author: WERLEIN, Justice.

text:
    SOUTHWESTERN CHEMICAL & GAS CORPORATION, Appellant, v. SOUTHEASTERN PIPE LINE COMPANY, Appellee.
    No. 14248.
    Court of Civil Appeals of Texas. Houston.
    June 13, 1963.
    Rehearing Denied July 11, 1963.

      Fulbright, Crooker, Freeman, Bates & Jaworski, M. W. Parse, Jr., Houston, for appellant.
    Miller B. Walker, Jr., Charles F. Cock-rell, Jr., Levert J. Able, Nick C. Nichols, Houston, for appellee.
   WERLEIN, Justice.

This is an appeal from the trial court’s order denying appellant’s application for a temporary injunction. The temporary restraining order previously issued without notice to appellee was dissolved.

Appellant’s verified petition alleges a contract dated June 22, 1962 between appellee and Texas Petro Gas Company obligating appellee for a period of five years to deliver gas through its pipe line to a hydro-carbon recovery unit to be installed by Texas Petro Gas Company. The rights of Texas Petro Gas Company under the contract were assigned to appellant on July 15, 1962. Appellant, on the strength of the contract, installed on leased land a hydro-carbon unit on appellee’s pipe line at a cost of approximately $75,000.00, and began operations about December 1, 1962 after eliminating some “bugs” in the 'plant. Appellant’s president testified that they had a net profit before depreciation, interest and taxes, of approximately $3,000.00 in both December, 1962 and January, 1963, and about $1500.00 in February, and $3,000.00 in March; and that they could anticipate profits of some $3,000.00 per month before depreciation, interest and taxes, over the five year life of the contract, which had approximately fifty months to run, and which provided for an automatic additional five years unless terminated by either party. He also testified that there was no supply of gas available to appellant’s plant other than that going-through appellee’s line

Under the terms of the contract appellant is obligated to pay appellee for (1) the gas used in the process as metered, (2) the shrinkage of gas, and (3) a product royalty. Appellant alleged under oath that it had complied with all the terms of the contract. Appellee, on the other hand, has alleged under oath that it had sued appellant for $10,000.00 which appellant owed appellee as damages as a result of appellant’s failure to account for gas appropriated by appellant in breach of the terms of the contract, but that appellee would reconnect its pipe line to appellant’s plant upon payment of $8,000.00 in payment of gas converted or which was not accounted for, without prejudice to the contentions made in said suit.

The present suit was brought by appellant when advised that appellee intended to shut off the supply of gas to appellant’s plant. The trial court confined appellant’s proof to evidence on two issues: (1) the adequacy of appellant’s remedy at law, and (2) the sustaining of irreparable injury. Appellee has denied under oath appellant’s allegations with respect to inadequacy of appellant’s remedy at law and irreparable injury and has pled its own solvency. Appellant pled specifically with respect to endangering its facilities, as follows: “Such facilities operate at high pressure and should deliveries be discontinued, injury thereto will likely result. Accordingly, immediate and irreparable injury, loss and damage will result to Plaintiff unless Defendant is enjoined as prayed herein.” Appellant then pleaded generally: “Plaintiff has no adequate remedy at law. Defendant is wholly unable to respond in damages for (1) damages which would be suffered by Plaintiff for lost profits, or (2) the possible damage to appellant’s plant and facilities.”

The law is well settled in this State that the granting or refusing of a temporary injunction is within the sound discretion of the trial court, and that the court’s action will not be disturbed on appeal unless it clearly appears that the court has abused its discretion. Harding v. W. L. Pearson & Co., Tex.Com.App.1932, 48 S.W.2d 964; Southwestern Associated Tel. Co. v. City of Dalhart, Tex.Civ.App., 254 S.W.2d 819, writ ref., n. r. e.; 24-A Tex. Jur. 382, Injunctions, § 265, and cases cited.

In its order denying the temporary injunction the court stated:

“ * * * and the court having considered said verified petition, the evidence and argument of counsel, and it appearing that Plaintiff is not entitled to such temporary injunction, for the reason that Plaintiff has an adequate remedy at law, and no irreparable injury proved * *

An irreparable injury is “an injury of such a nature that the injured party cannot be adequately compensated therefor in damages, or that the damages which result therefrom cannot be measured by any certain pecuniary standard.” Lowe & Archer, Injunctions and Extraordinary Proceedings, Sec. 312, p. 321; Gulf Oil Corporation v. Walton, Tex.Civ.App., 317 S.W.2d 260, and authorities cited.

Appellant’s pleading seems to limit irreparable injury to such injury as might result to appellant’s plant. The undisputed evidence, however, shows that appellee had cut off the gas supply to appellant’s plant prior to the hearing on the temporary injunction, and that the injury to appellant’s plant consisted of merely jamming the electrical circuit breaker which damage could be repaired for less than $100.00. Appellant failed to establish that it would suffer irreparable injury as a result of damage to its plant.

Appellant contends that the court abused its discretion in denying appellant a temporary injunction to preserve the status quo for the reason that the undisputed evidence shows (1) that appellant has no adequate remedy at law, and (2) that appellant will suffer irreparable injury. There was no exception to appellant’s pleading that it had no adequate remedy at law. Under said Points, appellant first undertakes to show that appellee was insolvent and did not have property subject to execution sufficient to satisfy appellant’s claim for damages. Driskill v. Boyd, 181 S.W. 715, Tex.Civ.App.1916, error ref.; Nagy v. Bennett, 24 S.W.2d 778, Tex.Civ.App. 1930, error ref.

Appellant introduced the recent balance sheet of appellee which shows appellee’s net worth to be $185,997.11 with fixed assets shown at a book value of $136,063.92, which assets, with the exception of automobiles of the value of $1,970.90, were mortgaged to the Small Business Administration of the Federal Government. Appellant contends that there would be only $141,205.84 available to satisfy its claim of more than $150,-000.00 after deduction of current liabilities. We cannot say as a matter of law that ap-pellee’s balance sheet shows that appellee is unable to take care of appellant’s claim and its current liabilities, especially in view of the testimony of appellee’s comptroller and certified public accountant that such balance sheet shows that appellee was a solvent company, and his further testimony that the company made approximately $15,-000.00 per month, with ratio of current assets to current liabilities 2-to-l.

Appellant contends, however, that the court erred in not permitting it to show on cross-examination of appellee’s comptroller that one of appellee’s assets listed on the balance sheet of March 19, 1963 consisted of $151,233.54, being an account receivable from Woods Exploration & Producing Co., was not collectible because of such company’s financial condition. Appellant’s counsel asked such witness whether he knew whether it wasn’t a fact that Woods Exploration & Producing Company was currently in some financial difficulty. The witness stated he knew the company was not. Appellant then asked whether such company was slow in retiring its obligations. The court sustained an objection to this question and stated that it was not going to try the solvency of some other company, that it was appellant’s burden to prove that appellee was not solvent.

It is our view that the court erred in not permitting appellant to show that this item was not of the value indicated. Since appellant introduced the balance sheet in evidence it could not contradict what the statement showed, but it should have been permitted to examine appellee’s comptroller and to show that the company owing such account was slow in retiring its obligations and that such account was probably not collectible. We cannot say that the court committed reversible error in not permitting the witness to answer the one question asked because an affirmative answer thereto would not have established that the account owed by Woods Exploration & Producing Company was not collectible. It is likely, however, that but for the court’s ruling, appellant would have asked additional questions. Since appellant was examining appellee’s witness, called under the adverse witness rule, it would not have been necessary for appellant, in making a bill of exceptions, to have shown what such witness would have testified in answer to questions asked. It is our view, however, that this did not relieve appellant from asking the questions and perfecting a bill of exceptions if permitted to do so. Cunningham v. Austin & N. W. Ry. Co., 1895, 88 Tex. 534, 31 S.W. 629; Maddox v. Gulf, Colorado & S. F. Ry. Co., Tex.Civ.App., 293 S.W.2d 499, writ ref., n. r. e.

When appellant undertook to interrogate appellee’s comptroller relative to the item of $151,233.54 owing by Woods Exploration & Producing Company (which company is, according to appellee’s vice president, John Stoker, an employee of both companies, an affiliated corporation), the court stated: ■“We are not going to try the solvency of some other company. I don’t intend to determine whether they are solvent or not solvent. It is your burden to prove that Southeastern Pipe Line Company is not solvent.” This is exactly what appellant was trying to do and what the court prevented it from doing, apparently on the theory that appellant, having introduced appellee’s balance sheet, could not contradict the same. The court’s broad language was calculated not only to deter appellant from asking further questions, but also from perfecting a bill of exceptions.

As a general rule documentary evidence is held to be conclusive against the party introducing it. Horwitz v. Jefferson County Traction Company, Tex.Civ.App., 188 S.W. 26, error ref.; McClung Const. Co., Inc. v. Langford Motor Co., Tex.Civ.App.1930, 33 S.W.2d 749; Locke v. Morris, Tex.Civ.App., 287 S.W.2d 500, writ ref., n. r. e. It is our view, however, that this general rule has no application here. Appellant was not undertaking to contradict the balance sheet or to show that the Woods account was not owing in the amount shown. It was merely undertaking to show that such account was uncollectible because of Woods’ financial condition. 20 Amer.Jur., pp. 771-2, Sec. 915.

