v. SOUTHWEST TIRE COMPANY, Appellee.
    No. 4342.
    Court of Civil Appeals of Texas. Waco.
    March 11, 1965.
    Scardino, Hughes & Musachia, Houston, for appellant.
    Theodore E. Bailey, Jr., Houston, for ap-pellee.
   McDONALD, Chief Justice.

Plaintiff Tire Company brought this suit for debt against defendant Transfer Company for $773.29. The case was tried before the Court without a jury which, after hearing, rendered judgment for plaintiff for $773.29 plus $200. attorneys’ fees.

Defendant appeals, contending the Trial Court erred: t) In allowing plaintiff to reopen its case after it had rested and present additional evidence; 2) In refusing to allow defendant credit for defective tires delivered to defendant; 3) In rendering judgment contrary to the evidence; 4) In refusing to allow defendant time to bring into court the defective tires.

Defendant has brought forward no Statement of Facts.

In the absence of a Statement of Facts, it must be presumed on appeal that sufficient evidence was introduced to support the findings and judgment of the Trial Court. Further, every reasonable presumption consistent with the record will be indulged in favor of the correctness of the judgment. Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683; Ehrhardt v. Ehrhardt, Tex.Civ.App., Ref. 368 S.W.2d 37.

Defendant has shown no error. Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    D. W. McDonald, Appellant, v. W. J. ALEXANDER, Appellee.
    No. 4308.
    Court of Civil Appeals of Texas. Waco.
    March 4, 1965.
    Byron L. McClellan and Robert F. Salter, Gatesville, for appellant.
    Andrew Campbell, John F. O’Neal, Hamilton, for appellee.
   McDONALD, Chief Justice.

This is an appeal from a judgment of the Trial Court, fixing the boundary between property belonging to plaintiff, and property belonging to defendant.

Plaintiff McDonald instituted this suit in trespass to try title against defendant Alexander, for 2 described tracts of land lying north of the Leon River, in Coryell County, Texas; and in his prayer asked that his disputed north boundary line be determined in accordance with the allegations in his petition.

Defendant answered by a plea of not guilty; that he was owner of a portion of the land described by plaintiff; and that the south line of the William Hensley Survey was the north line of plaintiff’s property, and the south line of defendant’s property. Defendant plead a description of the boundary as contended by him in the south line of the Hensley Survey, by metes and bounds, and prayed that plaintiff take nothing by his suit, and that the Court declare the boundary line between plaintiff’s and defendant’s property to be as described by defendant.

The Trial Court after hearing without a jury, entered judgment that plaintiff take nothing by his suit against defendant; and fixed plaintiff’s north boundary in the south line of the Hensley Survey as described by defendants. The Trial Court further fixed the east and west boundaries of plaintiff’s land lying north of the Leon River, based on the north line as found.

Plaintiff appeals, contending:

1) The judgment of the Trial Court is against the overwhelming weight and preponderance of the evidence.
2) There was no evidence to support that part of the judgment which sets out the true east boundary, “to the center of the Leon River.”
3) The judgment of the Trial Court does not set out by metes and bounds any boundary between plaintiff and defendant which is sufficient in law.
4) The judgment of the Trial Court is self-contradictory.

We revert to plaintiff’s 1st contention. The record reflects that plaintiff owned 280 acres in the McFarland Survey, a small portion of which is located north of the Leon River; and that defendánt owns several hundred acres in the Hensley Survey. The only land in dispute is within that portion lying north of the Leon River. The Hensley Survey is located directly north of the McFarland Survey, and is the senior survey. While plaintiff plead for a small strip of land in the Hensley by limitation, he failed in his proof as to limitation, and makes no complaint on this point in his motion for new trial. All of the evidence is to the effect that the land plaintiff claims record title to under his deed lies in the McFarland Survey; that defendant’s land lies in the Hensley Survey; and that the true boundary between the Hensley and the McFarland Surveys is plaintiff’s and defendant’s true boundary.

The plaintiff failed to prove either common source of title, or his title from the sovereignty of the soil, to the tracts he described. The defendant alleged that plaintiff owned all land south of the line defendant alleged to be the true boundary line between defendant’s and plaintiff’s tracts; and both plaintiff and defendant sought in their prayer a declaration of the true boundary line between their respective tracts. As noted, the only real issue presented was the true location of the south line of the Hensley Survey. Further, there was no controversy or dispute as to the course or bearings of the east and west boundary lines of plaintiff’s property north of the Leon River. Three surveyors, McDonald, Koos, and Durham attempted to place the boundary between plaintiff and defendant. McDonald and Koos placed it as contended by plaintiff; Durham (whose qualifications were stipulated, and whose method was recognized by Koos as accepted surveying practice), placed the line as found by the Trial Court. Durham placed the boundary in the south line of the Hensley (as found by a prior surveyor in 1946), and further testified positively that his independent professional and expert opinion placed such line as found by the Trial Court.

The judgment of the Trial Court is sustained by ample and sufficient evidence.

Plaintiff’s 2nd point complains of the judgment describing the true east boundary of plaintiff’s tract “to the center of the Leon River.” Plaintiff contends that his deed does not call for the center of the river, and that the boundary line should stop at the north bank of the river. Calls to a stream or river are accepted as calls to the center of the stream or river. Risien v. Brown, 73 Tex. 135, 10 S.W. 661; Strayhorn v. Jones, 157 Tex. 136, 300 S.W.2d 623, 634. The point presents no error.

Plaintiff’s 3rd contention complains that the judgment of the Trial Court does not set out by metes and bounds any boundary line sufficient in law. The test is whether such lines are ascertainable by an officer charged with finding the lines with the assistance of a competent surveyor. Smith v. Griffin, 131 Tex. 509, 116 S.W.2d 1064. Surveyor Durham has located the line as plead by defendant. The judgment set out the line as plead by defendant. The point is overruled.

Finally, plaintiff contends the Trial Court’s judgment is self-contradictory in that it sets out that plaintiff take nothing, and then proceeds to set the boundary giving plaintiff a portion of that which he claimed. Defendant plead the boundary as found by the Trial Court, thereby taking out of controversy all land plaintiff claimed south of such pleaded boundary. Plaintiff proved no title to the lands claimed by him either from common source with defendant, or from the sovereignty of the soil. The judgment of take nothing goes only to the lands in controversy north of the line pleaded by defendant as the true boundary. The point presents no error.

All of plaintiff’s contentions are overruled.

Affirmed.


author: HUGHES, Justice.

text:
    Robert S. CALVERT, Comptroller of Public Accounts of Texas, Appellant, v. H. E. BUTT GROCERY COMPANY, Appellee.
    No. 11306.
    Court of Civil Appeals of Texas. Austin.
    March 10, 1965.
    Rehearing Denied March 31, 1965.
    Waggoner Carr, Atty. Gen., H. Grady Chandler, W. E. Allen, Asst. Attys. Gen., Austin, for appellant; Don Bishop, Charles Frock, Austin, Office of the Comptroller of Public Accounts of the State of Texas, of counsel
    Sorrell, Anderson, Porter & Stone, Corpus Christi, for appellee.
   HUGHES, Justice.

Appellee, H. E. Butt Grocery Company, sued Robert S. Calvert, Comptroller of Public Accounts of Texas, for a refund of taxes paid pursuant to a tax deficiency determination made by the Comptroller as taxes due under the Limited Sales, Excise and Use Tax Act of 1961. Ch. 20, Title 122A, Taxation General, Vernon’s Ann.Civ. St. The provisions of Art. 20.10 of such Act prescribing procedure for claiming such refund have been met.

The facts have been stipulated. Briefly, they are that on October 1, 1961, appellee purchased the inventory, furniture, fixtures, equipment and shelving of Central Mercantile, a going grocery business.

The sole issue in the case is whether or not this sale, excluding the inventory, is subject to a tax under the 1961 Limited Sales, Excise and Use Tax Act.

It is the contention of appellee that its purchase was not a retail sale subject to the tax imposed by the Act and, in the alternative, that its purchase was an “occasional sale” under the Act and was exempt from the tax imposed by the Act. Art. 20.01(F) and Art. 20.04(G), V.A.C.S.

Since the purchase by appellee of the furniture, fixtures, equipment and shelving was not for the purpose of reselling such properties in the regular course of the purchaser’s, appellee’s, continuing grocery business, appellant contends that the sale was a “Retail Sale” or a “Sale at Retail” within the meaning of those terms as used in the Act and is subject to the tax imposed by the Act.

It was stipulated that Central Mercantile was not in the business of selling furniture, fixtures, equipment and shelving and that the sale as made, including the inventory, constituted a sale of its entire grocery business.

Summary judgment was rendered in favor of appellee.

This case is a companion case to our Number 11,305, Calvert, Comptroller v. Marathon Oil Company, 389 S.W.2d 153 this day decided. Appellant has filed in this case a brief identical with the one he filed in Marathon, except for immaterial factual differences. The questions of law presented in and decided by us in Marathon are the same as those presented here. We refer to our opinion in Marathon and adopt the rulings made there as our rulings here.

The brief filed by appellee herein differs in some respects from the brief of appellee in Marathon. We considered such brief in our disposition of that case.

The judgment of the trial court is affirmed.

Affirmed.


author: DENTON, Chief Justice.

text:
    OTTO GOEDECKE, INC., Appellant, v. T. H. HENDERSON, Appellee.
    No. 7444.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 22, 1965.
    Rehearing Denied March 22, 1965.

      Key, Carr & Clark, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Lubbock, for appellee.
   DENTON, Chief Justice.

This is a suit for breach of contract. Otto Goedecke, Inc. contracted in writing in December of 1960 and January of 1961 to purchase 1300 bales of cotton of certain grade and staple at specified prices from T. H. Henderson. Upon the failure of Henderson to deliver 345 of the 1300 bales contracted for, Goedecke filed this suit for damages. Based upon the jury’s answers to special issues submitted the trial court entered judgment for Goedecke for $261.59 which represented its loss from weight and storage penalties and price errors on the cotton actually delivered by Henderson. The other relief sought was denied. From such judgment Goedecke has perfected this appeal.