Later, appellant undertook to have appellee’s comptroller explain a $21,-000.00 item listed under Current Assets as “Trade Account Impounded,” in order to determine whether such account was an asset available for payment of appellant’s asserted claim. The court sustained appel-lee’s objection to appellant’s inquiry as to why payment of such item was being withheld. Appellant’s counsel then requested the court to permit him to ask the question for the purpose of his bill of exceptions. The court replied, “No, sir. We are not here to find out information on some other law suit. You have introduced a financial statement, and I don’t intend to let you hold a court of inquiry as to whether each one of these assets are good or not”

We are of the opinion that the court erred in not permitting appellant to perfect a bill of exceptions. It is likely that appellant would have asked additional questions had it not been prevented from making a bill of exceptions. The refusal of the court to permit appellant to go into, or have the witness explain, the items on the balance sheet prepared by such witness, kept appellant from establishing the financial condition of appellee, its ability vel non to respond in damages, and the inadequacy of appellant’s remedy at law. It is our view that the position taken by the court was prejudicial to appellant’s rights and constituted an abuse of discretion which requires, in the interest of justice, that the case be reversed. Rules 434 and 503, Texas Rules of Civil Procedure.

In Lower Nueces River Water Supply Dist. v. Sellers, Tex.Civ.App., 323 S.W.2d 324, writ ref., n. r. e., the court stated:

“In any event, these records and data being admissible in evidence, and appellant having been denied the right to place them in the record for the purpose of the bill of exception, was deprived of the right to have this evidence and its probable effect appraised by the appellate court. This prevented appellant from making a proper presentation of the case to the appellate court. Rules 434 and 503, T.R.C.P.”

In 31 Tex.Jur.2d, Injunctions, § 227, it is stated:

“ * * * However, where the order deprives a party of a right to which he is entitled, such as, by preventing him from introducing evidence that will establish his case, the error is prejudicial and will be reversed on appeal.”

See also Driskill v. Boyd, Tex.Civ.App., 181 S.W. 715, writ ref.

Appellant adduced in evidence without objection testimony of appellee’s vice president, Mr. Stoker, that the amount of profit that appellant has in the contract in question would depend upon the amount of gas going through appellee’s line, and the liquid content of that gas, and also the price appellant could get for the liquids. The court sustained appellee’s objection to appellant’s question to such witness as to how much gas would go through the line four years hence, but permitted appellant to show in its bill of exceptions that the witness could not tell for certain how much gas would go through the line four years hence, or the liquid content thereof, or the price of the gas. This question and answer followed:

“Q. And .that would be true three years from now?
“A. Yes, sir, and it will be true two months from now.”

Appellant was undertaking to establish that it had no adequate remedy at law since it would be practically impossible to show what its profits would be during the fifty months that the contract had to run. The court erred in refusing to consider such evidence as it had an important bearing upon whether appellant had an adequate remedy at law in view of the uncertainties testified to. The law is well settled that the test for determining whether an existing remedy is adequate is whether such remedy is as complete and as practical and efficient to the ends of justice and its prompt administration as is equitable relief. Sumner v. Crawford, 1897, 91 Tex. 129, 41 S.W. 994; 31 Tex.Jur.2d, p. 109, Injunctions, § 44.

In American Refining Company v. Tidal Western Oil Corporation, 264 S.W. 335, Tex.Civ.App.1924, error ref., 114 Tex. 583, 278 S.W. 1114, suit was brought for damages and for an injunction to restrain the refining company from refusing to deliver casinghead gas to plaintiff’s plant which had been constructed at a large cost in reliance on the contract. The court stated:

“The Tidal Company has no adequate remedy at law. The damages which it may suffer are extremely uncertain in amount and practically impossible of ascertainment. It is a matter of common knowledge that in time gas wells will be exhausted, but just when this will occur cannot, in the nature of things, be proven in advance. This contract does not stipulate for liquidated damages, and therefore presents a proper subject of equitable cognizance. * ifc ⅜»

See also Noble Oil & Gas Co. v. Altex Petroleum Co., Tex.Civ.App.1921, 230 S.W. 758; Municipal Gas Co. v. Lone Star Gas Co., Tex.Civ.App., 259 S.W. 684, aff’d 117 Tex. 331, 3 S.W.2d 790, 58 A.L.R. 797. In Southwest Pipe Line Company v. Empire Natural Gas Co., 33 F.2d 248, 64 A.L.R. 1229, 8th Cir., the defendant had contracted to sell and plaintiff to buy natural gas produced from defendant’s wells. The plaintiff sued for an injunction when the defendant threatened to discontinue the supply of gas. The court said: “The damages to be recovered by appellee would seem to be speculative and impossible of proof, for it could not be ascertained what the flow of the wells would be or what decrease would come about in the natural order of events. * * * >>

Appellant did not plead that it would be practically impossible to establish what its loss of profits would be. Ordinarily the petition must state all, and negative all, which is necessary to establish the plaintiff’s right to obtain an injunction. Gillis v. Rosenheimer, 64 Tex. 243; Pearson v. Black, Tex.Civ.App., 106 S.W.2d 787; Birchfield v. Bourland, Tex.Civ.App., 187 S.W. 422. Appellant did plead, however, the long term contract and that it had no adequate remedy at law and that appellee is wholly unable to respond in damages which appellant would suffer because of lost profits. It is our view that in the absence of special exception the pleading was sufficient. Fine v. Pratt, Tex.Civ.App.1941, 150 S.W.2d 308, 313.

We cannot say that appellant has established, as a matter of law, that it has no adequate remedy at law because of the practical impossibility of showing what its lost profits would amount to. The courts draw a distinction in damage suits between uncertainty merely as to the amount and uncertainty as to the fact of legal damages. While uncertainty as to the fact of legal damages is fatal to recovery, uncertainty as to the amount will not defeat recovery. A party who breaks his contract cannot escape liability because it is impossible to state or prove a perfect measure of damages. Southwest Battery Corporation v. Owen, 1938, 131 Tex. 423, 115 S.W.2d 1097; Adams v. Hood County Sand & Gravel Co., Tex.Civ.App.1962, 354 S.W.2d 593; Berne v. Keith, Tex.Civ.App. 1962, 361 S.W.2d 592, writ ref., n. r. e.

It is our view that in the instant case appellant presented admissible evidence tending to show that it had no adequate remedy at law, and that it was error and an abuse of discretion for the court to refuse to consider such evidence.

The purpose of a temporary injunction is to maintain the status quo in regard to the matter in controversy and not to determine the respective rights of the parties under the cause of action asserted or defenses urged. James v. E. Weinstein & Sons, Tex.Com.App.1929, 12 S.W.2d 959. As stated in that case, the legitimate purpose of the temporary injunction is merely to preserve the existing condition until a final hearing can be had on the merits. If on another hearing of appellant’s application for temporary injunction it is determined that appellant probably has no adequate remedy at law or probably will suffer irreparable damage as a result of the cessation of the delivery of gas to its plant, then a temporary injunction should be issued for the purpose of maintaining the status quo until the case can be heard on its merits. The status quo to be preserved by temporary injunction is the last actual, peaceable, noncontested status which preceded the pending controversy. Transport Company of Texas v. Robertson Transports, 1953, 152 Tex. 551, 261 S.W.2d 549.

Reversed and remanded.


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    Ewell WEST, Appellant, v. MATTESON-SOUTHWEST CO., Ltd., Appellee.
    No. 14084.
    Court of Civil Appeals of Texas. Houston.
    June 13, 1963.
    Rehearing Denied July 11, 1963.
    Allbritton, McGee & Hand, Hugh E. McGee, Jr., Houston, for appellant.
    Butler, Binion, Rice & Cook, R. H. Singleton, Houston, for appellee.
   COLEMAN, Justice.

This is a suit to recover earnest money deposited by appellee in connection with a contract to purchase real estate. The principal question involved is whether ap-pellee’s termination of the contract for title defects was authorized by the contract.

Appellee sued Ewell West and San Jacin-to Title Company of Pasadena for return of the earnest money deposit. The title company filed an answer tendering the money into court and did not take part in the trial and is not a party to this appeal. West answered and filed a cross-action for forfeiture of the earnest money. Appellee recovered a judgment against West and the title company in the amount of the deposit plus interest.

After preliminary negotiations the parties executed an “earnest money contract.” This contract was prepared by an associate and representative of appellant by filling out, and adding to, a printed form, and as is frequently the case when legal instruments are prepared by parties without legal training, the contract did not aptly express the agreement made by the parties.

By the earnest money contract executed on the 23rd day of June, 1960, Ewell West agreed to sell and convey by general warranty deed to Matteson-Southwest Company, Ltd. “all of the property owned at 4700 Travis Street being further described as all of block #20 Fitze Addition, Houston, Harris County, Texas.” The agreement then provided:

“This property to be sold on a lease purchase agreement.
Option to purchase to be exercised on Sept. 30, 1960.
“The consideration for the sale and conveyance of said property is $122,-000.00 payable as follows: $25,000.00 cash to be paid by Purchaser at the time of signing of lease purchase agreement, and to apply to purchase price. Balance to be paid as follows:
Terms of lease:
Monthly rental $400.00 not to apply to purchase.
On Sept. 30, 1960 a cash balance of $40,200.00 to be paid and assume note in the amount of $56,800. Note terms 5 equal annual payments at 5$⅛% interest on or before. First annual due Mar. 28, 1961. Prepayments privileges at no penalty or premium to purchaser at any time. All taxes and interest to be prorated to Sept. 30, 1960
Insurance paid up to Sept. 1, 1960.
Purchaser to assume full control^ of property for any use, development and collection of rents on signing of lease agreement.
“This offer must be accepted and agreement executed by June 25, 1960 or it becomes null and void.”

The rest of the contract is printed and reads as follows:

“Said note or notes (if any) to contain usual default and attorney’s fee clauses and to be secured by vendor’s lien, superior title and usual Deed of Trust lien on said property.
“In consideration of which, and within five (5) days from the date title to the above property is shown in Seller as hereinafter provided, Seller agrees to execute and deliver General Warranty Deed to Purchaser conveying said property free and clear of all encumbrances except those named herein, at which time Purchaser agrees to pay said consideration in the manner above provided.
“Seller, at his option, agrees to furnish within Fifteen (15) days from acceptance of this Contract by Seller, either a complete abstract on said property certified to date showing good title thereto in Seller, or an owner’s title policy from SAN JACINTO TITLE COMPANY, 2302 FANNIN, CA 7-1195. For the purposes of this contract, Seller may elect to furnish at any time hereafter, within the time herein stipulated, an Owners’ Policy which will then be considered as furnishing good title as herein contracted to be furnished.
“If abstract is furnished, Purchaser shall have fifteen (15) days from receipt by him of said abstract in which to either accept the title as shown by said abstract or to return same to Vendor or undersigned Agent with written objections thereto. If said abstract is not returned to Seller or said Agent with such written objections within the time specified, the title to said property as shown by said abstract shall be construed to be accepted by Purchaser.
“If objections to said title as shown by the abstract are made, or if said title company’s attorney makes objections to said title, then Seller shall have a reasonable time not to exceed thirty (30) days from the date such obj ections are made known to Seller in writing, in which to cure such objections as will show good title in Seller. In the event of failure to furnish good title the Earnest Money hereinafter mentioned and hereby receipted for is to be returned to Purchaser upon the cancellation and return of this Contract, or Purchaser may enforce specific performance of same.
“Any usual use restrictions, easements, reservations or zoning ordinances, to which the above property may be subject and which may be common to the addition or subdivision of which this property is a part, shall not be an objection to the title to said property, unless otherwise specified herein.
“As earnest money Purchaser has this day placed the sum of $6,100.00 together with a copy of this agreement in escrow with San Jacinto Title Co. Should the terms of this agreement be carried out within the time specified, said sum shall be applied to the cash consideration for the conveyance of the above property in accordance with the terms hereof, but should Purchaser fail to consummate this agreement within the time specified herein, for any reason except title defects as would show title in Seller not to be good, Seller shall have the right to said sum as liquidated damages and shall pay to undersigned Agent therefrom one half of said cash deposit, not exceeding, however, the commission agreed to be paid by Seller to Agent as hereinafter provided; or Seller may enforce specific performance of this contract.
“Seller agrees to pay to as per previous agreement , Agent, a commission of $_for the sale of the above property.
“Unless otherwise specified herein possession of said property shall be delivered to Purchaser upon the consummation of this transaction.
“Seller shall furnish proper evidence of payment of all taxes to and including the preceding year and taxes for the current year, and current rents, insurance and interest (if any) are to be prorated to date of closing.
“Executed in quadruplicate this 22 day of June , 1960_
“This contract subject to acceptance by Seller evidenced by Seller’s signature hereto.
“/s/ Ewell West_ Seller
“L, W. Matteson Purchaser
“BY: /s/ Dean E. Lear Purchaser”

The next day, June 24, 1960, the Seller, appellant herein, caused to be delivered to the purchaser a proposed lease and option agreement. This instrument described the property (omitting more specific descriptive matter contained therein) as being two tracts, Tract 1 containing all of Block 20 of the C. G. Fitze Addition in Harris County, Texas, together with a strip 25 feet wide along the east side of Lots 1, 2, 3 and 4 thereof. Tract 2 was described as a strip of land lying immediately east of and adjacent to the 25 foot strip of land and was further described by metes and bounds.

The agreement also provided that in consideration of $25,000.00 cash paid by lessee to lessor, lessee was given an option to purchase the described land on September 30, 1960, for $122,000.00. It provided that written notice of election to exercise the option must be given prior to September 30, 1960, and that on giving the notice, either party could demand an additional ten days in which to close out the sale. It provided that on exercise of the option the $25,000.00 should be applied to the purchase price and that the balance of the purchase price should be paid in cash and by the assumption of certain notes constituting a lien on part of the property.

In another paragraph of the lease-option agreement it was provided that Tract 1 was to be conveyed free and clear of any and all encumbrances except the “obligation due to Sallie Shepherd Perkins” and free and clear of reservations, restrictions, easements, and covenants running with the land “except those easements reflected by owner’s title commitment * * * attached hereto ⅛ * * » Tract 2 was to be conveyed without warranty.

It was further specified that if the option was exercised, lessor would furnish lessee an owner’s title policy guaranteeing title to Tract 1 subject only to the exceptions reflected by the attached commitment.

The attached title policy commitment was issued by San Jacinto Title Company as agent of Louisville Title Insurance Company. By it the company, in effect, agreed to issue a title policy to appellee when title was vested in appellee free and clear of defects, liens and incumbrances arising after June 24, 1960, and before the date of issuance subject to: (1) restrictive covenants affecting the property, (2) any discrepancies, conflicts, or shortages in area or boundary lines, or any encroachments or any overlapping of improvements which a correct survey would show, (3) rights of parties in possession, (4) taxes for 1960 and subsequent years, (5) the lien securing the Perkins note, (6) “Easement fifteen feet in width along the North line of said property granted to Houston Lighting and Power Company by instrument recorded in Vol. 1267, pg. 612 and by instrument recorded in Vol. 1269, pg. 181 both Deed Records of Harris County Texas,” (7) Subject to terms and conditions set out in lease— option to purchase dated June 24, 1960, between Ewell West and Matteson-South-west Co., Ltd.

After receipt of this instrument a letter was prepared by appellee’s attorney addressed to L. W. Matteson, which was signed by Ewell West and accepted by Matteson-Southwest Company, Ltd., after certain handwritten revisions were made. This letter provided that it would supplement the agreement of June 23, 1960. The description of the property was then changed to conform with the description contained in the proposed lease-option agreement. Paragraph (2) of the letter agreement reads: “The closing of this transaction shall occur on or before June 30, 1960.”

Paragraph (3), as amended in handwriting, reads:

“Should the terms of our agreement be carried out within the time specified the $6,100 earnest money shall be applied to the cash consideration for the granting of the option in accordance with the terms of our agreement, but should you fail to consummate our agreement within the time specified for any reason except title defects as would show title in the undersigned not to be good as to tract one only and pro vided further as to tract II you will accept a limatation tittle if San lacinto Tittle Co. will issue an Owners Tittle policy theron, the undersigned shall have the right to said sum as liquidated damages and shall pay to the agent therefrom one-half of said cash deposit, not exceeding, however, the commission agreed to be paid by the undersigned to said agent.” (words italicized added in handwriting)

On June 30, 1960, Matteson wrote West a letter cancelling the contract because the Houston Lighting & Power Company easement constituted a defect in title and because of failure of title to Tract 2.

Certain special issues submitted to the jury were answered as follows:

“SPECIAL ISSUE NO. 1
“Do you find from a preponderance of the evidence that on June 24, 1960, Ewell West agreed to furnish Mat-teson-Southwest Co., Ltd., an owner’s title policy from San Jacinto Title Company covering the 12½ foot strip of land in question by June 30, 1960?
“Answer: We do’.
“SPECIAL ISSUE NO. 5
“Do you find from a preponderance of the evidence that the Plaintiff canceled the contract before allowing a reasonable time for the Defendant, West, to meet and cure the objections pointed out in writing?
“Answer: We do not’.
“SPECIAL ISSUE NO. 7
“Do you find from a preponderance of the evidence that the term ‘the closing of this transaction shall occur on or before June 30, I960’ was intended by the parties to mean that a title policy commitment would be furnished from San Jacinto Title Company by such date?
“Answer: We do’.
“SPECIAL ISSUE NO’. 8
“Do you find from a preponderance of the evidence that the term ‘the closing of this transaction shall occur on or before June 30, I960’ was intended by the parties to mean that only a lease-purchase agreement would be entered into?
“Answer: We do’ ”.

Appellant contends that the trial court erred: (1) in submitting the case to the jury on special issues; (2) in refusing to instruct a verdict for appellant; and (3) in entering judgment on the jury’s verdict because of a conflict in the answers to Special Issues Nos. 1 and 8. He also assigns as error his contention that the answer made by the jury to Special Issue No. 1 has no support in the evidence.

Assignment of Error No. 1 is too general and multifarious to be considered. Appellant’s objection to the special issue submission is based on his contention that the only issue before the court was the legal effect of the language used in the written contract, and that, therefore, there were no issues of fact for determination by the jury. By this point this Court would be required to determine whether each of the eight issues submitted were in fact questions of law, and, if one or more were determined to be questions of fact, whether or not such issues were raised by the evidence. While prejudicial error would be committed by rendering a judgment based on the answers made by a jury to improper issues, we fail to see how the action of the court in submitting a case to the jury on special issues, in the absence of other error, could prejudice appellant. Rule 277, T.R.C.P., authorizes the trial court to submit a case to the jury on special issues without the request of either party. It follows that an objection must be made to the issues submitted rather than to the charge as a whole.

Appellant contends that the trial court should have instructed a verdict in his favor because of the unauthorized cancellation of the contract by appellee.

In Lone Star Gas Co. v. X-Ray Gas Co., 139 Tex. 546, 164 S.W.2d 504, the court set out certain rules of construction applicable to this case in these words:

“ * * * The contract should be considered as a whole, in order to give effect to its general purpose and the true intention of the parties. If the intention of the parties who executed this contract can be fairly ascertained from a consideration of the entire instrument, such intention will not be permitted to be defeated by ambiguities or inconsistencies therein. (Citations omitted) If the language used in this contract is fairly susceptible of more than one interpretation, it is the duty of a court, in ascertaining the true intention of the parties to consider the subject matter of the contract and the surrounding circumstances existing when such contract was executed. (Citations omitted) * * *
“ * * * If there is any doubt as to the meaning of a contract * * *, the courts may consider the interpretation placed upon it by the parties themselves.”