In response to the special issues the jury found Henderson did not repudiate the contract prior to May 1,1961; that the type and quality of cotton contracted for could not be bought in the open market nearer to Lubbock than Houston during the period from May 1 through June 23, 1961; that Goedecke did not use reasonable diligence in purchasing cotton to replace that contracted for prior to June 1, 1961; that Goedecke was damaged $261.59 as stated above; in response to Special Issue No. 7 the jury found that the reasonable value of cotton of the type and quality contracted for in Lubbock between May 1 and June 23 was “$7.82 per bale diff times 345 bales equals $2697.90.” The jury failed to answer two special issues inquiring if the failure of Goedecke to pay drafts Henderson drew on the Houston bank constituted a material breach of a contract; and the conditional issue inquiring if Henderson waived such breach.

Both parties filed trial amendments. Plaintiff pleaded an alternate measure of damages of the difference between the contract price and the reasonable value of the cotton which the defendant failed to deliver at the time and place the contract was repudiated. Plaintiff further pleaded the date and place of repudiation was after May 1, 1961 at Lubbock, Texas. The defendant Henderson pleaded alternatively by trial amendment that if it should be held the defendant breached or repudiated the contract the plaintiff failed and neglected to exercise due diligence .to purchase cotton to replace that which was not delivered by the defendant. These alternative pleadings formed the basis for the submission of Special Issues Nos. 3 and 7.

It is well settled that where a seller has wrongfully neglected or refused to deliver goods to the buyer under a written contract, the measure of damages is the difference between the contract price and the market value of the undelivered goods at the agreed time and place of delivery. Ullman, Lewis & Co. v. Babcock, 63 Tex. 68; West Lumber Co. v. C. R. Cummings, (Comm.App.), 228 S.W. 911, (Opinion Adopted); Lathrop-Marshall Grain Co. v. Nash, (Tex.Civ.App.), 282 S.W. 824; Harkey v. Hindman, (Tex.Civ.App.), 19 S.W.2d 151. If there is no market at the place of delivery, the market value at the nearest point where there is such a value may be taken with the addition of costs of transporation. Steinlein v. S. Blaisdell, Jr. Co., (Tex.Civ.App.), 44 S.W. 200; Woldert Grocery Co. v. Veltman, (Tex.Civ.App.) 83 S.W. 224; Barnes v. Early-Foster Co., (Tex.Civ.App.), 228 S.W. 248; 51 Tex.Jur.2d., Sales, Section 461. In the absence of a market at Lubbock, as found by the jury, the trial court submitted the correct measure of damages in Special Issue No. 7. Such issue was supported by the pleadings of plaintiff’s trial amendment.

The jury finding, supported by defendant’s trial amendment, that plaintiff lacked reasonable diligence in not purchasing cotton prior to June 1, 1961, is not a bar to plaintiff’s recovery of damages for the breach of the contract. The lack of diligence on the part of the plaintiff to purchase other cotton only bars a recovery of whatever part of the damages resulting from his own lack of diligence to minimize the damages which result from the seller’s breach of contract. Belcher v. Missouri K. & T. Ry. Co., 92 Tex. 593, 50 S.W. 559; Morgan v. Young, (Tex.Civ.App.), 203 S.W.2d 837, (Refused, NRE); Polis v. Alford, (Tex.Civ.App.), 273 S.W.2d 79, (Error Refused). The duty to mitigate damages does not come into play until the injured party has notice of the breach of contract. Morgan v. Young, supra; Western Union Telegraph Co. v. Federolf, (Tex. Civ.App.), 145 S.W. 314. A defendant who asserts that a plaintiff has failed to prevent or minimize damages in such cases has the burden of proving not only the lack of diligence, but also the amount by which the damages were increased by such failure. Morgan v. Young, supra; Blocher v. McArthur, (Tex.Civ.App.), 303 S.W.2d 529, (Refused, NRE); Tortuguero Logging Operation, Ltd. v. Houston, (Tex.Civ.App.), 349 S.W.2d 315 (Refused, NRE); Brown Supply Co. v. Rushing, (Tex.Civ.App.), 361 S.W.2d 728. The defendant has failed to sustain the burden of showing the extent to which plaintiff’s damages were increased, if any, because of its lack of diligence in purchasing other cotton.

For the reasons stated the judgment of the trial court is reversed and remanded.


author: NYE, Justice.

text:
    S.E. TYSON, d/b/a Tyson Construction Company and/or Tyson Steel Building Company, Appellant, v. SEAPORT GRAIN, INC., Appellee.
    No. 106.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 18, 1965.
    Rehearing Denied April 8, 1965.
    Elvin E. Tackett, of Tackett & Martin, Fort Worth, for appellant.
    John C. North, Jr,, of North, Blackmon & White, Corpus Christi, for appellee.
   NYE, Justice.

S. E. Tyson, d/b/a Tyson Construction Company and/or Tyson Steel Building Company, has appealed from an order overruling his plea of privilege.

The suit was filed in Nueces County by Seaport Grain, Inc., seeking damages for an alleged breach of a written contract. Following the filing of appellant’s plea of privilege to be sued in Tarrant County, Texas, the county of his residence, appel-lee filed its controverting plea in which it alleged that venue properly lies in Nueces County under the terms of Subdivision S of Article 1995, Vernon’s Ann.Tex.Civ.St. The parties entered into a written contract dated August 30, 1961, purportedly for the erection of a steel grain storage building in Corpus Christi, Texas. The execution of the contract is admitted by all parties. The building was completed and accepted by appellee.

The appellee filed suit against the appellant alleging in its petition that the appellant constructed an all-steel grain storage building in Corpus Christi, Nueces County, Texas, but that because of the use of faulty materials and/or defective workmanship, the building was entirely unsuitable for the purpose of storing and handling grain. Appellee specifically alleges that it was damaged because cracks appeared in a tunnel running underneath the building; that the walls and roof of the building leaked; and that the elevator and hopper pits were inadequately designed, making it necessary to- remove and to replace the conveyor machinery and make other alterations.

The only question presented by this appeal is whether the trial court erred in finding that S. E. Tyson, d/b/a Tyson Construction Company, and/or Tyson Steel Building Company, had- agreed in writing to undertake the obligation of erecting and constructing the grain storage building in Nueces County. Appellant elaborates on this question with four points in this appeal.

Appellant’s points 1 and 2 in substance complain that the trial court erred in overruling the plea of privilege for the reason that the written contract between the parties did not expressly obligate the appellant to perform in Nueces County and that only by implication, inference and innuendo could the trial court find any obligation on the part of the appellant to perform in Nueces County.

Subdivision 5 of Article 1995, V.A.T.S., states:

“5. Contract in writing. — If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

The subdivision, not only requires proof of the contract in writing, but such contract must designate a particular county or expressly name such county or a definite place therein for the performance of the obligation. This does not necessarily mean that the county or place is to be designated by name or that the contract specifically, in so many words, require a particular spelled-out obligation, but it is sufficient if when the contract is read from its four corners, it clearly shows that the venue of performance lies in such county.

The subject written contract does not specifically, in so many words, state that S. E. Tyson, d/b/a Tyson Construction Company and/or Tyson Steel Building Company, is to erect and-build a grain storage building in Nueces County. However, this contract, when read from its four corners, plainly indicates that the venue of performance obligates the appellant to erect, install and complete the steel building in Nueces County, Texas.

The contract is in letter-form. The pertinent portions of it read as follows:

“Tyson Steel Building Company
Constructors-Engineers
3410 Camp Bowie Blvd.
Fort Worth, Texas
8/30/61
Seaboard Grain Inc.
Corpus Christi, Texas
Att. Mr. M. D. Jaffe
Mr. N. P. Kendricks
We are pleased to submit our contract for the purchase of an Inland Steel building to be located at Corpus Christi, Texas more completely described as follows:
One (1) 100' wide x 420' long Inland all steel grain building with 20' high sidewalls; roof pitch to be 6/12 and building to be clear span. Rigid frames are located on 20' centers with intermediate frames located between each rigid frame to eave line. Covering to be 26 gage galvanized Inland extra strength high rib roof and wall panels. A weather seal mastic will be used on all roof and wall panels to insure a weather proof building.
Building to have the following accessories:
Twenty one (21) 20' ventilators with dampers & screens
One ( 1) 16' x 13' double slide door with bulkhead
Two ( 2) 2' wide x 3'6" high Gable access door with platforms and ladder
Four ( 4) 4' x 4' Gable louvers with bird screen, adjustable (endwalls)
1.Grain handling equipment is part of this contract, see specifications attached to this contract, which are a part of this contract. All equipment installed.
2. Aeration equipment is part of this contract, see specifications attached. This equipment installed see plans.
3. Concrete work is part of this contract. Foundation to have ninety-six piers, four inch slab (floating), five x six tunnel, and concrete pits. See plans for complete concrete work.
4. This contract includes an allowance of $20,000.00 for Railroad scales and a $10,000.00 allowance for truck scales and office building. Buyer to be paid this $30,000.00 by Tyson Steel Building Co. on completion of building and receiving final payment from Inland Steel Products Go.
S.Electrical work is part of this contract, three phase 220/440, see plans. All electrical work complete.
6. Excavation, concrete pits and tunnel are part of this contract see plans.
8. Work is to commence not later than seven (7) days after final approval of this contract by Inland Steel Products Co. Build-SET & equipment
8/31/61 ing/ to be completed within 45 working days after commencement of work. Grain moving and handling equipment to be com-
45 working days SET
pleted and installed as fast-as -reasonably-possible. Seller not to be responsible for delays in deliveries due to fires, strikes, lockouts and other labor trouble, car shortage, embargoes, transportation delays, floods, Acts of God or other contingencies beyond Seller’s control. Seller not to be responsible for delays due to weather conditions which render steel erection work or fabrication work impossible, impractical, or dangerous.
Sellers Insurance: The Seller shall obtain Workmen’s Compensation Insurance Covering all workmen on the work covered by this contract, and also Public Liability Insurance. Certificates of such Insurance shall be filed with buyer if he so request.
Clean Up: The seller shall, at the completion of the work, remove from the premises all rubbish, implements, surplus materials and leave the building clean.
This quotation is based on the following considerations:
Seller to fabricate metal shed to cover railroad unloading pit, railroad where pit joins railroad and truck pit. Shed to be fabricated of used pipe and new galvanized sheet steel. Aeartion tunnel to have metal covers at each end.
Concrete slab to be four inch (4") to have poly ethelyne membrane placed on top of cushion sand to insure water proofing, before pouring concrete.
The Inland all steel grain building to be guaranteed for a period of one year against faulty material and workmen ship, from date of completion.
Price: F. O. B. site and erected on completed concrete foundation and completed concrete floor ... $238,000.00
Down payment of $50,000.00 with order Personal guarantee of $75,000.00 from Mr.
W. B. Jaffe.
Terms: Inland extended payment plan.
Balance to be paid in twenty (20) consecutive quarterly installments of $12,192.74 each.
This contract is subject-to final approval-by Inland Steel Products Co. and First Acceptance Corp.
First Quarter installment due March 20th. 1962.
Tyson Steel Building Co. will not be responsible for any pipe lines or gas lines not shown on plot plan. The Inland Steel building to be located by buyer. Buyer to move, at buyer’s expense, any pipe lines, gas lines or easements for pipe lines or utilities not shown on plot plan, and seller not to be responsible for any delay caused by such moving.
Cordially yours,
TYSON STEEL BUILDINGS CO.
/s/ S. E. Tyson __
The above proposal is accepted
Acceptance date 8/30/61 HOME OFFICE ACCEPTANCE
SEABOARD GRAIN INC. TYSON STEEL BUILDINGS CO. 8/30/61 Buyer
By /s/ N. P. Kendrick /s/ S. E. Tyson Owner_
President_ Title ”
Title
(Emphasis supplied)

Insofar as this case is concerned the question may be broken down into two parts: 1) Did the contract expressly name a county or a definite place therein? and 2) Was appellant required to perform an obligation sued on injsuch county?

The contract does not name Nueces County. It is, of course, sufficient to name a definite place therein. The first provision of the contract states that the appellees have purchased “an Inland steel building to be located at Corpus Christi, Texas.” The subject contract was addressed to the appellee at Corpus Christi, Texas. The court can take judicial notice that Corpus Christi is in Nueces County and is in fact the county seat of Nueces County, Texas. North Texas Tank Co. v. I. M. Pittman, 290 S.W.2d 724, (Tex.Civ.App.1956); Houston Heating & Air Conditioning, Inc. v. Semands, 318 S.W.2d 777, (Tex.Civ.App.1958, err. dism.). In the case of Butler, Williams & Jones v. R. H. Goodrich, 288 S.W.2d 887 (Tex.Civ.App.1956, err. dism.) the court held that a written contract which referred to the place as “your residence below Navasota” was sufficient to maintain venue in Waller County when the undisputed evidence placed such residence in Waller County. Harrison v. Nueces Royalty Co., 163 S.W.2d 244 (Tex.Civ.App.1942, err. dism.); Port Iron & Supply Co. v. Casualty Underwriters, 118 S.W.2d 627, (Tex.Civ.App.1938). The contract is “based on the following considerations —

“Price: F.O.B. site and erected on completed concrete foundation and completed concrete floor . . . $238,000.00.”

The term “F.O.B.” is an abbreviation for “free on board”, and means that seller will deliver the subject matter contracted for, on a certain conveyance, without expense to buyer. Black’s Law Dictionary, 4th Edition; Russell & Co. v. F. W. Heitmann & Co., 86 S.W. 75 at 76 (Tex.Civ.App.1905, wr. ref.); Barnett & Record Co. v. Fall, 62 Tex.Civ.App. 391, 131 S.W. 644 at 649 (1910). The quoted section above requires the appellant, for valuable consideration, to deliver without expense to the appellee at the site (“Corpus Christi, Texas”) and to erect (* * * to be located) and complete the concrete foundation and concrete floor for $238,000.00. This section, when viewed from the four corners of the contract clearly indicates to us, not only an obligation to be performed, but a definite place, i. e., Corpus Christi (Nueces County), Texas.

Our next consideration: Was appellant required to perform an obligation in such County? As stated in McKenzie Construetion Company v. Pittman, 288 S.W.2d 527 (Tex.Civ.App.1956, err. dism.)

“It is plain from reading this subdivision (subdivision 5, Art. 1995) that the contract must expressly provide that the obligation which is the basis of the suit is to be performed in the county of the suit, but such subdivision does not provide that the obligation must be expressly provided for in the written contract. It is sufficient if such obligation is impliedly provided for within the four corners of the contract.”

Referring to the pertinent portions of the contract outlined above (see italicized emphasis) we find from the four corners such obligation. First, appellant was “Constructor and Engineer.” In describing the building he says: “rigid frames are located on 2O' centers with intermediate frames,” and “located by each rigid frame to eave line.” “Located” here means to construct or erect the same as in the first paragraph, where the contract says: “building to be located (constructed or erected) at Corpus Christi, Texas.” In paragraphs 1, 2, 3, 5 and 6, the contract calls for “equipment to be installed”; * * * “concrete and electrical work to be completed”; * * * and for * * * “excavation of pits and tunnel.” Paragraph 8 states that * * * “work is to commence not later than seven days after final approval of this contract”; * * * “Building and equipment to be completed within forty five days after commencement of work”.; * * * “Grain moving and handling equipment to be completed and installed * * * 45 working days.” At another place in paragraph 8 * * * “Seller shall not be responsible for delays * * * which renders steel erection work or fabrication work impossible, * * At another place in the contract: the appellant was required to obtain workmen’s compensation insurance covering all workmen on work covered by the contract; and upon completion of the work appellant was to leave the building clean. Still at another place, appellant was to fabricate the cover shed to cover the railroad unloading pit and to provide for metal covers at either end of the aeration tunnel. Appellant guaranteed the Inland all steel grain building for a period of one year against faulty material and workmanship from date of completion.

We hold that the contract clearly expresses obligations to be performed which are the basis of the appellee’s suit. The obligations of the appellant to construct an all steel grain storage building are expressly and impliedly provided for by the subject contract. Petroleum Producers Co. v. Steffens, 139 Tex. 257, 162 S.W.2d 698 (1942); McKenzie Construction v. Pittman, supra. See 97 A.L.R.2d page 966 IV § 13 (Texas cases) to page 990.

Appellant argues that in the last paragraph there is a provision calling for the building to be located by buyer. This paragraph clearly denotes that the appellant was avoiding responsibility for any pipe or gas lines not shown on the plot plan and that if there were any such lines or utilities not so shown, the appellee was required at his expense to move such impediments and that appellant would not be responsible for any delay caused by such moving. The responsibility for selection of the placement of the building so as to not interfere with certain obstructions, was with the appellee. There isn’t any actual dispute as to the fact that the building was erected on Upriver Road in Corpus Christi, Nueces County, Texas, because the appellant orally admitted that such was fact.

Appellant’s points 1 and 2 are overruled.

Appellant’s third and fourth points state that the appellee did not bring a suit seeking compliance with any obligation of the appellant reflected by the agreement between the parties and that the contract was actually completed in Tarrant County. It was said in the case of Petroleum Producers Co. v. Steffens, supra, by the Commission of Appeals, in an opinion adopted by the Supreme Court, the following:

“It is quite clear from the language used in this subdivision that, aside from the fact that the pleadings in the suit disclose that the suit is ‘upon or by reason off an obligation of some sort — either written or unwritten, express or implied — there is but a single fact which need be shown in order to cast venue in the county where the suit is brought. This single fact is to the effect that the defendant has contracted in writing to perform the alleged obligation in said county— the county or some definite place therein being expressly named in the writing. Proof of the existence of a cause of action is not required now, and was not required before the subdivision was amended in 1935. (authorities).”

The germane complaints of appel-lee’s petition for damages are set forth in the first part of this opinion. They disclose that they are based on an obligation to be performed in Nueces County. The contract does not state where the contract was actually completed, nor is this important under the facts before us. The trial court, to determine the venue question, was not required to find that appel-lee had established a prima facie cause of action but only that it had brought suit on an obligation appellant had contracted in writing to perform in Nueces County. Baker & Taylor Drilling Co. v. Blanchard Drilling Co., 363 S.W.2d 818 (Tex.Civ.App.1962). We find that appellant’s petition meets the test set forth in the Petroleum Producers Co. case. Appellant’s points 3 and 4 are overruled.

We conclude that the facts show that venue as prescribed in Subdivision 5, Art. 1995., lies in Nueces County and that the trial court has correctly overruled the appellant’s plea of privilege.

The judgment is affirmed.


author: PHILLIPS, Justice.

text:
    C. C. OLSON, dba Master Floor Covering Company, Appellant, v. B. W. MERCHANDISE, INC., Appellee.
    No. 11278.
    Court of Civil Appeals of Texas. Austin.
    March 17, 1965.
    Rehearing Denied April 7, 1965.

      Hardeman, Smith & Foy, S. Ancial Middlebrook, San Angelo, for appellant.
    Upton, Upton, Griffis, Shannon & Porter, John H. Hofmann, San Angelo, for ap-pellee.
   PHILLIPS, Justice.

This is a venue case. B. W. Merchandise, Inc., the plaintiff in the trial court and the appellee here, brought suit against C. C. Olson, d/b/a Master Floor Covering Company, for damages caused by a fire that destroyed a building leased by appellee in San Angelo, Tom Green County. Appellant Olson, a resident of Tarrant County filed a plea of privilege asserting his right to be sued in Tarrant County. This appeal is from an order overruling appellant’s plea of privilege.

We reverse the judgment of the trial court and order this case transferred to Tarrant County for trial.

Pursuant to telephone conferences between appellant and appellee’s Assistant Manager John Brooks, an agreement was entered into whereby appellant would come to San Angelo from Ft. Worth and lay a vinyl tile floor on certain premises leased by appellee. The terms of the agreement were that appellant would lay the tile at his cost plus approximately six cents per square foot, including the cleaning and preparing of the concrete floor of the building. When appellant arrived at appellee’s premises and found more paint on the floor than he had anticipated, he told appellee’s employees that the only method he had for removing the paint was a sanding machine in which case appellee’s merchandise would be covered with dust. At this point, ap-pellee’s employees, John Brooks and Neal* Evans, appellee’s store managers, suggested that a Mr. Kincannon be contacted as he had worked on appellee’s floors in the past. Appellant had not known of Kin-cannon before this time.