This Court has previously held that where a contract is ambiguous and a dispute has arisen as to the interpretation placed on it by the parties, the issue as to its true meaning is one of fact for the jury. Ellisor v. Kennedy, Tex.Civ.App., 128 S.W.2d 842, error ref.

In this case the intention of the parties is not clearly expressed and certain clauses are in conflict. In such a case it is the duty of the court, after the factual disputes are resolved by the jury, to adopt such a construction of the contract, if possible, “as will make the agreement fair, customary, and such as prudent business men would naturally execute.” Stone v. Robinson, Tex.Civ.App., 180 S.W. 135, error ref.

The trial court did not err in refusing to instruct a verdict. By Special Issues Nos. 1, 5, and 7, for example, issues of fact raised by the evidence were submitted to the jury.

There is evidence to support the answer made by the jury to Special Issue No. 1. Prior to the execution of the contract appellant’s associate furnished appellee with a map which included the 12(4 foot strip of land as a part of the over-all strip which he proposed to sell. Immediately after the earnest money agreement was signed, appellant gave appellee a copy of his proposed Lease-Purchase Agreement, which contained a specific description of this tract, although it was not included in the specific description contained in the earnest money agreement. This indicates that appellant intended to include the 12(4 foot strip in the transaction as part of the “property owned at 4700 Travis Street.” There is further evidence of intention in that provision of the supplementary agreement “provided further that you will accept a limitation tittle if San Jacinto Tittle Company will issue an owners Tittle policy theron.” Special Issue No. 1 in effect asked two questions: Whether by the agreement appellant intended to furnish a title policy to the small tract, and whether the title policy was to be furnished prior to June 30, 1960. No complaint is made here as to the form of the issue, and the point presented is a “no evidence” point.

Appellant, by his final point contends that the answer to Special Issue No. 1 conflicts with the answer made to Special Issue No. 8. While we have been cited no authority to demonstrate that it is illegal for a title insurance company to issue an owner’s title policy based on a lease-purchase agreement, and while there is no evidence that such a policy might not be procured, even if we should assume both premises, there is no conflict in findings requiring a new trial. The jury would thereby find that the parties agreed to do something that could not be done The jury’s answer to Special Issue No. 8 has not been attacked. Merely because the jury might have found that the parties agreed to do something that they would be unable to accomplish does not demonstrate a conflict. A jury finding that only a lease-purchase agreement was to be completed on June 30, 1960, does not make it impossible that the parties also intended that an owner’s title policy also be furnished. If Special Issue No. 1 is disregarded, appellant is convicted of a breach of the contract by Special Issue No. 7. Special Issue No. 8 could be disregarded without requiring the court to enter a verdict for appellant. Under such circumstances a conflict in answers to jury issues is not fatal. Texas & P. Ry. Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280.

The judgment of the trial court is affirmed.


author: ARCHER, Chief Justice. HUGHES, Justice

text:
    Robert S. CALVERT, Comptroller of Public Accounts of the State of Texas et at., Appellants, v. HOUSTON LIGHTING & POWER COMPANY et al., Appellees.
    No. 11101.
    Court of Civil Appeals of Texas. Austin.
    June 19, 1963.
    Rehearing Denied July 10, 1963.
    Waggoner Carr, Atty. Gen., Austin, R.. Gordon Appleman, Asst. Atty. Gen., Fort-Worth, and H. Grady Chandler, Asst. Atty.. Gen., Austin, J. C. B. Aler, Austin, of counsel, for appellants.
    Clark, Thomas, Harris, Denius & Winters, Austin, Baker, Botts, Shepherd & Coats, William R. Brown, Houston, Arnold’ & Arnold, Texarkana, Ark., Wagstaff,. Harwell, Alvis & Pope, J. Henry Doscher, Jr., Abilene, J. M. Wilson, Corpus Christi,. for appellees.
   ARCHER, Chief Justice.

This suit is a consolidation of four suits-filed by four separate public utility corporations. Each plaintiff filed a suit in the 53rd District Court of Travis County, Texas, as plaintiff against the Comptroller of Public Accounts of the State of Texas, the Attorney General and the State Treasurer, to recover money paid under protest for franchise taxes on “surplus” as provided in Section 3(a) of Article 12.01, Title 122A, Taxation-General, V.C.S., which provides for a franchise tax on the “stated •capital, surplus and undivided profits.” Each plaintiff contended that the amount carried in its account as “Accumulated Deferred Federal Taxes on Income — Relating to Accelerated Amortization,” should not be considered as “surplus” and should not be taxable under the above act.

Defendants filed twelve special exceptions to each petition filed by plaintiffs, all ■of which were overruled, with two exceptions. Defendants excepted to the action of the court in overruling their exceptions and plaintiffs excepted to the action of the • court in sustaining two exceptions.

The cause was tried before the court without a jury and judgment was rendered for each plaintiff for the recovery of the .amount of taxes paid under protest on a finding stated in the judgment (a) that said ■taxes were unlawfully demanded of plaintiffs by the Comptroller and (b) that the .amount paid by each plaintiff belongs to such plaintiff and should be returned with interest.

The appeal is predicated on 12 points .and are to the effect that the trial court erred in finding that the taxes and penalties were unlawfully collected, belong to the plaintiffs and should be returned; in failing to find that the accounts of each plaintiff called “Accumulated Deferred Federal "Taxes on Income — Relating to Accelerated Amortization” constitutes “surplus”; in "holding that the evidence was sufficient to ■sustain the court’s action; in holding that -the evidence shows that the account of each plaintiff does not constitute surplus; in .allowing each of the plaintiffs a recovery -in the respective amounts; in admitting plaintiffs’ Exhibits 3, 5 and 6 containing bulletins and letters of the Federal Power Commission and the American Institute of Accountants; in admitting in evidence plaintiffs’ Exhibits 24, 25 and 27 containing certain letters and orders of public service commissions in the State of Louisiana and Arkansas, and finally in overruling certain special exceptions to each petition of plaintiffs’ Nos. 1 to 10 directed to the petition of Houston Lighting & Power Company; Nos. 1-11 inclusive, directed to the petition of Central Power & Light Company; Nos. 1-10 inclusive, directed to the petition of Southwestern Electric Power Company; and Nos. 1-9, inclusive, and No. 12, directed to the petition of West Texas Utilities Company. These exceptions were directed to statements to the effect that the Secretary of State ruled that the accounts involved did not constitute “surplus” and that such ruling was confirmed by the accounting agencies of the State, including the American Institute of Certified Public Accountants, and that the franchise tax returns of plaintiffs from December 31, 1954 through December 31, 1960, were accepted without protest, and the present ruling of the Comptroller is contrary to previous rulings of the Secretary of State; that the ruling of the Secretary of State had been accepted as correct by the Legislature, and that the ruling of the Comptroller is at variance with the practices of the American Institute of Certified Public Accountants and of the Federal Power Commission and of the United States Securities and Exchange Commission and at variance with uniform treatment of plaintiffs of their respective reserve accounts.

Appellees say that the basic question is whether or not the deferred Federal income tax accounts of appellees are a part of “surplus” so as to be includible within the franchise tax base set forth in Section 3(a) of Article 12.01, Title 122A, Taxation-General.

It appears that shortly prior to World War II the Federal Congress, in order to encourage capital investments in certain emergency facilities deemed vital to this country, passed legislation to the effect that for the limited purpose of computing profits currently subject to federal income tax the total depreciation deduction on such facilities could be spread equally over a 60 months’ period without regard to the anticipated longer service life, thus resulting in less taxable profits during the years of such write-off and more taxable profits during the remaining life of the property involved. This legislation is Section 168 of the Internal Revenue Code and is usually referred to as “accelerated amortization of emergency facilities.” 26 U.S.C.A. § 168; Act of October 8, 1940, Ch. 757, § 301, 54 Stat. 998.

Liberalized depreciation came into being in 1954 and is Section 167 of the Internal Revenue Code. 26 U.S.C.A. § 167. It was also designed to encourage investment in new facilities. Although the mechanics are materially different the effect of liberalized depreciation is similar to that of accelerated amortization, that is, more depreciation is taken during the early life of an asset, thus resulting in less taxable profits during the early years of the life of such asset and more taxable profits during the remaining life of the property involved.

These taxpayers have used deferred tax accounts to accompany their use of accelerated amortization and liberalized depreciation. The reason why the deferred tax accounts are needed is succinctly set forth by the Court of Appeals of the District of Columbia in a recent decision, Panhandle Eastern Pipe Line Co. v. Federal Power Comm., D.C.Cir., 316 F.2d 659, CCH Utils. Law Reporter 10,290 (Sept. 27, 1962).

The Court said:

“It is thus seen that accelerated amortization and liberalized depreciation produce only temporary tax savings; a portion of the tax payments which would be due in the early years under straight line depreciation is merely deferred until the later years.”

Appellants take the position that the primary question is whether the amount represented by plaintiffs’ account entitled Accumulated Deferred Federal Taxes, etc. are available for use by appellees in the conduct of their business, and are to be taxed as surplus as the term is used in the statute.

Appellants cite as authority for their position Article 12.01, Sec. 3(a), Title 122A, Taxation-General, V.A.C.S., and a number of cases among which is United North and South Development Company v. Heath, Tex.Civ.App., 78 S.W.2d 650, er. ref., in which it was stated:

“In the instant case we think that any strict or technical definition of the term ‘surplus’ as used in the statute should not be applied, but one which would effectuate the legislative intent.
“ * * * the state may, in computing such tax, look to the property owned by the corporation and available to it, for use during the ensuing year in carrying on its business. Such was clearly, we think, the legislative intent.”

Appellants reiterate their position that the only question to be determined is whether the funds reflected by the account, are available for use by the corporations in carrying on their business, and that the witnesses for plaintiffs, on cross-examination, testified that such funds were available for use, and quoted from the testimony of Leonard Spacek that prior to the actual payment to the Federal Government in income taxes that the companies could use such money in whatever business required it.

Appellants quoted from the testimony of a number of their witnesses called by plaintiffs, who on cross-examination testified that the money was available for use by the companies.

Appellants assert that the funds are available for use by the corporations, and had become “surplus” as the term is used by the Legislature within the meaning of the Franchise Tax Statute, and are subject to tax under it and mention the several cases hereinabove cited.

The record in this case is extensive and in a large part deals with highly specialized accounting presented by witnesses for appellants and appellees who are experts in their fields, and we have carefully read such testimony but will not attempt to review it in much detail, but sufficient to an understanding of the question.

Leonard Spacek testified that prior to the time the respective funds are actually paid to the Federal Government in income taxes that such funds may be used by the company in whatever business requires it.

Jay A. Phillips testified that the funds could be used for any purpose the company saw fit to use them.

J. G. Reese, Frank R. Lane, Dan A. Gallager, Roff W. Hardy and H. W. Pirkey, Jr., each of whom was an officer in one of the respective corporations, testified on cross-examination that the funds were available for use by the companies.

W. Luther Estes, called by the plaintiffs, director of Franchise Tax Division in the Comptroller’s office, and formerly with the Department of State, on cross-examination, testified as to a letter dated December 21, 1960, which is as follows:

“Honorable Will Wilson Attorney General of Texas Supreme Court Building Austin, Texas
“Re: Request for an opinion relating to a prior franchise tax administrative decision
“Dear Sir:
“Recently, our attention was called to an administrative decision rendered to the West Texas Utilities Company of Abilene, Texas, on July 22, 1954. This decision stated that reserves for deferred federal income taxes should not be included as ‘surplus’ for franchise tax purposes, under Article 7084 of Vernon’s Annotated Civil Statutes. However, since this decision appears to have been based on the opinion rendered by the American Institute of Accountants in their ‘Accounting Research Bulletin No. 43,’ we are again questioning the taxable status of such ‘reserves’ for franchise tax purposes. Consequently, our question is twofold and involves the following :
“(1) Does the deferral of future federal income taxes, for which there is no claim by the federal government, create a debt that is non-taxable for franchise tax purposes?
“(2) If the first question is answered in the negative, do the penalties for late payment provided under Article 12.14 of the 56th Legislature, 1959, Third Called Session, apply to those corporations relying in good faith upon the prior administrative decision?
“It appears that the determination of the committee on accounting research has provided for differences in taxable income and income reflected in financial statements by taking from ‘surplus’ the federal income tax that would become due against the income taken from the books of a business firm, rather than from the manner reported for federal income tax purposes. While this method of allocating tax expenses results in an acceptable practice adopted by many accountants, the deferred portion of this tax is merely a conservative measure taken by restricting ‘surplus’ for future transactions that may never exist.
“In view of the above facts, we submit this situation for your opinion.
“Yours very truly
/s/ Robert S. Calvert /t/ Robert S. Calvert Comptroller of Public Accounts”

The letter of July 22, 1954, referred to in Exhibit 1 reads as follows:

“West Texas Utilities Company 3rd and Cypress Streets Abilene, Texas
“Gentlemen:
“Thank you for your letter of July 16 furnishing or rather confirming the recommended accounting procedures in connection with the reserve for deferred federal income tax arising from accelerated amortization of emergency facilities.
“Following the conference on July 13 I reviewed the entire matter including the accounting research bulletin No. 42 issued by the Committee on Accounting Procedures of the American Institute of Accountants. I also discussed the problem from a franchise tax standpoint with a member of the State Auditor’s staff and I am happy to tell you that we are agreeing with your position in that such a reserve should not be included as surplus for franchise tax purposes.
“In the meantime, we had adjusted your prior years’ returns to the extent of a reserve against real estate held for future use. At the moment we are still of the opinion that this is properly includable as taxable capital but in view of the fact that we must readjust the current year tax return by excluding the ‘Deferred Income Taxes’ we have prepared and enclose a detail of our adjustments covering all years involved in the additional tax assessments. You will note for the current year return showing a close of December 31, 1953 we show a credit of $248.75. Of this amount $247.50 represents the amount you paid under protest and the $1.25 appears to stem from the fact that an additional $1,000 was erroneously used in the tax base. We trust that all of the other details are self-explanatory.
“The total additional amount to be paid on or before September 1, 1954 is $23,-693.75 including the increase in the rate of tax upon the adjusted tax under the current year return. We enclosed an official notice of this particular additional tax for your files.
“On_ other thing, and that is, you mentioned that the $247.50 would be applied' upon the additional tax due to the amended! law. We are interpreting the last paragraph of your letter of July 16 as a withdrawal of the protest. This, of course, obviates the necessity of clearing the amount through legal proceedings.
“Very truly yours,
/s/ W. Luther Estes /t/ W. LUTHER ESTES Chief, Franchise Tax Division”

The witness testified that he changed his opinion, and that his opinion of 1954 was-incorrect.

It was stipulated that the first notice of an additional assessment was in a letter dated May 26, 1961.

Leonard Spacek, a witness hereinabove mentioned, testified on direct examination that he was a certified public accountant and the managing partner of a firm and detailed his qualifications and experience. In response to a question Mr. Spacek answered :

"Q All right. Mr. Spacek, this case involves the proper handling of the account which is entitled ‘Accumulated Deferred Federal Taxes on Income.’ Now, I think it will be shown in the case that all of the companies that are involved in this litigation are interested in this account as it relates-to accelerated amortization, and' all of the Plaintiff Companies except Houston Lighting & Power Company are interested in such-account as it relates to liberalized' depreciation. Have you had any special experience with this subject, that is, the matter of how this account should be classified, and if you have had any special experience, will you please tell the Court what it has been.”

Objection was made by appellant and ■overruled by the Court. Mr. Spacek answered :

“A These sections of the Federal Revenue Act interjected new provisions in the manner in which Federal taxes and depreciation were handled for all corporations. As a consequence, these problems were very major to the accounting profession, and in my capacity as managing partner, in the — same manager as other managing partners of the other firms, this was one of the main responsibilities to resolve. In this connection, I have worked with and testified before such Commissions as the Federal Power Commission. I testified and appeared before and ■consulted with the Staff of the Securities and Exchange Commission in establishing its rules. I have testified before and consulted with the Commissions in Illinois, Indiana, and assisted in the preparation and the testifying under my direction of the testimony that was given in California, Michigan, Missouri and other States on this particular question. I have participated and assisted in the pronouncement by the American Institute of Certified Public Accountants in establishing what they have determined to be sound and generally accepted accounting principles covering this item.
■“A It gets on the books by reason of the fact that under Sections 168 and 167 of the Revenue Act, there is permitted to deduct depreciation at a more rapid rate than is provided for on the books, and thus decrease the income tax that is payable in the early years of the life of the property, and increases the tax in the later years. The Tax Law does not change the total amount of depreciation that is allowed or the total tax, assuming the rate remains constant, that will be paid on the profits as a result of that deduction for depreciation. The deferred Federal Income tax account came into being because it represented a timing of the — a change in the timing of the payment of the tax; rather than paying it currently, it would be paid in a period of — in the later life of the property. So, therefore, a reserve had to be set up for it and accrued on the books, just exactly the same as it is accrued for current Federal income tax.”

The witness then testified in detail as to the approved methods of handling such accounts, and specifically:

“Q Now, then, Mr. Spacek, in your opinion, does this surplus accumulate, not surplus, but the amounts that accumulate in this deferred tax account, do they or not represent profits each year, and does that have anything to do with your opinion as to whether or not it should properly go or be classified as surplus?
“A No, these provisions do not represent profit. They represent accrued tax liability, and, therefore, they may not be shown as profits and as surplus. Since it cannot be shown as profits, it cannot be shown as surplus, and if it cannot be shown as surplus, it cannot be in the capital or equity section, or undivided profits.
“Q All right. Now, let me see if I understand it. The way this thing works, in the early years when you are permitted to take more depreciation than you would normally take, you have less Federal income tax, and in the latter years of the life of the property when you have less depreciation than you would normally be taking, your taxes would be higher?
“A You are right, except that you pay less in the first five years. You have the same amount of tax, except part of it is paid and part of it is deferred.
“Q All right, sir. Mr. Spacek, would you summarize for us the points on which you base your over-all conclusion that the deferred Federal income tax account is not a part of capital, surplus or undivided profits and, incidentally, before you do that, — I was trying to hurry it along, and I don’t think I gave you an opportunity to state why, in your opinion, it is not a part of stated capital. Would you?
“A The deferred Federal income tax under any — under no circumstances could be a part of stated capital, because stated capital is the amount paid into the corporation for the capital of the corporation, that represents the original capital paid in by the stockholders, and has nothing to do with taxes accumulated or paid.
“Q Well, now, Mr. Spacek, this account in question that you are accumulating, in which you are making accumulations to take care of these higher taxes that you are expecting, if that is classified as surplus, would it mean to you as an accountant that you can pay dividends out of it.
“A Well, if it was classified as surplus, to be classified as surplus, it must be payable in dividends; otherwise, it is not surplus.
“Q * * * Now, I would like to ask you whether or not in your opinion anything with respect to this account has ever gotten into surplus so that it could either be taken from or the surplus restricted ?
“A As a matter of fact, deferred Federal income tax has nothing to do with surplus. It is a deduction from .revenues before you arrive at net profit, and only the net profit may go into surplus. The deferred Federal income tax is an expense, just exactly the same as labor or taxes paid is, and it therefore never gets into surplus, has nothing to do with surplus and isn’t surplus.
“Q Mr. Spacek, did you say that under Section 168, the Federal income taxes are reduced during the first five years?
“A That’s right, yes, sir.
“Q Is the amount by which the Federal income tax is reduced the amount found in the account entitled ‘Accumulated deferred income taxes’ ?
“A The amount — may I correct my first answer? The total amount of tax accrued is not reduced, but the tax paid out is reduced, and the different — the reduction is in the accumulated deferred income tax, yes.
“Q So, then, a correct answer to your first question would be that the amount of Federal income taxes are temporarily reduced?
“A The payment only is reduced. The accrued amount is not reduced.
“Q Will that amount eventually be paid to the Federal Government as Federal income taxes?
“A Yes, sir, it will, assuming the same rate exists.”