After Kincannon had been contacted and had arrived on the premises, he tested the painted floor with some paint removing solution. The method used by Kincannon was to agitate a small area of the painted surface with a small spatula or stick. Appellant watched Kincannon’s efforts for some IS or 20 minutes. The test was apparently successful so arrangements were made with Kincannon to remove the paint.

The record is somewhat inconclusive as to whether the store managers Evans and Brooks hired Kincannon to do the job or whether appellant approved of the negotiations with Kincannon and hired him. In view of our theory of this case a determination of this fact is unnecessary as we hold that the evidence is conclusive that Kin-cannon’s role was that of an independent contractor.

When appellant was satisfied that Kin-cannon could remove the paint and it was agreed that Kincannon was to begin the job immediately, appellant left the premises and the job to Kincannon. He planned to return the following morning and begin the tile work.

Kincannon then left two of his own employees to begin the paint removing, and he too left.

Shortly thereafter, Kincannon’s employees asked Evans to call Kincannon so that they could get Kincannon’s permission to use a rotating scrubbing machine to remove the paint. This machine was outside the store on Kincannon’s truck. Appellant had never seen this machine nor was it used in his presence. After the telephone call to Kincannon, his employees brought the machine into the building and began using it to agitate the area of the floor to which the paint remover had been applied. While the machine was in use, a fire ignited in the area which resulted in the damage to appellee’s property for which it is now seeking to recover.

Article 199S, Vernon’s Ann.Civ.St.,, provides that no person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except under certain conditions that provide exceptions to this rule. These exceptions are set out m Art. 1995. Thus appellee has a right to be sued in Tarrant County,, the county of his domicile, unless appellee by Ms pleadings and proof can bring his case under one of the hereinafter discussed exceptions to this rule. The right of a resident to be sued in the county of his domicile is a valuable right and any exceptions to his plea of privilege must be strictly construed and clearly established. Atlas Assurance Company v. Houston Fire & Casualty Insurance Company, Tex.Civ.App., 324 S.W.2d 943, writ dismissed.

We hold that Kincannon was an independent contractor. This is true irrespective of who hired him. He had the right to control all of the incidents of his work; he furnished the tools, materials and men necessary to complete the job; he was paid by the job and not the hour for a specific job of removing the paint from the floor. Appellant had not known Kincannon in the past nor did he know of his ability or his methods. He was looking solely to the result of Kincannon’s contract, that is the removal of the paint. The method was to be his own. The employees used were his and they looked to him for direction. See 30 T.J.2d ed., Sec. 4, p. 478.

The general rule that an employer is not responsible for the acts or omissions of an independent contractor or his servants is well established; however, there is one exception to this rule in that one who employs an independent contractor to. perform work that is inherently dangerous is liable for the negligence of such independent contractor. Appellee cites this exception and maintains that Kincannon’s use of an inflammable paint remover brings his work under that class which is inherently dangerous. Thus, he maintains, that the suit can be maintained in Tom Green County under exception 9a of Art. 1995 which, in general, provides that a suit based upon negligence may be brought in the county where the negligence occurred as well as in the county where the defendant has his domicile.

We hold that the use of an inflammable paint remover is not work that is inherently dangerous, consequently any possible negligence of Kincannon cannot, under these facts, be imputed to appellant.

In Brownsville Navigation District v. Valley Ice & Fuel Co., Tex.Civ.App., 313 S.W.2d 104, n. w. h., Judge Pope, then speaking for the San Antonio Court of Civil Appeals, dealt with the question of whether the use of an acetylene blow torch which caused a fire was inherently dangerous work stated: “In our opinion, there is no proof that the use of an open flame from an acetylene torch was discussed or contemplated by the parties. The contract did not directly require it, and the torch was not necessarily incident to the removal of the equipment from the Pier. We doubt that the use of the acetylene torch was an inherently dangerous operation, since it was the negligent manner of its use which resulted in the fire.” Citing cases.

Thus in the case at bar, the use of an inflammable paint remover was not in itself inherently dangerous work It was that added factor of the electrically operated scrubber outside the contemplation or knowledge of appellant and not a requisite part of the contract to remove the paint, that apparently caused the fire. Inflammable products such as gasoline, natural gas, cleaning fluids and the like are a part of the average person’s daily existence. These are not considered inherently dangerous when properly used. It is their misuse that makes them hazardous and an assumption of misuse is not ordinarily to be contemplated in contracts involving them. In Jennings v. Vincent’s Adm’x, 284 Ky. 614, 145 S.W.2d 537, the Court of Appeals of Kentucky stated: “There are many substances used in everyday life which are highly volatile and gases given off therefrom are explosive when brought into contact with a flame or spark of electricity, yet people generally do not regard gasoline, kerosene, naphtha, turpentine, etc., as "being inherently dangerous, and they are not, when used with the proper degree of care. When danger is not naturally expected to'result in the use of a substance or instrumentality, it cannot be said to be inherently dangerous and the owner is not liable for the injuries caused by the negligent use thereof by an independent contractor.” Citing cases.

Appellee cites this Court to exception 14 of Article 1995, wherein suits for the recovery of land or damages thereto must be brought in the county in which the land, or a part thereof, may lie. Appellee maintains that he has a leasehold estate in the property destroyed and that such is damage to an interest in land, citing Crain v. Estes, Tex.Civ.App., 320 S.W.2d 395. We point out that no leasehold estate or any damage thereto appears in appellee’s pleadings. Appellee alleges in his petition that he was the owner of certain property destroyed by fire. This statement in appellee’s pleadings was an apparent inadvertence as it later developed that the property in question was owned by the Fitzgerald Realty Company which also has a suit against the appellant herein. In fact, the suit at bar and Fitzgerald’s Realty’s suit against appellant for the loss of the building were joined for the purpose of the plea of privilege hearing at which time appellee’s attorney questioned Neal Evans as follows and made the following statements himself:

“Q All right, now, I will ask you whether or not the nature of the suit filed by Fitzgerald Realty Company is one for damages to its building or land or damage to its land out there that we are talking about?
“A That’s the way I understand it.
"Q- The suit filed by B. W. Merchandise, Inc., on the other hand, is one for the contents, the furniture and fixtures and loss of profits, and that sort of thing?
“A That’s the way I understand that.
“MR. DAVIS; We will now introduce Plaintiff’s Exhibit No. 1 which has already been agreed upon as being a true and correct copy of Plaintiff’s Original Petition in Cause No. 30,937-B, which is the suit filed Fitzgerald Realty Company vs. C. C. Olson, DBA Master Floor Covering Company; and we introduce that petition, Your Honor, for the purpose of showing, No. 1, the nature of the suit involved in the Fitzgerald law suit, that being a suit for damages to land, and we also introduce it for the purpose of showing that the land described therein is situated in Tom Green County, Texas.
“Q As a consequence of that fire that occurred on July 20, 1963, which is the building located upon the land we have been talking about, were the buildings all virtually destroyed?
“A I think you would consider that they were completely destroyed, because what little portion was left cost us more to fix up than we could have almost rebuilt a new structure for.
“Q Would you tell the Court whether or not the damages to the buildings caused by the fire ran into the thousands of dollars and certainly in excess of $500?
“A Yes, it did.
“Q Would you tell the Court whether or not the damages to the — strike that — that would be the loss to Gitzgerald Realty Company, wouldn’t it?
“A Yes, that’s right.
“Q As regards the loss suffered by B. W. Merchandise, Inc., will you. tell the Court whether or not the inventory, the contents, the furniture, fixtures, the loss of profits and the like also ran into the thousands of dollars and certainly in excess of $500 ?
“A Yes, it did.”

In the prayer to its pleadings, appellee asks $54,000 in damages for the building which was totally destroyed. It also asks damages for the contents of the building including fixtures, furniture and merchandise and for loss of profits.

Appellee’s pleadings allege ownership of a building in Tom Green County destroyed by fire through appellant’s negligence. The venue facts that generally must be established under Subdivision 14 are: (1) the nature of plaintiff’s claim and (2) the location of the land. Ordinarily these facts are proved by the allegations of plaintiff’s petition and by evidence showing location of the land, Piazza v. Phillips, 153 Tex. 115, 264 S.W.2d 428; Cox v. Palacios, Tex.Civ.App., 188 S.W.2d 688. However, as in the instant case, where plaintiffs by their own admissions at the venue hearing disclaim any ownership of the land as originally plead, an additional issue is raised for decision. This situation is similar to those cases where false allegations were made for venue purposes and venue disallowed under Sec. 14. Batex Oil Company v. La Brisa Land and Cattle Company, Tex.Civ.App., 352 S.W.2d 769. A venue fact later admitted by the plaintiff to have been made in error can no longer be considered to have been made in good faith, consequently it must fail. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69.

Pleadings alleging damage to a leasehold with evidence of the location of the land would have supported appellee’s exception under subdivision 14, Crain v. Estes, above; however there are no pleadings alleging a leasehold. The only conclusion at which we can arrive, in the light of the pleadings and the abovementioned testimony, is that recovery of damage to the leasehold estate, that might have been sought, has been either abandoned or waived, Tunstill v. Scott, 138 Tex. 425, 160 S.W.2d 65. In a venue case under subdivision 14 the court must determine the nature of the suit, as a matter of law, by reference to the petition, Tennessee Gas & Transmission Co. v. Heard, Tex.Civ.App., 190 S.W.2d 518.

Thus we have before us pleadings to damage of land that by plaintiff’s own admissions can no longer be considered in good faith, and, venue facts which could have evoked subsection 14 but were not plead. Either is fatal to appellee’s position.

We reverse the judgment of the trial court and direct that the suit be transferred to a District Court of Tarrant County.

Reversed with instructions.


text:
    Robert S. CALVERT et al., Appellants, v. W. Henry ADAMS, Appellee.
    No. 11277.
    Court of Civil Appeals of Texas. Austin.
    March 17, 1965.
    Rehearing Denied April 7, 1965.

      Waggoner Carr, Atty. Gen., H. Grady Chandler, Cecil C. Rotsch, Gordon C. Cass, Asst. Attys. Gen., Austin, for appellants.
    Skelton, Bowmer, Courtney & Burleson, Temple, for appellee.
   HUGHES, Justice.