Dr. Charles T. Zlatkovich, a witness called by the defendants, appellants herein, testified that he was an accounting professor at the University of Texas, and set out his qualifications and experience and said he was on the Research Staff of the American Institute of Certified Public Accountants in 1952 and 1953, working principally with the Committee on Accounting Procedure, and in response to a question stated:

“A Well, I find myself in agreement with almost anything Mr. Spacek would say, and I agree with him on this point.
“Q Do you believe in your professional opinion that the temporary tax deferment makes assets available for use by the company until such time as the Federal income tax must be paid in accordance with Section 168?
“A Well, I think this is true, that any taxpayer that avails himself or itself, if you are talking of a corporation, of this particular provision is, in effect, getting a kind of interest-free loan from the Government, that is to say, certainly it is able, as the terminology would indicate, to defer the payment of its taxes. Now, it does not reduce the total amount paid, but it does affect the timing: in a way that is favorable to the taxpayer who avails himself of this option, because the gzxes in the early years tend to be somewhat lower than they otherwise would if, say, straight-line or other more normal depreciation methods were used, and, conversely, in the later years, the shoe gets on the other foot, that is, the income taxes become somewhat higher, but, in effect, the taxpayer does have the use of a greater amount of assets through this deferment of taxes than would otherwise be the case.”

We believe that the deferred tax .represents an expense and never gets into surplus, and such is the holding in the Court of Appeals of the District of Columbia, Panhandle Eastern Pipe Line Co. v. Federal Power Comm., D.C.Cir., 316 F.2d 659, CCH Utils.Law Reporter 10,290, Sept. 27, 1962:

“It is thus seen that accelerated amortization and liberalized depreciation produce only temporary tax savings; a portion of the tax payments which would be due in the early years under straight line depreciation is merely deferred until the later years.”
In City of Detroit, Mich. v. Federal Power Comm., 97 U.S.App.D.C. 260, 272, 230 F.2d 810, 821 (1955), cert. den. 352 U.S. 829, 77 S.Ct. 34, 1 L.Ed.2d 48 (1956), the Court said:
“ * * * Congress intended by section 124A (now Section 168) only to defer tax liability, and not to provide a fund which could be diverted * * * to the payment of dividends * * *.”

United North & South Development Co. v. Heath, Tex.Civ.App., 78 S.W.2d 650, er. ref.

The executive officer of the State charged with the collection of franchise taxes .ruled in 1954 that deferred tax accounts should not be included as surplus for franchise tax purposes. The Legislature has amended the statute three times, but has done nothing to change the effect of the 1954 construction of the statute, and such must be deemed to have been accepted by the Legislature.

Huey & Philp Hardware Co. v. Shepperd, 151 Tex. 462, 251 S.W.2d 515.

In the Huey case, supra, the Supreme Court held that the reserve liability account is not taxable.

The appellees had conformed to the construction of the law applied by the Secretary of State, the officer charged with the duty of administering the franchise tax laws, prior to the transfer of this duty to the office of the State Comptroller.

The additional franchise tax assessments here involved were not proper.

The judgment of the trial court is affirmed.

Affirmed.

HUGHES, Justice

(concurring).

The income tax deferment granted taxpayers by the federal government does not in any manner diminish the franchise tax which appellee taxpayers pay or will continue to pay to this State. Such tax will be constant whether taxpayers accept the proffered deferment or whether they choose to pay their federal income taxes on a normal basis.

I agree that a reserve to pay deferred taxes is not surplus and that it should not be used as a basis for calculating the franchise tax due the State by appellees. According to the evidence, this reserve fund will actually be used to pay deferred income taxes, and upon such payment will be exhausted. This is a true reserve. It is in sharp contrast with the untouchable reserve sustained in Huey & Philp Hardware Co. v. Shepperd, 151 Tex. 462, 251 S.W.2d 515, where the Supreme Court held that both a reserve for bad debts and the bad debts were deductible for franchise tax purposes.


author: MURRAY, Chief Justice.

text:
    J. Leslie HEIL, Appellant, v. Laura WASHICHEK, Guardian, Appellee.
    No. 14098.
    Court of Civil Appeals of Texas. San Antonio.
    June 26, 1963.
    Rehearing Denied July 24, 1963.

      Kampmann & Kampmann, Floyd Mc-Gown, San Antonio, for appellant.
    Randle Taylor, Andrew Dilworth, San Antonio, for appellee.
   MURRAY, Chief Justice.

This is an appeal from a judgment can-celling and setting aside a deed of conveyance to certain properties from Augusta Vollrath to J. Leslie Heil, dated June 1, 1956, acknowledged November 26, 1956, and not recorded until November 10, 1959. The trial was before the court and after a full hearing judgment was rendered can-celling and setting aside the deed for want of mental capacity on the part of Augusta Vollrath to sign, acknowledge and deliver the deed; from which judgment J. Leslie Heil has prosecuted this appeal. At the request of appellant, the trial judge made and filed the following findings of fact:

“1. I find that Augusta Vollrath, on the 24th day of March, 1960, was adjudged by the County Court of Bex-ar County, Texas, to be a person of unsound mind and was physically and mentally unable to take care of herself. That at such time she was approximately eighty years of age. That she was immediately after her adjudication committed to the San Antonio State Hospital.
“2. I find that simultaneously with such adjudication, Laura Washicheck, a niece of the said Augusta Vollrath, was appointed guardian of the person and estate of the said Augusta Voll-rath and bond of such guardian was fixed at $5000.00. That on the 25th day of March, 1960, the said Laura Washichek duly qualified as such guardian by taking the oath required by law and filing her bond in the sum of $5000.00, which bond was approved by the Judge of the County Court of Bexar County, Texas, and that the said Laura Washichek acted as such guardian continuously thereafter up to and including the trial of this cause.
“3. I find that the said Laura Washichek in her capacity as guardian of the said Augusta Vollrath was, by order of the County Court of Bexar County, Texas, entered on the 15th day of December, 1961, authorized to file this cause.
“4. I find that one brother, three nephews and four nieces of Augusta Vollrath in the Vollrath family have been adjudged to be persons of unsound mind.
“5. I find that Augusta Vollrath and Mary Vollrath, sisters, had jointly and equally owned the property involved in this suit and had occupied together a part of said property a number of years prior to the death of the said Mary Vollrath in the year 1951. That under the will of the said Mary Vollrath, duly probated in the County Court of Bexar County, Texas, the interest of the said Mary Voll-rath passed to and vested in the said Augusta Vollrath. That after the death of the said Mary Vollrath the said Augusta Vollrath continued to occupy the portion of the property theretofore occupied by the two of them. That the death of the said Mary Vollrath had a deleterious effect on the said Augusta Vollrath and that shortly after the death of the said Mary Vollrath, the said Augusta Vollrath began a course of behavior that was different from her behavior during the life of her sister, Mary Vollrath. That such condition worsened as time went by in that she became morose in temperament; developed without provocation a dislike for most of her relatives; became slouchy in her wearing apparel; lived in filth and squalor, with chickens and a number of cats in her living quarters; keeping and feeding such chickens and cats on her eating table in her living quarters and at times eating some of the cat food from the same cans out of which she fed her cats; and developed delusions about her sister Mary and other relatives long deceased, speaking of them as if they were still alive and she had talked to them.
“6. I find that a deed of conveyance wherein the said Augusta Voll-rath purportedly conveyed unto the defendant, J. Leslie Heil, the property involved in this suit and described in plaintiff's petition was prepared on June 1, 1956, but was not signed by Augusta Vollrath on that date.
“7. I find that though the notary, whose name appears on the deed, did not testify at the trial of this case, the notarial certificate recites that Augusta Vollrath acknowledged the deed on November 26, 1956, but I further find that the deed was not delivered by her at that time.
“8. I find that such deed was held in the possession of the said Augusta Vollrath, who carried it about on her person exhibiting it to various individuals, from the time of its preparation June 1, 1956, to as late as September, 1959, which was approximately six months prior to her adjudication as a person of unsound mind and her commitment in the San Antonio State Hospital and that she repeatedly told various individuals that she would not deliver such deed to defendant.
“9. I find that such deed was filed of record in the Deed Records of Bex-ar County, Texas, on November 10, 1959, approximately four months before the said Augusta Vollrath was adjudged to be a person of unsound mind.
“10. I find that the original deed signed by the said Augusta Vollrath and introduced in evidence at the trial of this cause, at the time it was filed for record in the Deed Records of Bexar County, Texas, on the 10th day of November, 1959, was in a worn and tattered condition and the court finds that it has been carried about on her person by the said Augusta Vollrath while said deed was in her possession.
“11. I find from the expert medical testimony that the said Augusta Voll-rath had suffered with cerebral arteriosclerosis for ten years or more prior to her adjudication as a person of unsound mind in March, 1960.
“12. I find that the said Augusta Vollrath did not have sufficient mental capacity to execute, acknowledge and deliver the deed conveying unto the defendant, J. Leslie Heil, the property therein described and involved in this case.”

Appellant’s first, second and third points present the contention that the trial court erred in finding that the deed was not delivered on or about November 26, 1956, but some time in September, 1959. The evidence shows that on June 1, 1956, Augusta Vollrath went to the office of William Seipel, Esq., an attorney, and had him prepare a deed from herself to J. Leslie Heil, conveying all of her property, which is fully described in the pleadings. Attorney Seipel testified that he prepared this deed for Augusta Vollrath, but told her not to sign it at that time, but to take it home with her and think it over, and talk to her friends before signing it, which she did, and on November 26, 1956, returned to his office and stated that she was ready to sign and acknowledge the deed, which she then did. There is evidence tending to show that Augusta Vollrath took this deed home with her and kept it in her possession until as late as September, 1959, without delivering it to J. Leslie Heil. Miss Vollrath carried this deed around with her according to the evidence and kept it upon her person, showing it to many of her friends. The deed became soiled and worn, and while none of the witnesses who saw the deed ever read it (with the possible exception of Dan Heimer), they all said that she told them it was a deed conveying her property to J. Leslie Heil, and that he wanted possession of the deed, but she was not going to give it to him. J. Leslie Heil was prevented by the provisions of Art. 3716, Revised Civil Statutes, from testifying as to when Augusta Vollrath delivered this deed to him. It was recorded on November 10, 1959, some six months before her adjudication as a non compos mentis. The evidence was sufficient to support the finding of the trial court that this deed was not delivered before September, 1959. The date of the delivery of the deed is an important matter, because the evidence shows that Augusta Vollrath was adjudged to be a person of unsound mind on March 24, 1960, and that her mental faculties had progressively deteriorated from the time of the death of her sister Mary in 1951 until the time of the adjudication. Much of the testimony as to the mental condition of Augusta Vollrath related to a time subsequent to the execution of the deed, but prior to its delivery in September, 1959.

There is a presumption that a deed is delivered on or about the date of its execution. Popplewell v. City of Mission, Tex.Civ.App., 342 S.W.2d 52. But this presumption was overcome by the evidence introduced herein.

Appellant challenges the sufficiency of the evidence to support the finding of the trial court that Augusta Vollrath was of unsound mind and incompetent to execute, acknowledge and deliver the deed at the time it was delivered to J. Leslie Heil. This finding was supported by the evidence. The trial judge sets out the circumstances as shown by the evidence, in his finding No. 5, and these circumstances when taken in connection with the expert testimony that Augusta Vollrath had suffered with cerebral arteriosclerosis for ten years before her adjudication as a person of unsound mind, support his finding of incapacity on the part of Augusta Voll-rath to execute and deliver the deed here involved. The circumstantial evidence came from her neighbors and friends who lived near her and saw her frequently. There was evidence offered by appellant to the contrary, but it was the province of the trial court to determine this matter from all the evidence, and its finding that Augusta Vollrath was incompetent to execute, acknowledge and deliver the deed in question is binding upon this Court.

The judgment of the trial court is affirmed.


author: RENFRO, Justice.

text:
    Jesse M. BURNETT et al., Appellants, v. MASONIC GRAND CHAPTER OF the ORDER OF THE EASTERN STAR, Appellee.
    No. 16440.
    Court of Civil Appeals of Texas. Fort Worth.
    June 21, 1963.

      Ernest May, Fort Worth, for appellant.
    Pannell, Dean, Panned & Kerry, and Henry E. Kerry, Fort Worth, for appellee.
   RENFRO, Justice.

This suit was brought originally by Mrs. E. E. Burnett against Masonic Grand Chapter of the Order of the Eastern Star, in which she sought a declaratory judgment to determine whether she or defendant should pay a printing bill due Luther Cook-sey. Judgment was rendered for defendant. We reversed and remanded because Cooksey was not made a party to the suit. Burnett v. Masonic Grand Chapter of Order of Eastern Star, Tex.Civ.App., 340 S.W.2d 81.

Mrs. Burnett died while the former appeal was pending, and her children, J. M. Burnett, Hortense Chatman and Jewell B. Sweatt, were later substituted as plaintiffs. The printing bill, amounting to $287.40 for one issue of the Eastern Star paper and $1,444 for the minutes of the 1957 meeting of the Grand Chapter, was paid by plaintiff J. M. Burnett to Cooksey, thus eliminating Cooksey as a necessary party. In their amended petition plaintiffs pray for judgment against the Grand Chapter for reimbursement of said $1,731.40.

For approximately 50 years Mrs. E. E. Burnett was the efficient and dedicated Grand Secretary of the Grand Chapter. She edited the Eastern Star paper and arranged for the printing of the minutes of the General Session of the Grand Chapter. Unfortunately for all concerned, sometime prior to the 1957 annual session, considerable friction and controversy had arisen between Mrs. Burnett and her children (the plaintiffs in the present suit) on the one side and the other Grand Officers on the other. Prior to June, 1957, J. M. Burnett had filed a lawsuit against the Board of Directors and some of the Grand Officers of the Grand Lodge. The nature of that suit is not reflected in the record of the instant case. The record in this case, however, shows that intense feeling had been generated and the Grand Officers charged that Mrs. Burnett had used the Eastern Star as a means of promoting the Burnett side of the controversies.

At the June, 1957 annual session of the Grand Chapter, the Board of Directors, by an overwhelming majority, was authorized to edit the minutes of the proceedings of the Grand Chapter before their publication. By a similar near unanimous vote the Grand Chapter voted to suspend the operation of the Eastern Star paper until such time as the Board of Directors could put it into operation again to carry out its original purpose of serving the Eastern Star, exclusive of any personal matters between officers and others.

Mrs. Burnett ignored the action of the Grand Chapter and arranged with Cooksey for the printing of the minutes and for an issue of the paper.

Before beginning the work Cooksey was informed orally and in writing by the Grand Officers of the action of the Grand Chapter and that the Grand Chapter would not be responsible for any printing bills incurred by Mrs. Burnett.

Cooksey thereupon refused to do the printing without a written guaranty of payment from Mrs. Burnett. On June 5, Mrs. Burnett, her son, J. M. Burnett, and daughter, E. H. Chatman, plaintiffs in the instant suit, gave Cooksey the following instrument:

“Dear Mr. Cooksey:
“Printing of April 1958 Issue of OES Paper
“Minutes for the 1957 Annual Session of OES
“In consideration of the printing of the OES Paper for the month of April 1958, along with the minutes of the Annual Session of the Masonic Grand Chapter of the Order of Eastern Star of Texas and Jurisdiction, at the quoted price of $9.65 per page for the minutes and the usual and customary price for the Paper according to the number of pages, we, the undersigned, do hereby promise to reimburse you in the full amount of your bill on or before November 16, 1958, if the Grand Chapter has not paid you by this date.
“Thanking you for your consideration, we remain
“Very truly yours
“(Signed):
“(Mrs.) E. E. Burnett
“(Mrs.) E. H. Chatman
“Jesse M. Burnett.”

Cooksey then printed the minutes and the April, 1958 issue of the paper.

As heretofore stated, J. M. Burnett subsequently paid the bill in full.

The plaintiffs and Mrs. Burnett were fully aware of the action of the Grand Chapter and of the Grand Officers’ instructions to Cooksey.

The plaintiffs contend the court erred in holding that the Grand Chapter was not liable for the expense of printing the newspaper and the 1957 minutes.

Plaintiffs contend the vote to suspend the publication of the paper was unconstitutional, that the annual convention of 1913 established the paper, commanded its publication, and levied an annual tax of 15 cents on each member for its support. The Constitution in effect in 1957 provided: “It shall be the duty of the Grand Secretary to Edit the Eastern Star Paper.” It is argued that had Mrs. Burnett not had the paper published she would have been derelict in her duty.

Plaintiffs say that the Constitution necessarily implied the Chapter’s contractual obligation to publish the annual minutes by-reason of the provision, “It shall be the duty of (each) Chapter to preserve in its archives a copy of the proceedings of the Grand Chapter as published from year to year”, and that it was the prerogative of the Grand Secretary to publish the minutes because of the Constitutional provision, “It shall be the duty of the Grand Secretary to solicit bids for printing * * * and award contracts to the lowest and best bidder.”

In brief, plaintiffs’ position is: “No article of the defendant’s Constitution empowered its Board of Directors to interfere with the Grand Secretary in exercise of her constitutional prerogative to publish the newspaper and her ‘true record of the proceedings of the Grand Chapter.’ It was the defendant’s constitutional duty to pay her 'necessary and proper expenses in the discharge of her duties incident to editing the Eastern Star Paper.’ It was the Grand Secretary’s prerogative to 'award contracts’ for printing. So long as she kept her ‘necessary and proper expenses’ within ‘the paper fund,’ and so long as her printing contracts were with ‘the lowest and best bidder,’ there was no discretion in the defendant’s Board of Directors to withhold her expenses or dishonor her contracts.”

Other provisions of the Constitution provide that the Grand Chapter by its inherent authority of possession is supreme in all matters pertaining to its internal affairs, and has complete jurisdiction over all matters or controversies that may be brought before it with its rulings, edicts and judgments always controlling and being final.

According to the Constitution, the Board of Directors shall approve all expenditures from the Revenue Fund.