W. Henry Adams, appellee, sued Robert S. Calvert, Comptroller of Public Accounts, Waggoner Carr, Attorney General and Jesse James, Treasurer, in their respective capacities as officials of Texas, to recover the sum of $1,342.50 which he paid to the State, under protest, as coin-operated machine taxes under the provisions of Art. 13.02, Title 122A, V.A.C.S.

The facts of the case were stipulated. The trial court rendered judgment for ap-pellee for recovery of the taxes sued for together with the accrued pro rata interest thereon as provided by law.

Appellee did business in his own name and under the trade name of Central Music Company. He owned a number of coin-operated amusement machines. He entered into a contract with the military authorities of Fort Hood, a United States Military Reservation, the title to which was vested in the United States by virtue of purchase and condemnation proceedings, located in Bell and Coryell Counties, Texas, by which he which he was granted a concession to operate such machines at designated places on the Post in consideration of 50% of the gross receipts from such machines. This contract specifically provided that appellee should “obtain all necessary permits, give all necessary notices, pay all license fees, and comply with all municipal, state or Federal laws, rules, ordinances, and regulations relating to the preservation of the public health or applicable to the business carried, on under this Agreement, and to assume complete and sole liability for all Federal, state, and local taxes applicable to the property, income, and transactions of the concession.”

It is conceded that the faxes, the recovery of which are sought, were properly calculated and are not recoverable unless the location of the amusement machines on the Post during the period for which the taxes were paid precludes the State from levying and collecting taxes thereon.

It is- provided in the Constitution of the United States that Congress shall have the authority “To exercise exclusive Legislation * * * over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.” Art. 1, Sec. 8, Cl. 17, U. S. Constitution.

This clause of the Constitution has not been given strict construction. Collins v. Yosemite Park & Curry Co., 304 U.S. 518, 58 S.Ct. 1009, 82 L.Ed. 1502.

In James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155, we find stated, and quote, as much of the law on this subject as is relevant to a proper understanding and disposition of this case:

“Clause 17 contains no express stipulation that the consent of the state must be without reservations. We think that such a stipulation should not be implied. We are unable to reconcile such an implication with the freedom of the state and its admitted authority to refuse or qualify cessions of jurisdiction when purchases have been made without consent or property has been acquired by condemnation. * *
“It is not questioned that the state may refuse its consent and retain jurisdiction consistent with the governmental purposes for which the property was acquired. The right of eminent domain inheres in the federal government by virtue of its sovereignty, and thus it may, regardless of the wishes either of the owners or of the states, acquire the lands which it needs within their borders. Kohl v. United States, 91 U.S. 367, 371, 372, 23 L.Ed. 449, [451], In that event, as in cases of acquisition by purchase without consent of the state, jurisdiction is dependent upon cession by the state, and the state may qualify its cession by reservations not inconsistent with the governmental uses.”

On September 6, 1950, the Governor of the State of Texas executed a deed of cession to the United States of America from which we quote all pertinent languages

“DEED OF CESSION
“STATE OF TEXAS TO WHOM THESE PRESENTS SHALL , COME,
“COUNTY OF TRAVIS GREETINGS:
“WHEREAS, the United States of America has acquired fee simple title to 157,588.023 acres of land, more or less, lying and being situated in the Counties of Bell and Coryell, State of Texas, to be used in connection with a Military Reservation known as Camp Hood, title to a portion of which said land has vested in the United States of America under and by virtue of the following listed deed conveyances" (Here follows a description of 498 tracts of land).
“AND WHEREAS, title to the remaining portion of the hereinafter described land not covered by the above-listed conveyances was acquired by the United States of America by condemnation proceedings filed in the United States District Court in and for The Western District of Texas, Waco Division, said condemnation proceedings being styled and numbered, declarations of taking and petitions therein being dated and filed, and judgments thereon being recorded in the records of Deeds of Bell and Coryell Counties, State of Texas, as follows:
(Here follows description of 68 tracts of land condemned).
“The perimeter description of the land acquired by the United States of America by the above-listed deed conveyances and condemnation proceedings is as follows: (Here follows metes and bounds description).
“AND WHEREAS, the United States of America desires to acquire constitutional jurisdiction over the land above described, and has made application to the Governor of The State of Texas, in writing to that effect, through its Secretary of the Army, accompanied by the proper evidence of such acquisition, duly authenticated and recorded, having annexed thereto an accurate description of said land by metes and bounds as hereinbefore set forth.
“NOW, THEREFORE, I, ALLAN SHIVERS, Governor of -the State of Texas, in the name and on behalf of The State of Texas, do hereby cede to the United States of America exclusive jurisdiction over the said described land, to hold, possess and exercise said jurisdiction as long as the same remains the property of the United States of America; provided, however, that this cession of jurisdiction is made and granted upon the express condition that The State of Texas shall retain concurrent jurisdiction with the United States of America over every portion of the land so ceded, so far, that all process, civil and criminal, issuing under the authority of the State of Texas or any of the courts or judicial officers thereof, may be executed by the proper officers of The State of Texas upon any person amenable to the same within the limits of the land over which jurisdiction is so ceded, in like manner and with like effect as if no such cession had taken place.”

This deed of cession was accepted on behalf of the United States by the Secretary of the Army by letter received by the Governor of Texas on November 2, 1950.

Arts. 5242-5248Í, Vernon’s Ann.Civ.St, provide for and regulate the acquisition of lands in Texas for Federal use. The statutes to which we now refer or quote were all in force when the deed of cession was executed by the Governor on September 6, 1950.

Art. 5242 provided, in part, that the United States Government could purchase lands in Texas for use as a fort or.military station, the statute stating that “* * * the consent of the Legislature is hereby expressly given to any such purchase or acquisition made in accordance with the provisions of this law.”

Art. 5243 provided that in the event purchase could not be consummated by agreement, then condemnation proceedings could be instituted by the authorized Federal agent.

Art. 5245 provided that the Governor could sell land belonging to the State to the United States for the purposes specified by statute.

■ Arts. 5247 and 5248 are the statutes directly involved in this suit and we copy them in full:

“Art. 5247. [5275-6] Federal jurisdiction
“Whenever the United States shall acquire any lands under this title, and shall desire to acquire constitutional jurisdiction over such lands for any purpose authorized herein, it shall be lawful for the Governor, in the name and in behalf of the State, to cede to the United States exclusive jurisdiction over any lands so acquired, when application may be made to him for that purpose, which application shall be in writing and accompanied with the proper evidence of such acquisition, duly authenticated and recorded. containing or having annexed thereto, an accurate description by metes and bounds of the lands sought to be ceded. No such cession shall ever be made except upon the express condition that this State shall retain concurrent jurisdiction with the United States over every portion of the lands so ceded, so far, that all process, civil or criminal issuing under the authority of this State or any of the courts or judicial officers thereof, may be executed by the proper officers of the State, upon any person amenable to the same within the limits of the land so ceded, in like manner and like effect as if no such cession had taken place; and such condition shall be inserted in such instrument of cession. Acts 1849, p. 12; G.L. vol. 3, p. 450.
“Art. 5248. [5277] [376] [335] Exempt from taxation
“The United States shall be secure in their possession and enjoyment of all lands acquired under the provisions of this title; and such lands and all improvements thereon shall be exempt from any taxation under the authority of this State so long as the same are held, owned, used and occupied by the United States for the purposes expressed in this title and not otherwise; provided, however, that any personal property located on said lands which is privately owned by any person, firm, association of persons or corporation shall be subject to taxation by this State and its political subdivisions; and provided, further, that any portion of said lands and improvements which is used and occupied by any person, firm, association of persons or corporation in its private capacity, or which is being used or occupied in the conduct of any private business or enterprise, shall be subject to taxation by this State and its political subdivisions. Acts 1871, p. 19; G.L. Vol. 6, p. 921; Acts 1950, 51st Leg., 1st C.S., p. 105, ch. 37, § 1.”

The deed of cession executed by Governor Shivers was in strict conformity to the provisions of Art. 5247. It contained all the requirements of that statute which is the only statute prescribing what must be incorporated in a deed of cession to the United States. The deed did not mention, and there was no legislative direction that it should mention, the reservations made by the State as set out in Art. 5248. The provisions of this Article became a part of the cession deed by operation of law. This familiar rale is stated in 13 Tex.Jur.2d, Contracts, Sec. 165, as follows:

“As a general rule, it may properly be said that laws in existence at the time and place of making of a contract, as well as laws then existing at the place where the agreement is to be performed, constitute an integral part of the contract, just as if they had been expressly incorporated therein. Indeed, it is conclusively presumed that the parties to the contract knew the law and contracted with reference to it, and the agreement will therefore be construed with regard to such laws as were then in existence.”

If the deed of cession be construed as granting rights in excess of those authorized by law to be granted, then, to such extent, the deed must be disregarded for the reason that the Governor of Texas has no authority not committed to him by the Constitution and statutes of this State.

The office of governor does not exist by virtue of the common law. Under the American system it is the creature of State Constitutions, and it may be abolished by the people. 24 Am.Jur., p. 824. A Governor “has no undefined or disputable prerogatives and cannot affect the public money except as he is authorized under the Constitution or by a particular law.” 24 Am.Jur., p. 826.

In 81 C.J.S. States § 60, p. 982, it is stated that “The Governor has no prerogative powers, but possesses only such powers and duties as are vested in him by constitutional or statutory grant.”

In Constantin v. Smith, 57 F.2d 227, D.C., E.D.Tex., appeal dismissed Sterling v. Constantin, 287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375, the Court quoted with approval the following statement from Herlihy v. Donohue, 52 Mont. 601, 161 P. 164, L.R.A.1917B, 702, Ann.Cas.1917C, 29: “[t]he Governor is at all times amenable to the Constitution and laws of the state. They are the charters of his powers, and in them he must find the authority for his official acts.”

In State of Texas v. Ragland Clinic-Hospital, 138 Tex. 393, 159 S.W.2d 105, Chief Justice Alexander writing, the Court stated:

“Since the powers of all State officers are fixed by law, all persons dealing with them are charged with notice of the limits of their authority and are hound at their peril to ascertain whether the contemplated contract is within the power conferred. There is no occasion or excuse in such a case for indulging in presumptions or in relying on appearances.”

Appellee cites such authorities as Surplus Trading Co. v. Cook, 281 U.S. 647, 50 S.Ct. 455, 74 L.Ed. 1091, for the rule which it expresses in this language, “ * * * the state undoubtedly may cede her jurisdiction to the United States and may make the cession either absolute or qualified as to her may appear desirable, provided the qualification is consistent with the purposes for which the reservation is maintained and is accepted by the United States. And, where such a cession is made and accepted, it will be determinative of the jurisdiction of both the United States and the state within the reservation.”

Our decision is within this rule for the reason that the State has not ceded to the United States Government the rights reserved to it by Art. 5248.

Appellee cites the case of Board of Equalization, etc. v. General Dynamics Corp., 344 S.W.2d 489, Fort Worth C.C.A., writ ref., n. r. e., as controlling the disposition of this case. There the deed of cession was executed in 1942, prior to the amendment of Art. 5248 providing for the reservation of certain taxing powers by the State. The effect of that decision simply is that the State having ceded to the United States legislative jurisdiction concerning taxes could not by subsequent State action alone re-acquire it.

Appellee also contends that the tax imposed by Art. 13.02, Taxation General, V.A.C.S., the tax paid by him, is not a tax on “personal property on said lands” (Post) as provided in Art. 5248 beeause it is an occupation tax and not an ad valorem tax.

Art. 5248 provides that the personal property on the lands shall be “subject to taxation.” The statute does not provide that such property shall be subject to an ad valorem or any other specific tax. The language of the statute is broad. It means, in our opinion, that such property is subject to any tax which the Legislature may lawfully impose.

Art. 13.02, Sec. (1) reads:

“(1) Every ‘owner’ who owns, controls, possesses, exhibits, displays, or who permits to be exhibited or displayed in this State any ‘coin-operated machine,’ shall -pay and there is hereby levied on every ‘coin-operated machine,’ except such as are exempted herein, an annual occupation tax determined as follows: ” (Italics added)

Obviously, this is a tax on personal property within the meaning of Art. 5248.

It is not contended that the imposition of this tax on the amusement machines owned by appellee interferes with the use of the lands on which they are located by the Government of the United States far the purposes for which such lands were acquired by the United States.

The judgment of the trial court is reversed and judgment is here rendered that appellee take nothing by his suit.

Reversed and rendered.


author: COLEMAN, Justice.

text:
    LEAGUE CITY, Texas, Appellant, v. W. R. FLORA & SONS, INC., et al., Appellees.
    No. 14512.
    Court of Civil Appeals of Texas. Houston.
    March 11, 1965.
    Rehearing Denied April 1, 1965.

      Cecil J. Palmer, Dickinson, for appellant.
    Markwell, Stubbs, Decker & Dalehite, Galveston, Elmo M. Johnson, Galveston, of counsel, for appellees.
   COLEMAN, Justice.

This is a suit to enjoin the enforcement of a penal ordinance. The appeal is from an order granting a temporary injunction.

There are two appellees. W. R. Flora & Sons, Inc. are engaged in the business of selling top soil, sand and fill dirt. This appellee has contracted with appellee, Earl Turner, to remove and sell top soil, sand and fill dirt from a 45.16 acre tract of land owned by Turner in the City of League City, Texas, agreeing to pay to him a fixed sum per yard for the material removed and sold, and also agreeing to pay him a minimum monthly payment of $300.00 regardless of the number of yards sold. Flora sells to customers who remove the material in their own trucks and also delivers material to customers in trucks owned or leased by Flora.

The tract of land can be reached from the Gulf Freeway by going north on Calder Drive and east on Link Road; from F. M. Road 518 by going south on Calder Drive and east on Link Road; from State Highway No. 3 by going west on Link Road or by going south on Bradshaw Nursery Road and west on Link Road.

The City of League City has enacted Ordinance No. 41 under the terms of which a load limit of 6500 pounds, regardless of wheels or axle distribution, was placed on Bradshaw Nursery Road, Calder Avenue north from Link Road, and that portion of Link Road between Bradshaw Nursery Road and State Highway 3. The ordinance provided for the following exceptions:

“ * * * trucks, or other vehicles, using or operating upon the above designated portions of Bradshaw Road, Link Road and Calder Avenue for the transportation and delivery of goods, wares or merchandise to residences or places of business located within those portions of Bradshaw Road, Link Road and Calder Avenue above designated, * * * trucks, or other vehicles, owned or operated under the authority of the United States Government for the delivery of mail, * * * trucks buses or other vehicles, owned and operated under the authority of Clear Creek Consolidated Independent School District, * * * trucks, or other vehicles, owned or operated under the authority of League City Volunteer Fire Department, * * * trucks or other vehicles, owned or operated under the authority of the City of League City or the County of Galveston.”

The effect of the ordinance is to deny to Flora the use of certain roads for hauling the dirt which he is bound by contract to remove or pay for, and to deny the use of these roads to customers desiring to purchase dirt from him. One route to the property was left for use. There was testimony that since the enactment of this ordinance the sales of dirt have been sharply reduced. The ordinance provides criminal penalties for violations.

It is well settled that the enforcement of city ordinances penal in nature can be enjoined only when they are void and their enforcement would result in irreparable injury to the property rights of the plaintiff, or serious impairment in the use of his property. Ex Parte Sterling, 122 Tex. 108, 53 S.W.2d 294.

Appellant contends that no injury to a vested property right was proven since no person can insist that he has, or may acquire, a vested right to use the streets and highways in carrying on a commercial business, citing Ex Parte Sterling, supra. There is a valid distinction between Ex Parte Sterling and this case. The ownership of land abutting upon a public street carries with it as property the right of free and unimpaired access thereto and egress therefrom, and any action on the part of the city which impaired that right causing a depreciation in the value of the land constitutes damage to the lot. It is not necessary that the obstruction limiting ingress and egress be in front of or near to the property if in fact it affects the value of the property. If the effect of the obstruction is to render the property less valuable to sell, or to use, the property is damaged. Powell v. Houston & T. C. R. Co., 104 Tex. 219, 135 S.W. 1153, 46 L.R.A.,N.S., 1615.

Turner’s ownership of property abutting on Link Road entitled him to its use free from obstruction or hindrance by the City. Commissioners Court of Harris County v. Kaiser, Tex.Civ.App., 23 S.W.2d 840, writ ref.; Moore v. Commissioners Court of McCulloch County, Tex.Civ.App., 239 S.W.2d 119, error ref.

However, property rights may be injured or taken by a municipality without compensation in the valid exercise of the police power. In Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475, the court said:

“All property is held subject to the valid exercise of the police power; nor are regulations unconstitutional merely because they operate as a restraint upon private rights of person or property or will result in loss to individuals. The infliction of such loss is not a deprivation of property without due process of law; the exertion of the police power upon subjects lying within its scope, in a proper and lav/ful manner, is due process of law. Moreover, police regulations do not constitute a taking of property under the right of eminent domain; and compensation is not required to be made for such loss as is occasioned by the proper exercise of the police power.”

The police power is not without limitations. It is not validly exercised if it deprives one of his property without due course of law, or fails to provide him that equal protection of the law, vouchsafed to him by the Texas Constitution. Missouri, K. & T. R. Co. v. Rockwall County Levee Imp. District No. 3, 117 Tex. 34, 297 S.W. 206.

Article I, Sec. 3, of the Texas Constitution, Vernon’s Ann.St., guarantees to all persons equality of rights. It was designed to prevent any person, or class of persons, from being singled out as a special subject for discriminating or hostile legislation. Burroughs v. Lyles, 142 Tex. 704, 181 S.W.2d 570.

If it can be shown that an ordinance is unnecessary, unreasonable, and arbitrary, it is unconstitutional and void. City of San Antonio v. Pigeonhole Parking of Texas, 158 Tex. 318, 311 S.W.2d 218, 73 A.L.R.2d 640. In the Pigeonhole Parking case the Supreme Court of Texas said:

“Now it is evident that the City granted respondent a permit to erect its parking facility and respondent proceeded with the construction, probably with the expectation of having vehicular access from both streets. But he has made no showing nor offered any testimony that the refusal of a permit for a driveway on Houston Street would be oppressive or arbitrary or interfere unreasonably with the operation of his garage or that it could not be conducted profitably and economically without the additional driveway. He has not attempted to show that the pedestrian travel along Houston Street is not so heavy and congested as to make the driveway hazardous to the public and a threat to the safety of pedestrians at that point. It may be that such facts can be shown as to convince the Court that the enforcement of the ordinance as to respondent would be unreasonable and unjust. The test of reasonableness to be applied is not solely one of whether the additional driveway on Houston Street is essential to the profitable operation of respondent’s business, but whether the use of the sidewalk would expose the pedestrian public to such hazard and danger as to be out of proportion to the detriment caused to respondent by a denial of that use. Tilton v. Sharpe, 85 N.H. 138, 155 A. 44.”

Here we have testimony the Link Road is used by vehicles weighing more than 6500 pounds in making deliveries to residents on Pecan Orchard Road. The ordinance exempts vehicles used for the transportation and delivery of goods to residences or places of business located within those portions of the roads on which a weight limit was placed. Trucks, buses, or other vehicles owned by governmental agencies were exempted. The City has never improved or maintained these streets. There was no evidence that the operation of trucks on the roads in question constituted a nuisance. The roads in question constitute approximately one-tenth of the total shell roads within the City Limits, and all of the roads in the City are shell and in approximately the same condition. Trucks carrying concrete, shell and other materials, weighing in excess of 6500 pounds, use the other shell roads in the City, but this ordinance is the only ordinance establishing weight limits on City streets. There had been no vehicle accidents on any of the streets named in the ordinance. The roads have been maintained by Flora and are in substantially better condition now than before Flora’s operation began. The ordinance contains no findings of fact attempting to justify the regulation imposed.

In Nichols v. Park, Tex.Civ.App., 119 S.W.2d 1066, the court said:

“A statute, to be justified under the authority of the police power, must be reasonable in the light of all the circumstances. Otherwise, it may be an unlawful interference with the property and rights of the individual. The issue to be determined in such a case involves a consideration of the value of the benefits to the public and the expense and costs imposed upon the complainant. Missouri, K. & T. R. Co. v. Improvement District, (117 Tex. 34, 297 S.W. 206), supra.”

In Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, the court said:

“In a hearing on an application for a temporary injunction the only question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits. James v. Weinstein & Sons, Tex.Com.App., 12 S.W.2d 959, 960. To warrant the issuance of the writ, the applicant need only show a probable right and a probable injury; he is not required to establish that he will finally prevail in the litigation. Rosenfield v. Seifert, Tex.Civ.App., 270 S.W. 220, 223; Nagy v. Bennett, Tex.Civ.App., 24 S.W.2d 778, 781; High on Injunctions, 4th Edition, Vol. 1, Sec. S, p. 8. If the party enjoined prevails on a final trial of the case he finds protection against the improvident granting of the writ and consequent loss in the interim in the applicant’s bond. Where the pleadings and the evidence present a case of probable right and probable injury, the trial court is clothed with broad discretion in determining whether to issue the writ and its order will be reversed only on a showing of a clear abuse of discretion. Texas Foundries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460, 462. There is no abuse of discretion in the issuance of a writ if the petition alleges a cause of action and the evidence adduced tends to sustain it. Southwestern Greyhound Lines, Inc. v. Railroad Commission, 128 Tex. 560, 99 S.W.2d 263, 109 A.L.R. 1235.”

In its order granting the injunction the trial court found that the effect of the ordinance was “to close the named streets to trucks seeking to purchase sand or dirt from Plaintiffs and to deprive them of access to their tract by truck by all routes except an extreme westerly route, * * * that the increased distances involved in use of the alternate route are such as to probably divert customers from Plaintiffs’ tract entirely and that such interference with customers and markets and diversion of trade and revenue would result in irreparable and inestimable damage to the Plaintiffs ” The trial court further found that the ordinance was arbitrary, discriminatory and oppressive, both in form and application and that appellees have made a proper showing of probable right and probable injury.

The evidence is sufficient to show jurisdiction in the trial court and to sustain his findings of probable right and probable injury. Under such circumstances the trial court did not abuse his discretion in issuing the temporary restraining order.

Affirmed.


author: WERLEIN, Justice.

text:
    G. W. SIMS, Appellant, v. Doyle DAVIS, d/b/a Davis Motor Company, Appellee.
    No. 14524.
    Court of Civil Appeals of Texas. Houston.
    March 18, 1965.

      Ralph B. Lee, Dan Kenneriy, Houston, for appellant.
    Sólito, Vetrano & Murr, Anthony L. Ve-trano, Jr., Houston, for appellee.
   WERLEIN, Justice.

G. W. Sims appeals from a summary judgment against him in favor of appellée, Doyle Davis, d/b/a Davis Motor Company.

Appellee filed suit against appellant Sims and one Jack Brewer, d/b/a Brewer’s Auto Sales, herein referred to as Brewer. Ap-pellee alleged in his unverified petition that on or about August 2, 1963 he contracted to purchase two 1963 automobiles from, the defendant and that the defendant was to furnish good and sufficient manufacturer’s certificates showing clear title to the automobiles; that he agreed to pay the defendant the sum of $4,700.00 and executed two demand drafts, each in the sum of $2,350.00, which were endorsed by Jack Brewer and G. W. Sims, and that the same were presented for collection and were paid to the defendants, Jack Brewer and G. W. Sims, who received the amount thereof. He further alleged that the defendants Brewer and Sims fraudulently represented to him that the automobiles were new, and that they had good and sufficient title thereto; that such rep-reservations were false, and that the defendants knew or should have known that they were false at the time they were made; that appellee relied upon such representations which were a material inducement to him to execute the drafts in question; that in fact said automobiles had been stolen, and the manufacturer’s certificates on said automobiles were forged, which defendants knew or should have known; and that defendants had refused to return and had converted to their own use the money paid them for the automobiles and there was a complete failure of consideration.

The defendant Jack Brewer merely filed a general denial. Appellant filed exceptions to appellee’s pleading, and a cross-action against the appellee for actual and exemplary damages growing out of the alleged loss sustained by appellant as the result of appellee wrongful!}' suing out a writ of garnishment against appellant’s account in the Citizens State Bank of Houston.

In his verified amended answer, appellant alleged in substance that he had a financing agreement with said Brewer whereby he would advance money to Brewer in order that Brewer could purchase automobiles for later resale. This financing agreement provided that the security for the advance of money for each automobile would be a 10% reserve and the certificate of title to each automobile which appellant would retain as evidence of a purchase until the account of the said Brewer was paid, and when Brewer consummated the subsequent resale of the automobile, and upon payment to appellant Sims by Brewer of the amount he owed, the certificate of title would then be forwarded by Sims to the new lien-holder or mortgage holder. Appellant testified in his deposition that he had nothing to do with the buying or selling of the automobiles, received no commissions on sales or purchases, but a fee of $15.00 for each draft he honored in financing automobiles.

With respect to the two automobiles in question, appellant alleged that on or about July 31, 1963 he advanced $2,300.00 for the purchase by Brewer of one red 1963 Chevrolet 2-door hardtop automobile by paying a draft drawn on him by Brewer and payable to one Ramos, and that he, Sims, retained possession of the title certificate to said automobile as security for the money he advanced in honoring Brewer’s draft. He also alleged that on or about the same date, he advanced $2,325.00 for the purchase price of one white 1963 Chevrolet 2-door hardtop automobile by paying a draft drawn by Brewer on him payable to E. R. Ramos, and that he retained possession of the title certificate to said automobile as security for the advance of money that he was paying out on such draft.

He further alleged that Jack Brewer paid on his account with appellant the total sum of $4,700.00 less a credit of $25.00 substantially as follows: On or about August 2, 1963, Doyle Davis drew two drafts on Southwestern Investment Company payable through the National Bank of Commerce of Houston, each in the sum of $2,350.00 payable to the order of Brewer for the purchase price of said red and white Chevrolets, which Davis had purchased from Brewer and Brewer endorsed the drafts and delivered them to Sims as payment of the purchase money advance and lien of Sims. Sims accepted the drafts as reimbursement of the money which he had advanced to Brewer when Brewer bought the cars. He endorsed and deposited the drafts with the title certificates attached thereto in hi's own bank, and his bank credited the same to his account therein.

Appellant also alleged that he had no knowledge concerning the two automobiles described in said certificates, had never seen them, had no knowledge that they were stolen or that the certificates of title were forged or fraudulent in any way, and further that appellee had full and complete knowledge concerning the condition, make, model and age of said automobiles. He also alleged that he was not in any way a party to the contracts of sale between ap-pellee and Jack Brewer, and he denied the other allegations in appellee’s petition.

The court entered the summary judgment against Sims on July 27, 1964 and at the same time decreed that appellant take nothing by his cross-action and that the same be dismissed although appellant did not request a dismissal of the same nor did appellee in his motion for summary judgment pray that such cross-action be dismissed. Appellant excepted to the court’s action, including the court’s action in overruling appellant’s exceptions to appel-lee’s petition, some of which should have been sustained. No disposition was made with respect to Brewer until August 28, 1964 when on motion of appellee the court entered a nonsuit as to Brewer without prejudice.

The uncontroverted testimony of both appellant and appellee is that Brewer was the only individual who represented to Davis that the automobiles in question were new, and that Sims never saw the automobiles in question. Appellee testified by deposition that on August 2, 1963, the date of the alleged verbal purchase contract, Brewer and another man (not Sims) drove the two automobiles in question onto ap-pellee’s used-car lot, where Brewer represented to appellee that the cars were new and that he wanted $2,350.00 for each of them. Appellee testified that he knew the cars were not new and that the fact that they were not new did not matter too much. He purchased the two cars at the agreed price by executing a draft for each car in the sum of $2,350.00 each payable to the order of Brewer. Appellant was not present at the sale of the automobiles and never saw appellee until the depositions filed herein were taken, and never saw the automobiles in question.

Appellee, who sued out a writ of garnishment in connection with this suit, testified that he made no investigation at all with respect to what property appellant owned.

The evidence indicates that appellant was a holder in due course of the two drafts in question. Both the drafts were complete and regular upon their face, and appellant apparently took the same before they were overdue in good faith for value and without notice of any infirmity in the instruments or defect in the title of Brewer who negotiated them. Sec. 52, Article 5935, V.A.T.S. It is true that consideration for such drafts was an antecedent or pre-existing debt, being the amount that appellant had advanced to Brewer when he purchased the automobiles. However, Section 25 of Article 5933, V.A.T.S., provides that, “An antecedent or pre-exist-ing debt constitutes value; and is deemed such whether the instrument is payable on demand or at a future time.”

Section 55, Article 5935, V.A.T.S., provides in part that, “The title of a person who negotiates an instrument is defective within the meaning of this Act when he obtained the instrument * * * by fraud * * * or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud.” In Kone v. Security Finance Co., 1958, 158 Tex. 445, 313 S.W.2d 281, the Supreme Court, in a somewhat analogous situation, held that in order to prevent Security from being a holder in due course it must appear that it had actual knowledge of the defect in the title to the checks, or knowledge of such facts that its action in taking them “amounted to bad faith.” Sec. 56, Article 5935, V.A.T.S.

In the instant case the record does not disclose actual knowledge by appellant Sims of any defective title or bad faith in accepting the drafts. In Citizens Bridge Co. v. Guerra, 152 Tex. 361, 258 S.W.2d 64, our Supreme Court held that the question of bad faith was normally one of' fact; that the test is good or bad faith and not diligence or negligence; that knowledge of facts merely sufficient to cause one of ordinary prudence to make inquiry, with failure to make such inquiry, is not evidence of bad faith; that even gross negligence is, at most, only evidence of bad faith; that to constitute evidence of bad faith the facts known to the taker must be such as to form a reasonable basis for an inference that in acquiring the instrument he acted in dishonest disregard of the rights of others.

Appellee’s cause of action was not brought on the drafts in question but for recovery of damages because of allegedly false representations that were made to him and because there was no consideration for the drafts and the certificates of title were forged. There was no privity of contract between appellant and appellee since the contract of sale was made by and between appellee and Brewer. “Privity of contract is an essential element of recovery in any cause of action based upon a contractual theory.” Gehl Brothers Manufacturing Company v. Price’s Producers, Inc., Tex.Civ.App., 319 S.W.2d 955, and cases cited. Furthermore, if there was any question concerning the oral contract of sale alleged by appellee, or any inferences arising from the transaction in question that could possibly involve appellant, the determination thereof would be for the jury.