The Constitution makes it “the duty of the Grand Secretary to solicit bids for printing at least ninety (90) days before each annual session of the Grand Chapter, and in conference with other members of the commission of Board of Directors during the Grand Chapter Session, to open and compute all bids and awards contracts to the lowest and best bidder, making a detailed report of their work to the Grand Chapter.” (Emphasis added.)

The Committee on printing consists of the Grand Matron, Grand Patron, Grand Treasurer, Grand Secretary, and one member of the Board of Directors.

The Grand Secretary, provides the Constitution, shall carry out to the fullest extent of her ability such orders as may be issued by the Grand Matron, Grand Patron or Grand Chapter.

The action of the Grand Chapter in suspending the publication of the paper “until such time as the Board of Directors can put it into operation again * * * ” was not an abolishment of the paper, but a mere temporary suspension. We do not find that the Constitution or bylaws set out the specific dates of publication of said paper. In so far as the record shows, it is possible that the Board of Directors could “put it into operation again” in short time. In any event, the Grand Chapter ordered a temporary suspension. It was the duty of the Grand Secretary to carry out orders issued by the Grand Chapter.

It is conceded that the Board of Directors was authorized to edit the minutes of the 1957 Annual Session of the Grand Chapter before publication.

A “conference with other members of the commission of Board of Directors” was not held. The Grand Chapter’s order for the Board of Directors to edit the minutes before publication was ignored by Mrs. Burnett.

The Constitution does not provide a definite date for the printing of the minutes and does not provide who shall edit the minutes.

The Grand Chapter, through its highest officers, told Cooksey not to print the minutes. A copy of the letter to Cooksey was sent to Mrs. Burnett.

In our opinion, the Grand Chapter never became obligated to Cooksey. Cooksey seemed to think the same way for he would not proceed with the printing until Mrs. Burnett agreed in writing to be personally responsible for the printing.

The Grand Officers and the Grand Chapter were within their Constitutional authority in the actions they took. There being no contract with and liability to Cooksey by the Grand Chapter, Mrs. Burnett could not make the Grand Chapter liable to her for the printing by obligating herself personally to Cooksey for the payment of such printing.

As an additional reason for affirming the judgment, we hold that J. M. Burnett, in paying the printing bill, was in the position of a volunteer. He was not an officer of the Grand Chapter. He did not sign the above quoted letter to Cooksey in behalf of the Grand Chapter. He signed it as an individual. So far as the record shows, he paid Cooksey with his own money. There is no showing that any of Mrs. Burnett’s money was paid to Cooksey, even if she had been acting for the Grand Chapter.

It is a general rule that money paid with full knowledge of all the facts, and without fraud, deception, duress or coercion, cannot be recovered even though it was paid without consideration. 44 Tex.Jur.2d, p. 740, § 72. The above rule has been applied to various fact situations as in City of Houston v. Feizer, 76 Tex. 365, 13 S.W. 266; Pitts v. Elser, 87 Tex. 347, 28 S.W. 518; Pennell v. United Ins. Co., Inc., 150 Tex. 541, 243 S.W.2d 572; Ward v. Tadlock, Tex.Civ.App., 183 S.W.2d 739; Ladd v. Southern Cotton Press & Mfg. Co., 53 Tex. 172.

Cooksey was paid in full by J. M. Burnett. There are no pleadings or evidence that the other plaintiffs paid any part of the printing bill.

Plaintiff J. M. Burnett paid the printing bill with full knowledge of all the facts, and without fraud, deception, duress or coercion.

The judgment of the trial court is affirmed.

Affirmed.


author: McDONALD, Chief Justice.

text:
    BI-STONE MUNICIPAL WATER SUPPLY DISTRICT, Appellant, v. Stanley M. ERSKINE, Appellee.
    No. 4143.
    Court of Civil Appeals of Texas. Waco.
    June 27, 1963.
    Rehearing Denied July 18, 1963.

      Joe Schultz, Mexia, Stansell Bryan, Waco, for appellant.
    Bradley & Geren, Carl Cannon, Groes-beck, for appellee.
   McDONALD, Chief Justice.

This is a condemnation case. Parties will be referred to as in the Trial Court. Plaintiff Water District instituted this suit for the condemnation for water district purposes, of the surface only of 78.9 acres, out of a tract of 171.3 acres owned by defendant Erskine in Limestone County. Trial was to a jury, which, in answer to issues submitted, found:

1) The reasonable cash market value, per acre, of the 78.9 acres condemned, at the time it was condemned, considered as severed land, was $140.

2) The reasonable cash market value, per acre, of the tract not taken, immediately before the taking, was $140.

3) The reasonable cash market value, per acre, of the tract not taken, immediately after the taking, per acre, was $115.

4) Plaintiff sought to condemn land above the high water mark.

5) The high water mark above sea level on defendant’s land is 455 feet.

6) Plaintiff did not seek to condemn the land above the high water mark, for use as a park.

7) Plaintiff did not seek to condemn the land, above the high water mark, for recreational use.

8) Plaintiff did not seek to condemn the land, above the high water mark, for camp site use.

9) Plaintiff’s Board of Directors acted with clear abuse of discretion in determining that the taking of that part of the tract above the high water mark, was necessary and convenient for reservoir purposes.

10) The reasonable cost of constructing a fence across the severed land is $400.

The Trial Court entered judgment on the foregoing verdict for $11,046 for the land taken, (78.9 x $140.); $2310. damage to the remainder, (92.4 x $25.); and $400. for cost of building fence; making a total of §13,756.

Plaintiff Water District appeals on 25 points, which we have consolidated into 5 contentions.

Plaintiff’s 1st contention is that the Trial Court erred in submitting Issue 1, because the estate being condemned was a “surface estate only”, and such issue, and the evidence, all related to the entire estate, and there was no evidence as to the value of the “surface estate only.”

Plaintiff, in its pleadings, sought condemnation of the surface estate only. The Trial Court submitted the following issue:

Issue 1: “From a preponderance of the evidence what do you find was the reasonable cash market value in Limestone County, Texas, per acre of the 78.9 acres belonging to condemnee, condemned by Bi-Stone Municipal Water Supply District for water reservoir purposes at the time it was condemned, considered as severed land? Answer in Dollars and Cents.” (To which the jury answered $140.).

Plaintiff made no objection to the form of such issue, and did not request the submission of the issue in any different form or manner. Rule 272 Texas Rules of Civil Procedure provides for the preparation of the court’s charge and submission to the respective attorneys, and that all objections not made and presented shall be considered as waived. Rule 273 TRCP provides that either party may present to the judge and request such written instruction and special issues as he desires.

Since plaintiff made no objection to the form of the issue, and requested no explanatory instruction, or other issue, the objection to the issue is waived. Wilson v. King, CCA, Er. Refused, 311 S.W.2d 957.

Plaintiff contends all the evidence related to the entire estate, and that there is no evidence relating to the surface estate only. Condemnation of the surface estate only was sought by plaintiff. The witness Hodges testified:

Q. “What in your opinion would be a reasonable cash market value for the 78.9 acres of land that is being condemned here by this Water District * * * p ”
A. “ * * * $150. an acre * *
The witness Jack Ward testified:
q «* * * I will ask you what, in your opinion, would be the reasonable cash market value of that land on October 20, 1960, the 78.9 acres that they are taking?”
A. “$150.”

The witness Burén Ward testified:

Q. “All right. What in your opinion would be the reasonable cash market value of the 78.9 acres of land on October 20, 1960, that they took for the lake, per acre?”
A. “Well it would run a $100.00 to $150.00 an acre * *

We think the foregoing, being evidence as to the value of the land, "they took for the lake’; land "that they are taking”; and land "being condemned by their water district”, refers to the surface only, and constitutes ample evidence to sustain the finding.

Plaintiff’s 2nd contention is that the jury’s answer to Issue 2 is excessive; and there is no evidence or insufficient evidence to support the jury’s answer to Issue 3. The witnesses Hodge and Ward testified the remainder of the land had a value of $150. per acre before the taking; and that after the taking its value depreciated by ^rds and by ½. We think the evidence ample to sustain the findings.

Plaintiff’s 3rd contention is that defendant’s pleading, "as to lack of authority by plaintiff to condemn above the high water mark,” was a plea in abatement, and that it was not sworn to. Plaintiff raised such objection during the course of the trial, and defendant obtained leave of the Trial Court to swear to such pleading. If such pleading was a plea in abatement, which should have been sworn to, the action of the Trial Court in permitting defendant to swear to same, rendered the matter harmless. In any event, plaintiff does not show that the error, if any, caused the rendition of an improper judgment. Rule 434 TRCP.

Plaintiff’s 4th contention complains of Issue 2, in that it did not set out the number of acres not condemned. Plaintiff says it is impossible to determine what number of acres the jury had in mind. It is undisputed that plaintiff sought condemnation of 78.9 acres out of a tract of 171.3 acres. Plaintiff got the 78.9 acres sought; which leaves 92.4 acres as the remainder not taken. Moreover, the jury’s answer was on a per acre basis. Further, plaintiff did not object to the form of the issue. Rules 272 and 273 TRCP.

Plaintiff’s 5th contention is that Issues 6, 7 and 8 are in conflict with Issue 9. Issues 6, 7 and 8 found that plaintiff did not seek to condemn land above the high water mark for park, recreational, or campsite use. Issue 9 found that the Board acted with clear abuse of discretion in taking the land above the high water mark. We do not think the findings are in conflict; but in any event, since plaintiff sought 78.9 acres and got 78.9 acres, it cannot complain.

All of plaintiff’s points and contentions are overruled, and the judgment of the Trial Court is affirmed.