The law is well settled that in passing upon a motion for summary judgment, all doubts as to the existence of a genuine issue of fact must be resolved against the moving party, and the opposite party is entitled to the benefit of every reasonable inference which can properly be drawn in his favor. Womack v. Allstate Insurance Company, 1957, 156 Tex. 467, 296 S.W.2d 233; Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Gaines v. Hamman, Tex.Sup., 358 S.W.2d 557. Since there were issues of fact raised in the instant case, the granting of the summary judgment was unwarranted.

Appellant has certain other assignments of error which we shall briefly discuss. It is our view that the court improperly dismissed appellant’s cross-action which raised certain fact issues growing out of the writ of garnishment sued out by appellee in connection with his principal suit against appellant. The trial court is not authorized upon its own motion to grant relief that is not prayed for, Elgin v. Banks, Tex.Civ.App., 38 S.W.2d 149; Hake v. Dilworth, Tex.Civ.App., 96 S.W.2d 121.

It was error to dismiss appellant’s cross-action for wrongful garnishment since the pleadings and the evidence raised material factual issues regarding plaintiff’s allegation that defendant Sims had made false and fraudulent representations to the plaintiff that the cars in question were new. There were also fact issues raised in the cross-action with respect to appellee having acted maliciously and in wanton and reckless disregard of appellant’s rights, and with respect to the matter of privity of contract between appellant and appellee, and as to appellee’s alleged false statements in his garnishment affidavit.

It is our view that the court erred in considering, if it did, the affidavit of T. A. Humphries with attached “Offense Report Houston Police Department” for the reason that such affidavit was hearsay, and was not based upon the personal knowledge of the affiant, and would be inadmissible at the trial of the case on its merits. The report attached to the affidavit shows on its face that it came from the Detroit Police Department by radiogram. It fails to show that it was received in the form of a written instrument permitted or required by law to be filed or recorded by an officer or clerk of another state or subdivision thereof, or his deputy as provided in Sec. 2, Art. 3731a, V.A.T.S. The affidavit was introduced to show that the automobiles in question had been stolen. It was attached to appellee’s motion for summary judgment and was evidently relied upon by the court in entering the summary judgment as there was no other admissible proof in the record that the cars were in fact stolen. The statements by T. A. Humphries as to what others told him out of the presence of appellant Sims would be hearsay and not admissible on the motion for summary judgment. Gaines v. Hamman, Tex.Sup. 1962, 358 S.W.2d 557; Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396.

Reversed and remanded.


author: STEPHENSON, Justice. PARKER, Justice.

text:
    C. D. ALLEN, Appellant, v. W. H. SORENSON et al., Appellees.
    No. 6735.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 28, 1965.
    Rehearing Denied March 11, 1965.
    Motion for Rehearing Overruled April 7, 1965.

      George Sladczyk, Jr.,-Port Arthur, Or-gain, Bell & Tucker, Beaumont, for appellant.
    Butler, Binion, Rice & Cook, Houston, Keith, Mehaffy & Weber, Beaumont, for appellee.
   STEPHENSON, Justice.

This suit was brought to recover commissions due under a contract. Defendant W. H. Sorenson was granted a summary judgment. Plaintiff C. D. Allen brought suit against defendants, W. H. Sorenson and H. Curtis Plumly, Jr., upon the following contract.

“Oil Producer

H. CURTIS PLUMLY, JR.

41S American National Bank Building

Beaumont, Texas

October 23, 1957

Mr. C. D. Allen

Allen Drive

Beaumont, Texas

Dear Mr. Allen:

Please consider this letter as authorization for you to act as agent for the partnership of Plumly and Sorenson to purchase all lands owned by the McFaddin interests in the Port Acres area.

We offer you one hundred dollars per acre for approximately 914 acres and agree to assign to you a 1/64 overriding royalty under the entire tract for acting as a broker in this transaction.

Yours very truly,

/s/ H. Curtis Plumly, Jr.

H. CURTIS PLUMLY, JR.”

Plaintiff alleged that defendants were .partners or, in the alternative, that defendants were engaged in a joint venture. Plaintiff further alleged that he had performed his part of the agreement by procuring certain oil and gas leases and was entitled to recover a commission and overriding royalty.

The controlling point in this case is to determine whether a person must be licensed under the Real Estate License Act in order to recover commissions for procuring oil, gas and mineral leases. It is undisputed that plaintiff was licensed under the Securities Act and not under the Real Estate License Act.

Article 6573a, Vernon’s Ann.Civ. St., is designated as “The Real Estate License Act”. This act provides that it is unlawful to engage in certain businesses without a license under this act. Section 4 subd. 1(a) and (b) include the rental or leasing of real estate. Section 19 provides that no action may be brought for the collection of compensation without alleging and proving that the person performing the brokerage service was licensed under this act. It is well settled in this state that oil and gas beneath the soil are considered a part of the “realty”. It is also clear that under the law of this state the procuring of an oil and gas lease comes within the provisions of the Real Estate License Act. Breeding v. Anderson, 152 Tex. 92, 254 S.W.2d 377.

The only question left to determine is whether a person having a license under the Securities Act is exempt under the Real Estate License Act. This was the law prior to the 1955 Amendment to the Real Estate License Act. One of the exemptions prior to 1955, under the Real Estate License Act, was a person who had secured a license under the Security Act. When the Real Estate License Act was amended in 1955 this exemption was omitted. It is clear that a license under the Real Estate License Act is required in order for plaintiff to recover in this case. Mummert v. Stekoll Drilling Co., Tex.Civ.App., 352 S.W.2d 526.

This court is not holding that plain-] tiff was required under the law to have a license under both the Real Estate License Act and the Security Act. It is unnecessary to decide whether or not the requirement of licenses under both Acts would be unconstitutional. The procuring of the original leases, as alleged by plaintiff, did not involve the sale of securities. The original leases were not “securities”. Culver v. Cockburn, Tex.Civ.App., 127 S.W.2d 328; Herren v. Hollingsworth, Tex., 140 Tex. 263, 167 S.W.2d 735.

Plaintiff also contends that the trial court erred in granting the motion for summary judgment because plaintiff had alleged that he was entitled to recover upon the theory of “constructive trust”. The contract in this case did not make plaintiff and defendant joint adventurers. Brown v. Cole, Tex., 155 Tex. 624, 291 S.W.2d 704. The principal case relied upon by plaintiff to support his position as to “constructive trust” is Omohundro v. Matthews, Tex., 161 Tex. 367, 341 S.W.2d 401. The Supreme Court held that a constructive trust was used to adjust rights between partners and between joint adventurers. This rule has no application to this case. Mum-mert v. Stekoll Drilling Co., supra. The point is overruled.

Affirmed.

Concurring Opinion On Motion for Rehearing

PARKER, Justice.

The real estate license was the one and only license appellant was required to have under the facts in this case. Neither the trial court nor this court held that Texas law required plaintiff to have two licenses, one under The Securities Act and the other under the Real Estate License Act, in order to recover a commission for services rendered as a broker. Not having held that two licenses were so required, this court pretermits discussion of the constitutional question that the plaintiff urges only in the event this court should construe the statutes as requiring plaintiff to have licenses under both acts in order to recover against defendant.

This court recognizes that: “[A] business relationship not meeting the legal standards of a partnership or joint venture or any other legal relationship giving it a technical fiducial character may yet be such a confidential relationship as to impose fiducial duties and obligations upon the parties to it.” Thigpen v. Locke, 363 S.W.2d 247 (S.Ct.1962); MacDonald v. Follett, 142 Tex. 616, 180 S.W.2d 334; Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256 (S.Ct.1951) and authorities cited in such opinions. Plaintiff had no pleadings of fact bringing plaintiff under the principles of constructive trust under any theory.

Taking the allegations of fact contained in plaintiff’s petition as true, he failed to plead facts raising the issue of construe-tive trust. In appellant’s motion for rehearing, it is stated:

“In plaintiff’s amended petition it was alleged that in October, 1957, H. Curtis Plumly, Jr. and the defendant, W. H. Sorenson, were in partnership and that the partnership, acting through H. Curtis Plumly, Jr., agreed in writing with the plaintiff that they would assign to plaintiff a l/64th overriding royalty for his assistance in obtaining an oil, gas and mineral lease for the partnership. Plaintiff alleged that he had done everything required of him and that a commitment was obtained and leases were actually prepared whereby the lands were to be leased ‘to H. Curtis Plumly, Trustee.’ It was then alleged that after such commitment had been obtained and the leases so prepared in the name of H. Curtis Plumly, Trustee, that the defendant, W. H. Sorenson, ‘in an attempt to defeat plaintiff’s rights’ and to deprive him of his l/64th overriding royalty, had the leases changed by substituting the name of W. H. Sorenson, Trustee, for that of H. Curtis Plumly, Jr., although he, the said Sorenson, had not participated or assisted in any way in obtaining the commitment for the leases or in the preparation thereof. It was further alleged that Sorenson, after taking the leases in his name as Trustee, then ‘reserved unto himself a l/64th overriding royalty, which was the l/64th overriding royalty which plaintiff was entitled to receive for his services.’ Based upon such facts, plaintiff alleged that he was entitled to have a trust impressed upon said leases and the l/64th overriding interest which Sorenson had reserved for himself, after having obtained the leases initially In his name as Trustee by the substitution of mames as above set forth.” (emphasis added)

The agreement in writing is the letter of October 23, 1957, set forth in the original opinion. This letter plainly makes plaintiff a real estate broker, nothing else. From the letter and such pleadings, it appears that plaintiff sues for the payment of a real estate dealer’s commission without a license, for which reason plaintiff cannot recover. Plaintiff has neither claimed nor pleaded any facts bringing him under the provisions of the Supreme Court cases on constructive trust above mentioned and/or as set forth in plaintiff’s motion for rehearing. Otherwise, plaintiff’s motion for rehearing calls for no further clarification.

Appellant’s motion for rehearing is denied and overruled.